January 21, 2015 – State of New Mexico v. Guadalupe Murillo, No. 32,708

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: _January 21, 2015

NO. 32,708

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

GUADALUPE MURILLO,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge

Hector H. Balderas, Attomey General

Margaret E. McLean, Assistant Attomey General
Joel Jacobsen, Assistant Attomey General

Santa Fe, NM

for Appellee

The Appellate Law Office of Scott M. Davidson
Scott M. Davidson

Albuquerque, NM

for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Guadalupe Murillo appeals his convictions of two counts of
aggravated battery with a deadly weapon, contrary to NMSA 1978, Section 30-3-5(C)
(1969), and unlawfully possessing a switchblade knife pursuant to NMSA 1978,
Section 30-7-8 (1963). Defendant raises five issues on appeal. Three of Defendant’s
issues stem from his contention that the switchblade statute is unconstitutional on its
face. 	In this regard, Defendant argues that the switchblade statute (1) violates the
right to bear arms guaranteed under Article II, Section 6 of the New Mexico
Constitution; (2) violates federal and state substantive due process guarantees; and (3)
violates federal and state equal protection guarantees. Defendant also contends that
the jury instructions violated his procedural due process rights and that the district
court improperly precluded him from presenting evidence in support of his self-
defense theory during his opening statement. 	We uphold Section 30-7-8 as
constitutional and affirm the district court.
BACKGROUND
{2} 	Defendant used a switchblade knife to stab two customers at the Wal-Mart in
Clovis, New Mexico, where he worked in the tire and lube department. 	The two
victims, Carlos Lopez and Celestino Owen (Owen), were part of a group of shoppers

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that included Anna Owen, who was Carlos Lopez’s sister and Owen’s wife, Owen’s
twelve year-old brother, and the three Owen children, ages six years, two years, and
eight months. Conflicting testimony was presented as to whether the victims and their
family members went to the store to purchase supplies for an outing or with the
specific intention to attack Defendant or his brother-in-law and co-worker, Daniel
Lopez. In any case, there was prior animosity between the parties, and the encounter
led to an altercation between Defendant and Carlos Lopez in the grocery aisle.
Conflicting testimony was presented as to who initiated the fight. Defendant used a
switchblade knife to stab Carlos Lopez multiple times, while Carlos Lopez fought
without a weapon. Owen, also weaponless, was stabbed in the neck by Defendant
while trying to break up the fight.
CONSTITUTIONALITY OF SECTION 30-7-8
{3} 	Defendant did not raise his three facial challenges to Section 30-7-8 in the
district court. Although these issues were not preserved, we exercise our discretion
to review Defendant’s arguments because these arguments implicate the general
public interest. 	See Rule 12-216(B)(1) NMRA (stating that an appellate court may
review unpreserved questions of general public interest); see also Azar v. Prudential
Ins. Co. of Am., 2003-NMCA-062, ¶ 28, 133 N.M. 669, 68 P.3d 909 (stating that we

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have invoked the general public interest exception to the preservation rule when
review is likely to settle a question of law that affects the public at large).
{4} 	In evaluating a facial challenge to the constitutionality of a statute, we examine
whether there is any potential set of facts to which the statute can be constitutionally
applied. Bounds v. State ex rel. D’Antonio, 2011-NMCA-011, ¶ 34, 149 N.M. 484,
252 P.3d 708, aff’d 2013-NMSC-037, 306 P.3d 457. Put another way, “we consider
only the text of the statute itself, not its application[.]” 	Bounds, 2013-NMSC-037,
¶ 14 (alteration, internal quotation marks, and citation omitted). We do not question
the wisdom, policy, or justness of an act of the Legislature. 	Id. ¶ 11. Instead, we
presume statutes are valid and, therefore, we uphold them against constitutional
challenge “unless we are satisfied beyond all reasonable doubt that the Legislature
went outside the bounds fixed by the Constitution in enacting the challenged
legislation.” Id. (internal quotation marks and citation omitted).
Article II, Section 6 Challenge
{5} 	Defendant argues that Section 30-7-8, under which possession of a switchblade
knife is a petty misdemeanor, violates Article II, Section 6 of the New Mexico
Constitution, which guarantees the right to bear arms.
{6} 	Article II, Section 6 reads:
No law shall abridge the right of the citizen to keep and bear arms
for security and defense, for lawful hunting and recreational use and for

