On Friday, September 8, Governor Michelle Lujan Grisham announced and declared gun violence and illegal drugs a public health emergency with the issuance of a sweeping Public Health Care Order. The Public Health Order bans the carrying of firearms, concealed or openly, in any public space in Bernalillo County and any state property in New Mexico. Specifically, no firearms are allowed on state property, including state buildings and schools. This also includes other places of education where children gather, such as parks. The executive order was signed in the wake of a road-rage shooting death of an 11-year-old boy leaving Isotopes Park Wednesday, September 6. Lujan Grisham also cited the shooting deaths of 3 teenagers or children since late July, including the 5-year-old girl killed while sleeping in a mobile home in mid-August.
Since announcing her Executive Order and the Public Health Care Orders, all hell has broken loose consisting of protests by armed citizens, calls for impeachment, lawsuits and calls for a special session by the Governor.
NM ATTORNEY GENERAL ANNOUNCES WILL NOT ENFORCE GOVERNOR’S GUN BAN
Bernalillo County District Attorney Sam Bregman, Bernalillo County Sherriff John Allen and APSD Chief Harold Medina have all announced that they will not enforce the Governor’s gun ban.
On September 8, Albuquerque Police Chief Harold Medina said APD would not be enforcing the order emphasizing that doing so could violate the APD’s police reform settlement agreement with the U.S. Department of Justice.
On September 11, Bernalillo County Sherriff John Allen, flanked by his undersheriff’s, held a press conference where he announced in no uncertain terms that his office will not be enforcing the Governor’s health care orders. Sheriff Allen said this: “My oath was to protect the Constitution, and that is what I will do. … It’s unconstitutional, so there’s no way we can enforce that order. … This ban does nothing to curb gun violence”.
On September 9 Bernalillo County District Attorney Sam Bregman said his office would not enforce the order and he said “As an officer of the court, I cannot and will not enforce something that is clearly unconstitutional. … This office will continue to focus on criminals of any age that use guns in the commission of a crime.”
On September 12, New Mexico Attorney General Raúl Torrez joined in and announced he cannot defend the governor’s public health order on firearms. In a 4-page letter to Lujan Grisham, Torrez said that although he agrees a debate is needed on the impact of gun violence, it cannot be rebranded a public health emergency to justify a blanket 30-day prohibition against carrying firearms in and around Albuquerque. He urged the governor to consider whether her time would be better spent on developing comprehensive legislation.
Torrez says in his letter that he agrees gun violence has had a devastating impact on New Mexico, but explains that he believes using a public health order is not the appropriate way to address the issue. He makes it clear that he disagrees with her gun ban and he claims that he is not “ethically permitted” to provide a defense.
In his letter to the Governor, Torrez wrote in part:
“Though I recognize my statutory obligation as New Mexico’s chief legal officer to defend state officials when they are sued in their official capacity, my duty to uphold and defend the constitutional rights of every citizen takes precedence. …I do not believe that the Emergency Order will have any meaningful impact on public safety, but more importantly, I do not believe it passes constitutional muster. … We will allow the administration to hire its own outside lawyers, at their own expense. … [What is needed are] more and better-trained police officers; stricter gun laws and tougher guidelines for pretrial detention; robust mental health and drug treatment; rehabilitation programs to reduce recidivism; real-time data on gun crimes and gun trafficking; and a protective services framework that keeps today’s child victims from maturing into the next generation of repeat offenders. … While I understand that frustration may have led you to undertake a unilateral approach to addressing the heart-wrenching challenge of gun violence in our community, I urge you to reconsider this course of action.”
In response to the AG’s letter, Caroline Sweeney, the governor’s press secretary, issued the following statement:
“The governor’s office received the letter from the Attorney General Torrez and let me be clear – Gov. Lujan Grisham did not ask the attorney general to represent the state. The crime issue in Albuquerque should come as no surprise to AG Torrez – as Bernalillo County DA, his office’s 66% dismissal, acquittal and mistrial rates certainly did not help solve the issue. Additionally, abysmal success rates in DA Torrez’s pretrial detention hearings put dangerous criminals back out on the streets. The governor is looking for state leaders to step up and take bold steps to make New Mexicans safer from the scourge of gun violence. We invite the Attorney General to turn his attention to that effort.”
