On March 18, a mere 17 days away, the 2023 New Mexico legislature comes to a sudden end at 12:00 Noon. The term used for the abrupt ending of legislature is “sine die” and all pending legislation not voted on and passed is moot and rendered dead. Feeling the heat of the end in sight, Governor Michelle Lujan Grisham is now pulling out all stops to get passed gun control legislation. Lujan Grisham said she is meeting with legislative leaders as she seeks support for firearms and public safety legislation.
On February 28, at a rally in the capitol rotunda Roundhouse she spoke in no uncertain terms about the gun restriction legislation she wants enacted before the end of the session. She characterized the legislation as her “must have” legislative priorities. Her “must have” legislative priorities include a waiting period for firearm purchases and raising the minimum age to buy certain guns to 21 as New Mexico.
The Governor acknowledged the proposed ban on “assault weapons”, such as AR-15-style rifles, will likely be struck down by the legislature in committee without any full Senate or House votes. The assault weapon ban has run into questions over how to define “assault weapons” and what would be banned.
The Governor said this at the rally:
“When it’s hard, it means that you’re on to the precipice of change. … We’re going to get many of these proposals over the finish line.”
HEAVY COMMITTEE SCUTINY
All the gun control legislation has resulted in intense debate. The measures have resulted in supporters and opponents packing committee hearings to testify. It has been the Judiciary Committee in both legislative chambers that have been the key test for passage of the bills.
On the Senate side, the legality of Senate Bill 171 was questioned by both Democrat and Republican lawmakers. Senate Bill 171 seeks to ban the sale of hollow point ammunition, machine guns and certain other kinds of firearms. It was rejected on a bipartisan vote.
On the House side, House Bill 101 is the legislation to ban the sale or possession of “assault weapons”, defined as semiautomatic rifles and handguns with certain characteristics. HB 101 has been held up in the Judiciary Committee as lawmakers evaluate amendments.
There are bills that are advancing quickly such as House Bill 9 that would make it a crime to negligently store a firearm that a minor obtains. Charges could be brought only if a minor brandished the firearm or used it to injure or kill someone. HB 9 has passed the full House and one Senate committee. If it makes it out of the Senate Committee it could be quickly scheduled for a vote by the full senate.
SENATE JUDICIARY COMMITTEE CHAIRMAN JOSEPH CERVANTES
Senator Joseph Cervantes, a Las Cruces Democrat and chairman of the powerful Senate Judiciary Committee, has become one of the most influential Senators during the 2023 legislative session because of the gun control measures introduced, including proposals to establish a 14-day waiting period for the purchase of firearms, a ban on guns at polling places and a ban on AR-15-style rifles. Senator Cervantes is also a highly respected New Mexico trial attorney giving his opinion far more credibility than most Senators.
Cervantes has said repeatedly that he isn’t interested in passing bills that will be struck down in court. Cervantes has made it clear that he disagrees with recent U.S. Supreme Court decisions limiting gun laws but he also acknowledged and understands the legal landscape shaped by those decisions.
Cervantes has repeatedly opposed the “rebuttable presumption” legislation supported by the Governor where a defendant charged with certain violent felonies would be held in jail pending trial, a measure that Cervantes has characterized as short cutting constitutional rights of the accused.
On February 27, 2023, the Senate Judiciary Committee voted to block Senate Bill 171, the proposal to ban the sale of hollow-point ammunition and automatic firearms. Cervantes joined a mix of Democrat and Republican lawmakers who voted 6-3 to reject the legislation. Senate committee members raised questions about its legality. The vote was a bipartisan rejection of the measure. However, the committee also voted approval of House Bill 9, the proposal intended to require the storage of firearms away from children.
Cervantes said he believes the safe storage bill is permissible under recent U.S. Supreme Court decisions. But proposals to broadly prohibit “assault weapons,” he said, are on much shakier ground.
Cervantes joined fellow Democrats on the Senate Judiciary Committee in supporting House Bill 9, the safe storage legislation, which would make it a crime to store a firearm in a way that negligently disregards the ability of a minor to access the gun. Cervantes said this about HB 9:
“It may be one of the few guns bills we’re seeing that may withstand that (constitutional) scrutiny”.
