A. Homicide is justifiable when committed by a public officer or public employee or those acting by their command and in their aid and assistance:

(1) in obedience to any judgment of a competent court;

(2) when necessarily committed in overcoming actual resistance to the execution of some legal process or to the discharge of any other legal duty;

(3) when necessarily committed in retaking felons who have been rescued or who have escaped or when necessarily committed in arresting felons fleeing from justice; or

(4) when necessarily committed in order to prevent the escape of a felon from any place of lawful custody or confinement.

B. For the purposes of this section, homicide is necessarily committed when a public officer or public employee has probable cause to believe he or another is threatened with serious harm or deadly force while performing those lawful duties described in this section. Whenever feasible, a public officer or employee should give warning prior to using deadly force.

History: 1953 Comp., § 40A-2-7, enacted by Laws 1963, ch. 303, § 2-7; 1989, ch. 222, § 1.

The 1989 amendment, effective June 16, 1989, added the present designation for Subsection A, redesignated former Subsections A through D as Paragraphs (1) through (4) of present Subsection A, and added present Subsection B.

Legislative recognition of common law. — This section and Section 30-2-7 NMSA 1978 are in reality a legislative recognition of the common law which empowered officers to perform their duty of apprehending and bringing felons to the bar of justice. Alaniz v. Funk, 1961-NMSC-140, 69 N.M. 164, 364 P.2d 1033.

Arresting officer to use best judgment. — When the state sends an officer to make an arrest for a felony, he must use his best judgment to make the arrest, peaceably if he can, but forcibly if he must. Alaniz v. Funk, 1961-NMSC-140, 69 N.M. 164, 364 P.2d 1033.

Use of necessary force in making arrest. — An officer having the right to arrest an offender may use such force as is necessary to effect his purpose, to the extent of taking life. State v. Vargas, 1937-NMSC-049, 42 N.M. 1, 74 P.2d 62.

Danger of the suspect. — Under this section the crucial consideration is the conduct and dangerousness of the suspect, not the classification of the crime that he or she has committed or is alleged to have committed. State v. Mantelli, 2002-NMCA-033, 131 N.M. 692, 42 P.3d 272, cert. denied, 131 N.M. 737, 42 P.3d 842.

Use of deadly force. — While this section speaks of justifiable homicide, the appellate court reads it as authorizing the use of deadly force by law enforcement officers whether or not the suspect is ultimately killed. State v. Mantelli, 2002-NMCA-033, 131 N.M. 692, 42 P.3d 272, cert. denied, 131 N.M. 737, 42 P.3d 842.

Reasonableness a jury question. — Generally, the question of the reasonableness of the actions of the officer in using lethal force to apprehend a felon is a question of fact for the jury. Alaniz v. Funk, 1961-NMSC-140, 69 N.M. 164, 364 P.2d 1033.

It is apparent, through the inclusion of "probable cause" in Subsection B, that the reasonableness of an individual police officer's actions is an objective analysis evaluated from his perspective at the time of the incident and is necessarily a factual inquiry. State v. Mantelli, 2002-NMCA-033, 131 N.M. 692, 42 P.3d 272, cert. denied, 131 N.M. 737, 42 P.3d 842.

Self-defense authorized. — A self-defense instruction is required whenever a defendant presents evidence sufficient to allow reasonable minds to differ as to all elements of the defense; this is also the standard that should be applied when determining if the jury should be instructed on justifiable homicide by a police officer in accordance with this section. State v. Mantelli, 2002-NMCA-033, 131 N.M. 692, 42 P.3d 272, cert. denied, 131 N.M. 737, 42 P.3d 842.

Although an officer must not kill for an escape where the party is in custody for a misdemeanor, if the party assaults the officer with such violence that he had reasonable ground to believe his life in peril, he may justify killing the party. State v. Vargas, 1937-NMSC-049, 42 N.M. 1, 74 P.2d 62.

Large rocks, hurled by misdemeanant at deputy sheriff in resisting arrest, were dangerous weapons, justifying resort to extreme measures on part of deputy. State v. Vargas, 1937-NMSC-049, 42 N.M. 1, 74 P.2d 62.

Duty not to retreat. — In a wrongful death suit, where the evidence showed that decedent committed at least two felonies in the presence of police officers, the officers' duty, when he fired upon them, was not to retreat but to press forward and place him under physical restraint, and, in so doing, the officers could defend themselves and use deadly force if such were justified by the circumstances. Cordova v. City of Albuquerque, 1974-NMCA-101, 86 N.M. 697, 526 P.2d 1290.

Instruction appropriate. — Officer charged with killing one resisting an arrest for felony was entitled to have jury instructed as to what constitutes justifiable homicide. Territory of New Mexico v. Gutierrez, 1905-NMSC-018, 13 N.M. 138, 79 P. 716.

Law reviews. — For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 40 Am. Jur. 2d Homicide §§ 121, 134 to 137.

Misdemeanor, degree of force that may be employed in arresting one charged with, 3 A.L.R. 1170, 42 A.L.R. 1200.

Peace officers' criminal responsibility for killing or wounding one whom they wished to investigate or identify, 18 A.L.R. 1368, 61 A.L.R. 321.

40 C.J.S. Homicide §§ 104 to 107.