Links to quoted news sources are here:
https://www.koat.com/article/new-mexico-attorney-general-gun-restriction-lawsuits/45105626
MAYOR KELLER, CHIEF HAROLD MEDINA CALL FOR SPECIAL SESSION
On Tuesday, September 12, Mayor Tim Keller and Albuquerque Police Department Chief Harold Medina held a press conference and called upon the Governor to convene special session. In doing so, they laid out a list of more than 50 legislative priorities intended to reduce gun violence, “close the revolving door” in the court system, rebuild behavioral health and fund crime fighting technology, among other goals. All 50 of those priorities were nothing new and consisted of the regurgitation of the legislative priorities developed by the Mayor’s “Metro Crime Initiative” conferences and meetings with stakeholders in the criminal justice system. You can view the list of Metro Crime Initiative” priorities at this link:
https://www.kob.com/new-mexico/albuquerque-mayor-calls-for-special-session-on-gun-violence/
During the press conference, Keller said this:
“I’ve always said that I don’t blame other people, and I don’t point fingers. … But I will ask for help and this is not helping. What would help is the law changes that we outlined, the treatment and federal programs that we need, and the resources to make our courts actually work”.
At the same time Mayor Keller said he does not blame other people, he took the opportunity to proclaim that the city’s recommendations for crime fighting policies have “fallen on deaf ears … been watered down, or ignored [by the Governor and the legislature].”
In addition to the press conference Mayor Keller released the following statement:
“Albuquerque families can’t afford political debates that distract us from fighting violent crime. This is a powerful moment to listen to police and behavioral health professionals to create the change we need in a special session. Too often, the legislation we propose gets watered down to the point that it’s ineffective and funding is slashed from the amounts needed to make a difference. Now is the time to actually change the laws and provide the funding needed to fix a broken criminal justice system, to crack down on assault weapons, target fentanyl dealers, rebuild the addiction treatment system, and amp up resources for courts and prevention programs.”
APD Chief Medina for his part released the following statement:
“Our officers are dealing with the same offenders, committing the same crimes every day. We have improved investigations after being criticized by a top legislator, and we have charged over 200 murder suspects since then. We created a team and moved it to the District Attorney’s Office to help with prosecutions. And we used money from the governor and the Legislature to boost incentives for officers, resulting in larger cadet academies. Finally, we have consistently advocated for increased funding, along with more accountability, for all other parts of the criminal justice system to ensure we are all doing everything possible to crack down on crime. But little has changed, because our jail sits half empty while repeat offenders are out on Albuquerque’s streets.”
The links to quoted news sources are here:
https://www.kob.com/new-mexico/albuquerque-mayor-calls-for-special-session-on-gun-violence/
LAWSUITS FILED
A total of 6 federal lawsuits have been filed so far challenging the legality of the Governor’s Executive Order and Public Health Care Orders gun ban restrictions. Groups suing the state over the prohibition include the National Association for Gun Rights, and We The Patriots USA, Inc. and the Republican Party of New Mexico. All 6 of the cases have been assigned to U.S. District Judge David Urias of Albuquerque. A hearing has been scheduled for August 16 on a Motion for a Restraining order and permanent injunction.
CALLS FOR IMPEACHMENT AND RESIGNATION
Republican Public officials were quick to react and condemn Governor Lujan Grisham’s orders.
State Republican Representative Stefani Lord of Sandia Park and John Block of Alamogordo called for Lujan Grisham’s impeachment, saying her order violates constitutional rights and is “illegal in nature.” Lord said this:
“This is an abhorrent attempt at imposing a radical, progressive agenda on an unwilling populous. … I have a newsflash for the Governor: The Second Amendment is an absolute right, and so is my authority to impeach you for violating your oath to New Mexico and the United States.”
