New Mexico’s problem with aggravated assault and abduction
By now you may have heard about the vigilante goon squad in New Mexico that “detained” approximately 300 people.
As usual, I’m no attorney. I don’t even play one on the teevee. As it happens, I did just recently start working in the field and I’m learning as I go. Sadly, that’s still more than the average American disinformation consumer can claim. I first spotted the story last night. I was appalled, as I think any person of basically decent character should be. Commenters on that news appeared to agree. “This is abduction, plain and simple!” went the refrain.
I don’t believe them to be mistaken. That doesn’t keep it from being a rush to judgment. For the act to be abduction, first it has to not be some other kind of act, an act that the goon squad undoubtedly believes to be a legal one. They’re only “detaining,” after all. They did take the “detainees” to the Border Patrol. Border Patrol dutifully relieved the goons of their burden. End of story.
Or is it?
See, there’s a thing called citizen’s arrest. Are you familiar with the details of it? Me neither. A quick skim last night over a FindLaw article on the subject gave me a decent top-down view, but also indicated something obvious. The statutes governing citizen’s arrest are state laws, ergo, they vary from state-to-state. Typically the act is restricted to commissions of felonies. Sometimes, maybe, it can include misdemeanors, but only when there’s a breach of the peace.
So let’s take a little look at the law in New Mexico, since that’s the jurisdiction in question.
Oh, wait. There is no citizen’s arrest statute in New Mexico. Instead, it’s treated as a matter of Common Law, as illustrated by a judge in 2011.
On that basis, let’s look at this phrasing from a different case, Hernandez v. Fitzgerald, 2019 U.S. Dist.
Neither Plaintiff nor Defendant Fitzgerald addressed the definition or standard for a citizen’s arrest in New Mexico. In New Mexico, “[a]ny person . . . may arrest another upon good-faith, reasonable grounds that a felony [emphasis added by author] had been or was being committed, or a breach of the peace [emphasis added by author] was being committed in the person’s presence.” State v. Arroyos, 2005-NMCA-086, ¶ 5, 137 N.M. 769, 115 P.3d 232 (citing State v. Johnson, 1996-NMSC-075, ¶ 18, 122 N.M. 696, 930 P.2d 1148), overruled on other grounds by State v. Slayton, 2009-NMSC-054, 147 N.M. 340, 223 P.3d 337. A breach of the peace is considered “a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.” [*17] State v. Florstedt, 1966-NMSC-208, ¶ 7, 77 N.M. 47, 419 P.2d 248.
The question then becomes whether Defendant Fitzgerald reasonably believed that Plaintiff breached the peace. The parties agree that Plaintiff did not engage in any act of violence prior to the scuffle with Defendant Fitzgerald. Therefore, for Plaintiff to have breached the peace, Defendant Fitzgerald would have to reasonably believe that Plaintiff’s actions were “likely to produce violence.” Florstedt, 1966-NMSC-208, ¶ 7. Defendant Fitzgerald does not assert that he believed Plaintiff’s actions were likely to produce violence prior to engaging Plaintiff in a physical altercation. Also, viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that Plaintiff’s filming and speaking to Defendant Fitzgerald did not cause “consternation and alarm” so as to disturb the peace. Defendant Fitzgerald [*18] cited no authority or other evidence to suggest that a public employee, not a law enforcement officer, remains entitled to the benefit of the doubt after he initiates an altercation that was debatably unlawful. The above situation constitutes a genuine issue of material fact relevant to probable cause to arrest and to a good faith reasonable belief best reserved to the jury, and precludes summary judgment on the basis of qualified immunity.
While the news and commentariat wrestle with all manner of other issues, I’m left wondering things that I haven’t really seen addressed yet. Is the Border Patrol in New Mexico aware that illegal entry across the border is only a misdemeanor? Are they aware of this Common Law approach to citizen’s arrest? Did they address whether or not the abductors were exposed to a breach of the peace? Is there “community” in the desert wilderness? What would even constitute breaching the peace under those circumstances?
