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 [29-7-1 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 [29-19-1 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.
HISTORY:
1953 40A-7-2, enacted by Laws 1963, ch. 303, § 7-2; 1975, ch. 134, § 1; 1985, ch. 174, § 1; 2001, ch. 219, § 13.
Notes to Decisions
Constitutionality.
Under 30-7-2 NMSA 1978, the Concealed Handgun Carry Act, 29-19-1 to 29-19-13 NMSA 1978, did no more than add another exception to the general prohibition against carrying concealed weapons: carrying with a concealed handgun license. State ex rel. N.M. Voices for Children, Inc. v. Denko, 2004-NMSC-011, 135 N.M. 439, 90 P.3d 458, 2004 N.M. LEXIS 227 (N.M. 2004).
Because poverty was not a suspect class, and because the state had a legitimate interest in the safety of its citizens, a homeless defendant’s assertion that 30-7-2 NMSA 1978 violated his rights to equal protection had no merit. State v. McDuffie, 1987-NMCA-077, 106 N.M. 120, 739 P.2d 989, 1987 N.M. App. LEXIS 730 (N.M. Ct. App. 1987).
Generally.
Pursuant to § 41-1701, 1941 Comp. (30-7-2 NMSA 1978) it is an offense to carry deadly weapons, but they may be carried in the residence of the carrier or on his landed estate, and pursuant to, travelers may carry arms for their protection. Lopez v. Chewiwie, 1947-NMSC-061, 51 N.M. 421, 186 P.2d 512, 1947 N.M. LEXIS 768 (N.M. 1947).
Aggravating factors.
In a case in which defendant was improperly convicted of aggravated stalking because the state failed to prove a nexus between the 14-inch stick that defendant carried and the stalking of a fellow Alcoholics Anonymous member, the jury made the determination to aggravate the crime based on the character and nature of the stick and the manner of its use because it was not specifically listed in the definition of a deadly weapon. On appeal, the court noted that 30-7-2A NMSA 1978 made the carrying of a concealed deadly weapon anywhere a crime. State v. Anderson, 2001-NMCA-027, 130 N.M. 295, 24 P.3d 327, 2001 N.M. App. LEXIS 17 (N.M. Ct. App. 2001).
Carrying firearms.
Because it was lawful to carry a gun in a vehicle in New Mexico, pursuant to 30-7-2A(2) NMSA 1978, the admission of a murder suspect’s sister-in-law that she had a gun did not weigh heavily in adding to reasonable suspicion to stop her vehicle, as required by the Fourth Amendment. Poolaw v. Marcantel, 565 F.3d 721, 2009 U.S. App. LEXIS 9483 (10th Cir. N.M. 2009).
In a murder case, it was determined that former 1915 Code, § 1708 (now 30-7-2 NMSA 1978) sanctioned the right of travelers to carry arms for their own protection while actually prosecuting a journey. A fugitive from justice was not a person traveling within the meaning of 1915 Code, § 1708. State v. Starr, 1917-NMSC-092, 24 N.M. 180, 173 P. 674, 1917 N.M. LEXIS 45 (N.M. 1917).
Construction.
New Mexico law that permits motorists to carry guns in their vehicles, 30-7-2A(2) NMSA 1978 is not dispositive on the issue of whether or not police officers’ observation of apparently loaded pistols partially tucked under motorists’ legs would support a reasonable suspicion that those motorists are engaged in criminal activity; totally lawful conduct might justify the suspicion that criminal activity is afoot. United States v. King, 990 F.2d 1552, 1993 U.S. App. LEXIS 6056 (10th Cir. N.M. 1993).
Trial court properly refused to give an instruction pursuant to former Code 1915, § 1708, which provided that a traveler had a right to carry arms for protection while on a journey, where a defendant, a rancher, was not a traveler when journeying from his home to his ranch; further, his passage from his headquarters on his ranch to the place on the ranch where the homicide occurred did not make him a traveler within the meaning of the statute. State v. Sedillo, 1918-NMSC-105, 24 N.M. 549, 174 P. 985, 1918 N.M. LEXIS 77 (N.M. 1918).
Construction with other law.
