Supreme Court upholds ruling against middle school student

SANTA FE — The state Supreme Court on Monday, based on a case involving a Clovis middle school student who brought a BB gun to school, clarified what constitutes the “use” of a deadly weapon in committing an assault.

In a unanimous opinion, the court concluded a “defendant uses a deadly weapon to commit assault where a defendant makes facilitative use of the deadly weapon.” The court rejected arguments by the juvenile’s attorney that the charge should require “weapons-related conduct” or an “affirmative action with the deadly weapon.”

The student in the 2018 incident verbally threatened the principal but never brandished the gun or pointed it at him, but the court felt details of the incident rose to the level the charge requires.

“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,” Chief Justice Michael E. Vigil wrote in the court’s opinion.

District Attorney Andrea Reeb said she was pleased with the ruling, but had no other specific comments on the matter. Clovis Municipal Schools declined to comment on the legal matter.

According to the ruling:

• Marshall Middle School officials were alerted to a 12-year-old boy who had brought a gun onto the school campus. Principal Todd Morris located the student in a hallway, escorted him into his office and asked what was causing a bulge in the student’s waistband. The student refused to show the object, but produced a CO2 cartridge when asked to empty his pockets. Morris recognized the cartridge as a possible BB gun accessory.

• While waiting for police to arrive, the student asked the principal several questions: “What would happen if somebody shot up the school?"; “Are you afraid to die?"; and “How would you feel if a 12-year-old shot you?”

• A Curry County jury adjudicated the student for delinquent acts of aggravated assault with a deadly weapon on a school employee and unlawfully carrying a deadly weapon on school premises. The student appealed, and a divided Court of Appeals affirmed the adjudication.

According to a release from the court, battery involves physical contact, but verbal threats of possible violence can satisfy requirements of an assault charge.

“In this case, a reasonable jury could have determined child used the BB gun when his verbal threats together with the presence of the BB gun created the victim’s fear of receiving an immediate battery,” the court wrote.

In adopting the principle of “facilitative use,” the Supreme Court modified the legal standard for “use” of a deadly weapon that was applied by the Court of Appeals in its majority opinion. The justices wrote that “an analysis focused on facilitative use will help distinguish between mere possession of a deadly weapon and situations where the deadly weapon was, in fact ‘appl(ied) to advantage’ in furtherance of an assault.”

Dan Lindsey, a Clovis defense attorney, however, called the court’s decision a “legal slight of hand.”

He said the decision could mean legal trouble for someone with a concealed weapon who gets into an argument, as the other person in the argument could argue a threat was posed.

Even persons carrying knives as tools, Lindsey said, could be seen as a threat to someone confronting them. He noted police officers are always armed, but that doesn’t entitle their presence to be considered threatening.

The Court also directed the Criminal Uniform Jury Instructions Committee to develop recommendations for revising jury instructions consistent with the opinion’s definition of “use” of a deadly weapon in committing a crime.