New Mexico Retreat Law Reviewed in Light of the Trayvon Martin Case

The Trayvon Martin case has placed the spotlight on Florida‘s “stand your ground” law and has given rise to heated debates about whether these kinds of laws encourage vigilantism and allow guilty individuals to get away with murder.

Stand your ground laws essentially state that a person who reasonably believes themselves to be threatened with death or serious bodily injury may use force to defend him or herself, even if there is an available and viable way to retreat. In states that do not have stand your ground laws, an individual who is attacked has the duty to retreat and can only use deadly force when retreat is not possible.

More than half of U.S. states have some type of stand your ground law. New Mexico is among them. The particular elements and requirements of stand your ground laws differ from state to state.

The New Mexico stand your ground law differs somewhat from the Florida law currently at issue. According to the New Mexico stand your ground law, “A person who is threatened with an attack need not retreat. In the exercise of his right of self defense, he may stand his ground and defend himself.” While a person in Florida must have a right to be at the location where the altercation takes place, in New Mexico a person merely needs to be “threatened with attack.”

However, this does not mean that there are not very significant risks associated with exercising the right to stand one‘s ground. In addition to possible very serious criminal charges, a person found to have acted wrongly would be looking at significant personal liability for personal injury and wrongful death claims.

For a defendant to avail himself of the stand your ground provision as part of a self-defense argument in New Mexico, a court typically considers whether the defendant was acting in self-defense in the first place. In New Mexico, a defendant who kills another in self-defense while standing his or her ground must show that he or she (1) was placed in reasonable fear of immediate death or great bodily harm, (2) used a reasonable amount of force to avoid the threat, and (3) did not instigate the encounter.

Under New Mexico law, the defendant‘s perception of the threat must have been reasonable. Armed pursuit of an individual through a dark neighborhood does not show reasonable fear or perception of threat. On the contrary, armed pursuit may show absence of fear. Additionally in New Mexico, a person using self-defense may not use more force than is reasonably necessary to evade the threat. For example, shooting an unarmed individual during a fistfight will generally be considered using more force than is reasonably necessary. Likewise, beating someone to a pulp following an initial threat would probably raise possible problems as well.

A defendant who, as alleged in the Florida case, voluntarily pursues, confronts, or in any way instigates the altercation may not then claim they were acting in self-defense or standing their ground. Similarly, a defendant will not be permitted to use a self- defense/ stand your ground defense if the other person tried to de-escalate or defuse the situation and the defendant failed to relent.

In short, the right to stand one‘s ground is not a blanket defense to criminal charges. And such behavior may fare even worse in civil court in a personal injury lawsuit where the burdens of proof are far less than the high criminal burden of beyond a reasonable doubt.

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