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In planning an elaborate Halloween costume and setting out the carved pumpkin on your doorstep, let’s discuss the mischief and dangers that lurk around the Halloween season.

How COVID-19 Will Impact Halloween Celebrations?

First, let’s talk about how COVID-19 will affect this year’s Halloween celebrations and activities. As you should already be aware, New Mexicans are advised to stay in their homes for all but the most essential activities and services. When New Mexicans are not in their homes, they must strictly adhere to social distancing protocols and wear face coverings to minimize risks.

These restrictions raise an important self-defense question regarding carrying a firearm while wearing a mask. Does New Mexico law allow the concealed carry of a firearm if wearing a mask for health reasons or as part of a Halloween costume? Generally, the answer is yes, gun owners may carry a firearm while wearing a mask. However, New Mexico does outlaw the wearing of a mask to conceal one’s identity with intent to commit a crime or intimidate, hinder, or interrupt any person in the performance of their duty or exercise of their rights. See N.M. Stat. Ann. § 30-22-3.

Weapons vs. Accessories

In addition to whether or not you can wear a mask, other consideration must be taken regarding costume design and the accessories you carry for Halloween. It is important to understand New Mexico state law regarding the carry of lethal and nonlethal weapons as part of a costume and your right to defend yourself when trick-or-treating or attending a festival. To begin on this topic, open carry is legal in New Mexico without a permit for anyone at least 19 years of age who can legally possess a firearm.

A New Mexico Concealed Handgun License (“CHL”) or a permit from a state that New Mexico honors is required to carry a concealed, loaded firearm while on foot.

It can be easy to make mistakes when fashioning a costume for Halloween that may violate New Mexico state law. When deciding on which props to use, be sure to remember the definition of a “deadly weapon” and the prohibitions on carrying a deadly weapon. Unlawfully carrying a deadly weapon in New Mexico is a petty misdemeanor. N.M. Stat. Ann. § 30-7-2.

“Deadly weapon” means any firearm, whether loaded or unloaded; or any weapon which is capable of producing death or great bodily harm, including but not restricted to any types of daggers, brass knuckles, switchblade knives, bowie knives, poniards, butcher knives, dirk knives, and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts can be inflicted, including swords, and any kind of sharp pointed canes, also slingshots, slung shots, bludgeons; or any other weapons with that dangerous wounds can be inflicted. N.M. Stat. Ann. § 30-1-12.

Also be mindful of where you are attending any festivals or events because they may have special rules. For instance, no person is allowed on Expo New Mexico Fairgrounds with a deadly weapon, concealed or not. NMAC 4.3.1.19.

As it pertains to concealed carry, remember that state law does not allow you to carry more than one concealed handgun at any given time.

Also, a licensee may not carry a concealed handgun on or about his person on private property that has signs posted prohibiting the carrying of concealed weapons or when verbally told so by a person lawfully in possession of the property. NMAC 10.8.2.16 (D).

Defending Against Halloween Mischief

What if the neighborhood ghosts and goblins cause some mischief this year?

When encountering mischief-makers who are loitering or vandalizing your property, it is important to understand what you can and cannot do to protect your home. Generally, the Castle Doctrine does not apply to trespassers or those simply vandalizing property such as Halloween decorations. In those cases, only non-deadly force is allowed to stop the destruction or remove them from your property.

What happens if the situation escalates? While the term “Castle Doctrine” is not mentioned in New Mexico law, the principals embodied within it are present. The Castle Doctrine in New Mexico justifies the use of deadly force in the situation where:

  1. The place where the killing occurred was being used as the defendant’s dwelling;
  2. It appeared to the defendant that the commission of a violent felony was immediately at hand and that it was necessary to kill the intruder to prevent the commission of the violent felony; and
  3. A reasonable person in the same circumstances as the defendant would have acted the same way the defendant did. NM UJI 14-5170.

Note that all the above conditions must exist to have this legal defense apply in court. Even then, it is a question of fact for the jury to decide at trial. Remember, the Castle Doctrine does not apply to simple vandalism outside of your home and only comes into play in defense of your dwelling.

We want you all to have a safe and mischief free Halloween. For any questions regarding activities and home defense during Halloween, call U.S. LawShield and ask to speak to your Independent Program Attorney.

The preceding should not be construed as legal advice nor the creation of an attorney-client relationship. This is not an endorsement or solicitation for any service. Your situation may be different, so please contact your attorney regarding your specific circumstances. Because the laws, judges, juries, and prosecutors vary from location to location, similar or even identical facts and circumstances to those described in this presentation may result in significantly different legal outcomes. This presentation is by no means a guarantee or promise of any particular legal outcome, positive, negative, or otherwise.