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State v. Johnson11/6/1997
lonies were punishable by death. Id. at 14. Thus, the common-law felony rule applied to the most severe class of crimes, most of which by definition would pose a threat of harm to an arresting officer or others (e.g., murder, suicide, manslaughter, burglary, arson, robbery, rape, larceny, sodomy, and mayhem). See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive 2.1(b), at 90-91 (1986) [hereinafter LaFave]. The Court also declared:
There is an additional reason why the common- law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety of the arresting officer was at risk.
Garner, 471 U.S. at 14-15. This is clearly not the case today, and as the Garner Court noted, "changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied." Id. at 15.
{10} Thus, the classification of a crime as a misdemeanor or a felony is far different today than in Territorial times, and New Mexico law on warrantless arrests by police officers has reflected this change. While the common-law misdemeanor arrest rule has always restricted warrantless public arrests to offenses committed in the presence of the arresting officer, , historically, there was no such restriction on an officer's authority to make a warrantless public arrest for a felony. Recently, however, our Supreme Court interpreted Article II, Section 10 of the New Mexico Constitution so that warrantless public arrests by police officers for felonies must be supported by both probable cause and exigent circumstances, thus providing additional restrictions and safeguards on the police in apprehending suspects under our New Mexico Constitution. See . As the New Mexico Supreme Court recently reaffirmed in , the additional requirement insures an objectively reasonable procedure to protect the rights of individuals who are suspected of a crime, and we believe our Supreme Court would have the citizen-arrest rule reflect that same policy of objective reasonableness.
{11} After the United States Supreme Court's ruling in Garner, the New Mexico legislature amended NMSA 1978, Section 30-2-6 (1989), thereby limiting the use of deadly force by law enforcement officers. Apparently tracking the Garner opinion, the legislature added subsection 30-2-6(B) which states:
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.
{12} Thus, the legislature has now limited the use of deadly force by police officers, effectively mooting the opinion in Alaniz. It is now clear that under today's standards of "necessarily committed . . . by lawful ways and means," Defendant's actions, if performed by a police officer, would never be tolerated. The remaining question is whether private citizens are permitted to use lethal force when the police, despite their greater training and expertise, cannot.
{13} There is nothing in New Mexico case law that would support such an anomaly. To the contrary, New Mexico case law analyzing analogous situations applies a standard of objective reasonableness. New Mexico has applied the same reasonableness standard to the use of force permitted in a citizen's arrest as that permitted in self-defense: "the privilege of citizen's arrest, as well as
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