On February 25, 2020 Governor Michelle Lujan Grisham signed into law the “Extreme Risk Firearm Protection Order Act” also known as a “red-flag” gun bill that allows firearms to be temporarily taken away from those deemed dangerous to themselves or others. In August 2022, Governor Michelle Lujan Grisham ordered the creation of a task force to educate law enforcement officers about the “red flag gun law” and to increase public awareness of it after it was revealed that law enforcement was essentially ignoring the law.
On August 13, 2024 it was reported to the influential 32 member Courts, Corrections and Justice Interim Committee by a law enforcement task force on the “red flag law” that the use of New Mexico’s “red flag” gun law has increased dramatically since its enactment in 2020. Use of the law has steadily increased over the last two years, as law enforcement officers have received training and grown more familiar with how it works.
Statewide, the number of temporary firearm seizure petitions filed by law enforcement agencies has jumped from a mere 3 petition filings in 2021 to 46 petition filings in 2023. Following are the statistics reported to the committee on the filing of the firearms petitions during the last 5 years:
- 2020: 4
- 2021: 3
- 2022: 14
- 2023: 46
- 2024: 51
Albuquerque based Second Judicial District Judge Jane Levy told the committee that of the roughly 120 petitions filed statewide since the law took effect, about 95% have been granted by a District Court Judge. In most of the cases Judge Levy has handled, defendants were in agreement with the need for a firearm protection order.
More than half of the firearm petitions have been filed in Bernalillo County. The reason for that is that the Albuquerque Police Department has a crisis intervention unit that uses the law as a tool for removing guns from individuals with mental health issues who have made violent threats.
LAW ENFORCEMENT DESCRIBES USE OF RED FLAG LAW
APD Detective Jeff Jones and other APD officers described to the committee how they have used the law.
APD Detective Coty Maxwell cited an investigation into a man who threatened to kill his neighbors and himself with a gun. Detective Maxwell told the committee this:
“During my investigation, I found this person had access to 13 firearms, including 11 high-powered rifles and two handguns … [and he] had previously refused treatment for mental health issues.”
Maxwell said the defendant eventually agreed to surrender his firearms after acknowledging his mental health struggles.
In another case, APD officers successfully used the law after a student at an Albuquerque school threatened another student and posted photos on social media of himself with a semi-automatic handgun.
APD Detective Jeff Jones told the legislative Courts, Corrections and Justice Committee this:
“I think it’s saved some lives and given some hope for families.”
CHANGES BEING PROPOSED
Since the red flag gun law took effect, several changes to it have been proposed as a way to make the law less cumbersome. Notwithstanding those changes failing to win legislative approval, more revisions are being proposed for next year’s 60-day legislative session that begins on January 21, 2025.
State Police Deputy Chief Carolyn Huynh heads the task force created to educate law enforcement and the public on the red flag law. The task force includes a combination of law enforcement officials and behavioral health care experts.
The task force identified several possible changes to the red flag law. Those proposals include allowing law enforcement officers to directly initiate a court petition, instead of waiting for someone else to contact them, and requiring firearms to be relinquished immediately upon a judge’s order, instead of within 48 hours.
New Mexico had the nation’s third-highest gun death rate as of 2021, and gun-related hospital emergency department visits in the Albuquerque metro area increased by 22% over a recent two-year period. However, preliminary data from the state’s Office of the Medical Investigator shows gun-related homicides and suicides were down last year compared to the previous year.
Increase in red flag gun law petitions filed in New Mexico (koat.com)
RED FLAG LAWS EXPLAINED
A “red flag law” is a gun control law that permits police, family members or third parties to petition a state court to order the temporary removal of firearms from a gun owner or a person in possession of a gun who may present a danger to themselves or others. The action is civil in nature and it is not a criminal action nor a civil commitment proceeding to determine mental competency. Red flag law court orders are also referred to as Extreme Risk Protection Orders (ERPOs). Red Flag laws as well as Universal Background Checks and closing the “gun show loophole” have become popular gun policy proposals raised in the aftermath of mass shootings like those in Sandy Hook, Parkland, El Paso and Dayton.
Usually under “red flag laws”, if a judge after an evidentiary hearing find that person is dangerous to himself or others, that person must surrender all firearms within their possession or control to the police for a specified period of time. During that period of time, the person is also not allowed to buy or sell guns. Further, it is a temporary order, very much like a temporary restraining order, it does not permanently keep guns away from individuals who might cause significant risk. Such court orders are only as good as the enforcement behind it by law enforcement.