Upon hearing of the news, is there no local enforcement capable of concluding that the news constitutes probable cause for an investigation into this abduction? Where are they? How about county LEOs? State? I mean, shouldn’t someone give Attorney General Hector Balderas a refresher course? For that matter, since abduction is clearly covered under the Federal Kidnapping Act, where are the feds? Shouldn’t the FBI be investigating and then indicting?
Categories: Crime/Corruption, Politics/Law/Government
Any person arrest is covered by NM 31-4-14: arrest without a warrant
First, thank you. Usual caveat: I’m still no attorney, so I can’t swear I’ve got this 100% right and I look forward to an attorney commenting to provide clarification. But I feel like I’ve got pretty good odds. I just finished reading NM 31-1, 31-1A, 31-2, 31-3, 31-3A, and 31-4, the section your citing from on Extradition. As I’m reading it, the first reason the citation doesn’t seem to apply is because we’re not talking about a case of extradition here. No knowledge presented thus far indicates that any governor in any other state (where “state” is defined as NM defines it) has issued an extradition orders for any of the specific persons of the group of about 300 persons detained by the vigilantes. Without an extradition order, it’s not a matter of extradition, ergo, this citation doesn’t seem to apply. Taken in context, it would seem that this entire section has more to do with the arrest of individuals by bondsmen and maybe bounty hunters…people actively seeking to apprehend those with known charges against them as brought in court.
Even if it did, there’s the text of the citation to consider. I’ve pasted it here from Lexis-Nexis, which gets the citation from Michie’s ™ Annotated Statutes of New Mexico, Bender, 2019. [I don’t do proper citations yet, alas.]
“The arrest of a person may be lawfully made also by any peace officer or a private person without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in the preceding section [31-4-13 NMSA 1978]; and thereafter his answer shall be heard as if he had been arrested on a warrant.”
Even were a private person thus empowered to make an arrest, it must be upon reasonable information that the accused stands charged in the courts of a state…
There’s a lot there to unpack.
“Accused” means a specific thing in the ASNM. From 31-1-2, “Definition,” “accused” means any person charged with the violation of any law of this state…”
So there must be reasonable information (of note: not suspicion, but information] that the “person charged with the violation of a law of this state…” and we haven’t even gotten to the qualifications on that last phrase. First, the vigilantes would have had to have information, not suspicion, that, of the 300 persons, any given individual person in that group had been charged with the violation of a law of New Mexico. We have been provided no information that should lead us to believe that the vigilantes had received any such information that any of the specific individuals they seem to have unlawfully detained have had charges levied against them by any state. Should this citation be appropriate, which I don’t think it is, the vigilantes failed the very first test of the statute, ergo, the “arrests” were made unlawfully. This was a group of about 300 people. As I see it, that’s ~300 counts of unlawful arrest [or some equivalent] that the vigilantes should be charged with.
But let’s look at that qualification on “charged in the courts of a state…” It’s when any given individual (because charges are levied against individuals, not groups) is charged “with a crime punishable by death or imprisonment for a term exceeding one year.” We have provided no evidence at all that any of the 300 abductees had charges against them in any state, much less that the charge was for a crime punishable by death, or for a crime punishable by imprisonment for a term exceeding one year.
The armed vigilantes appear to have operated on no information of any particular such charges against any specific individuals in the group and proceeded to coerce the group of nearly 300 people to act against their will. Nothing about the detention of the individuals in that group appears to be lawful.
Worse, even had the armed vigilantes gotten those first two pieces right, which they evidently didn’t, and which is still probably beside the point, the vigilantes would have been required to take the group forthwith, not to the Border Patrol, but before a judge or a magistrate. That did not happen. Had they done that, they would have been required to register their complaints against each member of the detained group setting forth the grounds for the arrest as per 31-4-13, which basically boils down to treating it from that point as though the arrest had been made as with a warrant.
As I dug through all this, about the only thing I could find that almost lines up well with the armed vigilantes taking the group to the Border Patrol, is that maybe they were enable to “command the aid,” but on reading 31-4-8, that seems to fall about at least as badly as using 31-4-14.
