Pepper Spray Laws – New Mexico

New Mexico is a state that is renowned for friendly laws regarding the carry of weapons by civilians, and self-defense in general. This friendly attitude also encompasses the use of defensive sprays.

Civilians living in and visiting New Mexico can carry any variety of defensive spray that they choose, and in any quantity. Traditional pepper sprays are allowed, as are tear gas sprays. New Mexico has no specific laws in force restricting the possession, use or ownership of pepper spray by civilians.

Keep reading to get the rest of the story on New Mexico’s pepper spray laws, or rather the lack thereof.

Fast Facts

• New Mexico permits all typical defensive spray formulas. OC pepper spray is permitted, as are both common varieties of tear gas, CN and CS.
• New Mexico sets no restrictions on the quantity of defensive spray that civilians may carry. Personal size sprayers are permitted as are extra large canisters.
• There is no age restriction on the possession of defensive spray in New Mexico, even for people under the age of 18. Note that some merchants may opt not to sell defensive sprays to anyone under the age of 18, however.

Overview

New Mexico is another exemplary state concerning pepper spray and other defensive sprays in the hands of civilians. Effectively, there are no specific laws on the books that restrict the use or possession of these sprays, and any crimes you may commit when using one would be crimes whether or not pepper spray was employed for the purpose, such as assault or battery.

Civilians may possess and use any defensive spray formulation they choose so long as it is an agent not intended to cause any lasting harm. As always, we recommend you select a defensive spray that is produced and marketed by a major manufacturer.

Don’t buy any questionable or “homebrew” spray from a dodgy or untrustworthy vendor. OC pepper spray as well as CN and CS tear gas varieties are permitted, and additionally you may carry a blend of these ingredients or a formula that combines any of the above with a marking dye.

New Mexico also permits citizens to carry any quantity of defensive spray that serves their purposes. This is definitely comforting considering the era of civil unrest that the United States is entering.

You could carry the smallest, pen size personal sprayer that can fit in your pocket or dangle from your key ring, or carry around an extra large riot canister strapped to your thigh, just in case you have to deal with any black-clad hooligans tearing up your neighborhood.

Worthy of note, there is no age restriction on the use or possession of pepper spray or other defensive spray in New Mexico, and according to the state statutes, they are not even categorized as a type of weapon.

People under the age of 18 may legally possess defensive sprays so long as they are only used for lawful purposes, the one should keep in mind that certain merchants may choose to restrict sales of such devices to those who are 18 years old or older. Liability law is an entirely different subject!

So long as you are not using your defensive spray to commit any crimes, in the furtherance of commission of a crime or for any sort of shenanigans you’ll find there is a lot to love about New Mexico, and it is among the freest states for citizens concerning the use and ownership of defensive sprays.

Conclusion

New Mexico is an excellent and entirely free state for citizens who desire defensive sprays as part of their self-defense program. All major formulations are permitted, and citizens are allowed to carry any quantity that meets their needs.

Pepper sprays are freely available in the state and maybe shipped into the state from elsewhere. New Mexico also imposes no age restriction on ownership or possession.

Relevant State Statutes

Section 30-7-1 – “Carrying a deadly weapon”.

“Carrying a deadly weapon” means being armed with a deadly weapon by having it on the person, or in close proximity thereto, so that the weapon is readily accessible for use.

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Section 30-7-2 – Unlawful carrying of a deadly weapon.

A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm or any other type of deadly weapon anywhere, except in the following cases:

(1) in the person’s residence or on real property belonging to him as owner, lessee, tenant or licensee;

(2) in a private automobile or other private means of conveyance, for lawful protection of the person’s or another’s person or property;

(3) by a peace officer in accordance with the policies of his law enforcement agency who is certified pursuant to the Law Enforcement Training Act [Chapter 29, Article 7 NMSA 1978];

(4) by a peace officer in accordance with the policies of his law enforcement agency who is employed on a temporary basis by that agency and who has successfully completed a course of firearms instruction prescribed by the New Mexico law enforcement academy or provided by a certified firearms instructor who is employed on a permanent basis by a law enforcement agency; or

(5) by a person in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act [Chapter 29, Article 19 NMSA 1978].

B. Nothing in this section shall be construed to prevent the carrying of any unloaded firearm.

C. Whoever commits unlawful carrying of a deadly weapon is guilty of a petty misdemeanor.

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Section 30-3-1 – Assault.

Assault consists of either:

A. an attempt to commit a battery upon the person of another;

B. any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or

C. the use of insulting language toward another impugning his honor, delicacy or reputation.

Whoever commits assault is guilty of a petty misdemeanor.

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Section 30-3-2 – Aggravated assault.

