Copyright © 2020 Albuquerque Journal
SANTA FE – Over objections from all but a few New Mexico county sheriffs, Gov. Michelle Lujan Grisham on Tuesday signed into law a red flag gun bill that will allow firearms to be temporarily taken away from those deemed dangerous to themselves or others.
The Extreme Risk Firearm Protection Order Act, which takes effect in mid-May, will make New Mexico the 18th state to enact such a law.
“If we can make a difference for one person, that’s the right difference to make,” Lujan Grisham said during a bill signing ceremony at the state Capitol.
The Democratic governor made the red flag gun bill one of her top initiatives during the 30-day legislative session that ended last week and predicted the new law would reduce New Mexico’s high rates of firearm-related deaths, including suicides.
“We know this is a meaningful tool to address gun violence,” Lujan Grisham said Tuesday.
However, the red flag gun measure, Senate Bill 5, was fiercely opposed by Republican lawmakers during this year’s session, and several New Mexico counties have passed resolutions opposing it.
Some sheriffs have indicated they might not enforce the bill, citing concerns over constitutional due process issues.
“They’ve made this bill so horrible that we can’t (enforce it),” Cibola County Sheriff Tony Mace told the Journal. “Somebody hasn’t even committed a crime, and you’re taking their personal property.”
Mace, chairman of the New Mexico Sheriffs’ Association, said a court challenge will be filed before the law takes effect in an attempt to block it from being implemented.
Asked Tuesday about the sheriffs’ resistance, Lujan Grisham said the elected law enforcement officials should resign if they’re not willing to enforce the state’s laws.
“They have to enforce the law. They take an oath to do that,” she said. “You don’t get to make those decisions.”
However, she suggested her administration would not retaliate by withholding funding from any counties that do not enforce the law, while adding that she believes law enforcement officers will ultimately decide to do so.
The governor also said she believes the new law will be upheld if challenged in the courts.
Concerns for students
Although 30 of the state’s 33 county sheriffs opposed this year’s bill, some law enforcement officials backed it, including State Police Chief Tim Johnson, a Lujan Grisham appointee, and top Albuquerque Police Department officials.
Aztec Police Chief Mike Heal spoke in support of the legislation Tuesday, invoking a December 2017 school shooting in Aztec that left two students dead, as well as the 21-year-old shooter, a former student at the school.
“I will never stop pushing for the safety of our children,” Heal said.
And Rep. Joy Garratt, D-Albuquerque, one of the bill’s sponsors, described the legislation as a response to concerns raised over a spate of school shootings, lockdowns and threats nationwide.
“The students across the country have really asked for this,” said Garratt, a teacher at Jimmy Carter Middle School on Albuquerque’s West Side.
This year’s bill passed just months after a mass shooting in neighboring El Paso in which a gunman killed 22 people, allegedly targeting those of Mexican descent. Several backers of the bill cited the incident in pushing for the measure’s passage.
However, the legislation passed in the Senate 22-20, before winning approval in the House on a 39-31 vote. A similar bill failed to pass the Senate during last year’s session.
Under the final version of the bill, law enforcement officials could be held liable for failing to enforce the new statute.
Attorney General Hector Balderas has previously warned sheriffs and police chiefs about enforcing New Mexico gun laws, and a spokesman said Tuesday there will be similar vigilance with the new red flag law.
“As with our prior guidance, law enforcement officials must follow the rule of law in a fair manner that considers the safety, peace and the rights of all families in our state,” AG’s Office spokesman Matt Baca said.
Previous gun laws
New Mexico’s adoption of the red flag gun law comes one year after two separate firearm-related laws were enacted – one dealing with expanded background check requirements and the other with gun possession by domestic abusers.
National groups on both sides of the debate have made hefty campaign contributions, including nearly $400,000 given by Everytown for Gun Safety, a national group affiliated with former New York Mayor Michael Bloomberg, to New Mexico Democrats and Democratic-leading political committees during the 2018 election cycle.
The state Republican Party cited those special interests in a Tuesday news release, claiming this year’s bill infringes on New Mexicans’ rights.
“This bill was rammed through the Legislature with a total disregard of New Mexicans’ rights,” said Anissa Tinnin, the state GOP’s executive director. “There were many constitutional and legal questions surrounding this legislation, and progressive Democrats ignored those from the beginning.”
However, Democrats have cited the National Rifle Association’s opposition to the gun-related legislation, and Lujan Grisham suggested Tuesday that the NRA organized local opposition to this year’s bill.
The governor did not directly say whether she would push for additional gun-related legislation but said top officials in her administration will continue to hold monthly meetings on public safety issues.
Lujan Grisham also said it’s unclear how often the New Mexico red flag law might be used.
In Florida, which enacted a similar law after the February 2018 shooting in Parkland that left 17 dead, the law was used more than 2,200 times from March 2018, when it was enacted, to July 2019.
Judges in that state granted nearly 97% of the temporary risk orders and about 99% of final orders, according to the South Florida Sun-Sentinel.
New Mexico’s new law will take effect May 20, which is 90 days after the session’s end date.
• A law enforcement officer, or a prosecutor in cases involving a law enforcement officer, will be able to file a petition in state court for an order to prohibit someone from possessing firearms.
• The petitions could be filed upon request from a spouse, ex-spouse, parent, child, grandparent, school administrator or employer.
• If a law enforcement officer declines to file a petition upon request, the officer will have to file a notice of the decision with the county sheriff.
• A judge can enter an emergency 10-day risk protection order if probable cause is found that an individual poses a danger of causing “imminent” injury to themselves or others.
• The individual is then required to surrender all their firearms within 48 hours of a judge’s order – or sooner.
• A one-year order can then be imposed after a court hearing, although such an order requires a higher evidence threshold.
• One-year risk protection orders are subject to appeal.
• All firearms are required to be returned to their owner within 10 days after an order’s expiration.