Defendant’s conviction for contributing to the delinquency of a minor (CDM) was proper because, although defendant’s conduct leading to the CDM charge could also have led to a conviction under the sexually oriented materials statute, pursuant to this section, CDM was separate and distinct from any underlying violation of the law. The State had discretion to determine charges that should be brought against defendant based upon the evidence available to support them. State v. Garcia, 2013-NMCA-005, 294 P.3d 1256, 2012 N.M. App. LEXIS 109 (N.M. Ct. App. 2012), cert. quashed, 313 P.3d 251, 2013 N.M. LEXIS 440 (N.M. 2013), cert. denied, 134 S. Ct. 969, 187 L. Ed. 2d 826, 2014 U.S. LEXIS 244 (U.S. 2014).
If the court were to conclude that a baseball bat is a “bludgeon” as described in 30-1-12B NMSA 1978, the court would be altering a general definitional statute that has broad applicability to a number of criminal infractions. For example, by altering 30-1-12B, the court would be altering 30-7-2 NMSA 1978 that prohibits the carrying of a deadly weapon. State v. Traeger, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518, 2001 N.M. LEXIS 257 (N.M. 2001).
Double jeopardy.
Where the court concluded there was ample evidence that a knife was a switchblade, the knife was a deadly weapon within the meaning of 30-7-2 NMSA 1978; however, defendant should not have been sentenced for both unlawful possession of a switchblade, 30-7-8 NMSA 1978, and unlawful carrying of a deadly weapon, as the convictions merged. State v. Riddall, 1991-NMCA-033, 112 N.M. 78, 811 P.2d 576, 1991 N.M. App. LEXIS 144 (N.M. Ct. App. 1991).
Elements.
When defendant failed to object to an instruction that a “deadly weapon” included a switchblade knife, pursuant to 30-1-12B NMSA 1978, the instruction became the law of the case; further, because a prosecutor proved that defendant’s butterfly knife was a switchblade, it was not required to prove that the knife could actually be used to inflict great bodily harm to obtain a conviction under 30-7-2 NMSA 1978. State v. Riddall, 1991-NMCA-033, 112 N.M. 78, 811 P.2d 576, 1991 N.M. App. LEXIS 144 (N.M. Ct. App. 1991).
Evidence.
—Admissible.
Defendant was properly convicted of carrying a deadly weapon on school grounds under 30-7-2.1B(1) and 30-7-1 NMSA 1978 as well as negligent use of a firearm; although a gun found in his car was unrelated to the shooting that precipitated the charges against him, evidence of the gun was properly admitted into evidence as relevant to the charge of carrying a deadly weapon on school grounds. State v. Salazar, 1997-NMCA-043, 123 N.M. 347, 940 P.2d 195, 1997 N.M. App. LEXIS 29 (N.M. Ct. App. 1997).
Although former 40A-7-2, 1953 Comp. (now 30-7-2) permitted carrying an unloaded concealed weapon, where an officer had reasonable grounds to believe that defendant was unlawfully carrying a deadly weapon, the evidence was properly admitted in defendant’s murder trial. State v. Ramirez, 1968-NMSC-148, 79 N.M. 475, 444 P.2d 986, 1968 N.M. LEXIS 1992 (N.M. 1968).
Legislative intent.
Bullets concededly are designed to be used to injure and they are undoubtedly an integral part of the process of using a firearm; however, the court of appeals of New Mexico does not interpret the intent behind 30-1-12B NMSA 1978 to require the classification of bullets as deadly weapons solely because of their capability of inflicting injury when fired from a firearm, without any more contextual significance; such a broad construction could subject any person merely carrying a bullet to prosecution under 30-7-2A NMSA 1978 and that would be an absurd result. State v. Galaz, 2003-NMCA-076, 133 N.M. 794, 70 P.3d 784, 2003 N.M. App. LEXIS 36 (N.M. Ct. App.), cert. denied, 133 N.M. 771, 70 P.3d 761, 2003 N.M. LEXIS 168 (N.M. 2003).
Necessity.
Even though defendant was a constable and deputy sheriff, he was properly convicted of unlawfully carrying a deadly weapon because the jury decided that the carrying of the weapon was not necessary under former section 10, chapter 30, of the act of 1887; § 10 did not afford complete protection because it left for the court or jury to decide whether the carrying of weapons was necessary or not. Guyse v. Territory, 1893-NMSC-022, 7 N.M. 228, 34 P. 295, 1893 N.M. LEXIS 23 (N.M. 1893).
Official duties.
