On July 22, U.S. District Judge James Browning of Albuquerque, in an 104-page ruling, refused to grant a Temporary Restraining Order (TRO) barring enforcement of New Mexico’s new 7 day waiting period for purchasing firearms in New Mexico. Judge Browning sided with attorneys for Gov. Michelle Lujan Grisham and state Attorney General Raùl Torrez and ruled against two-gun owners who contended the state’s Waiting Period Act violated their Second Amendment right to bear arms. The National Rifle Association (NRA) and Mountain States Legal Foundation, an advocacy group for gun rights, filed the lawsuit on behalf of the two New Mexico residents, citing concerns about delayed access to weapons for victims of domestic violence and others. The US Supreme Court in June upheld a federal gun control law that is intended to protect victims of domestic violence. Judge Browning’s ruling follows a hearing held on the TRO in June.
The new law establishes a statewide 7-day waiting period for the purchase of firearms, double the current waiting period required by the federal government. The Waiting Period Act makes it a misdemeanor to buy or sell a firearm before the required waiting period. The law provides for exemptions for concealed carry permit holders, Federal Firearms Licensees, and transactions between law enforcement officers, law enforcement agencies, and immediate family members. Proponents say the law closes a loophole allowing guns to be sold before a buyer’s federal background check has been returned.
The 7 day waiting period was enacted during the 2024 New Mexico legislative session. It was on February 12, 2024 that the New Mexico State Senate passed House Bill 129, Firearm Sale Waiting Period Crimes, on a 36-32 vote after the House passed amended legislation. On March 4, Governor Michelle Lujan Grisham signed the legislation into law and it went into effect April 15. A gun owner from Albuquerque joined a Farmington woman who owns guns in filing the lawsuit on April 15, the day the law went into effect. Their attorneys argued in part that in order to keep and bear arms, a prospective gun owner needed to acquire the firearm in the first place and therefore purchasing a gun was covered by the Second Amendment United States Constitution providing for the right to bear arms. Ultimatley, Judge Browning found their arguments “unpersuasive.”
Browning denied the NRA’s effort to secure a TRO on three grounds:
- That the case would not succeed on its merits because the Second Amendment does not cover firearm sales. The waiting period is not “presumptively Unconstitutional” because it is a condition or qualification on firearm commercial sales and the waiting period is “consistent with the Nation’s historical tradition of commercial firearms regulations, which licensed and prohibited the sale of firearms to sections of the populace out of a concern that a purchaser might use the firearm to harm the public.”
- The NRA and it’s fellow plaintiffs did not show Browning that “they are likely to suffer irreparable injury if the Court does not temporarily enjoin the Waiting Period Act… and the harm that they stand to suffer should they seek to purchase another firearm is slight.”
- That the plaintiffs did not “establish that the balance of the equities weighs in their favor nor that an injunction is in the public interest, because the Plaintiffs’ interest in purchasing a firearm without delay is minimal compared to the public’s interest in keeping the Waiting Period Act in effect.”
EVIDENCE PRESENTED AND COURT’S LEGAL ANALYSIS
During the TRO hearing to prevent the state from enforcing the new law, experts on the history of guns in America testified on both sides. The 7 day waiting period was presented as a way to curb impulsive gun violence, such as suicides, and address New Mexico violent crime rates.
Judge Browning found that while gun-related deaths in the United States were higher in 2022 than in any other year on record, he found “the situation is worse” in New Mexico with gun death climbing significantly in the last few years. Judge Browning wrote the age-adjusted gun death rate increased by 87% between 2010 and 2021. Judge Browning found that “The Defendants adduce significant evidence that waiting period laws may help reduce this tidal wave of gun violence.” The judge noted that testimony given during the hearing that the Waiting Period Act is likely to save about 37 lives per year.
Browning wrote in part:
“On balance … the harm that the Defendants stand to suffer if the Court were to enjoin the Waiting Period Act — the loss of New Mexican lives — significantly outweighs the Plaintiff’s threatened injury. Moreover, the public’s interest in the preservation of dozens of New Mexican lives cannot be understated.”
Browning wrote that having to wait 7 days, as required by the new law, to purchase a handgun is “minimally burdensome” on the plaintiffs’ ancillary right to acquire firearms. Browning wrote the waiting period is a “commercial firearm regulation” that is “presumptively Constitutional.”
