NM Stat § 33-3-28 (2021)
2021 New Mexico Statutes|Chapter 33 - Correctional Institutions|Article 3 - Jails|Section 33-3-28 - Jailers; peace officer powers.

A. Jailers and any employee of a local jail who has, at the particular time, the principal duty to hold in custody any person accused or convicted of a criminal offense or placed in the legal custody or supervision of a local jail shall have the power of a peace officer with respect to arrests and enforcement of laws when on the premises of a local jail, while transporting a person committed to or under the supervision of a local jail, while supervising any person committed to or under the supervision of a local jail anywhere within the state or when engaged in any effort to pursue or apprehend such a person. No jailer shall be convicted or held liable for any act performed pursuant to this subsection if a peace officer could lawfully have performed the same act in the same circumstance. Jailers, while acting within the scope of such law enforcement duties, shall be deemed law enforcement officers for purposes of the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978]; provided that coverage of liability of jailers employed by private independent contractors shall be made by the independent contractor. B. Jailers who are employees of an independent contractor shall not be required to attend the basic training program for law enforcement officers at the New Mexico law enforcement academy. C. Crimes against a jailer, including those persons employed by an independent contractor, shall be deemed the same crimes and shall bear the same penalties as crimes against a peace officer. D. As used in this section: (1) "jailer" means any employee of a local jail who has inmate custodial responsibilities, including those persons employed by private independent contractors who have been designated as jailers by the sheriff; and (2) "local jail" means a facility operated by a county, municipality or combination of such local governments or by a private independent contractor pursuant to an agreement with a county, municipality or combination of such local governments and used for the confinement of persons charged with or convicted of violation of a law or ordinance. History: 1978 Comp., § 33-3-28, enacted by Laws 1984, ch. 22, § 19; 1985, ch. 110, § 1. ANNOTATIONSCross references. — For assault upon peace officer, see 30-22-21 NMSA 1978. For assisting in assault upon peace officer, see 30-22-26 NMSA 1978. Plain language of Subsection A indicates that the legislature did not intend for the failure of the sheriff to perform the ministerial act of designating the guards of independent contractors as jailers to strip the guards of local jails of the powers of a peace officer. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Legislature intended its reference to "enforcement of laws" in Subsection A of this section and Section 33-1-10A NMSA 1978 to apply to the duty of corrections officers to maintain order in a correctional facility. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Legislature deemed key factors for peace officer status to be the performance of the functions of correctional officers and the existence of a contract between the employer and the public body responsible for the operation of a corrections facility. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. "Peace officer" in 31-20A-5A NMSA 1978 includes jailers and corrections officers while they are engaged in the duties for which the legislature designated them to be peace officers in this section and Section 33-1-10 NMSA 1978. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Designation by sheriff not necessary. — The legislature did not make designation as a jailer by the sheriff a necessary condition for peace officer status. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Legislative intent. — Section 31-20A-5A NMSA 1978 concerns a penalty for a crime against a peace officer, and therefore, Section 33-1-10 NMSA 1978 and this section serve as powerful indicators of the legislature's intent in Section 31-20A-5A NMSA 1978. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Corrections officer's failure to retake failed rifle test does not nullify his status as a peace officer under Section 33-3-28 NMSA 1978 as a matter of law. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Guadalupe county correctional facility is a local jail under Subsection D of this section, and its guards are "employees of a local jail" who have the powers of a peace officer under the circumstances specified in Subsection A of this section. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. Guadalupe county correctional facility is a penal institution. — Guadalupe county correctional facility is a penal institution within the plain language of Section 31-20A-5 NMSA 1978. The fact that the correctional facility housed inmates from the department of corrections rather than county inmates is immaterial both for the definition of "local jail" in this section and the definition of "penal institution" in Section 31-20A-5 NMSA 1978. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477. County liability. — Where a county has contracted with a private, independent contractor to operate a county jail, but pursuant to Section 33-3-4 NMSA 1978, the county retains oversight responsibilities over the operation of its detention center and has, therefore, not delegated complete authority to the contractor for the operation of the jail, the county retains liability under 42 U.S.C.S. § 1983 for any unconstitutional policies or customs the contractor may have adopted or created. Herrera v. County of Santa Fe, 213 F. Supp. 2d 1288 (D.N.M. 2002). Transportation of prisoners housed at a county jail or other detention facility is not the exclusive responsibility of the local sheriff's department; jail administrators and independent contractors may also transport inmates at their facilities. 2000 Op. Att'y Gen. No. 00-02. Am. Jur. 2d, A.L.R. and C.J.S. references. — 60 Am. Jur. 2d Penal and Correctional Institutions §§ 174, 175, 177, 178. 72 C.J.S. Prisons and Rights of Prisoners § 16.