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Senate approves red flag gun measure

Sen. Joseph Cervantes, D-Las Cruces, with State Poilce Chief Tim Johnson, second from left, gives his final pitch for HB5, the extreme risk protection bill, on the Senate Floor, Friday February 7, 2020. The bill passed 22-20 and now goes to the House. (Eddie Moore/Albuquerque Journal)

Copyright © 2020 Albuquerque Journal

SANTA FE – New Mexico appears to be on track to become the nation’s 18th state with a red flag gun law, after a divided Senate voted 22-20 on Friday to approve a bill that would allow firearms to be temporarily seized from those deemed dangerous to themselves or others.

The narrow vote to approve the Extreme Risk Firearm Protection Order Act sent the bill on to the House, which approved a similar measure last year, with just over two weeks left in the 30-day legislative session.

It also prompted at least one county sheriff to suggest the measure would be challenged in court if signed into law by Gov. Michelle Lujan Grisham.

However, the Democratic governor and other backers expressed confidence in the bill’s constitutionality, saying it was more narrowly targeted than laws enacted in other states.

“We have an obligation to every single New Mexican, every single family, every single child that we do everything in our power that can provide just that additional layer of safety and public support,” Lujan Grisham told a news conference after Friday’s vote.

This year’s red flag gun bill, Senate Bill 5, has divided New Mexico’s law enforcement ranks. Thirty of the state’s 33 sheriffs oppose the measure, while State Police Chief Tim Johnson and top Albuquerque Police Department officials support it.

Sen. Joseph Cervantes, D-Las Cruces, the bill’s sponsor, evoked the mass shooting in El Paso last year in which a gunman killed 22 people – and allegedly targeted those of Mexican descent – in making his case for the legislation on the Senate floor.

“I can’t know that this bill will prevent a school shooting,” said Cervantes, who described himself as a gun owner and concerned father. “What I do know is that if we do nothing but offer thoughts and prayers every time there’s a shooting, I won’t be able to look at myself in the mirror.”

But critics said the measure would violate New Mexicans’ constitutional rights and questioned whether it would prevent tragedies.

A National Rifle Association spokeswoman described the bill as a “dangerous gun confiscation scheme,” while GOP senators argued it would be a scarlet letter of sorts for those falsely accused.

“How can you have probable cause with no offense?” asked Sen. Greg Baca, R-Belen. “You don’t have a chance to defend yourself on that.”

Amended on floor

Under the bill, which was revised as it moved through the Senate and amended six times on the chamber floor, only law enforcement officers, not family members or co-workers, would be able to file a petition in state court for an order to prohibit someone from possessing firearms.

However, law enforcement officials would have to explain their decision in writing if they opted not to seek a court order. Family members, school principals and co-workers would all be able to file reports with law enforcement seeking to have someone’s guns removed.

Miranda Viscoli, left, and Paula McClean, both with New Mexicans to Prevent Gun Violence, react as SB5, the extreme risk protection bill, is passed on the Senate Floor, Friday February 7, 2020. The bill passed 22-20 and now goes to the House. (Eddie Moore/Albuquerque Journal)

If a judge found sufficient evidence that an individual posed a threat to themselves or others, an emergency 10-day order requiring them to relinquish their firearms would be issued. A one-year order could then be imposed after a court hearing.

Similar laws have been enacted in 17 states and the District of Columbia. Although the laws differ, many states enacted them in response to mass shootings, such as the February 2018 shooting in Parkland, Florida, that left 17 dead.

Cibola County Sheriff Tony Mace, president of the New Mexico Sheriffs Association, said a court challenge probably will be launched if the bill is ultimately signed into law by the governor.

“At the end of the day, our elected officials stepped on our constitutional rights,” Mace told reporters after Friday’s vote.

He also acknowledged that the bill would be the law of the land if enacted but said law enforcement officers would retain “discretion” about how – and when – to apply it.

4 Democrats vote ‘no’

In Friday’s vote, four Democratic senators joined Republicans in casting “no” votes on the bill – Sens. Gabriel Ramos of Silver City, John Arthur Smith of Deming, Richard Martinez of Ojo Caliente, and Clemente Sanchez of Grants.

If one more Democrat had voted against the proposal, it would have been up to Lt. Gov. Howie Morales, who supports the bill, to cast the tiebreaking vote.

New Mexico had the nation’s 10th-highest rate of firearm deaths in 2017, when 384 people died due to firearms, according to state Health Department data. Firearms were also used in the majority of suicides and homicides around the state during a recent-four year period.

Rep. Daymon Ely, D-Corrales, a co-sponsor of the bill, suggested the House would not make changes to the Senate-approved legislation.

“The plan right now is not to make any amendments in the House,” Ely told reporters. “The push is going to be to get this through as is.”

Any changes made by the House would have to be agreed upon by the full Senate before the session ends Feb. 20 for the bill to go to Lujan Grisham’s desk for final approval.

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