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State v. Johnson11/6/1997
previously discussed, we are not unmindful of the fact that at almost every opportunity our appellate courts have interpreted the law in similar situations to require an underlying standard of objective reasonableness as a predicate to the use of lethal force. In our view, this is what the legislature contemplated, at a minimum, when it qualified "necessarily committed" by the phrase "lawful ways and means." While we do not need to decide whether the phrase encompasses the entire definition of "necessarily committed . . . by lawful ways and means" set forth in Section 30-2-6(B), it does include the notion of proportionality precipitated by an apprehension of death or serious bodily harm which is part of objective reasonableness and which, in turn, makes the force "lawful" under Section 30-2-7(C).
{22} Defendant argues that because the legislature amended Section 30-2-6 to include a definition of "necessarily committed . . . by lawful ways and means," we should use the process of negative inference to reason that the absence of a definition in Section 30-2-7(C) was intentional. See . Thus, Defendant contends, the legislature intended the phrases "necessarily committed" and "by lawful ways and means" to permit whatever is necessary mechanically to apprehend a fleeing felony suspect. Such an argument renders the phrase "by lawful ways and means" superfluous. We have always rejected an interpretation of a statute that would make parts of it mere surplusage or meaningless. See . It is this Court's role to construe ambiguous language and to give it sensible construction. See ); see also Singer, supra, 51.03, at 140-41 (" n construing an ambiguous enactment it is held proper to consider . . . acts passed at prior and subsequent sessions."). Only Section 30-2-7(C) qualifies permissive use of force by the condition of "lawful ways and means"; Section 30-2-6 applying to law enforcement officers does not. It is simply irrational, as well as counter-intuitive, to conclude that the legislature could have used this kind of language to signal a wider latitude for private citizens in the use of deadly force than for law enforcement personnel.
OTHER STATES
{23} New Mexico surely does not stand alone in narrowly confining the use of force to stop a fleeing felon by lawful ways and means. Case law from Arizona supports the view that the use of lethal force in attempting a citizen's arrest should be restricted to felonies that reasonably create a fear of great bodily injury . See, e.g., State v. Olsen, 760 P.2d 603, 609 (Ariz. Ct. App. 1988); State v. Barr, 565 P.2d 526, 530 (Ariz. Ct. App. 1977). In Barr, the Arizona Court of Appeals observed that "serious inroads have been made in the authority of private persons to use deadly force to effect an arrest and that the law no longer allows a private person to use deadly force to arrest for every felony." 565 P.2d at 530. At the time of the Barr decision, the relevant Arizona statute, similar to New Mexico's, authorized lethal force "when committed by a person necessarily in attempting, by lawful ways and means, to apprehend a person for any felony committed.'" Id. at 529 (quoting former A.R.S. 13-462(4)). In that case, the defendant fatally shot a teenager stealing a chair, and the court of appeals affirmed the trial court's refusal to instruct the jury on the defense of justifiable homicide.
Barr, 565 P.2d at 530-31.
{24} In the more recent case of Olsen, 760 P.2d at 609, the Arizona Court of Appeals again upheld the trial court's refusal to instruct the jury on the defense of justifiable homicide, noting that the decision of the Barr court was strengthened by the United States Supreme Court's decision in Garner. In Olsen, the
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