Flying the red flag: NM risk protection law in practice - Albuquerque Journal

Flying the red flag: NM risk protection law in practice

Pictured are the documents related to Extreme Risk Firearm Protection Orders including the petition, the affidavit, the order granting it and the receipt of firearms. (Chancey Bush/Albuquerque Journal)

Copyright © 2022 Albuquerque Journal

The man had been making threats against the Family Worship Center church for about six months – ever since he returned to New Mexico after leaving the military.

The 35-year-old U.S. Army veteran who had served in Afghanistan posted concerning things on the West Side church’s Facebook page and sent the pastor messages saying “I’ll kill you all” and demanding if he is “asking to be slaughtered for everyone?”

In the week leading up to Sunday, July 24, the man said he was going to show up and kill those worshipping at the dark gray angular building tucked between a neighborhood and Interstate 40. Alarmed, the church staff called the Albuquerque Police Department.

So when the man arrived – dressed in camouflage – and tried to enter through the back, an officer detained him, according to an incident report.

The man was not armed and he was compliant and talkative, but the officer said he wasn’t making sense. He was taken to a hospital for a mental health evaluation.

The Journal is not identifying the man since he has not been charged with a crime. Neither he nor his family nor anyone from the church returned messages seeking an interview.

APD called out the bomb unit to check his car – not finding any evidence of explosives – and the federal anti-terrorism task force arrived on scene but determined no federal crimes had been committed, according to the report.

A detective with APD’s Crisis Intervention Unit was also notified.

Two weeks later, that detective filed a petition for an Extreme Risk Firearm Protection Order to confiscate the man’s guns. The petition was granted and officers removed four pistols, extra magazines, gun boxes and a gun case. The order will expire in one year.

The petition was one of 11 filed in district courts throughout the state since the Extreme Risk Firearm Protection Order Act – commonly referred to as a red flag law – was passed by the legislature and signed by the governor in February 2020. There has also been at least one filed in a family court against a juvenile.

Critics have questioned its infrequent use but law enforcement leaders and researchers who spoke with the Journal described a scenario where officers are confused about how to proceed and need more training and someone to champion the law’s use.

“It’s not uncommon for states to have a slow start because this is a different way of thinking,” said professor Shannon Frattaroli, who studies gun violence prevention with Johns Hopkins University school of public health. “This is a prevention orientation – so it’s a paradigm shift and that requires some time to adjust to settle in and to figure out how to make it work, right?”

She said 19 states and the District of Columbia have passed red flag laws since 2016. The Associated Press found that some states, including Florida, Delaware, Maryland, and Connecticut, are using it at much higher rates than others, like Illinois and New Mexico – both of which have high rates of gun violence.

New Mexico’s law is unique in that a petition has to be filed by a law enforcement officer.

Frattaroli said while the laws vary somewhat among the states she has found that the strongest indicator of whether it will be frequently used is if someone is championing it. This can mean a police department unit in charge of filing petitions and implementing the orders – such as in Fort Lauderdale – or an official who has taken on the task of training officers around the state – like the sheriff of Montgomery County, Maryland.

“When I come across a place where there’s an embrace of these policies – where there is enthusiastic implementation and use of these laws – it’s almost always the case that there is someone behind that effort,” Frattaroli said.

Who can report?

The Farmington Police Department filed its first petition for an Extreme Risk Firearm Protection Order, or ERFPO, in September 2020, about seven months after the law was passed.

A son reported his father, a disabled Gulf War veteran with post-traumatic stress disorder, had stopped taking his medication and was firing a gun in the back yard. He said he had started talking about conspiracies and asking if “I wanted to leave the planet with him.”

Farmington Police Chief Steve Hebbe said before filing the petition he, a lieutenant and the detectives met with their lawyers and the judge.

“So right now the policy is it goes through the chief before we will apply for one …,” Hebbe said. “You have to involve the chief, this isn’t at a low level. And in the end, it’s the chief who’s making a controversial decision or not.”

That order was granted for the period of one year.

The Farmington Police Department filed another petition the following year, which was also granted.

Hebbe said there were three or four other cases where a detective wanted to use the law but a family member or someone close to the person didn’t want to be the reporting party in the petition. It’s a position he’s sympathetic to.

“That’s a tough thing to ask family members, right? Because they’re going to be back with this guy …,” he said. “And now you’re asking the family member who’s then going to be living with him when he gets back out to take that kind of a step.”

But Hebbe was surprised to learn that in fact an officer can be the reporting party. The state Attorney General issued an opinion in August 2021, stating that a reporting party includes a spouse, employer or family member but it is not limited to those people.

