The Family Violence Protection Act provides judges in New Mexico with the authority to issue a Domestic Violence Order of Protection. That authority extends to acts of sexual violence, harassment and stalking. Recent changes in the law require judges to determine if the restrained party in the DVOP is a credible threat. If a restrained party is a credible threat, then that person must surrender firearms. The statute does not specify who is a credible threat and does not define which incidents of domestic abuse, violence or sexual assault should be deemed a credible threat.
What the law does specify is those persons who are a credible threat must deliver any firearm(s) in his/her possession, care, custody or control to a law enforcement agency, law enforcement officer or federal firearms licensee while the DVOP is in effect, and the restrained party may not purchase, receive or possess or attempt to purchase, receive or possess any firearm while the DVOP is in effect. Even if a party is not found to be a credible threat but a DVOP is issued restraining them from contact with the protected party, they still cannot possess a firearm.
Since 2019, it has been a crime in New Mexico to possess a firearm as long as you are the restrained party in a DVOP. Since that law came into effect, judges and judicial officers have been warning restrained parties during a hearing and in every restraining order that it is unlawful for the restrained party to receive, transport or possess a firearm or destructive device. The “credible threat” finding means that the restrained party is so dangerous or the act of violence or sexual assault so severe, that the law will take your guns from you and require you to place those guns with law enforcement while the DVOP is in effect.
Each case of domestic violence or abuse deserves to be assessed on the basis of the evidence provided to the court. If a victim is severely beaten, strangled and threatened with a gun to her head in front of the children, or she is raped and hospitalized, the court must distinguish those acts and injuries from an act of domestic abuse in which the victim and offender experienced an emotionally painful breakup and a hole is punched in the wall. In either case, the court has the authority to issue a DVOP. Each case of violence is fact-dependent, and requiring a party to hand over firearms is a serious matter that courts cannot and do not take lightly.
Firearms have been used to kill or harm victims of domestic violence. The New Mexico Intimate Partner Homicide Review Team reviews these kinds of deaths in detail and publishes a report each year. In 2018, the team looked at 66 incidents of intimate partner violence or sexual assault that resulted in a death or deaths, such as a murder-suicide. In those 66 incidents, there were 76 deaths, and 70% were caused by gunshot wounds. In none of those homicides did the parties have an order of protection in place.
Domestic violence crimes are complicated, and when children are involved it can be heartbreaking work for all those professionals who are called to the scene of the crime, work as lawyers for victims, prosecute offenders, provide medical treatment of any kind, and yes, judges whose job it is to weigh the evidence and apply the law. Even in the middle of the night, victim advocates, police officers and judges are working to issue emergency orders of protection and provide help to people experiencing the worst moments of their lives in the hope that our work will save that life.
Judge Debra Ramirez is the primary Domestic Violence Judge in New Mexico’s Second Judicial District Court. She and Judge Amber Chavez Baker received the 2021 Purple Ribbon Award from the New Mexico Domestic Violence Resource Center for their work in responding 24-hours-a-day to requests for Domestic Violence Orders of Protection.