A. Battery upon a peace officer is the unlawful, intentional touching or application of force to the person of a peace officer while he is in the lawful discharge of his duties, when done in a rude, insolent or angry manner.

B. Whoever commits battery upon a peace officer is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-22-23, enacted by Laws 1971, ch. 265, § 4.

Cross references. — For battery, see 30-3-4 NMSA 1978.

Lesser included offense. — Resisting or abusing a peace officer is a lesser included offense within battery on a peace officer under the Blockburger test. State v. Ford, 2007-NMCA-052, 141 N.M. 512, 157 P.3d 77, cert. denied, 2007-NMCERT-004, 141 N.M. 569, 158 P.3d 459.

Lawful discharge of duties. — An officer detaining a person without legal authority other than the bare fact of the officer's employment as a peace officer is not in the lawful discharge of the officer's duties. State v. Phillips, 2009-NMCA-021, 145 N.M. 615, 203 P.3d 146, cert. quashed, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.

The statutory requirement that the victim have been a peace officer in the lawful discharge of the officer's duties has two components: (1) whether the officer was discharging the officer's duties and (2) whether the officer's discharge of the officer's duties was lawful. State v. Phillips, 2009-NMCA-021, 145 N.M. 615, 203 P.3d 146, cert. quashed, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.

Where the defendant was intoxicated to the point that the defendant was stumbling and unable to keep his balance; the defendant admitted the defendant had been drinking and gave off a strong odor of alcohol; the officer did not believe there was probable cause to arrest the defendant for any crime; the officer was concerned that the defendant's intoxication made the defendant a threat to the defendant or to others the defendant might encounter; the officer placed the defendant in the officer's patrol car for the purpose of driving the defendant to the defendant's home; and the defendant became angry and punched the officer, the officer was acting in the lawful discharge of the officer's duties because the officer had probable cause to believe that the defendant was unable to care for himself and the officer was acting within the officer's actual authority under Section 43-2-2 NMSA 1978 of the Detoxification Reform Act to detain the defendant. State v. Phillips, 2009-NMCA-021, 145 N.M. 615, 203 P.3d 146, cert. quashed, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.

Constitutionality since act coupled with words. — Where a defendant coupled his rude, insolent, or angry remarks with force upon a police officer, the jury could properly find defendant guilty of battery upon a police officer. Thus the statute is not vague or overbroad. State v. Cruz, 1990-NMCA-103, 110 N.M. 780, 800 P.2d 214, cert. denied, 110 N.M. 749, 799 P.2d 1121.

Intent required to sustain conviction under this section is that of conscious wrongdoing. Rutledge v. Fort, 1986-NMSC-017, 104 N.M. 7, 715 P.2d 455, overruled on other grounds by Reese v. State, 1987-NMSC-079, 106 N.M. 498, 745 P.2d 1146.

Knowledge that victim is peace officer. — Defendant's knowledge as to the identity of the peace officer assaulted is a necessary element of the crimes defined in 30-22-22 NMSA 1978 and this section. State v. Nozie, 2009-NMSC-018, 146 N.M. 142, 207 P.3d 1119; Reese v. State, 1987-NMSC-110, 106 N.M. 505, 745 P.2d 1153.

To deny the defendant the right to have the jury informed as to his knowledge of the identity of police officer he assaulted would be to deny him the right to have the jury apprised of a necessary element of the crime for which he is charged, and that in turn would be to deny him his constitutional guarantee of due process of law. Reese v. State, 1987-NMSC-110, 106 N.M. 505, 745 P.2d 1153.

Instruction concerning knowledge. — An instruction regarding a defendant's knowledge that the victim is a peace officer is necessary only when defendant raises lack of such knowledge as a defense to the charge and there is evidence that the defendant acted without knowing that the victim was a peace officer. State v. Hilliard, 1988-NMCA-066, 107 N.M. 506, 760 P.2d 799, cert. denied, 107 N.M. 468, 760 P.2d 160.

This section and 30-22-17 NMSA 1978 relate to two different crimes. — Although it is possible for the same set of facts to fall within the ambit of this section and 30-22-17 NMSA 1978, relating to assault by a prisoner, they do not deal with the same crime, but with two different crimes. State v. Rhea, 1980-NMSC-033, 94 N.M. 168, 608 P.2d 144.