Although the lawsuit challenging the law is still pending, Judge Browning found the plaintiffs are not likely to succeed on the Second Amendment claims which was a major factor in his ruling to deny a temporary restraining order or preliminary injunction. Browning wrote this:
“The central question the Court must address here is whether the right … to keep and bear Arms’ encompasses the right to obtain firearms. … In concrete terms, the Waiting Period Act does not limit an individual’s ability to keep firearms in their home nor carry those firearms with them in public for self-defense.”
According to the ruling, to obtain a temporary restraining order or preliminary injunction, a plaintiff must also make “a clear and unequivocal showing it will likely suffer irreparable harm absent preliminary relief”. Judge Browing wrote that waiting a week to buy a handgun “is insufficient to qualify as irreparable harm.” Browing added that “there is divergence of opinion among United State District Courts regarding whether the Second Amendment’s plain text includes only a right to keep and bear arms, not a right to buy them.” The Ninth Circuit Court and the 5th Circuit Court appellate courts found that right didn’t cover “the conduct of purchasing a firearm”.
Judge Browning wrote in part:
“… [T]he Court concludes that the Plaintiff’s Second Amendment Claims fails because it doesn’t cover the conduct of purchasing a firearm. … The Supreme Court has repeatedly instructed that the ‘most important rule in constitutional interpretation is to heed the text — that is, the actual words of the Constitution — and interpret that text according to its ordinary meaning as originally understood. … Today and in 1791, the normal and ordinary meaning of ‘keep’ is to possess and the normal and ordinary meaning of ‘bear’ is to carry. … [The historical understanding of the Second amendment] provides further confirmation that the Second Amendment was not drafted to protect the right to purchase arms.”
According to the Giffords Law Center to Prevent Gun Violence, only three states have longer waiting periods: California, Hawaii and Washington, along with the District of Columbia — that range up to 14 days. Rhode Island also has a seven-day waiting period.
GOVERNOR MICHELLE LUJAN GRISHAM REACTS
New Mexico Gov. Michelle Lujan Grisham applauded the ruling as an indication that the waiting period is constitutional and will be able to remain in effect. Lujan Grisham issued the following statement on Browning’s decision:
“The judge’s decision confirms that New Mexico’s waiting period is likely constitutional and allows it to remain in effect. … This 7-day cooling-off period makes our community safer by providing a critical buffer against impulsive firearms purchases and ensuring comprehensive background checks are completed. This law is a commonsense measure designed to reduce impulsive gun violence and address a federal background check gap.”
The links to a relied upon and quoted news sources are here:
https://www.koat.com/article/new-mexico-gun-waiting-period/61687266
https://nmpoliticalreport.com/quick-reads/federal-judge-upholds-firearm-waiting-period-requirement/
COMPREHENSIVE REPORT ON GUNSHOT VICTIMS
Simply put, New Mexico is suffering a major crisis when it comes to gun violence and gun deaths. Judge Browning was very insightful and absolutely correct when he found that while gun-related deaths in the United States were higher in 2022 than in any other year on record, “the situation is worse” in New Mexico with gun death climbing significantly in the last few years.
New Mexico’s gun violence crisis was laid to bear for all to see on September 28, 2023 when the New Mexico Department of Health released its “Comprehensive Report on Gunshot Victims Presenting at Hospitals in New Mexico.” The report spans the time period from 1999 to 2023. The report provides a detailed analysis of firearm-related violent deaths and injuries in New Mexico. It encompasses data from various sources, including New Mexico’s surveillance systems, state behavioral risk factor surveys, and the Center for Disease Control (CDC) data.
The key findings and conclusions detailed in the report are as follows:
INCREASE IN FIREARM-RELATED DEATHS
- Over the past two decades, New Mexico’s firearm death rates rose from 7th highest nationwide in 1999 to 3rd highest in 2021 with the age-adjusted firearm death rate increasing by 87% between 2010 and 2021.
- While suicide remains the predominant cause of firearm-related deaths, a notable surge of 70% in the homicide rate is driving the overall increase in firearm fatalities.
DEMOGRAPHIC AND GEOGRAPHIC DISPARITIES
- Men of all age groups were found to be at highest risk for firearm-related injuries and deaths.
- Racial/ethnic inequities: Non-Hispanic American Indian, Non-Hispanic Blacks, and Hispanics, experienced substantial increases in firearm injury death rates between 2017 and 2021.
- The Northeast and Metro Health Regions experienced a substantial increase in firearm injury emergency department (ED) visits over the past two years (Northeast: +30%; Metro: +22%).
INCREASED SEVERITY OF HEALTH OUTCOMES OF FIREARM INJURY
Between 2019 and 2022, there was a 16% increase of patients being admitted to intensive care and a 61% increase in patients being transferred to the operating room.