PENDING LEGISLATION
There are 10 measures that are still pending enactment. The legislation is as follows:
House Bill 9, unlawful access to firearm by minor. The legislation is sponsored by Albuquerque area Democrat Representative Pamelya Herndon. It makes it a crime to store a firearm in a way that negligently disregards the ability of a minor to access it. Criminal charges could be brought only if the minor later brandishes or displays the firearm in a threatening way or uses it to kill or injure someone. House Bill 9 would make it a misdemeanor to negligently allow a child access to a firearm, and would make it a felony if that negligence resulted in someone dying or suffering great bodily harm. On February 9, House Bill 9 passed the House on a 37-32 vote after a three-hour debate and it now being considered by 2 Senate committees
House Bill 50 prohibits magazines with more than 10 rounds and is a waiting first House committee hearing.
House Bill 72 prohibits possession of semiautomatic firearm converter that allows the weapon to fire more rapidly and has not been scheduled for hearings
House Bill 100 would establish a 14-day waiting period for the purchase of any firearm and requires a prospective seller who doesn’t already hold a valid federal firearms license to arrange for someone who does to conduct a federal background check prior to selling a firearm. The bill includes exclusions for sales between law enforcement officers and between immediate family members. House Bill 100 has passed through two house committees. However, House Bill 100 has been on the House’s floor agenda for a week but has not been brought up for a vote amounting to speculation that there will be a narrow vote margin and it may not pass the full House chamber to make it over to the Senate.
House Bill 306: Illegal straw purchases is a waiting first House committee hearing.
House Bill 101 as written would make it a fourth-degree felony to purchase, possess, manufacture, import, sell or transfer assault weapons in the state. It would restrict the sale, manufacture and possession of AR-15-style rifles along with semiautomatic firearms with certain characteristics, such as semiautomatic rifles with detachable magazines, or semiautomatic pistols with a fixed magazine capable of loading more than 10 rounds of ammunition. The bill would prohibit the sale or possession of assault weapons, which are defined as semiautomatic rifles and handguns with certain characteristics. House Bill 101 also states any semi-automatic rifle that has the capacity for a large magazine would be considered prohibited in addition to attachments like grenade launchers and flash suppressors. The legislation does include limited exceptions to the ban including police officers and members of the armed forces. A substitute bill introduced during a committee hearing included a clause to allow current assault weapon owners to keep those firearms, provided they register them with the New Mexico State Police. The bill has raised concerns from the New Mexico Attorney General that it could be contested in court due to potential Second Amendment violations. House Bill 101 has passed one House committee. Amendments are being considered in a second committee.
House Bill 306 is sponsored by Minority Floor Leader Ryan Lane, a Republican from San Juan County. It seeks to prevent gun straw purchases, a type of firearm purchase where someone buys a firearm for another person who is legally banned from owning firearms, such as a convicted felon.
Senate Bill 44 would make it a misdemeanor to carry a firearm within 100 feet of a polling location on election day or during early voting. On-duty law enforcement officers and security personnel would be exempt. On February 16, the New Mexico Senate voted on a 28-9 vote to approve Senate Bill 44 after lengthy debate where Republicans lawmakers unsuccessfully attempted to amend the bill to extend exceptions to individuals who have permits to carry a concealed firearm. The amendment failed on 13-23 vote. The bill has advanced through one of two committees in the House.
Senate Bill 116 would establish a minimum age of 21 for anyone seeking to purchase or possess an automatic firearm, semiautomatic firearm or firearm capable of accepting a large-capacity magazine. The bill would effectively raise the minimum age for buying an AR-15-style rifle from 18 to 21. Senate Bill 116 has passed one Senate committee. On March 1, Senate Bill 116 stalled in the Senate Judiciary Committee as a result of dueling motions to reject or pass the bill where each failed on 4-4 votes. The tie votes occurred because of the absence of Sen. Bill O’Neill, D-Albuquerque. The lack of a successful motion leaves the bill in the Senate Judiciary Committee, where it could be scheduled for another hearing, at the prerogative of the Chairman Senator Joseph Cervantes, D-Las Cruces. Given the shortness of time remaining in the session and the amount of other legislation pending, another hearing is not likely.
Senate Bill 171 seeks to ban the manufacture, sale, trade, gift, transfer or acquisition of semiautomatic pistols that have two or more defined characteristics. Those characteristics include a detachable magazine that attaches outside the pistol grip, a threaded barrel capable of accepting a barrel extender, flash suppressor, forward hand grip or silencer; or a shroud that is attached to the barrel that allows the shooter to hold the firearm with the second hand without being burned. The legislation also applies to firearms that can be modified to shoot automatically by a single pull of the trigger. Senate Bill 171 seeks to ban the sale of hollow point ammunition, machine guns and certain other kinds of firearms. It would prohibit the sale of ammunition coated with materials designed to penetrate metal or pierce protective armor, along with ammunition designed to explode or segment on impact. Ammunition coated with materials designed to penetrate metal or pierce protective armor is often referred to as “cop killer” ammunition in that such ammunition is not necessary for hunting or target practice. Lawmakers of both parties questioned the legality of a proposal and Senate Bill 171 was rejected by a Senate committee.
