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?