4
other lawful purposes, but nothing herein shall be held to permit the
carrying of concealed weapons. 	No municipality or county shall
regulate, in any way, an incident of the right to keep and bear arms.
The ban on possession of switchblade knives pursuant to Section 30-7-8 implicates
Article II, Section 6 only if switchblade knives qualify as “arms.” For the purpose of
our analysis, we assume without deciding that switchblade knives are among the arms
protected by Article II, Section 6.
{7} 	Defendant does not argue for a particular level of scrutiny that should apply to
the challenged legislation in his argument on this issue. Our cases that have addressed
a challenge to a statute under Article II, Section 6 have scrutinized whether the statute
was “reasonably related to the public health, safety, and welfare.” State v. Lake, 1996-
NMCA-055, ¶¶ 7, 9, 11, 121 N.M. 794, 918 P.2d 380; see also State v. Rivera, 1993-
NMCA-011, ¶¶ 5, 7, 115 N.M. 424, 853 P.2d 126 (“An act is within the state’s police
power if it is reasonably related to the public health, welfare, and safety.” (internal
quotation marks and citation omitted)); State v. Dees, 1983-NMCA-105, ¶ 11, 100
N.M. 252, 669 P.2d 261 (upholding statute against an Article II, Section 6 challenge
because the statute was “a reasonable regulation . . . [that] serve[d] a legitimate goal”).
This formulation approximates rational basis scrutiny. Compare Griego v. Oliver,
2014-NMSC-003, ¶ 39, 316 P.3d 865 (stating that under rational basis review, “the
burden is on the party challenging statutes to prove that the legislation is not rationally

5
related to a legitimate governmental purpose”), with Dees, 1983-NMCA-105, ¶ 11
(upholding a firearm control statute because it was “a reasonable regulation . . . [that]
serve[d] a legitimate goal”). Rational basis scrutiny is the most deferential standard
of review. Griego, 2014-NMSC-003, ¶ 39. The least deferential standard of review,
strict scrutiny, requires the party defending the statute to “prove that the legislation
furthers a compelling state interest.” Id. In between lies intermediate scrutiny, which
requires 	proof 	“that 	the 	legislation 	is 	substantially 	related 	to 	an 	important
governmental interest.” Id.
{8} 	The United States Supreme Court has declared that the right to keep and bear
arms for self-defense is a fundamental right but abstained from specifying standards
of scrutiny that apply to challenges under that right. McDonald v. City of Chicago,
561 U.S. 742, 790-91 (2010). That said, the Court has rejected rational basis review
as an overly deferential standard. District of Columbia v. Heller (Heller I), 554 U.S.
570, 628 n.27 (2008); see also United States v. Reese, 627 F.3d 792, 801 (10th Cir.
2010) (“[T]he [Supreme] Court indicated . . . that the rational basis test is not
appropriate for assessing Second Amendment challenges to federal laws.”); Heller v.
District of Columbia (Heller II), 670 F.3d 1244, 1256 (D.C. Cir. 2011) (“Heller [I]
clearly does reject any kind of ‘rational basis’ or reasonableness test[.]”). The Court
also has identified certain longstanding regulatory measures as “presumptively