I appreciate the challenge, but I’m fairly certain nothing in 31-4-14 passes the test here. All I see is a group of armed hooligans, however delusional their “justifications” may be, committing ~300 counts of something like aggravated abduction, to which every authority in New Mexico appears to be turning a blind eye. If it’s not aggravated (weapon used in commission of crime) abduction (or whatever one wants to call kidnapping), it still seems to be ~300 counts of something unlawful.
Since they don’t seem to have been lawfully empowered to engage in the violent detention of 300 individuals, at least there’s a few things it looks like they didn’t do, and maybe a lengthy list of other things they must logically have done. The more I look at this, the more I think NM’s AG, and possibly other authorities, are derelict in their duties to investigate the apparent unlawful activities of this band of armed vigilantes.
In their defense, the armed vigilantes don’t actually appear to be guilty of kidnapping under 30-4-1:
“Kidnapping is the unlawful taking, restraining, transporting or confining of a person, by force, intimidation or deception, with intent: (1) that the victim be held for ransom; (2) that the victim be held as a hostage or shield and confined against his will; (3) that the victim be held to service against the victim’s will; or (4) to inflict death, physical injury or a sexual offense on the victim.”
As for false imprisonment, it looks like the armed vigilantes best defense is that they are idiots, insofar as they don’t seem to have knowledge that they had no such lawful authority. According to 30-4-3:
“False imprisonment consists of intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so.
Whoever commits false imprisonment is guilty of a fourth degree felony.”
I have little doubt that a close read of Chapter 30, Criminal Offenses, would turn up a goldmine of things these armed cretins did illegally.
Assault seems likely: “any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery”
Aggravated assault seems likely, since some of the goons were masked: “committing assault by threatening or menacing another while wearing a mask, hood, robe or other covering upon the face, head or body, or while disguised in any manner, so as to conceal identity”
Insofar as no lawful purpose was served, harassment may apply: “Harassment consists of knowingly pursuing a pattern of conduct that is intended to annoy, seriously alarm or terrorize another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress”
For that matter, I’d be curious to know if there’s any evidence of those carrying firearms being under the influence at the time, as negligent use of a deadly weapon may have been involved: “carrying a firearm while under the influence of an intoxicant or narcotic”
Under 30-20-1, one might argue there was disorderly conduct involved, especially if one considers that false imprisonment is considered a violent crime by virtue of its coercive nature, ergo, armed, coercive behavior could readily been seen as violent. I’m certain the unlawfully detained group felt that their peace was disturbed. “engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace”
Unlawful assembly may fit the bill as well under 30-20-3, insofar as three or more had gathered to commit an unlawful act. Unlike the provision on false arrest, it’s not required that they know the act they set out to perform is unlawful: “Unlawful assembly consists of three or more persons assembling together with intent to do any unlawful act with force or violence against the person or property of another, and who shall make any overt act to carry out such unlawful purpose”
The comment is for above commentator who did a lot of research however is forgetting one thing. The group is not allowed to take forth the groups under arrest. Whether it’s only one or three hundred. There is a “legal” process for that which must include “law enforcement”, as “Law enforcement” are the ones who take custody. (Arrest reports, liabilities, etc are all on the citizen.
LE must write the reports based upon the citizens allegations. It’s how the law is written is why the writer wrote what he/she did regarding having the responsibility of taking them to a magistrate as soon as possible. That element was complied with.
Not knowing the various statutes of this state I am a believer in the “citizens arrest” law, that most every state has. However, this according to what other’s have placed upon this site appears there is no probable cause for arrest as, they are not “known” felons as it’s only a misdemeanor to enter this nation illegally. There is always room for legislative change however and if we had legislators with courage, the statute would be written to accommodate this serious invasion of our nation. Personally, I think they all should be turned away using “use of force” including that of deadly weapons, as. we do not know who is entering this nation and I am sure some of them are “Isis” members. We will find the fruits of this when it happens again. What’s the other resolutions. There havent been any thus is why we are being invaded.
To the best of my knowledge we have no evidence that any Isis members have entered the country this way. Nor have I seen credible suspicions to that effect.
Mercifully, you’re “sure” of it.
