NMSC: Unmarked Cars Are Not Marked and Plainclothes Officers are Not Uniformed


The New Mexico Supreme Court just released a new opinion interpreting the aggravated fleeing from a law enforcement officer statute. Justice Michael Vigil wrote for the Court. In a fairly straightforward opinion, the Court interpreted the law defining the crime of “aggravated fleeing from a law enforcement officer” in a pair of cases involving officers in plain clothes and unmarked cars.

Montano is an appeal of two consolidated cases. At issue in both cases is Section 30-22-1.1(A), which defines the crime of aggravated fleeing from a law enforcement officer. The statute applies when a driver does not stop after being signaled to by “a uniformed law enforcement officer” in an “appropriately marked law enforcement vehicle.” The first case, Montano, deals with the meaning of “uniformed.” The second case, Martinez, deals with the meaning of “appropriately marked law enforcement vehicle.”

The Facts

In Montano, a driver was pulled over by an unmarked Ford expedition. It had no decals, striping, insignia, or lettering anywhere on the vehicle to identify it as a police car. It did, however, have lights and a siren hidden behind the grill. The officer was wearing office casual clothing and his badge. The district court ruled that the badge was enough to satisfy the “uniform” requirement, and that the emergency lights were enough to make the vehicle “appropriately marked.” The court of appeals reversed, holding that the car was appropriately marked but that a badge by itself did not constitute a uniform.

In Martinez, an officer attempted to pull over the defendant The police vehicle was a tan Ford Explorer “specifically furnished for covert operations intended to evade detection.” As in Montano, the covert car had hidden lights and sirens. The district court held ruled that the covert car was not an “appropriately marked” vehicle and dismissed the count. The court of appeals, relying on its opinion in Montano, reversed.

The Court consolidated the two cases to address the requirements that police vehicles and uniforms must satisfy in a count for aggravated fleeing from a law enforcement officer.

The Uniform Requirement

The Court began with the requirement that the officer be in uniform. One of the requirements of the statute is that the officer be a “uniformed law enforcement officer.” In Montano, the question was whether an officer dressed in a shirt, tie, slacks, and badge is “uniformed.”

The Court reviewed and adopted a thorough statutory construction from the court of appeals. The Court, like the court of appeals, relied primarily on the plain meaning of “uniform.” Looking to dictionary definitions, it observed that a “uniform” means “dress of a distinctive design or fashion,” and that “dress” means clothing. It noted that a uniform “distinguishes the wearer from the general public” by identifying the wearer as a member of a particular group. Obviously, business casual clothing does not meet this definition. In addition, the Court reasoned that the addition of the badge did not make the business casual clothing into a uniform. Finally, the Court noted that its result was consistent with the law in other states.

The Marked Vehicle Requirement

The Court next turned to the requirement of an “appropriately marked law enforcement vehicle.” In each of the cases below, the court had concluded that concealed lighting and sirens were enough to satisfy the requirement.

The court of appeals had noted that a marked police vehicle commonly refers to a vehicle with lettering, insignia, or striped paint that would indicated the driver of the vehicle is a law enforcement officer, whereas an unmarked vehicle refers to any vehicle without those markings. Somewhat counterintuitively, it viewed these definitions as creating ambiguity that required it to search for legislative intent (rather than plain meaning) to determine what “appropriately marked” meant. The court concluded that the legislature intended it to mean marking that would alert the driver of the obligation to pull off the road and stop. Under this definition, flashing lights and sirens were sufficient.

The supreme court disagreed. Concentrating on the word “appropriately,” the Court observed that lights and sirens by themselves could encompass many vehicles other than law enforcement vehicles. For example, this definition could include fire vehicles, ambulances, tow trucks, or even civilian vehicles. The court rejected this as overbroad: an appropriately marked vehicle must be marked in a way that identifies it to the public as a law enforcement vehicle. Accordingly, the Court construed the term to mean “a police vehicle bearing decals or other prominent and visible insignia identifying it as such.” Under this definition, both of the unmarked cars did not qualify.

Applying these constructions of the statute, the Court affirmed in part and reversed in part Montano‘s holding as to the “uniform” requirement, and reversed Martinez as to appropriate markings.

Justice Nakamura’s Dissent

Justice Nakamura wrote separately to dissent. I have to admit I found this a difficult one to wrap my head around. As I understood it, Justice Nakamura read the “uniformed” and “appropriately marked” parts of the statutes not as literal elements, but as an implied mens rea requirement that the defendant know the pursuing vehicles was in fact a police officer. Whether the officer’s dress and the vehicle’s marking satisfied the statute would depend not upon the clothes or vehicle, but upon the Defendant’s state of mind.

This view of the statute would seem to render it hopelessly vague. The identical facts in this case would require different outcomes depending on what was in the defendant’s mind. That is not unusual–many statutes have mens rea requirements, after all–but it is more than a little stretch to read the clothing and marking requirements out of the statute and instead impose on the defendant a mens rea requirement of knowledge that the pursuit is legitimate. One struggles to imagine where the line would be drawn under this standard. Must the officer be wearing any clothes at all, if the defendant knows he is an officer? Must there even be a vehicle? Indeed, the dissent goes so far as to state that it “would hold that an appropriately marked car is not a statutory element.”

While Justice Nakamura makes a strong policy argument that the statute should allow for convictions under the facts in these cases, it is not persuasive. This view does not interpret the statute, it rewrites it–a job for the legislature, not the Court. Justice Nakamura is aware that the dissent will be seen that way, addressing it in her conclusion:

The interpretation set forth in this dissent is not an attempt to judicially amend a legislative enactment. Rather, I believe it furthers the intent of our Legislature to suppress a meaningful social evil.

But, even if she is correct that the legislature intended to fight evil (an image that I very much enjoy), the proper remedy is still for the legislature to fix a statute that, as drafted, fails to accomplish its purpose. If the legislature agrees with the dissent and disagrees with the minority, it should not be difficult to amend the statute to achieve the desired result.

The Court’s Output in 2020

One final note occurs to me as I write this in the middle of 2020. It has been a slow year for the New Mexico Supreme Court. Earlier this week, they released what is only their sixth published opinion this year, putting them on pace for about a dozen opinions in 2020. If this strikes you as low, that’s because it is:

Obviously, 2020 has been a difficult year, and it is not surprising that the Court would have a lower output. More broadly, one might expect a lower output at all levels, from the district courts on up. But, as the chart above shows, the trend towards lower output has been ongoing for the last ten years. Indeed, over a longer period, the trend is much clearer:

I do not know what the Court’s ideal caseload is, let alone what it should be during a pandemic. And, of course, published opinions are only one of the Court’s various functions. There have also been a number of changes in the composition of the Court recently. But I have definitely been wondering lately what it means to have so few published opinions this year.

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