6
lawful[,]” offering an explicitly non-exhaustive list. 	Heller I, 554 U.S. at 626-627,
627 n.26. The lack of specific guidance from the Court as to the appropriate analytical
framework for a right to bear arms challenge left a void, or, as the Seventh Circuit has
put it, a “quagmire.” United States v. Skoien, 614 F.3d 638, 642 (7th Cir. 2010) (en
banc).
{9} 	Given only general direction by the Supreme Court, federal circuits have
developed a consensus to the extent that some form of intermediate scrutiny is
appropriate. See, e.g., Reese, 627 F.3d at 798, 802 (applying intermediate scrutiny to
analyze a Second Amendment challenge to a federal statute that prohibited possession
of a firearm while subject to a domestic protection order); Heller II, 670 F.3d at 1247,
1256-58, 1262 (applying intermediate scrutiny to District of Columbia laws requiring
registration of firearms, prohibiting assault weapons, and prohibiting magazines that
hold more than ten rounds); United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir.
2010) (applying intermediate scrutiny to the prohibition of unmarked firearms);
Skoien, 614 F.3d at 639, 641-42 (applying intermediate scrutiny to federal statute
prohibiting firearm possession by persons convicted of domestic violence); see also
Allen Rostron, Justice Breyer’s Triumph in the Third Battle Over the Second
Amendment, 80 Geo. Wash. L. Rev. 703, 752 (2012) (noting consensus “emerging
from the confusion and uncertainty” that intermediate scrutiny is the correct standard

1 The Sixth Circuit court in Tyler v. Hillsdale County Sheriff’s Department,
___ F.3d ___, 2014 WL 7181334, at *17 (6th Cir. Dec. 18, 2014), applied strict
scrutiny under a Second Amendment challenge to a federal statute that prohibits
possession of firearms by a person who has been “adjudicated as a mental defective
or who has been committed to a mental institution[.]” 18 U.S.C. § 922(g)(4) (2012).
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of review for Second Amendment claims). We have found only one court reviewing
a right to bear arms challenge that has based its holding on a strict scrutiny analysis.1
See Rostron, supra, at 753 (writing prior to the Sixth Circuit decision in 2014 that
applied strict scrutiny under a right to bear arms challenge, one commentator wrote
that “courts . . . have been remarkably unanimous in rejecting the strict scrutiny
standard of review.”).
{10} 	We are not persuaded that we should depart from the post-Heller I consensus
for intermediate scrutiny to evaluate the statute in question. 	Viewed from any
approach, the switchblade statute is a modest infringement. Because Section 30-7-8
bans only a small subset of knives, which are themselves a peripheral subset of arms
typically used for self-defense or security, the statute effects an unsubstantial burden
on the right to keep and bear arms. Cf. Heller I, 554 U.S. at 629 (“[T]he American
people 	have 	considered 	the 	handgun 	to 	be 	the 	quintessential 	self-defense
weapon. . . . [H]andguns are the most popular weapon chosen by Americans for self-
defense in the home[.]”). And switchblades are designed for uses that are remote from
the core of the right to keep and bear arms. Cf. id. at 635 (“[The Second Amendment]

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elevates above all other interests the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.”). Switchblades are specifically “designed for
quick use in a knife fight.” 	State v. Nick R., 2009-NMSC-050, ¶ 23, 147 N.M 182,
218 P.3d 868. “[T]hey are more readily concealable [than regular knives] and hence
more suitable for criminal use.” Crowley Cutlery Co. v. United States, 849 F.2d 273,
278 (7th Cir.1988). Congress passed a statute in 1958, still in effect, that prohibits the
transportation or distribution of switchblade knives in interstate commerce and
possession within territories of the United States. 15 U.S.C. §§ 1241-1242 (2013).
The need for this law was “[t]he problem of the use of switchblade and other quick-
opening knives for criminal purposes[.]” 	S. Rep. No. 85-1980, at 3436 (1958),
reprinted in 1958 U.S.C.C.A.N 3435. 	In sum, Section 30-7-8 does not warrant
departure from the application of intermediate scrutiny preferred under federal law.
{11} 	Defendant argues that the New Mexico Constitution affords more protection
under Article II, Section 6 than does the Second Amendment of the United States
Constitution. 	We agree that our Constitution, unlike its federal counterpart,
specifically protects the right to keep and bear arms for “lawful hunting and
recreational use[.]” Compare N.M. Const. art. II, § 6, with U.S. Const. amend. II. But
Defendant does not argue that our constitutional protection of arms used for hunting
and recreation is violated by the prohibition on switchblades. 	With regard to the