Under former section 10, chapter 30, of the act of 1887, no sheriff, constable, or other peace officer has any more right to carry weapons than a private citizen, except when the same is done in the proper and necessary discharge of his official duties. Guyse v. Territory, 1893-NMSC-022, 7 N.M. 228, 34 P. 295, 1893 N.M. LEXIS 23 (N.M. 1893).
Probable cause.
On appeal from defendant’s convictions for unlawful carrying of a deadly weapon and trafficking cocaine, several officers were held to have had probable cause to believe that defendant was committing the crime of unlawfully carrying a deadly weapon and to arrest him where he voluntarily stated that he had a loaded gun before the officers could search him for weapons. State v. Madsen, 2000-NMCA-050, 129 N.M. 251, 5 P.3d 573, 2000 N.M. App. LEXIS 38 (N.M. Ct. App.), cert. denied, 129 N.M. 249, 4 P.3d 1240, 2000 N.M. LEXIS 194 (N.M. 2000).
Police officers were justified in stopping defendant’s vehicle upon seeing it speed away from an area in which a gunshot had just been fired. After defendant’s belligerent behavior justified the officers having defendant step out of his vehicle, a machine gun falling to the ground gave the officers probable cause to pat defendant down for weapons and then arrest him for carrying a concealed weapon in violation of 30-7-2 NMSA 1978. United States v. Henning, 906 F.2d 1392, 1990 U.S. App. LEXIS 10177 (10th Cir. N.M. 1990), cert. denied, 498 U.S. 1069, 111 S. Ct. 789, 112 L. Ed. 2d 852, 1991 U.S. LEXIS 584 (U.S. 1991), modified, 958 F.2d 310, 1992 U.S. App. LEXIS 3502 (10th Cir. Kan. 1992).
Although defendant was not violating the law by having a concealed weapon in his vehicle, when he was asked to exit his vehicle by police officers because he was uncooperative with them when they stopped his vehicle for speeding away from an area in which police officers heard a gunshot, defendant was in violation of 30-7-2 NMSA 1978 for having the concealed weapon on his person. The fact that police asked him to exit his vehicle did not “force” a violation of § 30-7-2 because defendant’s belligerent behavior and abusive language upon being stopped justified the officers having defendant exit his vehicle. United States v. Henning, 906 F.2d 1392, 1990 U.S. App. LEXIS 10177 (10th Cir. N.M. 1990), cert. denied, 498 U.S. 1069, 111 S. Ct. 789, 112 L. Ed. 2d 852, 1991 U.S. LEXIS 584 (U.S. 1991), modified, 958 F.2d 310, 1992 U.S. App. LEXIS 3502 (10th Cir. Kan. 1992).
Although carrying of an unloaded pistol is not a crime in New Mexico, when a police officer saw a pistol in defendant’s pocket, he had probable cause to arrest and search defendant, regardless of whether the weapon was found to be unloaded. Ramirez v. Rodriguez, 467 F.2d 822, 1972 U.S. App. LEXIS 7115 (10th Cir. N.M. 1972), cert. denied, 410 U.S. 987, 93 S. Ct. 1518, 36 L. Ed. 2d 185, 1973 U.S. LEXIS 3075 (U.S. 1973).
Reasonable suspicion.
Where police officer observed handgun tucked in waistband under convenience store employee’s shirt, which provided reasonable suspicion that defendant was violating state law, officer’s act of dispossessing defendant of his handgun subsequent to his seizure was reasonably related in scope to circumstances that justified interference in first place. United States v. Rodriguez, 739 F.3d 481, 2013 U.S. App. LEXIS 25853 (10th Cir. N.M. 2013).
Where police officer observed handgun tucked in waistband under convenience store employee’s shirt, defendant’s seizure was justified because officer had personal knowledge that defendant was carrying concealed handgun and thus reasonable suspicion that defendant was violating state law. United States v. Rodriguez, 739 F.3d 481, 2013 U.S. App. LEXIS 25853 (10th Cir. N.M. 2013).
School premises defined.
Offense of unlawfully carrying a deadly weapon on school premises in violation of 30-7-2.1B(1) NMSA 1978 includes in the definition of “school premises” school parking lots. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 245 F. Supp. 2d 1203, 2002 U.S. Dist. LEXIS 26236 (D.N.M. 2002).
Research References and Practice Aids
New Mexico Law Review.
Article: The Right(?) To Keep And Bear Arms, John Dwight Ingram And Alison Ann Ray, 27 N.M. L. Rev. 491 (1997).