SIGNIFICANT INCREASE IN ALCOHOL AND SUBSTANCE USE CONTRIBUTING TO INCREASED FIREARMS DEATHS
- Between 2019 and 2020, there was an 89% increase in alcohol dependence for homicides involving firearms. Additionally, from 2018 to 2020, there was a 475% increase non-alcoholic substance dependence for homicides involving a firearm.
- Between 2018 and 2020, there was an 85% increase in alcohol dependence and a 120% increase in non-alcoholic substance abuse for suicides involving a firearm.
LOADED AND UNLOADED FIREARMS AS RISK FACTOR FOR FIREARM INJURY AND DEATH
- In 2022, 37% of New Mexican households have a firearm, 15% of New Mexican households have a loaded firearm, and 8% have a loaded and unlocked firearm.
- In 2022, households with a firearm and a child less than 18 years old, 38% have a loaded firearm and 15% have a loaded and unlocked firearm.
RISING ECONOMIC IMPACT OF FIREARM INJURY TO NEW MEXICO HEALTHCARE SYSTEM
- The annual estimated overall cost of firearms injuries and deaths in New Mexico is $6 billion or $2818 per capita.
- Medicaid claims for firearm injuries in New Mexico increased by 85% from $6.5 million in 2018 to $12 million in 2022 (Figure 12).
- Between January 2023 and September 2023, Medicaid expenditures totaling $5.6 million have been spent on firearm injuries in New Mexico.
- Medicaid was the primary payer for 76% of gun injury hospital discharges in 2022 In 2021, the Department of Health with support of the CDC, developed a Statewide Strategic Plan for the Prevention of Firearm Injury (FASTER Report FINAL (unm.edu)) which is an important supplement to this document. Demographic Data on Firearm Injury.
HEALTHCARE OUTCOMES FOR GUNSHOT VICTIMS
Gunshot injuries have wide-ranging and severe implications on individual well-being, often necessitating immediate and extensive medical care. Delving into the healthcare outcomes for gunshot victims reveals a concerning picture:
SEVERITY OF INJURIES
- Between 2019 and 2022, the number of patients in New Mexico’s trauma centers with firearm injuries has increased by 39%.
- The number of trauma center patients with firearm injuries being discharged from the ED to the intensive care unit has increased by 16%
- There has been a concerning 61% increase in gunshot injuries that required surgical interventions
- New Mexico ranked seventh highest in the U.S. in 1999 and 2011. The rank increased to third highest in the U.S. in 2021
- New Mexico has consistently had a larger age adjusted1 firearm death rate than the rest of the country. Moreover, the age adjusted firearm injury death rate for New Mexico has also increased at a higher rate compared to the U.S. For example, New Mexico’s firearm injury death rate was 48% higher than the U.S. in 2010, compared to being 90% higher in 2021.
TYPE OF FIREARM AND AMMUNITION INVOLVED IN FIREARM DEATHS
The following data was pulled from pooled data in the New Mexico National Violent Death Reporting System (NM VDRS) from 2018 to 2020:
TYPE OF FIREARM IN DEATHS
- Handguns were implicated in 77% of violent firearm-related deaths (Figure 6).
- Rifles and shotguns were involved in 7% and 6% of such incidents.
COMMON FIREARM MANUFACTURERS IN DEATHS
- An unknown manufacturer was noted in 61% of cases of the New Mexico National Violent Death Reporting System (NM VDRS) pooled data from 2018 to 2020.
- Smith & Wesson firearms were linked to 8% of violent deaths, followed by Ruger (6%), Glocks (5%), and Taurus (4%).
AMMUNITION CALIBERS IN VIOLENT DEATHS
- The 9-millimeter (mm) caliber was the most prevalent, associated with 25% of violent firearm deaths. PAGE 7
- Other notable calibers included .38 (10%), .22 (9%), .45 (8%), and .40 (7%)
NUMBER OF VIOLENT CRIMES IN NEW MEXICO
According to FBI statistics, the number of violent crimes in New Mexico for the last 11 years has been reported as follows:
- 2012: 11,660
- 2013: 12,990
- 2014: 12,465
- 2015: 13,672
- 2016: 14,585
- 2017: 16,300
- 2018: 17,637
- 2019: 17,302
- 2020: 16,393
- 2021: 17,373
- 2022: 16,494
According to data released by the New Mexico Department of Health and the Centers for Disease Control and Prevention, from 2010 to 2021, the age-adjusted death rate from firearms rose by 87%. In the same time span, New Mexico rose from the 7th to the 3rd highest rate of firearm deaths in the country.