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standard of scrutiny applied by our courts to challenges under the right to keep and
bear arms, New Mexico has not offered greater protections than federal courts under
the federal Constitution, at least since Heller I. In fact, we observe that our pre-Heller
I standard for evaluating claims under the right to keep and bear arms, which
approximates rational basis review, does not comport with Heller I’s statement that
“[rational basis scrutiny] could not be used to evaluate the extent to which a
legislature may regulate . . . the right to keep and bear arms.” Heller I, 554 U.S. at
628 n.27. And under McDonald, it must. See McDonald, 561 U.S. at 791 (holding
that the Second Amendment right to bear arms is incorporated against the States and,
therefore, applies “equally to the Federal Government and the States.”). Accordingly,
we can no longer apply rational basis scrutiny to challenges under the right to bear
arms. Returning to Defendant’s argument, we are not persuaded that our prior cases
have afforded even as much scrutiny to challenges to the right to bear arms under our
state constitution as is now necessary under the Second Amendment to the United
States Constitution, much less offered more protection.
{12} 	Defendant argues that we should follow the reasoning of the Oregon Supreme
Court, that, in State v. Delgado, invalidated an Oregon statute that prohibited
possession of switchblade knives on the basis that the statute violated the right to bear
arms guaranteed by the Oregon Constitution. 692 P.2d 610, 614 (Or. 1984) (en banc).

2 This analysis typically requires an evidentiary basis developed at trial, but in
this case Defendant did not raise his facial challenges below, leaving this Court
without the benefit of the typical evidentiary record. Other cases have addressed the
issue, and, rather than remanding this case to district court, we can address
Defendant’s arguments based on case law.
10
We do not agree and decline to follow the reasoning of the Delgado court. Delgado
focused most of its analysis on whether knives are “arms,” concluding that they are,
in fact, protected under the Oregon Constitution. Id. at 611-14. Having determined
that switchblade knives are “arms,” the Delgado court held, with minimal further
analysis and without reference to a level of scrutiny, that the Oregon statute was
unconstitutional. See id. at 614. (“[T]his decision does not mean that individuals have
an unfettered right to possess or use constitutionally protected arms in any way they
please. . . . [T]he problem here is that [the challenged statute] absolutely proscribes
the mere possession or carrying of such arms. This the constitution does not permit.”).
Because our courts apply a standard of scrutiny when analyzing constitutional claims,
which the Oregon court did not in Delgado, we are not persuaded by its decision.
{13} 	We turn now to an analysis of Section 30-7-8 through the lens of intermediate
scrutiny. To survive a challenge under intermediate scrutiny, the government must
show that the statute is substantially related to an important government purpose.
Griego, 2014-NMSC-003, ¶ 39.2 The State argues that the purpose of the statute is
to protect the public from the danger of potentially-lethal surprise attacks posed by

11
switchblade knives. As the State points out, our Supreme Court has stated that the
switchblade is “designed for quick use in a knife fight.” Nick R., 2009-NMSC-050,
¶ 23. It is, “by design and use, almost exclusively the weapon of the thug and the
delinquent.” Precise Imp. Corp. v. Kelly, 378 F.2d 1014, 1017 (2d Cir. 1967). The
purpose of the legislation—protection of the public from the surprise use of a
dangerous weapon utilized in large part for unlawful activity—is an important
governmental purpose. 	Prohibiting the possession of this weapon is, of course,
substantially related to this narrow, but important, purpose.
{14} 	Defendant points out that Section 30-7-8 does not provide exceptions for places
where a switchblade might be carried or for the length of the blade. Defendant argues,
in essence, that although regulation of switchblades might be permissible, the
categorical ban instituted by Section 30-7-8 is unconstitutional. 	We do not agree.
While the statute might be characterized as prohibiting an entire class of arms
(switchblades), it might equally be characterized as a ban on a mere subset of a type
of arms (knives) that is itself peripheral to self-defense or home security. Ultimately,
Defendant’s point is semantic and beside the point. The real issues are: (1) the degree
of the burden placed on the right to keep and bear arms, which, in this case, is
unsubstantial and (2) the distance from the core of the right, which, in this case, is
remote. The fact that the statute effects a categorical ban is not, of itself, decisive. See

