Balderas: NM laws lacking on gun safety - Albuquerque Journal

Balderas: NM laws lacking on gun safety

Lincoln Harmon, 2, died of a gunshot wound in Rio Rancho on December 8, 2021. Outgoing state Attorney General Hector Balderas has asked the incoming AG, Raúl Torrez, to consider reviewing outstanding evidence and complete an assessment on whether there was “criminal culpability” related to the storage of the gun that killed Harmon. (Photo source: GoFundMe)

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There’s no doubt the fatal accidental shooting of a 2-year-old Rio Rancho child by his 4-year-old brother in 2021 was a tragedy. But were the boys’ parents guilty of a crime?

Outgoing state Attorney General Hector Balderas’ office spent months reviewing possible prosecution in the death of Lincoln Harmon at his home on Dec. 8, 2021. The firearm was the boys’ father’s off-duty gun, which had been stored in a kitchen cabinet.

The father, Jonathan Harmon, a Santa Fe police officer, told investigators he was in another room when the fatal shooting occurred in the kitchen. His wife, Courtney, was tending to a newborn child elsewhere in the home at the time.

Balderas said Friday his office hadn’t finished its assessment as to whether there was “criminal culpability” related to the unsafe storage of the weapon.

So Balderas is asking incoming state Attorney General Raúl Torrez to consider reviewing outstanding evidence in the case and complete the legal analysis.

That has taken a lot of time so far, given what Balderas described as a “blind spot” in New Mexico law covering improperly stored guns used by minors that result in great bodily harm or death.

“This case clearly shocks the conscience of the community, yet the Legislature is silent directly on the conduct relating to the unsafe storage of a firearm,” Balderas told the Journal in an interview. “That’s unfortunate because we should be able to protect those two minor children in a much more timely and more deliberate way. This really should just be about the children and the loss of life.”

New Mexico Attorney General Hector Balderas

If New Mexico had a law that criminalized unsafe storage, Balderas said, “and (a shooting) resulted in great bodily harm or death as specifically as you have in this case, we probably already would have been (filing criminal charges).”

He didn’t give details about the “outstanding evidence” in the case.

Balderas’ two terms as AG ended Dec. 31 because of term limits. His successor, Bernalillo County District Attorney Torrez, won election in November to a four-year term.

Thirteenth Judicial District Attorney Barbara Romo, citing a conflict, asked the Attorney General’s Office to review the Rio Rancho police department’s investigation of the fatal shooting.

The criminal investigation at first was mired in secrecy, as Rio Rancho officials contended police records in the case weren’t public under state law. A state district judge disagreed and ordered the release last summer after the New Mexico Foundation for Open Government and the Santa Fe New Mexican filed suit.

Meanwhile, in response to a public records request, Balderas released 53 pages of police interviews and other documents related to the investigation last April.

Those records showed the two Harmon children were alone in the kitchen when the older boy pushed a kitchen chair to a countertop to get chewing gum inside a cabinet and found the loaded gun on the top shelf. The 4-year-old either was pulling the gun from a holster or pointing it up and unintentionally fired the gun, hitting his younger brother beneath his lip, the records showed.

The Harmons couldn’t be reached for comment by the Journal on Monday.

But in police interviews, the father told investigators he was sleeping in a room where the two boys had been, woke up to a loud noise about 8 a.m. and heard the older boy screaming.

His wife was quoted as saying her husband was “very strict” about gun safety. She said the 4-year-old, who had toy guns and one BB rifle, never had problems touching his father’s guns, although he liked to play “dress up” with other police gear.

Balderas said his office has been, “trying to gather evidence surrounding the intent of the parents and the intent of the child so it gets very complex because there are not adequate statutes providing prosecutors middle-of-the-road tools.”

At the misdemeanor level, there is a law on negligent use of a firearm that doesn’t appear to apply to the Harmon case, he said.

The other option is charging the case under a “very high standard of child abuse…and those are not the best tools.”

“Most people that followed this case just followed the objective conduct that shocked the conscience of the community but yet the Legislature has not weighed in,” Balderas said.

Balderas became president of Northern New Mexico College on Jan. 1, but said he planned to meet with Gov. Michelle Lujan Grisham and the incoming House Speaker, nominee Javier Martinez, about the issue.

“I’m going to pose the question as a direct result of this investigation: do they want to criminalize that behavior? If a small child can gain access to a firearm and something turns deadly, does the Legislature want to weigh in on creating a punitive responsibility on adults or do they want to further immunize that conduct? What’s missing in the law is that middle ground.”

A bill creating a new law of unlawful access to a firearm by a minor died in committee last year’s legislative session.

But bill sponsor, state Rep. Pamelya Herndon, D-Albuquerque, told the Journal on Monday she plans to re-introduce the measure during the 60-day session that begins Jan. 17.

“It got so much publicity outside the state of New Mexico in terms of looking at gun storage,” she said. “I keep saying it’s not that I want to have another felony on the books, but I want people who are owning a gun to be more responsible with how you are storing them, because it is affecting a lot of people’s lives.”

At one House committee hearing last year, state Rep. Greg Nibert, R-Roswell, questioned why the state would want to criminalize actions that “in some cases, may be beyond the parents’ control.” He said minors can be “quite accomplished even at a young age in handling weapons” and in rural areas are “counted on to protect their flocks of sheep and cattle” with the guns.

Safe storage laws have been adopted in more than two dozen states, stated a legislative analysis last year. Some have included exemptions for firearms used for hunting, sporting, or agricultural purposes.

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