Requirements for instruction on challenge to officer's authority. — Failure of the trial court to instruct jury that to convict defendant they had to find that her battery (slapping the detective's hand) posed an actual injury, actual threat to safety, or a meaningful challenge to authority was reversible error and mandated a new trial. State v. Cooper, 2000-NMCA-041, 129 N.M. 172, 3 P.3d 149.

Instruction requiring proof of merely rude, insolent or angry behavior insufficient. — Subsection A includes as unlawful only those acts that physically injure officers, that actually harm officers by jeopardizing their safety, or that meaningfully challenge their authority; an instruction that the state must prove the defendant acted in a rude, insolent or angry manner clearly did not describe the element of harm to the safety or authority of the officers, and was fundamental error. State v. Padilla, 1997-NMSC-022, 123 N.M. 216, 937 P.2d 492.

Finding by prison disciplinary committee was not a conviction under the statute. — Where defendant, who was serving a prison sentence, had an altercation with a prison guard; the guard filed a misconduct report; and a prison disciplinary committee found defendant "guilty of a Major Report of Charge, NMSA 30-22-24, Battery Upon a Police Officer", the fact that the conduct at issue in the hearing is also defined as a criminal offense did not mean that the disciplinary committee charged and convicted defendant under the criminal felony law. Ramer v. Kerby, 936 F.2d 1102 (10th Cir. 1991).

Jailers as peace officers. — Legislature did not exclude jailers from definition of peace officers: a jailer is an officer in the public domain, charged with the duty to maintain public order. State v. Rhea, 1980-NMSC-033, 94 N.M. 168, 608 P.2d 144.

Correctional officer is "peace officer". — The legislature has amended the correctional officers statute to provide that crimes against correctional officers and employees of the Corrections Department acting as peace officers were deemed crimes against peace officers. State v. Gutierrez, 1993-NMCA-058, 115 N.M. 551, 854 P.2d 878, cert. denied, 115 N.M. 545, 854 P.2d 872.

Sufficient evidence to find that the victim was a peace officer. — In defendant's trial for battery on a peace officer, the victim's testimony that he was a corrections officer employed by the metropolitan detention center was substantial evidence that he was a peace officer under this statute. State v. Salas, 2017-NMCA-057, cert. denied.

Juvenile correctional officer is peace officer for purposes of the battery on a peace officer statute, despite the fact that JCOs are no longer under the control of the New Mexico Corrections Department. State v. Gutierrez, 1993-NMCA-058, 115 N.M. 551, 854 P.2d 878, cert. denied, 115 N.M. 545, 854 P.2d 872.

Double jeopardy. — The jurisdictional exception to double jeopardy permitted defendant's prosecution in the district court on a charge of peace officer battery, after he had pleaded guilty to several misdemeanors, including resisting arrest, in the magistrate court. State v. Padilla, 1984-NMSC-026, 101 N.M. 58, 678 P.2d 686, aff'd sub nom., Fugate v. New Mexico, 470 U.S. 904, 105 S. Ct. 1858, 84 L. Ed. 2d 777 (1985).

Officers acting in good faith. — Even if an arrest was illegal, the courts cannot condone the use of force in resisting every subsequent act made in good faith by a law enforcement officer, as police officers acting in good faith, although mistakenly, should be relieved of the threat of physical harm. State v. Doe, 1978-NMSC-072, 92 N.M. 100, 583 P.2d 464.

Test is whether officer engaged in performance of official duties. — Even if an arrest is effected without probable cause, a police officer is engaged in the performance of his official duties and therefore protected under this section if he is simply acting within the scope of what he is employed to do; the test is whether he is acting within that compass or is engaging in a personal frolic of his own. State v. Doe, 1978-NMSC-072, 92 N.M. 100, 583 P.2d 464.

When officer in lawful discharge of duties. — An officer is in the lawful discharge of his duties if he is acting within the scope of what he is employed to do. State v. Gonzales, 1982-NMCA-043, 97 N.M. 607, 642 P.2d 210.