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Skoien, 614 F.3d at 641 (“Categorical limits on the possession of firearms would not
be a constitutional anomaly.”).
{15} 	Defendant also argues that the Legislature acted impermissibly because, in
enacting Section 30-7-8, it banned switchblades while leaving unregulated other
equally dangerous or more dangerous knives. 	Whether other knives also warrant
regulation is a question for the Legislature. The question we face under intermediate
scrutiny is whether the prohibition on switchblade knives serves an important purpose.
For reasons we have already stated, we think it does. Additionally, although our legal
analysis of Defendant’s facial challenge is not fact-dependent, the facts of this case
nevertheless evince the purpose of the prohibition of switchblades. Here, what might
have been a minor confrontation escalated into significant bloodshed in the grocery
aisle at the Clovis Wal-Mart. 	The important harm-reducing purpose of the
switchblade statute is not undermined by the fact that banning similar weapons would
also reduce harm. Defendant is asking us to question the policy of the Legislature,
which we decline to do. See Bounds, 2013-NMSC-037, ¶ 11.
{16} 	We are not satisfied beyond a reasonable doubt that the Legislature violated
Article II, Section 6 of the New Mexico Constitution in enacting Section 30-7-8 and,
therefore, we uphold the legislation against Defendant’s challenge.
Equal Protection

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{17} 	Defendant also contends that Section 30-7-8 violates both state and federal
equal protection guarantees. The right to equal protection under the law, both state
and federal, affords a guarantee that the government will treat similarly situated
individuals in an equal manner. Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, ¶ 7,
138 N.M. 331, 120 P.3d 413. 	A threshold to any equal protection claim is
membership in a group that is similarly situated to another group but treated
differently by the government because of a legislative classification. 	Id. ¶ 8.
Defendant has not addressed this requirement or developed the other aspects of an
equal protection argument. We will not construct Defendant’s argument on his behalf.
Elane Photography v. Willock, LLC, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“We will
not review unclear arguments, or guess at what a party’s arguments might be.”
(alterations, 	internal 	quotation 	marks, 	and 	citation 	omitted)), 	cert. 	denied,
___ U.S. ___, 134 S.Ct. 1787 (2014). To do so would not only “create[ ] a strain on
judicial resources and a substantial risk of error[,]” id., but would also be unfair to the
opposing party—in this case, the State—that is not afforded an opportunity to fully
develop an opposing argument. For these reasons, we do not consider Defendant’s
equal protection argument.
Substantive Due Process

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{18} 	Both the United States and New Mexico Constitutions guarantee that when a
state deprives any person of “life, liberty, or property,” due process is required. U.S.
Const. amend XIV, § 1; N.M. Const. art. II, § 18. 	“‘[S]ubstantive due process’
prevents the government from engaging in conduct that ‘shocks the conscience’ or
interferes with rights ‘implicit in the concept of ordered liberty[.]’” United States v.
Salerno, 481 U.S. 739, 746 (1987) (citations omitted); see also Bounds, 2013-NMSC-
037, ¶ 50 (“Substantive due process cases inquire whether a statute or government
action shocks the conscience or interferes with rights implicit in the concept of
ordered liberty.” (internal quotation marks and citation omitted)). Defendant contends
that Section 30-7-8 interferes with his right to keep and bear arms, which is
fundamental. At the outset of his briefing on this issue, Defendant asserts that Section
30-7-8 violates both the United States and New Mexico Constitutions. But as his brief
continues, Defendant refrains from constructing an argument under the New Mexico
Constitution, instead explicitly resting only on his conclusion that his federal right to
due process has been violated. 	Therefore, we address only Defendant’s argument
under federal due process requirements.
{19} 	The Second Amendment is enforceable against the States. See McDonald, 561
U.S. at 791 (stating that the Second Amendment is “fundamental from an American
perspective” and is therefore incorporated under the Due Process Clause of the

