N.M. Stat. § 29-1-1

prosecution; cooperation; removal.
     It is hereby declared to be the duty of every sheriff, deputy sheriff, constable and
every other peace officer to investigate all violations of the criminal laws of the state
which are called to the attention of any such officer or of which he is aware, and it is
also declared the duty of every such officer to diligently file a complaint or information, if
the circumstances are such as to indicate to a reasonably prudent person that such
action should be taken, and it is also declared his duty to cooperate with and assist the
attorney general, district attorney or other prosecutor, if any, in all reasonable ways.
Such cooperation shall include the prompt reporting of all arrests for liquor law violations
at licensed liquor establishments to the department of alcoholic beverage control.
Failure to perform his duty in any material way shall subject such officer to removal from
office and payment of all costs of prosecution.

History: Laws 1921, ch. 170, § 1; C.S. 1929, § 33-4433; 1941 Comp., § 40-101; 1953
Comp., § 31-1-1; Laws 1979, ch. 37, § 1.

                                      ANNOTATIONS

Cross references. — For New Mexico mounted patrol, see 29-6-1 NMSA 1978 et seq.

For sheriffs generally, see 4-41-2 NMSA 1978 et seq.

For state parks and recreation areas, police powers of superintendent and state park
and recreation commission employees, see 16-2-30 NMSA 1978.

For game laws, enforcement, see 17-2-19 NMSA 1978.

For trappers' and fur dealers' law, duty to enforce, see 17-5-8 NMSA 1978.

For disabled persons, search of person, clothing and effects for identifying device, see
28-8-2, 28-8-3 NMSA 1978.

For carrying of weapons by peace officers, see 30-7-2 NMSA 1978.

For resisting or obstructing an officer, penalty, see 30-22-1 NMSA 1978.
For forest fire laws, duties, see 30-32-3 NMSA 1978.

For uniformed guards of corrections department, peace officer powers, see 33-1-10
NMSA 1978.

For Detoxification Reform Act, see Chapter 43, Article 2 NMSA 1978.

For arrests under motor vehicle laws, see 66-8-122 NMSA 1978 et seq.

For livestock board, sheriffs and peace officers to execute orders of, see 77-3-2, 77-3-
10 NMSA 1978.

Plainclothes officer can intrude when he observes truck driven erratically. — This
section does not preclude plainclothes officer from making intrusion into pickup truck by
opening a door where officer has observed truck being driven rapidly and in an erratic
manner and, reaching truck after it has stopped, has observed that occupant appeared
incoherent and lacked understanding of request to roll down window. Such facts
warranted the officer, as person of reasonable caution, to open the pickup door. State v.
Ray, 1977-NMCA-100, 91 N.M. 67, 570 P.2d 605, cert. denied, 91 N.M. 4, 569 P.2d
413.

Liability for failure to take proper actions. — A governmental entity and its law
enforcement officers may be held liable, after receiving notice, for negligently failing to
take adequate action to protect a citizen from imminent danger and injury because of
failure to adopt proper procedures for responding to and investigating a reported
criminal act. Schear v. Board of Cnty. Comm'rs, 1984-NMSC-079, 101 N.M. 671, 687
P.2d 728.

Liability for failure to cooperate with prosecutors. — The statutory obligations that
officers cooperate with prosecutors and bring defendants before the courts are primarily
designed to protect the public by ensuring that dangerous criminals are removed from
society and brought to justice; accordingly, as with the duty to investigate crimes under
this section, the duties of cooperating with prosecutors, diligently filing complaints, and
bringing defendants before the courts inure to the benefit of private individuals, and the
violation of these statutory duties may give rise to a cognizable claim under the Tort
Claims Act, Sections 41-4-1 through 41-4-27 NMSA 1978. Weinstein v. City of Santa Fe
ex rel. Santa Fe Police Dep't, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.

Liability for failure to detain intoxicated driver. — Law enforcement officers may be
liable if they fail to detain an intoxicated driver, who then acts with the requisite level of
intent to commit a battery while driving intoxicated. Blea v. City of Espanola, 1994-
NMCA-008, 117 N.M. 217, 870 P.2d 755, cert. denied, 117 N.M. 328, 871 P.2d 984.

Immunity from liability for wrongful issuance of warrant. — Police officers and
assistant district attorney were immune from liability for alleged wrongful issuance and
service of a search warrant which was valid on its face in which court ordered police
officers to search for child, take him into custody, keep him safely and make a return of
the proceedings on the warrant. Torres v. Glasgow, 1969-NMCA-053, 80 N.M. 412, 456
P.2d 886.

Class of persons to be protected by duty to investigate. — In creating the duty to
investigate, the legislature did not limit the traditional tort concept of foreseeability that
would otherwise define the intended beneficiaries of the statute; all persons who are
foreseeably at risk within the general population are within the class of persons to be
protected by the duty to investigate. Torres v. State, 1995-NMSC-025, 119 N.M. 609,
894 P.2d 386.