Cmdr. Matthew Dietzel, who leads APD’s Crisis Intervention Division, said his team also thought until recently that an officer couldn’t file a petition without someone else asking them to.

To test it out, he had a detective file the petition by himself in the case involving the Family Worship Center church.

He said he’d prefer to have another reporting party – calling that the “gold standard” – but was pleased to know it wasn’t always necessary.

“His father lives out of jurisdiction and was in contact with our detectives,” Dietzel said. “Our detectives went down there and met with the father, got the weapons and they’re tagged into evidence or safekeeping now under the ERFPO setting. That was a really good one to kind of do the secondary test on. … We were very freaked out about him, obviously.”

The law’s limits

In late August, after news stories were published about the infrequent use of the red flag law, Gov. Michelle Lujan Grisham ordered the creation of a task force to educate law enforcement officers and increase public awareness. State Public Safety Secretary Jason Bowie will lead the seven-member group. A spokesman for the Department of Public Safety said the task force has not been formed yet and members are being solicited.

Dietzel, and other city officials participating in Albuquerque Mayor Tim Keller’s Metro Crime Initiative, have already been consulting with legislators about changes they’d like to see to the law.

“It’s a good law, it can be really great with just a few tweaks,” Dietzel said. “The tweaks are big. But it’s still a great thing that we have it because there’s been cases where we’ve walked away with people who were clearly sick who shouldn’t have had a gun. And we’re walking away going, ‘This might not turn out well.'”

He said the biggest obstacle his officers come across is that a judge is only able to sign a temporary ERFPO – which lasts for 10 days until a hearing can be held – during normal business hours. That means that if an incident happens over the weekend the officer can’t start the process until Monday.

“In domestic violence restraining order situations it’s a very streamlined, easy, quick process,” Dietzel said. “It is two o’clock in the morning, you’re out with the victim, he or she is saying, ‘This person is dangerous, I don’t want them around me. I need a restraining order.’ You call the judge, you get sworn in on the phone, the judge sends you a thing that says ‘I agree.’ You go get that person and serve them right then and there. This doesn’t have that language in it.”

Another issue Dietzel worries about is the fact that, unlike in Florida’s red flag law, there’s no option for getting a search warrant at the same time, which may be necessary in the most extreme cases.

“We have that temporary order, we go knock on that person’s door and we say, ‘You need to turn over your firearms. Here’s an order from a judge,'” Dietzel said. “That person could just say, ‘I don’t have anything. I don’t have a gun. I don’t like guns, guns are bad, no guns,’ and we have no real recourse on what to do next. Meanwhile, that victim or reporting party is expecting protection.”

State Rep. Joy Garratt, D-Albuquerque, who was one of the sponsors of the law, has met with Dietzel and others and said she’d be willing to try to amend it during next year’s 60-day legislative session.

“I’m happy to sponsor it but before let’s agree on what really needs to be done and what really doesn’t need to be done,” Garratt said. “Let’s not do a whole rewrite of something that most essentially just needs education.”

‘Promising’ studies

Frattaroli, who has been doing research on gun violence prevention for more than 20 years, said while it’s too early to speak definitively about whether red flag laws have been effective in lowering gun violence, the evidence that exists suggests it’s heading in the right direction.

“What we do have are studies that show that these ERFPOs are being used in response to credible threats of suicide, credible threats of mass shootings, credible threats of interpersonal violence,” Frattaroli said. “What we do have are a couple of studies that go a little bit further and suggest that with regard to suicide in particular these laws are promising.”

She said within her own state of Maryland she’s seen the law used in conservative as well as more liberal counties, and that’s true in most states.

“There’s variation with regard to the frequency of use, but every county has issued at least a couple of these at this point,” Frattaroli said.

In New Mexico, a nonprofit, nonpartisan organization has spent the past several months educating hundreds of people – police officers, district attorneys, hospital staff, students, families and health care providers – about how to file for an ERFPO. An officer can also call and speak with the trainer, Sheila Lewis, while filing a petition.

Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence, provided the results of an evaluation that showed that participants reported having more knowledge of what an ERFPO is and the benefits of using it after the training than before.

Since the trainings began, five petitions have been filed statewide. The previous year, three were filed and in 2020 four were filed.

Viscoli said they’d seen a similar trend with a previous bill – the Domestic Violence Firearms Relinquishment law – where few agencies had been using it until they received additional training.

“I think that the negativity about it has been, ‘Well look, we passed this law it doesn’t even work. So why are we passing gun violence prevention laws?'” Viscoli said. “They take time.”

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