Links to quoted and relied upon news sources are here:
https://www.abqjournal.com/2573520/senate-endorses-firearms-ban-at-new-mexico-polling-places.html
HIGH CRIME RATES REFLECT NEED FOR GUN CONTROL AND PUNISHMENT
The backdrop to all the gun control measures being considered by the 2023 New Mexico legislature is New Mexico’s and Albuquerque’s high crime rates. Every year, the Federal Bureau of Investigation (FBI) compiles data from police agencies across the nation. The data from 2021, with 2022 data yet to be released, showed New Mexico had the nation’s second highest rate of total crimes against persons.
The FBI numbers show New Mexico’s per-population kidnapping and abduction rate was the highest in the nation. New Mexico’s firearm ownership and fatality rate is among the nation’s highest. In 2016 over 37% of adults in the state lived in a household with a firearm which is 5% higher than the national average according to the think tank Rand Corp.
In 2021 New Mexico law enforcement reported over 28,000 crimes against persons. That includes crimes such as murder, rape, assault, and kidnapping. Given New Mexico’s population, the state’s crime rate against persons per population is the second highest in the nation. FBI data shows for every 100,000 people in New Mexico, law enforcement reported 2,189 crimes against persons in 2021. The only state with a higher rate was Arkansas, which reported 2,276 crimes per 100,000 people.
New Mexico law enforcement agencies reported nearly 25,500 instances of assault in 2021. That’s 1,872 more than the state reported in 2020. New Mexico law enforcement also reported more homicides in 2021 than the year before. Across New Mexico, police reported 193 homicides to the FBI in 2021. That’s 67 more than in 2020. Not at all surprising is that the majority of the state’s reported homicides were in Albuquerque.
New Mexico isn’t at the top of the list in all crime categories. While New Mexico law enforcement reported 1,663 instances of sex offenses in 2021, 6 other states had higher rates of sex offenses per population. That includes states like Alaska, Utah, and Montana.
New Mexico law enforcement reported 822 kidnappings and abductions to the FBI in 2021. That puts New Mexico at the top of the list regarding kidnappings and abductions per 100,000 people. Kansas, Colorado, and Utah also rank high on the list of kidnappings and abductions per population.
New Mexico’s firearm fatality rate is among the nation’s highest. According to the New Mexico Department of Health, there were a total of 562 state residents who died in 2021 due to firearm-related injuries. This figure is up significantly from the 481 firearm-related deaths in 2020. Of the 562 state residents who died in 2021 due to firearms, 319 cases, were classified as suicides and 243 were classified as homicides. In New Mexico, the rate of 14.9 firearm-related deaths per every 100,000 residents in 2010 nearly doubled over the last decade and there were 23 such deaths for every 100,000 residents in 2020.
ALBUQUERQUE AT FOREFRONT OF CRIME WAVE
Albuquerque is at the forefront of New Mexico’s high violent crime rate. According to legislative data released, the city had about half of the state’s violent crime in 2022 but has just 25% or so of its total population. The Albuquerque Police Department reported that in November, gun law violations spiked 85% this year alone. The last two years have also been two very violent years for Albuquerque. The number of homicides in the city have broken all-time records. In 2021, there were 117 homicides, with 3 declared self-defense reducing homicide number to 114. In 2022, there were 121 homicides, a historical high.
It has been reported that there have been more APD police officer shootings in 2022 than during any other year before. In 2022, there were 18 APD Police Officer involved shootings,10 of which were fatal. In 2021 there were 10, four of which were fatal.
Crime rates in Albuquerque are high across the board. According to the Albuquerque Police’s annual report on crime, there were 46,391 property crimes and 15,765 violent crimes recorded in 2021. These numbers place Albuquerque among America’s most dangerous cities.
All residents are at increased risk of experiencing aggravated robbery, auto theft, and petty theft. The chances of becoming a victim of property crime in Albuquerque are 1 in 20, an alarmingly high statistic. Simple assault, aggravated assault, auto theft, and larceny are just some of the most common criminal offenses in Albuquerque. Burglary and sex offense rates In Albuquerque are also higher than the national average.
COMMENTARY AND ANALYSIS
Given the fact that there is a mere 17 days left of the 2023 legislative session, it is becoming painfully obvious that not much of the Governor’s “must have” gun control legislation is going to get enacted and it’s a damn shame. Democrats in the 2023 legislative session hold a 45-25 majority in the House and a 27-15 in the Senate. New Mexico Democrats are looking very foolish not enacting reasonable and responsible gun control measures as New Mexico Republican legislators continue with their national party’s failure to do anything but cater to the National Rifle Association (NRA) not believing the country has a gun crisis.
What was needed from the get go is a balance between crime and punishment and gun control that in a real sense they go hand in hand to deal with reducing the state’s high violent crime rates. The message must be loud and clear: “You use a gun during the commission of a crime, or you are negligent with your gun, you go to prison with mandatory enhanced sentences.”
The Governor said this in an interview with the Albquerquerqu Journal after the February 28 rally:
“I’m having conversations with leadership about ‘must have’ bills upstairs [in my office]. … This is where I start to bring everybody up and tell them what’s important for me to have … because if we don’t have those, you know, then we might have to stay longer or do it again.”
The governor’s comments about staying longer or doing it again should not be dismissed as last-minute political rhetoric and needs to be taken very seriously. It’s a reflection of the leverage she has over the legislature. Her leverage power includes the power to veto but she can also call a Special Session immediately after the current session ends and set the agenda on gun control. A special session is the exact strategy employed to enact recreational marijuana legalization.
Governor Michelle Lujan Grisham should reach out immediately to State Senator Joseph Cervantes and Speaker of the House Javier Martinez and broach the subject with them about sponsoring and “Omnibus Violent Crime and Gun Control Act” that could be enacted in the remaining days of the 2023 session or calling a Special Session immediately after when the 2023 Legislative session ends.
The act would include the following gun regulation measures:
- Outlaw possession and sale assault weapon style weapons such as AR-15-style rifles and pistols with magazines of 10 rounds or more making it a third degree felony with a 6 year mandatory sentence.
- Outlaw the sale of “ghost guns” parts.
- Outlaw possession of semiautomatic firearm converters.
- Limit all retail gun purchases of all types of guns per person to one gun per month.
- Institute mandatory extended waiting period to a full month for gun purchases.
- Outlaw the straw purchase of guns for someone who isn’t legally able to make the purchase themselves.
- Outlaw the sale in New Mexico of “bump-fire stocks” and other accessories.
- Allow crime victims to sue gun manufacturers for actual and punitive damages.
- Require the mandatory purchase of “liability insurance” with each gun sold.
- Implement in New Mexico mandatory handgun licensing, permitting, training, and registration requirements.
- Expand gun ownership age limitation to 19 for rifles and shotguns.
- Expand the prohibition of deadly weapons from a school campus to school zones making it a third-degree felony.
- Call for a constitutional amendment to repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a statewide vote and would ensure a healthy debate.
The following crime and sentencing provisions should be included in the “Omnibus Gun Violence And Gun Control Act”:
- Making possession of a handgun by someone who commits a crime an aggravated third-degree felony mandating a 6-year minimum sentence.
- Increase the firearm enhancement penalties provided for the brandishing a firearm in the commission of a felony from 3 years to 10 years for a first offense and for a second or subsequent felony in which a firearm is brandished 12 years.
- Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is blandishment of a deadly weapon in the commission of a felony with enhanced sentences of 5 years for a first offense and for second or subsequent felony in which a lethal weapon other than a firearm is brandished 8 years
- Make it a third-degree felony for failure to secure a firearm mandating a 3-year sentence. Gun owners would have to keep their firearms in a locked container and make them inaccessible to anyone but the owner or authorized users.
- Increase the penalty of shooting randomly into a crowded area a second-degree felony mandating a 9-year sentence.
- Allow firearm offenses used in a drug crime to be charged separately.
- Change bail bond to statutorily empower judges with far more discretionary authority to hold and jail those pending trial who have prior violent crime reported incidents without shifting the burden of proof from the prosecution to the defense.
- Mandate public school systems and higher education institutions to “harden” their facilities with more security doors, security windows, security measures, including metal detectors at single entrances designated and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers.
- Make organized retail crime a specific offense punishable by felony charges when value of goods stolen exceeds certain threshold.
- Cases of juveniles arrested in possession of a weapon are to be referred the District Attorney for automatic prosecution as an adult for sentencing.
- Make it a 3rd degree felony if a person recklessly stores a firearm and a minor gains access to it to threaten or harms someone.
The Omnibus Violent Crime and Gun Control Act must include funding for the criminal justice system. This would include funding District Attorney’s Offices, the Public Defender’s Office, the Courts and the Corrections Department.
Until the New Mexico Legislature gets serious about responsible gun control and crime and punishment, the State will continue to suffer high violent crime rates.