I’ve seen absolutely nothing about the people who were unlawfully apprehended being taken before a magistrate, and if that was not the case, then no, that element of 31-4-14 was not complied with, which remains beside the point because there’s nothing I’ve seen that indicates that 31-4-14 even applies because it’s about extradition.
They were taken to Border Patrol, which is entirely different. I’ve seen nothing about the Border Patrol then taking them to a magistrate. Had they been taken before a magistrate, it seems from the foregoing research that the magistrate’s prime responsibility at that moment would be to determine whether the arrest had been done lawfully, at which point they would either have been remanded into custody or set free.
As indicated by Judge Malott in the article at the Albuquerque Journal linked above, there is no statute covering citizen’s arrest in NM (unless one has been passed into law since 2011). It falls under Common Law. I quote:
“In New Mexico, so long as the arrestor had a reasonable subjective belief that such a crime had been committed, the privilege could apply even if the belief was factually incorrect or the arrestee was later found innocent of the charge. The arrestor must use no more than reasonably necessary force in effecting the detention, however, or he may be liable for either civil damages, criminal consequences or both. Conduct which violates our criminal statutes, such as assault, battery and false imprisonment, may also result in liability for civil damages under tort law or personal injury law. Crimes are prosecuted by the state while damages for torts are brought by the individual.”
In regards to the phrase “such a crime,” “New Mexico has no statute on citizen’s arrest. Instead, our courts have continued to recognize the Common Law concept, ruling that a private citizen can detain a fellow private citizen when there is at least probable cause to believe that the fellow citizen has committed a felony-level crime or a breach of the peace in his presence.”
It could very well be that under Common Law in NM, maybe the use of force wasn’t considered excessive, but what I find problematic is the qualification that the arrestor needs to have a “reasonable subjective belief” that such a crime (felony or breach of peace) had been committed. It seems to me that a reasonable person set an play-acting as an LEO might reasonably be expected to know, with a certainty, whether the particular behavior they are “policing” is a misdemeanor or felony. That information is easy enough for a reasonable person to acquire either by picking up the phone or looking on the internet. Should a reasonable person do so, they would find out that unlawful border crossing is a misdemeanor and that merely being present in the country without documentation is only a civil matter. There is no reasonable basis of which I am aware for these armed hooligans to have suspected anything felonious.
As to your desire for a change in the state’s law, that’s entirely your right. Maybe those on the side of hooliganism in New Mexico will see the wisdom of your ways. After all, what you are proposing is that, faced with non-violent people committing mere misdemeanors, armed, legally-ignorant, and untrained yahoos should have some legal right to repel them using deadly force. Your Alex Jones-flavored paranoia of ISIS is actually rather ironic, as you had just conceded the point about there being no probable cause as there were no known felons, but here you are, thought-policing human beings.
Life must be rough to be this terrified of so little all the time as to advocate for thought policing and the repulsion of misdemeanants using deadly force.
The attitude in this comment is not particularly compassionate, humane, nor American. In fact, advocating the use of firearms to repel refugees and immigrants, of which the United States is entirely comprised, is about the most un-American goddamned thing I’ve heard in quite some time.
And with Trump in the White House, that’s saying something.
As to Common Law, I want to go back to a quote: ““New Mexico has no statute on citizen’s arrest. Instead, our courts have continued to recognize the Common Law concept, ruling that a private citizen can detain a fellow private citizen when there is at least probable cause to believe that the fellow citizen has committed a felony-level crime or a breach of the peace in his presence.”
A private citizen (let’s say, armed hooligan with a persecution complex, so long as said paranoid hooligan is a US citizen) can detain a fellow private citizen.
Oops. Were the unlawfully detained people fellow private citizens? More simply, were they any kind of citizen at all, fellow or private? No. Could it then be that even Common Law doesn’t apply?
I would really love it if an actual attorney were to weigh in. I’m pretty good at splitting hairs, and so far the points raised in defense of hooligans don’t appear to hold any water.
Worse, I see nothing to exonerate those in power from dereliction of duty insofar as they let these hooligans walk free to continue terrorizing others.