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State v. Mantelli1/29/2002
rce by a police officer. And, as previously stated, this factual and situational inquiry explores the definition of "reasonableness" under the Fourth Amendment and is generally, but not always, a matter for the jury. Johnson, 1998-NMCA-019, 16.
For example, one could foresee situations in which a police officer, even though not himself in immediate danger, might be justified in using deadly force to prevent a dangerous felon from evading capture and threatening serious harm to others outside the immediate scope of activity. A police officer shoulders that responsibility as part of his duty to protect the public. A private citizen's privilege, on the other hand, would be more narrowly contained to the immediate threat posed to the citizen and others in the immediate vicinity. This is one way in which the ordinary self-defense instruction simply does not convey the breadth of the use-of-deadly-force privilege that accompanies a police officer.
Another example lies in Instruction 17 given by the Court at the request of the State. It states,
Self-defense is not available to the defendant if he was the aggressor unless;
(1) The defendant was using force which would not ordinarily create a substantial risk of death or great bodily harm; and
(2) Abelino Montoya responded with force which would ordinarily create a substantial risk of death or great bodily harm.
Private citizens ordinarily may not be the aggressor and then claim self-defense. Police officers, however, sometimes may have a lawful duty to be aggressors in the course of fulfilling their responsibilities to the public. It very much depends on the facts and circumstances of a given case. Instruction 17, while appropriate to ordinary self-defense, creates a fatal inconsistency as applied to the privilege of police officers. That is one more reason why the instruction on self-defense falls short of defining the privilege available under law to police officers.
Given these differences, we find it curious that the trial court could conclude that there was sufficient evidence to support a jury instruction on self-defense and defense of another, with its heightened requirements that the danger being threatened be grievous and immediate, but not enough to support an instruction on justifiable homicide. To the contrary, there may be situations of justifiable homicide applicable to a police officer that would not fit comfortably within the confines of ordinary self-defense and defense of another as applied to the public at large.
We recognize that in this particular case the only harm allegedly threatened to Defendant and his partner was "immediate." That is, Defendant was not claiming a privilege to use deadly force to defend against any later, non-immediate threat. Thus, it might be argued that in this particular case the justifiable homicide instruction, as applied, was no broader than the ordinary self-defense instruction. We are not persuaded, however, that the error in rejecting Defendant's instruction can be so easily explained away. Either expressly or tacitly, rejection of the justifiable homicide instruction stripped Defendant of a defense uniquely applicable to police officers and others similarly situated. That rejection placed Defendant in the smaller shoes of an ordinary citizen. Yet the circumstances in which Defendant found himself and which provoked his shooting of Montoya, were anything but the circumstances of an ordinary citizen.
Whether reversal is required is a close question. The error was preserved and the Court as a whole agrees that there is evidence supporting the justifiable homicide instruction. Thus, Defendant
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