On September 12, the Republican Party of New Mexico called for Gov. Michelle Lujan Grisham to resign after declaring a 30-day suspension on right to carry open and concealed firearms. The Republican Party of New Mexico also announced on Tuesday, September 12 its preparation of a lawsuit against Governor Michelle Lujan Grisham and New Mexico Secretary of Health Patrick M. Allen. During the afternoon news conference, New Mexico Republican Party Chairman Steve Pearce accused Lujan Grisham of “totalitarian” behavior and called her order unconstitutional. Pierce said this:
“We need to knock this thing down and send her packing,”
In response to Republican’s actions, Caroline Sweeney, press secretary for the Governor said this:
“We would love to see the same outrage from Republicans when a child in New Mexico is killed by gun violence. It is unfortunate that they are taking this opportunity to spew NRA talking points instead of proposing meaningful legislative solutions on how we can make New Mexico safer.”
PROTESTS ERRUPT
On Sunday, September 10 in Old Town and then again on Tuesday, September 12, at Civic Plaza, protests broke out. Demonstrators wore defiantly wore holstered handguns on their hips or carried assault rifles in Tuesday rally by gun-rights advocates, protesting Governor Michelle Lujan Grisham’s executive orders to suspend the right to carry firearms. The rally unfolded on Albuquerque’s Civic Plaza shortly before New Mexico Attorney General Raúl Torrez announced he cannot defend the governor’s public health order on firearms. Many of the dozens of people who gathered on civic plaza wore T-shirts in support of the right to bear arms, while others waved American flags and held signs reading “Do Not Comply.” They ranged from military veterans to mothers.
COMMENTARY AND ANALYSIS
The actions and press conferences by Attorney General Raúl Torrez, Mayor Tim Keller and APD Chief Harold Medina coming a full 5 days after the Governor’s Executive Order and Public Health Care orders amount to nothing more than “political pile on grandstanding” by 3 of those who have been a failure at their own jobs and who have been part of the problem for the past 5 years.
ATTORNEY GENERAL RAÚL TORREZ
It’s down right laughable that Attorney General Raúl Torrez would say that he is not “ethically permitted” to provide a defense to the Governor. Talk about a load of “BS” reflecting ignorance of one’s job duties and responsibilities. First, Torrez waited a full 5 days before he said anything about the Governor’s actions. Second, Torrez was never asked to defend the case. Third, Torrez is not in private practice and he cannot pick and choose who he wants the Office of Attorney General to represent.
Torrez himself has a streak of being ethically challenge. In 2012, United States Federal Judge Cristina Armijo accused then Assistant United States Attorney Raúl Torrez, who was prosecuting a drug case, of trying to “unfairly alter” a transcript he offered as evidence to the Federal Judge of a recorded encounter between drug agents and an Amtrak train passenger suspected of carrying a large quantity of crack cocaine. Judge Cristina Armijo admonished Torrez in a court order, then withdrew the order, the case was dismissed and Torrez resigned from the US Attorney’s office with no explanation.
https://www.abqjournal.com/770736/candidate-for-district-attorney-drew-ire-of-judge.html
Torrez is the elected Attorney General and his office is not his personal law firm he owns where he can pick and choose its clients. The Office of the Attorney General is required by the state constitution and the law to represent the state’s interests in civil litigation. The Office of Attorney General has the ethical obligation to provide a defense, no matter how weak, when called upon by the state and state officials when they are sued.
Even if Torrez himself disagrees with the Governor’s actions, he cannot instruct his office not to provide legal representation if in fact asked for by the Governor. What Torrez should have done was to call the Governor and have a candid conversation with her about her Executive Order and Public Health Care Orders and express his reservations and objections in private in order to come to an understanding and perhaps even a recission of the orders. Instead, he writes a 4 page letter to the Governor and releases it to the press and does a press conference resulting in the press coverage he covets.