When any person of the public, regardless of geographic location, is foreseeably at risk
of injury by a party reported to be in violation of the criminal law, officers undertaking the
investigation of the crime owe that person a duty to exercise the care ordinarily
exercised by prudent and qualified officers. Torres v. State, 1995-NMSC-025, 119 N.M.
609, 894 P.2d 386.

Foreseeability of criminal act. — Since it is not unlikely that a murderer would flee the
city in which he committed the crime and, given modern-day transportation, that this
person would flee across state lines, and since the police knew or should have known
that it is possible that a person who kills randomly with no motive would kill again, the
harm in this case was not so removed from the conduct of the defendants that the court
may say as a matter of law that the victims were unforeseeable; thus foreseeability is a
question for the jury to determine by giving thought to, among other things, the time,
space, and distance between the alleged failure to investigate and the deaths of the two
victims. Torres v. State, 1995-NMSC-025, 119 N.M. 609, 894 P.2d 386.

Sufficiency of allegations in complaint. — Allegations in a complaint that sheriff
deputies failed to apprehend a drunk driver or investigate a tavern disturbance, and that
this failure proximately caused personal injury to the plaintiff's family, sufficed to state a
cause of action for negligent violation of a right secured under New Mexico law for
which Section 41-4-12 NMSA 1978 waives sovereign immunity. California First Bank v.
State Dep't of Alcoholic Beverage Control, 1990-NMSC-106, 111 N.M. 64, 801 P.2d
646.

Constables may carry firearms because they are peace officers. 1963 Op. Att'y Gen.
No. 63-117.

Magistrate or municipal court case may not be continued where appeal filed. — A
peace officer who has prosecuted a criminal case in magistrate or municipal court may
not continue to prosecute the case in district court after an appeal of the magistrate or
municipal court judgment has been filed in district court. 1989 Op. Att'y Gen. No. 89-27.

Sheriff may file complaint without consent of district attorney. — The sheriff may
file a complaint against a party for game law violation without first obtaining the consent
of, or consulting, the district attorney. He should, before filing any criminal charge,
consult his district attorney, except perhaps in cases of emergency where the sheriff
waives a warrant on hearing in order to arrest someone who is believed about to leave
the country. 1939 Op. Att'y Gen. 39-3257.

When district attorney has authority to appear in court. — The district attorney as
chief law enforcement officer has the authority to appear in any case filed before any
justice of the peace (now magistrate court) in any county in his district when, in his
opinion, the interests of the people in his district require his participation in any case
filed before a justice of the peace (magistrate) in said district. 1953 Op. Att'y Gen. No.
53-5669.

Law reviews. — For note, "Criminal Procedure - New Mexico Denies Fifth Amendment
Protection to Corporations: John Doe and Five Unnamed Corporations v. State ex rel.
Governor's Organized Crime Prevention Commission," see 23 N.M.L. Rev. 315 (1993).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 70 Am. Jur. 2d Sheriffs, Police, and
Constables §§ 28 to 32, 46 et seq.

Constitutionality of authority for arrest by peace officers without a warrant, 1 A.L.R. 585.

Peace officers' criminal responsibility for killing or wounding one whom they wished to
identify, 18 A.L.R. 1368, 61 A.L.R. 321.

Mobs, liability for failure to prevent killing by, 60 A.L.R. 873.

Territorial extent of power to arrest under warrant, 61 A.L.R. 377.

Personal immunity, validity and construction of legislation, conferring on police officers
for acts in course of duty, 163 A.L.R. 1435.

Civil liability of law enforcement officers for malicious prosecution, 28 A.L.R.2d 646, 81
A.L.R.4th 1031.

Personal liability of sheriff, or his bond, for negligently causing personal injury or death,
60 A.L.R.2d 873.

Municipal liability for personal injuries resulting from police officer's use of excessive
force in performance of duty, 88 A.L.R.2d 1330.

Liability of police officer or his bond for injuries or death of third persons resulting from
operation of motor vehicle by subordinate, 15 A.L.R.3d 1189.

Nonfeasance: personal liability of policeman, sheriff or similar peace officer or his bond
for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d
700.
Liability of prison authorities for injury to prisoner directly caused by assault by other
prisoner, 41 A.L.R.3d 1021.

Sexual misconduct or irregularity as amounting to "conduct unbecoming an officer,"
justifying officer's demotion or removal or suspension from duty, 9 A.L.R.4th 614.

Liability for false arrest or imprisonment under warrant as affected by mistake as to
identity of person arrested, 39 A.L.R.4th 705.

Right to compensation for real property damaged by law enforcement personnel in
course of apprehending suspect, 23 A.L.R.5th 834.

When does police officer's use of force during arrest become so excessive as to
constitute violation of constitutional rights, imposing liability under Federal Civil Rights
Act of 1871 (42 USCS § 1983), 60 A.L.R. Fed. 204.

62 C.J.S. Municipal Corporations §§ 574, 575, 577, 578; 80 C.J.S. Sheriffs and
Constables §§ 10, 18, 26, 35 to 42.