Overall, there was a 34% increase in overall firearm fatalities from 2018 to 2021, with a 70% increase in homicides with a firearm in the same time period.
Not only has death from firearms in New Mexico increased, but so have injuries related to firearms. From 2018 to 2022, the rate of people visiting the emergency room from firearm related injuries rose 35%.
According to the latest stats from the FBI, there were 11,550 instances of shoplifting In New Mexico. It’s a trend that’s been increasing since 2018.
FIREARM INJURY – EMERGENCY ROOM VISITS
Emergency room firearms injuries are on the uptick in New Mexico and are reported as follows for 5 years of available data:
- 2018: 968
- 2019: 914
- 2020: 1,129
- 2021: 1,263
- 2022: 1,306
https://www.koat.com/article/new-mexico-crime-stats-town-hall/60513537
Following the death of a child near Isotopes Park in 2023, Governor Michelle Lujan Grisham issued a public health order that was aimed to reduce gun violence. Data released by the governor’s office from September 2023 – March 2024 is as follows:
- TOTAL ARRESTS: 7,649
- FELONY ARRESTS: 4,701 (61.46%)
- MISDEMEANOR ARRESTS/ WARRANTS: 2,948 (38.54%)
- FIREARMS SEIZED: 614
- TRAFFIC CITATIONS: 9,669
COMMENTARY AND ANALYSIS
Given New Mexico’s gun culture and the crisis in gun violence crimes occurring in the State, the significance of Judge Browning granting the Temporary Restraining Order and allowing enforcement of the 7-day waiting period cannot be understated. It will make a difference and it will save lives. The seven day waiting period is the first step in reducing the proliferation of guns in a state that is suffering a crisis in gun violence.
Notwithstanding, much more must be done by the New Mexico legislature to curb and reduce the proliferation of guns in the state of New Mexico to reduce gun violence. Historically, most gun control legislation has failed over too many years in the legislature. In the last two years there have been 4 major times where responsible gun control measures have past the New Mexico legislature:
- The 7-day waiting period.
- The Bennie Hargrove Gun Safety Act making it a crime to store a firearm in a way that negligently disregards the ability of a minor to access it.
- Prohibiting the buying a firearm for another person who is legally banned from purchasing it on their own.
- Prohibiting the carrying a firearm within 100 feet of a polling place during an election.
Notwithstanding the 4 measures past, they are still baby steps in the right direction and far more must and can be done.
The July 18 Special Session of the New Mexico legislature that the governor convened for public safety was a total bust with the legislature refusing to enact any of the legislature she wanted. There was a failure of leadership by the governor and legislatures to reach a consensus on the legislation with the argument made that the legislation was too complicated to be handled in a special session.
If Governor Lujan Grisham and the New Mexico Legislature are truly concerned about the New Mexico’s violent crime crisis, both need to regroup and take and even more aggressive approach as they prepare for the 2025 New Mexico legislative session. They should take the next 6 months and work on building a consensus on the enactment of “Omnibus Violent Crime Sentencing And Gun Control Act.”
The message that must be sent out loud and clear by our elected officials to violent criminals is that New Mexico has a zero tolerance of violent crimes committed with firearms and the only way to do that is with enhanced sentencings. Also, the availability and proliferation of guns must be recognized as a big part of the state’s violent crime problem.
CRIME AND PUNISHMENT MEASURES
The following crime and sentencing provisions should be included in the “Omnibus Gun Control And Violent Crime Sentencing Act”:
As was originally proposed for the Special Session, strengthen penalties for a felon convicted of possessing a firearm, making the crime a second-degree felony, punishable by a minimum of nine years in prison.
As was originally proposed for the Special Session, enact the changes proposed to the mental health commitment process and include funding for mental health facilities and services to create a statewide mental health court for mandatory civil mental health commitment hearings.
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 brandishing 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.
Update the Children’s Code to deal with charges, increasing penalties and prosecutions of minors as adults as consequences of children using firearms in the commission of violent crimes and aggravated assaults with use of deadly weapon.
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 the legislation that failed in the 2023 legislative session. That would include an assault weapons ban lawfully regulating the manufacture, possession and sale of weapons of war, most often the gun used in mass casualty events and prohibiting guns in parks and playgrounds making it illegal to carry a firearm in county or municipal parks, playgrounds, and their accompanying parking lots.
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 second-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.
Expand the 14-day waiting period for the purchase of any firearm and requiring 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 enact reasonable gun control measures in conjunction with crime and punishment measures, we can expect our violent crime rates to continue to increase and the calling Special Sessions a waste of time.