Alaniz v. Funk
| Citation | 69 N.M. 164,364 P.2d 1033 |
| Decision Date | 19 September 1961 |
| Docket Number | No. 6814,6814 |
| Parties | Henry ALANIZ, Administrator of the Estate of Elias Alaniz, Deceased, as personal representative, Plaintiff-Appellant, v. Ike FUNK, Defendant-Appellee. |
| Court | Supreme Court of New Mexico |
Timothy P. Woolston, William S. J. Knox, Albuquerque, for appellant.
Patrick F. Hanagan, Roswell, Jack Love, Lovington, for appellee.
Action for wrongful death. The appeal is from the granting of a directed verdict at the close of plaintiff's case.
The only problem is whether a jury question was involved in the case of a deputy sheriff's killing a suspected felon in order to effect an arrest.
The ruling of the trial court was made upon facts which may be briefly stated: In the late afternoon, following the break-in of a National Guard armory, wherein some M-1 and carbine rifles were stolen, the officers discovered a cache of four of the rifles hidden in some weeds in a ditch at the side of a country road. The weapons were not disturbed, nor were they examined to determine if they were loaded in order that subsequently whatever fingerprints might have been on them could be detected. Defendant Funk (a regularly appointed and acting deputy sheriff of Eddy County, New Mexico) and an agent of the Federal Bureau of Investigation concealed themselves in a cotton field about eighty feet away from where the rifles were hidden, hoping to apprehend whoever came to retrieve them. The officers were alone and had hidden their cars some 250 yards away, behind a barn. The area was flat and there was no place to hide except in the field between the rows of cotton. After dark, about two hours after the officers were located, a car approached, stopped or slowed down at the place where the guns were concealed, then proceeded about 100 yards beyond, pulled to the side of the road, stopped and its lights were turned off. A man got out and walked to the cache, picked up the rifles, and proceeded hurriedly back toward the car. The officers jumped up and ran after the man and in the direction of the car. They called the man to halt and identified themselves as officers. The man continued until the F.B.I. agent fired a shot, whereupon he dropped the rifles. At the same time, the motor of the car was started, its lights turned on, and it commenced to drive away, although the man in the road had not as yet reached it. Funk at this time fired a sawed-off shotgun at the car twice, his stated intention being to blow out the tires to stop the car, thereby enabling the officers to arrest the occupants. However, the buckshot struck the upper portion of the car, killing the driver (plaintiff's decedent).
The complaint alleged 'extreme negligence and reckless conduct' on the part of defendant Funk, but plaintiff argues in this court that the reasonableness, necessity and propriety of the shooting should have been submitted to the jury and not determined by the court. The defendant insists that the issue must be determined on the basis of the allegations of the complaint, but, regardless of this argument, we will treat the complaint as amended to conform with the evidence (see, Springer Transfer Co. v. City of Albuquerque, 1940, 44 N.M. 407, 103 P.2d 129; and Sec. 21-1-1(15)(b), N.M.S.A.1953 Comp.), and determine the true issue involved, i. e., whether under these facts the court was in error in granting a directed verdict.
Tne New Mexico statutes relating to the privilege of the use of force in effecting an arrest are:
'Officer causing death.--A homicide is justifiable when committed by public officers, and those acting by their command in their aid and assistance, either in obedience to any judgment of any competent court, or when necessarily committed in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty; or when necessarily committed in retaking felons who have been rescued, or who have escaped, or when necessarily committed in arresting felons fleeing from justice.'
'Killing in defense of person or property, apprehending felon, suppressing riot or preserving peace.--Such homicide is also justifiable when committed by any person in either of the following cases:
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It is quite apparent from a reading of these statutes that they are in reality a legislative recognition of the common law which empowered officers to perform their duty of apprehending and bringing felons to the bar of justice.
The question of the reasonableness of the actions of the officer does not appear to have been considered by the legislature, nor has this court in the past ruled upon the question involved. We have had occasion to determine the liability of officers as to the force, lethal or otherwise, which they may utilize in effecting an arrest for a misdemeanor. See, Padilla v. Chavez, 1957, 62 N.M. 170, 306 P.2d 1094; and Mead v. O'Connor, 1959, 66 N.M. 170, 344 P.2d 478. However, the rules as to the amount of force which may be used by an officer vary greatly in cases involving misdemeanors and in cases involving felonies. The rule as to felonies is properly stated in Stinnett v. Commonwealth of Virginia, 4 Cir., 1932, 55 F.2d 644, 646, as follows:
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O'Farrell v. Bd. of Comm'rs for the Cnty. of Bernalillo
...so long as they use only that force that is reasonably necessary," Response at 24 (citing Alaniz v. Funk, 1961-NMSC-140, ¶ 7, 69 N.M. 164, 364 P.2d 1033, 1034 ), and that plaintiffs can bring claims under the New Mexico Tort Claims Act when officers do not implement use of force policies, s......
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Nelson v. City of Albuquerque
...the jury.")(citing Mead v. O'Connor, 1959-NMSC-077, ¶ 4, 66 N.M. 170, 344 P.2d at 480 ; Alaniz v. Funk, 1961-NMSC-140, ¶¶ 9–11, 69 N.M. 164, 167–68, 364 P.2d 1033 )).Turning to qualified immunity, it appears that Judge Black did not rule on qualified immunity's clearly established prong in ......
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Jonas v. Bd. Of Comm'rs Of Luna County
...Opinion and Order at 9 (citing State v. Gonzales, 97 N.M. 607, 610, 642 P.2d 210, 213 (Ct.App.1982)). See Alaniz v. Funk, 69 N.M. 164, 168, 364 P.2d 1033, 1035-36 (1961) (applying, in force case brought against a police officer, an objective reasonableness test that is similar to the test i......
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State v. Ellis
...have a duty to make arrests and a right to use reasonable force when necessary. Id. at 319, 563 P.2d at 113; Alaniz v. Funk, 69 N.M. 164, 168, 364 P.2d 1033, 1035 (1961) ("It was the duty of the [officer] to use every reasonable effort to apprehend the felon; . . . and even though the unfor......