If there is evidence that a peace officer used excessive force, there is a factual issue for the jury as to whether the officer acted within the scope of what he was employed to do and, thus, a factual issue as to whether the officer was performing his duties. State v. Gonzales, 1982-NMCA-043, 97 N.M. 607, 642 P.2d 210.

Scope of contact with person. — The jury was properly instructed that it could find defendant guilty of battery under this section if it found that defendant knocked or took a flashlight out of the arresting officer's hand. The word "person" as used in this statute includes anything intimately connected with a person. State v. Ortega, 1992-NMCA-003, 113 N.M. 437, 827 P.2d 152.

Included offense. — Battery upon a peace officer is included within the charge of aggravated battery upon a peace officer, and thus defendant's conviction was for an offense included within charge of which he had notice. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.

Lesser included offense. — Where defendant admitted to intentionally kicking a police officer to avoid being shot, he was not entitled to an instruction on resisting, obstructing or evading a police officer as a lesser included offense of battery on a peace officer. State v. Hill, 2001-NMCA-094, 131 N.M. 195, 34 P.3d 139.

Verbatim instruction not required. — In a prosecution for battery upon a police officer, the trial court did not commit error in refusing defendant's requested jury instruction seeking the use of the words "lawful discharge of his duties" instead of "performing the duties of a peace officer." State v. Nemeth, 2001-NMCA-029, 130 N.M. 261, 23 P.3d 936, overruled on other grounds by State v. Ryon, 2005-NMSC-005, 137 N.M. 174, 108 P.3d 1032.

Instruction on simple battery warranted. — One cannot batter a peace officer while in the lawful discharge of his duties without battering the person of another, and there being evidence that the police officer was not in the lawful discharge of his duties in connection with the altercation, the trial court erred in refusing to instruct on simple battery as well as on battery on an officer. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.

If there is a factual issue as to performance of duties, the defendant is entitled to an instruction on simple battery as a lesser included offense to battery upon a police officer. State v. Gonzales, 1982-NMCA-043, 97 N.M. 607, 642 P.2d 210.

Instruction on right to detain. — There was no error in refusing a requested instruction on an officer's right to detain a person which focused only on the officer's initial approach to defendant and disregarded the officer's attempt to arrest after defendant allegedly hit the officer, since in light of the evidence, the requested instruction was incomplete and would have confused the jury on the issue of lawful discharge of duties. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.

When charge barred by acquittal on other charges. — After a magistrate's determination that the defendant was not guilty of resisting and obstructing an officer and disorderly conduct because he was acting in defense of another, the state cannot charge him with battery on a police officer and constitutionally bring him before a new fact finder to relitigate that same factual issue. State v. Orosco, 1982-NMCA-181, 99 N.M. 180, 655 P.2d 1024.

Sufficient evidence. — Where police officers were attempting to arrest defendant's relative, defendant aggressively approached the officers by raising defendant's fists, shouting and coming close to the officers, and while one officer attempted to handcuff defendant, defendant kicked the officer in the leg, injuring the officer, there was sufficient evidence to support defendant's conviction for battery on a peace officer. State v. Ford, 2007-NMCA-052, 141 N.M. 512, 157 P.3d 77, cert. denied, 2007-NMCERT-004, 141 N.M. 569, 158 P.3d 459.

Conviction supported by evidence. — Testimony of police officer that he and defendant exchanged blows was sufficient evidence of intentional touching to support defendant's conviction for battery under this section, notwithstanding the officer's concession on cross-examination that he couldn't actually remember whether defendant had hit him. State v. Ortega, 1992-NMCA-003, 113 N.M. 437, 827 P.2d 152.

Spitting or throwing urine upon a peace officer could reasonably be found by a jury to come within the purview of battery upon a peace officer. State v. Jones, 2000-NMCA-047, 129 N.M. 165, 3 P.3d 142, cert. denied, 129 N.M. 207, 4 P.3d 35 .

Evidence sufficient to sustain defendant's conviction where he spit on and kicked an officer while being restrained. State v. Martinez, 2002-NMCA-036, 131 N.M. 746, 42 P.3d 851, cert. denied, 131 N.M. 737, 42 P.3d 842.

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).

For annual survey of New Mexico criminal law and procedure, 19 N.M.L. Rev. 655 (1990).