15
Fourteenth Amendment). Substantive due process analysis requires that we determine
the appropriate level of scrutiny to apply to the challenged statute. Wagner v. AGW
Consultants, 2005-NMSC-016, ¶ 12, 137 N.M. 734, 114 P.3d 1050. The appropriate
level of scrutiny “depends on the nature and importance of the individual interests
asserted and the classifications created by the statute.” 	Id. Defendant argues that
Section 30-7-8 impinges on his right to bear arms guaranteed under the Second
Amendment. We observe that Defendant’s substantive due process challenge is the
federal counterpart to his direct challenge to Section 30-7-8 under Article II, Section
6 of the New Mexico Constitution. Above, we held that intermediate scrutiny is the
appropriate standard of review for this statute, citing federal consensus for the
application of intermediate scrutiny to challenges under the Second Amendment.
Applying intermediate scrutiny to Section 30-7-8, we further held that the statute is
not repugnant to the right to bear arms under a federal standard. Accordingly,
Defendant’s federal substantive due process challenge fails.
JURY INSTRUCTIONS
{20} 	Defendant contends that he was denied due process because he was convicted
without the jury having found all elements necessary to constitute aggravated battery
with a deadly weapon. He argues that the jury should have been instructed that “[a]
knife is a deadly weapon only if you find that a knife, when used as a weapon, could

16
cause death or great bodily harm.” Defendant further argues that he requested this
instruction and that it conforms with the appropriate instruction for aggravated battery
with a deadly weapon. See UJI 14-322 NMRA. We review Defendant’s argument de
novo. State v. Lucero, 2010-NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d 1167 (stating
that we review the propriety of jury instructions de novo as a mixed question of law
and fact).
{21} 	Defendant’s requested instruction is, indeed, part of UJI 14-322. However, the
specific instruction in question is only appropriate if the object used for the alleged
battery is not among the objects defined by statute as deadly weapons. UJI 14-322,
n.5 (“This alternative is given only if the object used is not specifically listed in
[NMSA 1978, Section 30-1-12(B) (1963)].”). A switchblade knife is, by definition,
a “deadly weapon.” Section 30-1-12(B). Because Defendant’s switchblade was per
se a deadly weapon, the jury was not required to find that the switchblade could cause
death or bodily harm. 	Accordingly, Defendant was not entitled to his requested
instruction.
OPENING STATEMENT
{22} 	Defendant argues that his trial was unfair and his convictions should be
overturned because he was prevented from making any reference to self-defense in his
opening statement. 	We review the decision of the district court for abuse of

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discretion. See State v. Reynolds, 1990-NMCA-122, ¶ 11, 111 N.M. 263, 804 P.2d
1082 (stating that the latitude of counsel at opening argument is subject to the
discretion of the district court and appellate courts review for abuse of that discretion).
A district court abuses its discretion when a ruling is “clearly untenable or not justified
by reason.” 	State v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641
(internal quotation marks and citation omitted).
{23} 	Defendant has not provided any citation to the record, and we found no
reference to a ruling by the district court, that Defendant was prevented from making
any reference to self-defense in his opening statement. Therefore, we do not agree
with Defendant’s main premise that he was prevented from any reference to self-
defense in his opening statement.
{24} 	Although Defendant’s assertion that the court prevented all reference to self-
defense is too broad, the court did prevent Defendant from referring in his opening
statement to an incident that supposedly occurred between one of the victims, Carlos
Lopez, and one of the defense witnesses, Daniel Lopez, and to photographs that
purportedly showed injuries to Daniel Lopez caused by Carlos Lopez. 	Defendant
wanted to introduce the photographs to show that he was fearful of Carlos Lopez and
acted in self-defense when he stabbed Carlos Lopez. Defendant has not made any
argument or cited to any authority that the ruling of the district court that prevented

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mention of this incident or using the photographs in his opening statement was an
abuse of discretion. In fact, Defendant did not even mention this ruling in particular
in his briefing to this Court. We will not construct Defendant’s argument for him.
See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110
P.3d 1076 (stating that we will not develop an unclear argument on behalf of a party).
The district court did not abuse its discretion in so limiting Defendant’s opening
argument.
CONCLUSION
{25} 	For the foregoing reasons, we affirm the judgment of the district court and
uphold Section 30-7-8 against challenge under the Second Amendment of the United
States Constitution and Article II, Section 6 of the New Mexico Constitution.
{26} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
MICHAEL E. VIGIL, Chief Judge

LINDA M. VANZI, Judge
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