Aggravated assault consists of either:

A. unlawfully assaulting or striking at another with a deadly weapon;

B. 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; or

C. wilfully [willfully] and intentionally assaulting another with intent to commit any felony.

Whoever commits aggravated assault is guilty of a fourth degree felony.

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Section 30-3-4 – Battery.

Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.

Whoever commits battery is guilty of a petty misdemeanor.

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Section 30-3-5 – Aggravated battery.

A. Aggravated battery consists of the unlawful touching or application of force to the person of another with intent to injure that person or another.

B. Whoever commits aggravated battery, inflicting an injury to the person which is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a misdemeanor.

C. Whoever commits aggravated battery inflicting great bodily harm or does so with a deadly weapon or does so in any manner whereby great bodily harm or death can be inflicted is guilty of a third degree felony.

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14-5190. Self defense; assailed person need not retreat. Statute text A person who is threatened with an attack need not retreat. In the exercise of his right of self defense, he may stand his ground and defend himself.

Annotations Committee commentary. – When acting in self-defense, a person may use no more force than is reasonably necessary to avoid the threatened harm. See UJI 14-5171 and 14-5181. A person need not, however, retreat even though he could do so safely. See State v. Horton, 57 N.M. 257, 258 P.2d 371 (1953), where it was held that it was erroneous to instruct the jury that the defendant could not kill his assailant if he could yield without being killed. See also LaFave & Scott, Criminal Law 395 (1972).

COMPILER’S ANNOTATIONS Voluntary confrontation of victim. – The second element of the foundational predicate for a self-defense instruction was not established where there was evidence that the defendant voluntarily left his trailer and confronted the victim, engaging in an altercation that left the victim dead; no evidence suggested that the defendant was put in fear of the victim, that the defendant killed the victim because of that fear, or that a reasonable person would have killed the victim under these circumstances. State v. Gurule, 2004-NMCA-008, 134 N.M. 804, 82 P.3d 975.

Evidence must raise reasonable doubt on self-defense. – To call for instruction on self-defense, the evidence may not be so slight as to be incapable of raising a reasonable doubt in the jury’s mind on whether a defendant accused of a homicide did act in self-defense. State v. Heisler, 58 N.M. 446, 272 P.2d 660 (1954).

Evidence sufficient to raise doubt warrants self-defense instruction. – If there is evidence sufficient to raise a reasonable doubt in the jury’s mind as to whether the defendant acted in self-defense, an instruction on self-defense must be given. State v. Montano, 95 N.M. 233, 620 P.2d 887 (Ct. App. 1980); State v. Martinez, 95 N.M. 421, 622 P.2d 1041 (1981). And instruction proper even where supported only by defendant’s own testimony.

Where self-defense is involved in a criminal case and there is any evidence, although slight, to establish the same, it is not only proper for the court, but its duty as well, to instruct the jury fully and clearly on all phases of the law on that issue that are warranted by the evidence, even though such a defense is supported only by the defendant’s own testimony. State v. Heisler, 58 N.M. 446, 272 P.2d 660 (1954).

Essential elements necessary before self-defense instruction can be given are: (1) an appearance of immediate danger of death or great bodily harm to the defendant; (2) the defendant was in fact put in such fear; and (3) a reasonable person would have reacted in a similar manner. State v. Martinez, 95 N.M. 421, 622 P.2d 1041 (1981). No conflict with instruction limiting self-defense.

The instruction limiting self-defense when the defendant is the aggressor (UJI 14-5191) does not conflict with the instruction on justifiable homicide (UJI 14-5171) or this instruction. State v. Velasquez, 99 N.M. 109, 654 P.2d 562 (Ct. App.), cert. denied, 99 N.M. 148, 655 P.2d 160 (1982). Use of “must” in instruction not error.

Instructions dealing with the elements of self-defense have consistently referred to elements which “must” exist if self-defense is to be submitted to the jury, and as the instruction did no more than inform the jury of the necessary elements and made no reference to a burden of proof in regard to self-defense, the use of “must” in the instruction was not error. State v. Harrison, 81 N.M. 623, 471 P.2d 193 (Ct. App.), cert. denied, 81 N.M. 668, 472 P.2d 382 (1970). Defendant must show error in refusal to give instruction.

It is the defendant’s burden to provide a record sufficient to demonstrate reversible error in refusing self-defense instructions. State v. Gonzales, 97 N.M. 607, 642 P.2d 210 (Ct. App. 1982). Am. Jur. 2d, A.L.R. and C.J.S. references.

Duty of trial court to instruct on self-defense in absence of request by accused, 56 A.L.R.2d 1170. Duty to retreat where assailant is social guest on premises, 100 A.L.R.3d 532.