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In July, a deputy with the San Juan County Sheriff’s Office filed a petition to remove 10 guns from a 36-year-old man from Aztec who had threatened to kill family.
“Defendant’s wife is in fear for her safety,” the detective wrote in the petition, which he filed on behalf of the man’s mother. “Defendant has made trips to Las Vegas, NV to confront and harm celebrities. Defendant has viewed, with admiration, television programs and news reports involving mass shooters.”
Dustin O’Brien, chief deputy district attorney with the 11th Judicial District Attorney’s Office, pointed out that in conservative San Juan County many people are gun owners and guns alone are not concerning. This case was different.
“He said at one point that the voices were telling him to kill his family, but he would never do that,” O’Brien said. “So it was clear that he had a mental health issue. And so despite my aversion to the red flag law, this was clearly one that we needed to pursue, because he was going to hurt somebody or himself.”
A temporary Extreme Risk Firearm Protection Order (ERFPO) was granted and the man was instructed to relinquish his firearms within one hour. He was prohibited from purchasing more.
Although his family reported he had 10 guns, the man surrendered seven.
“That’s the screwy thing with the law is they have to turn them over and that’s it,” O’Brien said. “We can’t go in and search for them. So he said, ‘I sold these three guns,’ and we have to take that for what it’s worth.”
Then, O’Brien said, the man’s mother didn’t show up for a hearing and the District Attorney’s Office had no choice but to withdraw the request for an ERFPO.
However, the man had been arrested on an unrelated misdemeanor battery – an incident that led deputies to him originally – and his conditions of release stated he should not possess firearms or dangerous weapons. That meant law enforcement would not have to give his guns back until after the case was concluded.
“We, of course, couldn’t know that he may or may not have kept a firearm or firearms,” O’Brien said. “I think it was two or three days after the hearing that I went to where … I saw him in court. … He was upset about the fact we’ve taken his guns … He shot himself and killed himself.”
O’Brien said the case has left him with many thoughts about the law. He thinks it’s a problem that there wasn’t a way for the deputies to ensure that the man had given up all of his firearms without a search warrant but that idea also gives him pause.
“I have a problem with the fact that you could fill out an affidavit and get somebody’s personal property taken away by a search warrant without probable cause standard – and that’s an issue,” O’Brien said. “But on the other hand, as a prosecutor in this case, I had no problem going to try to get this guy’s guns. And we did not have the tools.”