Torrez also conveniently forgets he was Bernalillo County District Attorney for 6 years and he was part of the problem when it comes to our failing criminal justice system and failure of effective prosecution of violent offenders. In 2015, the District Court provided a study of the Bernalillo County District Attorneys office and performance measures. The statistics revealed the Bernalillo County District Attorney’s Office under Raúl Torrez had a 66% combined dismissal, acquittal and mistrial rate with cases charge by grand juries. The data presented showed in part how overcharging and a failure to screen cases by the District Attorney’s Office was contributing to the high mistrial and acquittal rates.
MAYOR TIM KELLER AND APD CHIEF HAROLD MEDINA
It is downright obscene that Mayor Tim Keller and Albuquerque Police Department Chief Harold Medina would make the accusation that the city’s crime fighting policies have “fallen on deaf ears … been watered down, or ignored” by the Governor and the legislature. The cities crime fighting policies are their policies they have implemented and their policies have been a failure.
Keller and Medina have been in charge of APD for the last six years, they have presided over historical increases in property crimes, violent crime and murders. They have been given virtually all they have asked for when it comes to budgets by the Albuquerque City Council with APD having the largest single department budget out of all the 27 departments.
Mayor Tim Keller reacting to the spiking violent crime rates, has implemented 5 programs to deal with and to bring down the city’s high violent crime rates. All 5 initiatives involve early intervention and partnership with other agencies. The 5 programs are:
- THE SHIELD UNIT. The Shield Unit assists APD Police Officers to prepare cases for trial and prosecution by the Bernalillo County District Attorney’s office.
- DECLARING VIOLENT CRIME A PUBLIC HEALTH CRISIS to deal with “violent crime” in the context of it being a “public health crisis” and dealing with crimes involving guns in an effort to bring down violent crime in Albuquerque.
- THE “VIOLENCE INTERVENTION PLAN” which is a “partnership system” that includes law enforcement, prosecutors and social service and community provides to reduce violent crime. Mayor Keller said this about his Violence Intervention Plan when he announced it:
“… This is about trying to get these people not to shoot each other. …This is about understanding who they are and why they are engaged in violent crime. … And so, this actually in some ways, in that respect, this is the opposite of data. This is action. This is actually doing something with people. …”
- THE METRO 15 OPERATION PROGRAM which was essentially APD’s most wanted list.
- METRO CRIME INITIATIVE. Participants in the Metro Crime initiative includ APD, the DA’s Office, the Courts and many other stakeholders to address what all participants labelled the “broken criminal justice”
Notwithstanding all 5 of Keller’s programs, violent crime is still way out of control and his policies have not reduced crime. On April 26, 2023, the Major Cities Chiefs Association released its Violent Crime Survey and national totals for the crimes of homicides, rapes, robberies and aggravated assaults. According to the report, Albuquerque is ranked 17th among 70 of the largest cities in the nation looking at trends in the 4 categories. The single most troubling statistic is Albuquerque’s increase in homicides.
According to the Major Cities Chiefs Association, Albuquerque had one of the worst homicide rates in the nation and is one of 27 cities across the nation that saw an increase in homicides. The report shows in 2021, there were 106 homicides. In 2022, there were 115, an 8% increase. Other nearby cities like Phoenix saw a 13% increase in homicides. Meanwhile, to the north, the Denver Police Department reported an 8% decrease in homicides. Just four hours south, the city of El Paso saw a 28% decrease in homicides, one of the highest drops in the report.
Click to access MCCA-Violent-Crime-Report-2022-and-2021-Midyear.pdf
https://www.koat.com/article/albuquerque-homicide-rate-increase/43702586
When you examine the “check list” of the 50 different proposals that were the result of the Metro Crime Initiative, the proposals are essentially what all the participants have been working on over the past 4 years and include many programs already announced. The list contains nothing new. The items listed are ones that the participants should have been doing in the first place. A detail “check list” pamphlet was produces containing details of each action plan and can be found here:
https://www.cabq.gov/mayor/documents/mci.pdf
GOVERNOR SHOULD IMMEDIATELY RETRACT ORDERS
There is absolutely no doubt that gun violence and violent crime are out of control in Albuquerque and in the state driven by the proliferation of guns and illicit drugs. Notwithstanding, Governor Michelle Lujan’s Grisham’s Executive Oder as well as the Public Health Care Order are misguided and they are unconstitutional.
