Threat of bodily harm and trespassing in NM

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SlackwareRobert wrote:

He has company property? Why not call the sheriff and have the stuff picked
up by them? Give them a list of items, and let the system work for you.
For the threats, get a recorder. That they have a record of you trying
to trespass, and him threatening you should help when they come to collect
the corpse on the lawn though.

That does seem strange that you can't trespass someone till after they trespass.
I'll have to remind wall mart of that one when they stop me at the door.:shock:

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But, if he has received threats, he should be able to get a Restraining Order against him.

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Im just glad I could educate people. (*goofy sarcasm*) But definately not going to do that again. But I don't think I'm gonna have to. Since my brother moved i have had no contact from any of his uncouth friends. And my brother has really turned his life around. I guess this is where we would put "and they all lived happily ever after." Funny thing tho... I did some training as a sheriff reserve, they told me that as long as i felt my life was in danger of "death or great bodily harm" I was authorized to use deadly force. Guess that only applies to those with a badge, huh?

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It seems like knowledge of NM trespass law might be helpful in such situations, if applied proactively.

http://law.justia.com/newmexico/codes/nmrc/jd_30-14-1-8389.html

"30-14-1. Criminal trespass. A. Criminal trespass consists of knowingly entering or remaining upon posted private property without possessing written permission from the owner or person in control of the land."

"B. Criminal trespass also consists of knowingly entering or remaining upon the unposted lands of another knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof. Notice of no consent to enter shall be deemed sufficient notice to the public and evidence to the courts, by the posting of the property at all vehicular access entry ways."

I'm no lawyer, but this means of notification should be adequate to establish that a person is trespassing providing the proper sign is used (I'll leave it to someone else to research the sign specifics, which are important.) I expect that notification by registered, recorded delivery mail that entry is prohibited would reinforce one's position with respect to a specific person.

If an unauthorized person passes the sign, a peace officer can force him to leave, and one should have sufficient grounds for prosecution, because the sign is evidence that the trespasser has been notified.

In the case of shared ownership or occupancy, I expect that an adequate written agreement between the co-occupants would be sufficient to delineate a boundary that one could post and legally defend.

I think one can also sign a complaint at the sheriff's office of a threat, even though they cannot do anything about it without evidence. That complaint is somewhat equivalent to being the first to make the telephone call. NOW you can say that the person who is on file as having threatened you is trespassing on your property.

You still cannot make the fundamental mistake of drawing on an (apparently) unarmed trespasser in NM unless you can articulate a reasonable basis for fear of imminent death or serious injury, but you are in a much stronger position to articulate that fear.

It would be interesting to get a legal take on this.

C

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Thanks for the post. It sort of seems to amount to what the sheriff's deputy told me over the phone. This thread got hijacked for a while so I haven't checked it in a while.

I think our trespassing law in NM needs revision.

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Personally, I would not depend on what the sheriff's deputy told me. As has been said many times, they are no more legal experts than I.

If a crime has been committed, and there is evidence of it, they should be able to act. In my previous post I outlined how to show that a crime (trespass) HAS been committed.

Obviously the sheriff's office can't do much if you only alledge a crime has been committed. In many states, including NM, if you order a person to leave your unposted property, they must do so. But you can't take action against them because no crime has been committed. If they refuse to leave, they are now trespassing, but how are you going to prove you ordered them to leave earlier? In this circumstance if you call the sheriff & he shows up, you can tell the person to leave in front of the sheriff. This act is known as "trespassing" the intruder.

NOW, if the person shows up on your property again, the sheriff can act, because the order to "keep off" has been documented. This may be what your sheriff's office was referring to.

The fact that the person has made undocumented (or documented) threats in the past is irrelevant to trespass or to use of deadly force, except that if documented it may help to establish premeditation in court. You can defend yourself to the extent NM law permits in general.

So it is better to post your property and call the sheriff to handle any trespass that arises, rather than to confront (in particular) a known threat. It's a variant of the rules that being armed does not make it wise to go to unsafe places, and that carrying a weapon does not mean that one should use it, except as a last resort under specifically defined circumstances permitted by law. A trespasser has the same rights to life and liberty as anyone else who you think MAY be a threat (like it or not) as desert-prospector pointed out in his quote from the NM Bill of Rights; and although that same Bill allows you to protect your property, it does not address the means to which you are restricted in doing so by law (and certainly does not endorse use of deadly force for the purpose).

I'm not a lawyer as I said before, and I'm not sure how the NM law could be changed to make it more satisfactory, given that a person must be able to know when he is trespassing, and that his knowledge AT THE TIME must be demonstrable in court.

Patrolling one's property armed is thus futile, except to provide last-resort defense, much as one might find that reality distasteful. And it might work to one's disadvantage, because it opens the door to accusation of premeditation, in the event shots are exchanged.

C

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cgraham wrote:

And it might work to one's disadvantage, because it opens the door to accusation of premeditation, in the event shots are exchanged.

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I've often wondered if this argument really makes sense.

We all 'pre-meditate' scenarios, and we practice. It would be irresponsible not to.

What's so bad about 'pre-meditated' self-defense? Are we all to never think about how and why we might use a gun until it is too late? It almost seems like a thought crime argument. "Did you ever think about how you might use your gun defensively prior to this incident?" "Uhm, yeah, of course!"

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Ixtow, there is nothing wrong with pre-meditation as you described it, although the usage seems a little forced. I used the legal term "premeditation", when it might have been clearer if I had said "premeditated homicide", actual or attempted.

Thinking in the abstract about how you would handle a scenario that requires you to employ potentially lethal self-defense is not at all the same thing as "premeditation" as in "premeditated homicide" in the legal sense. In the latter case there is a preconceived intent to actually kill the victim. This is quite different from spontaneous defense against an unexpected attack, even though you may employ strategies which you have contemplated and trained in for self defense against hypothetical assailants and which result in an actual assailant's death (justifiable homicide).

It is when there has been previous friction with the assailant, who is therefore known to you, that thoughts of premeditated murder enter the head of DAs, and lead to trial lawyers attempting to sway the jury with rhetorical questions like "So because of a quarrel with Mr. X over entry to your property, you decided to patrol it with a loaded gun in the hope of catching Mr. X trespassing, giving you an excuse to murder him?" In such circumstances it may be difficult to prove that it was in fact Mr. X who first acted so as to put you in fear of imminent death.

I need not remind you that the goal of self defense is always to "stop the threat", not to kill. If you set out to kill and succeed, that is murder, and if you admit your intent, you would probably be tried for premeditated homicide. Woe betide if you were heard boasting that if Mr. X attacked you, you would kill him in self defense: now there is definite evidence of premeditated murder which will certainly severely taint a defense of justifiable homicide.


I will modify my statement that patrolling one's land is futile: it may be useful to establish that a trespass is taking place, but best let the Sheriff handle matters if the person is known to be a threat, partly because of the above scenario.


Other points regarding trespass in NM:

I have read that armed trespass is a 4th degree felony, but cannot find the statute again. Unarmed trespass is a misdemeanor.

Here are the No Trespassing Posting requirements for NM, including sign details.
http://www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main-hit-h.htm&2.0

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The answer to the OP's question is the following NM statute:
http://www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main-hit-h.htm&2.0

30-14-1. Criminal trespass.

A. Criminal trespass consists of knowingly entering or remaining upon posted private property without possessing written permission from the owner or person in control of the land.

So, legally post your land (as described above); The sheriff can then be called to immediately evict the person, and you should be able to demand prosecution for criminal trespass.

I don't see anything wrong with this picture.

C