Chaves County Sheriff’s Detective and former Republican State Representative Dennis Kintigh said often the original problem with laws lies with the way they are written. “This is the responsibility of the Legislature. They need to act. The language needs to be tightened up,” he said.
The higher courts often refer to vague language in the statute and try to provide clarification, as they did with the definition of “at the scene” as it pertains to battery of a household member, a misdemeanor. In New Mexico, misdemeanor arrests can only be made if an officer actually witnesses the offense. The law provides for two exceptions: domestic violence and shoplifting. Both are intended to protect the victim. In the last year, the higher courts overturned that protection in the case of domestic violence. Kintigh noted the higher courts interpretation of “at the scene” requires the offender must be physically present for an immediate arrest to be made. If he or she has left — gone to a local bar, down the block or otherwise vacated the premises — then officials must present an affidavit of criminal complaint to the courts and have them signed before they can make an arrest. In that span of time, further injuries can occur.
Another decision based on State vs. Pavilus was released in January 2013. In this case, Gerard Pavilus was convicted by a jury of second-degree murder, kidnapping (second- and first- degree), aggravated burglary and aggravated assault, after Pavilus broke into his estranged wife’s home, kidnapped the boyfriend and killed him. He returned later and kidnapped her, so she could see the body of her boyfriend.
During the trial, the district court threw out the charge of aggravated burglary since, according to New Mexico statute 40-3-3 “.… neither [husband nor wife] can be excluded from the other’s dwelling.” The appellate court upheld this decision.
Thus, charges of burglary did not apply. The law, initiated in 1907, erodes protections for those who are going through a contentious divorce. The original law, enacted to deal with property settlements, remains intact and provides an open door by which an abusive spouse may enter a home.
“The public needs to decide if we need changes in the judiciary and they need to address their concerns to the Legislature,” said Kintigh.
Despite frustration, most officers prefer to be philosophical. CCSO Lt. Daniel Ornelas said: “He (the batterer) can still be arrested even if he’s gone. I’ll just get the victim to a safe place and file the criminal complaint.”
CCSO Lt. Britt Snyder agreed that actions could still be taken by law enforcement. “We will get the victim out of there first. The protection of the victim is paramount.”
Court interpretations to statutes have a direct relationship not only to how the trial can be conducted, but to the type of charges leveled against a suspect. Snyder said higher court decisions have influenced current cases. When the CCSO prepared to arrest the couple for child abuse, they learned that a high court decision decreed filth and poverty were not sufficient grounds to charge a couple with child abuse. They were able to proffer charges only because the juvenile had been barricaded in her bedroom.
“If these were pets rather than children,” Kintigh said, “they would be taken away.”