Simply put, there is no such thing as a state public health emergency exception to the United States Constitution. The orders will likely be found so broad as to be a clear violation of US Constitutional Rights and the Second Amendment Right to Bear Arms. The blunt reality is that the Governor’s Executive Order and Public Health Order will not result in reducing gun violence nor address the proliferation of guns.
The Governor’s actions will accomplish nothing other than ginning up Republican and Second Amendment Rights advocates ire that in turn will contribute nothing to the discussion of real solutions to the state’s gun violence and high violent crime rates. Absent from the Governor’s September 7 and 8th press conferences was the presence of any of the New Mexico legislature Democratic leadership and that is very troubling and reflects she does not even have support of her own party.
Governor Lujan Grisham should immediately cancel and withdraw her Executive Order and the Public Health Care orders. The issuance of the orders will likely result in the Governor’s poll numbers of support to plummet even further given New Mexico’s “gun culture” which is too bad and its a self inflicted wound. A recent poll found that the Governor’s approval rating was at 47%.
ENACT “OMNIBUS GUN CONTROL AND VIOLENT CRIME SENTENCING ACT”
Rather than issuing executive orders declaring a public health crisis that were ostensibly a knee jerk reaction to the killing of a child in a road rage incident, the Governor’s efforts would be better spent on proposing meaningful legislation she wants in the upcoming 2024 legislative session which begins on January 16, 2024. The session is the 30 short session where the Governor will dictate what measures can be considered.
If Governor Lujan Grisham is indeed sincere about the State’s crime crisis and want more immediate action, she should call a Special Session and propose the enactment of an “Omnibus Gun Control And Violent Crime Sentencing Act.”
CRIME AND PUNISHMENT MEASURES
The message that must be sent out loud and clear to violent criminals by our elected officials is that New Mexico has a zero tolerance of violent crimes committed with firearms and the only way to do that is with with enhanced sentencings.
The following crime and sentencing provisions should be included in the “Omnibus Gun Control And Violent Crime Sentencing Act”:
Allow firearm offenses used in a drug crimes to be charged separately with enhance sentences.
Making possession of a handgun by someone who commits a crime of drug trafficking an aggravated third-degree felony mandating a 10-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
Increase the penalty of shooting randomly into a crowded area a second-degree felony mandating a 9-year sentence.
Increase the penalty and mandatory sentencing for the conviction of the use of a fire arm during a road rage incident to a first degree felony mandating a life sentence.
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.
GUN CONTROL MEASURES
Gun control measures that should be included the “Omnibus Gun Control And Violent Crime Sentencing Act” would include legislation that failed in the 2023 legislative session and other measures and would include the following:
Call for the repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby, but what is the real rational for allowing side arms and rifles to be carried down the street other than to intimidate others.
Restrict the sale, manufacture and possession of AR-15-style rifles along with semiautomatic firearms and make it a fourth-degree felony to purchase, possess, manufacture, import, sell or transfer assault weapons in the state.
Prohibited magazines with more than 10 rounds.
Prohibited the possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.
Established 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.
Established 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.
Ban the manufacture, sale, trade, gift, transfer or acquisition of semiautomatic pistols that have two or more defined characteristics.
Revised the state’s Unfair Practices Act to target the sale of illegal firearms and parts, allowing the filing of lawsuits to enforce the act.
Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.
Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.
Mandate the school systems and higher education institutions “harden” their facilities with more security doors, security windows, and security measures and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers.
The Omnibus Gun Control And Violent Crime Sentencing Act Omnibus Gun Violence And Sentencing 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 and law enforcement departments across New Mexico.
CONCLUSION
Until the Governor and the New Mexico legislature get serious about New Mexico’s gun violence crisis and enacts reasonable gun control measures in conjunction with crime and punishment measures, we can expect our violent crime rates to continue to increase, and God forbid, yet another killing of a child which is what prompted the Governor to issue her executive orders in the first place.
Links to related blog articles are here: