New Mexico Statutes

N.M. Stat. § 30-3-9 (2026)

Assault; battery; school personnel.

✓ current as of May 2026

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A. As used in this section:

(1) "in the lawful discharge of his duties" means engaged in the performance
of the duties of a school employee; and

(2) "school employee" includes a member of a local public school board and
public school administrators, teachers and other employees of that board.

B. Assault upon a school employee consists of:

(1) an attempt to commit a battery upon the person of a school employee
while he is in the lawful discharge of his duties; or

(2) any unlawful act, threat or menacing conduct which causes a school
employee while he is in the lawful discharge of his duties to reasonably believe that he
is in danger of receiving an immediate battery.

Whoever commits assault upon a school employee is guilty of a misdemeanor.

C. Aggravated assault upon a school employee consists of:
(1) unlawfully assaulting or striking at a school employee with a deadly
weapon while he is in the lawful discharge of his duties;

(2) committing assault by threatening or menacing a school employee who is
engaged in the lawful discharge of his duties by a person 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

(3) willfully and intentionally assaulting a school employee while he is in the
lawful discharge of his duties with intent to commit any felony.

Whoever commits aggravated assault upon a school employee is guilty of a third
degree felony.

D. Assault with intent to commit a violent felony upon a school employee consists of
any person assaulting a school employee while he is in the lawful discharge of his
duties with intent to kill the school employee.

Whoever commits assault with intent to commit a violent felony upon a school
employee is guilty of a second degree felony.

E. Battery upon a school employee is the unlawful, intentional touching or
application of force to the person of a school employee while he is in the lawful
discharge of his duties, when done in a rude, insolent or angry manner.

Whoever commits battery upon a school employee is guilty of a fourth degree felony.

F. Aggravated battery upon a school employee consists of the unlawful touching or
application of force to the person of a school employee with intent to injure that school
employee while he is in the lawful discharge of his duties.

Whoever commits aggravated battery upon a school employee, inflicting an injury to
the school employee 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 fourth degree felony.

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

G. Every person who assists or is assisted by one or more other persons to commit
a battery upon any school employee while he is in the lawful discharge of his duties is
guilty of a fourth degree felony.

History: Laws 1989, ch. 344, § 1.
ANNOTATIONS

School employee. — Security guards providing services for a school district pursuant
to a contact with a school board are school employees. State v. Johnson, 2009-NMSC-
049, 147 N.M. 177, 218 P.3d 863, rev'g 2008-NMCA-106, 144 N.M. 629, 190 P.3d 350.

Where a private security company and a school district entered into a contract to
provide security services to the school district; the security company hired and paid
security guards to work at a high school; the security guards were neither hired directly
by the school board nor paid directly by the school board for their services pursuant to
the contract; the principal of the high school determined what hours the security guards
should work and at what locations; the principal could dictate that a particular security
guard could not work at the high school; and the site administrator had full direction over
security guard assignments, including temporary assignments at other school district
schools, the security guards were school employees. State v. Johnson, 2009-NMSC-
049, 147 N.M. 177, 218 P.3d 863, rev'g 2008-NMCA-106, 144 N.M. 629, 190 P.3d 350.

Contract security guards. — Where a school district contracted with a third party to
provide school security guards; the school district set the hours worked by the guards,
supervised them on a daily basis and required the guards to adhere to policies and
procedures of the school district; the third party retained the ability to hire, fire and
discipline the guards; the third party was required to insure the guards; and the third
party paid the guards’ salaries, the security guards were not school employees. State v.
Johnson, 2008-NMCA-106, 144 N.M. 629, 190 P.3d 350, rev'd, 2009-NMSC-049, 147
N.M. 177, 218 P.3d 863.

"Use" of a deadly weapon in the context of assault with a deadly weapon
construed. — A defendant uses a deadly weapon to commit assault where a defendant
makes facilitative use of the deadly weapon. Facilitative use of a deadly weapon may be
found if (1) a deadly weapon is present at some point during the encounter, (2) the
victim knows or, based on the defendant's words or actions, has reason to know that the
defendant has a deadly weapon, and (3) the presence of the weapon is intentionally
used by the defendant to facilitate the commission of the assault. State v. Zachariah G.,
2022-NMSC-003, aff'g 2021-NMCA-036.

Sufficient evidence of assault on a school employee with a deadly weapon. —
Where a child was adjudicated a delinquent for committing aggravated assault with a
deadly weapon on a school employee, there was sufficient evidence to support the
adjudication where, although the child did not brandish the BB gun he had concealed in
his waistband, the child refused to reveal the object to the school principal and asked
the principal menacing questions, including "What would happen if somebody shot up
the school?", "Are you afraid to die?", and "How would you feel if a twelve-year old shot
you?". There was sufficient evidence to satisfy the essential element that the child used
the deadly weapon where the evidence supported findings that a deadly weapon was
present, that the principal knew or had reason to know from the child's words and
actions that the child had a BB gun when the child threatened him, and that the
presence of the weapon was intentionally used by the child to facilitate the commission
of an assault on the principal. Based on the child's verbal threats that took advantage of
the presence of the BB gun, it was reasonable for the jury to determine that the child's
conduct caused the principal to reasonably believe that he was in danger of receiving
an immediate battery, and thus the child used the deadly weapon to facilitate the
assault. State v. Zachariah G., 2022-NMSC-003, aff'g 2021-NMCA-036.

Sufficient evidence of aggravated assault with a deadly weapon on a school
employee. — Where a child was adjudicated a delinquent for committing aggravated
assault with a deadly weapon on a school employee, there was sufficient evidence to
support the adjudication where, although the child did not brandish or retrieve a BB gun
he had concealed in his waistband, the child refused to reveal the object to the school
principal and asked the school principal menacing questions, including "What would
happen if somebody shot up the school?", "Are you afraid to die?", and "How would you
feel if a twelve-year-old shot you?". A reasonable juror could have determined that the
child threatened the principal with the BB gun and that the gun was instrumental to the
child's assault because the child's menacing and threatening questions instilled fear in
the principal while the gun was bulging from the child's pants and of which the child
knew the principal was aware. State v. Zachariah G., 2021-NMCA-036, cert. granted.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Sufficiency of bodily injury to support
charge of aggravated assault, 5 A.L.R.5th 243.

Notes of Decisions

Cited in 17 cases (3 in the last 5 years), 2003–2026 · leading case: State v. Johnson, 218 P.3d 863 (N.M. 2009).

Sort: Relevance Newest Treatment

State v. Johnson, 218 P.3d 863 (N.M. 2009). · cites it 54× “{2} The sole issue we must decide in this case is whether the security guards may be considered “employees” of the school board for the purposes of Section 30-3-9. The State argues that the security guards are “school employees” because the Legislature intended to reduce…”

State v. Johnson, 190 P.3d 350 (N.M. Ct. App. 2008). · cites it 52× “The district court found that the three victims were not school employees as contemplated by Section 30-3-9. The State argues that the three victims were school employees and asks this Court to reverse the district court.”

State v. Zachariah G., 2022 NMSC 003 (N.M. 2021). · cites it 8× “Based on Child’s verbal threats that took advantage of the presence of the BB gun, it was reasonable for the jury to determine that Child’s conduct caused Morris “to reasonably believe that he [was] in danger of receiving an immediate battery,” see § 30-3-9(B)(2), and thus,…”

State v. Zachariah G., 2021 NMCA 036 (N.M. Ct. App. 2019). · cites it 8× “One who is armed 2We note that, although Section 30-3-9 does not contain the term “use,” the jury instructions, based on UJI 14-355, became the law of the case against which we measure the sufficiency of the evidence.”

Herrera v. Santa Fe Pub. Schs., 41 F. Supp. 3d 1027 (D.N.M. 2014). · cites it 6× “It expands: The New Mexico Supreme Court recently determined that a different approach than the Blea factors was more appropriate in holding that security officers employed by a private security company that contracted with the Gallup-McKinley County Board of Education were…”

State v. Bennett, 82 P.3d 72 (N.M. Ct. App. 2003). · cites it 2× “In 1989, the legislature created the crime of aggravated battery upon a school employee with the same elements and penalty as aggravated battery and different from aggravated battery only because of the additional element that the victim be a school employee.”

J.H. Ex Rel. J.P. v. Bernalillo Cnty., 806 F.3d 1255 (10th Cir. 2015). “See N.M. Stat. Ann. § 30-3-9 (E) (West 2015).”

J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F. Supp. 3d 1085 (D.N.M. 2014). · cites it 11× “1 at 21-22 (alteration in Motion but not source) (quoting N.M. Stat. Ann. § 30-3-9 ). Sharkey contends that the following facts established probable cause that J.”

State v. Montoya, 2013 NMSC 020 (N.M. 2013). “…e.g., § 30-3-4 (battery), and § 30-3-5 (aggravated battery), and § 3 0-3-9(E) (battery on a school employee), and § 30-3-9(F) (aggravated battery on a school employee), with § 30-15-1 (criminal damage to property), and § 30-15-1.1 (graffiti damage to property). Our double…”

State v. Valino, 2012 NMCA 105 (N.M. Ct. App. 2012). “Currently there are no jury instructions regarding this crime, and we ask that the Supreme Court refer this matter to the appropriate committee to assess whether uniform jury instructions are necessary for this and the related crimes set out in NMSA 1978, Section30-3-9 (1989)…”

State v. Dominguez, 106 P.3d 563 (N.M. 2005). · cites it 8× “See NMSA 1978, § 30-3-9 (1989) (battery of school personnel, "great bodily harm or death"); NMSA 1978, § 30-3-9.”

State v. Bailey (N.M. Ct. App. 2026). · cites it 6× “Applying this definition, the Court concluded 20 that an “employee” for purposes of Section 30-3-9 “includes those who have been 1 hired directly .”

Show all 17 citing cases →

— N.M. Stat. § 30-3-9(A)(2) — 2 cases

State v. Johnson, 218 P.3d 863 (N.M. 2009). “{2} The sole issue we must decide in this case is whether the security guards may be considered “employees” of the school board for the purposes of Section 30-3-9. The State argues that the security guards are “school employees” because the Legislature intended to reduce…”

State v. Johnson, 190 P.3d 350 (N.M. Ct. App. 2008). “The district court found that the three victims were not school employees as contemplated by Section 30-3-9. The State argues that the three victims were school employees and asks this Court to reverse the district court.”

— N.M. Stat. § 30-3-9(B) — 2 cases

State v. Justin C. (N.M. Ct. App. 2018).

State v. James S. (N.M. Ct. App. 2010).

— N.M. Stat. § 30-3-9(B)(2) — 3 cases

State v. Zachariah G., 2022 NMSC 003 (N.M. 2021). “Based on Child’s verbal threats that took advantage of the presence of the BB gun, it was reasonable for the jury to determine that Child’s conduct caused Morris “to reasonably believe that he [was] in danger of receiving an immediate battery,” see § 30-3-9(B)(2), and thus,…”

State v. Zachariah G., 2021 NMCA 036 (N.M. Ct. App. 2019). “One who is armed 2We note that, although Section 30-3-9 does not contain the term “use,” the jury instructions, based on UJI 14-355, became the law of the case against which we measure the sufficiency of the evidence.”

State v. James S. (N.M. Ct. App. 2010).

— N.M. Stat. § 30-3-9(C) — 1 case

— N.M. Stat. § 30-3-9(C)(1) — 2 cases

— N.M. Stat. § 30-3-9(E) — 8 cases

J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F. Supp. 3d 1085 (D.N.M. 2014). “1 at 21-22 (alteration in Motion but not source) (quoting N.M. Stat. Ann. § 30-3-9 ). Sharkey contends that the following facts established probable cause that J.”

State v. Jason J. (N.M. Ct. App. 2024).

State v. James S. (N.M. Ct. App. 2010).

— N.M. Stat. § 30-3-9(F) — 4 cases

State v. Bennett, 82 P.3d 72 (N.M. Ct. App. 2003). “In 1989, the legislature created the crime of aggravated battery upon a school employee with the same elements and penalty as aggravated battery and different from aggravated battery only because of the additional element that the victim be a school employee.”

State v. Montoya, 2013 NMSC 20 (N.M. 2013).

State v. Justin C. (N.M. Ct. App. 2018).

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