The biggest criticisms against “red flag” laws are that they violate a person’s US Constitution Second amendment rights to bear arms. Another major criticism is that a person’s constitutional right of due process of law is violated when a court can issue a temporary “ex parte” order to seize guns from people without an evidentiary hearing and without any notice. (NOTE: An “ex parte” order is a court order granted against a person not present at the hearing and at the request of and for the benefit of another party.)
https://gunsandamerica.org/story/19/08/05/what-is-a-red-flag-law/
CONTROVERSIAL START
On February 25, 2020 Governor Michelle Lujan Grisham signed into law the “Extreme Risk Firearm Protection Order Act” also known as a “red-flag” gun bill that allows firearms to be temporarily taken away from those deemed dangerous to themselves or others. New Mexico’s “red flag law” allows for court-ordered seizure of guns from individuals deemed an imminent danger to themselves or others.
Law enforcement officers, acting on information provided by a relative, school administrator or employer, can exclusively seek a court order prohibiting someone from having firearms. The petition must be based on “probable cause” to believe the individual “poses a significant danger of causing imminent personal injury to self or others.” If granted, a court can order the temporary seizure of firearms for up to 10 days and until a hearing can be held. After a hearing, the order could be extended one year. It’s “due process of law.”
An “extreme risk order” is an extension of the 2019 New Mexico legislative law prohibiting gun possession by someone who’s subject to an order of protection under the Family Violence Protection Act where domestic abusers must surrender their firearms to law enforcement. Gun possession prohibition also applies to people convicted of other crimes. Currently, 21 states and the District of Columbia have red flag laws on their books.
The New Mexico suicide rate is 21.9 deaths per 100,000 people, which is more than 50% higher than the national average. Ten counties in New Mexico have suicide rates at least twice the national average. Current statistics are one in three N.M. women will experience domestic violence in their lifetime. New Mexico has ranked among the top 10 states with the highest rates of women killed by men during the last decade.
In 2020, virtually every Republican in the House voted against the bill. As Republicans cast their votes, they held up copies of the Constitution. Democrats should have held up copies of death certificates to symbolize suicides and dead victims of domestic gun violence.
Thirty of the state’s elected sheriffs opposed the Extreme Risk Firearm Protection Order Act. They argued that the law violates the Second Amendment right to bear arms, the Fourth Amendment right against unreasonable search and seizure and the 14th Amendment depriving “any person of life, liberty and property, without due process of law.” The three constitutional amendments are cited by gun fanatics to oppose meaningful gun control. Each separately and together have limitations and exceptions subject to court interpretations.
NEW MEXICO’S “EXTREME RISK FIREARM PROTECTION ORDER ACT” PROVIDES FOR DUE PROCESS OF LAW
Under New Mexico’s law, only a law enforcement officer or a prosecutor can file a petition in state court for an order to prohibit someone from possessing firearms. The petitions can be filed on request from a spouse, ex-spouse, parent, child, grandparent, school administrator or employer, but those individuals cannot file petitions directly.
If a temporary 10-day order is granted, a hearing is then held to determine whether the order should be made permanent for a year. Such permanent orders can then be extended for an additional year if a motion is filed before it expires.
The “Extreme Risk Firearm Protection Order Act” or red flag law does contain significant safe guard provisions that protect a citizen’s 2nd, 4th and 14th Amendment Rights. The court proceeding and the process under the new red flag law and how it works is summarized as follows:
“A law enforcement officer, or a prosecutor in cases involving a law enforcement officer, are allowed to file a petition in State District Court for an order to prohibit someone from possessing firearms.
The petitions can be filed upon request from a spouse, ex-spouse, parent, child, grandparent, school administrator or employer.
If a law enforcement officer declines to file a petition upon request, the officer will have to file a notice of the decision with the county sheriff.
A District Judge can enter an emergency 10-day risk protection order if “probable cause” is found that an individual poses a danger of causing “imminent” injury to themselves or others.
The individual is then required to surrender all their firearms within 48 hours of a judge’s order or sooner.
A one-year order can be imposed after a court hearing, although such an order requires a higher evidence threshold.
One-year risk protection orders are subject to appeal.
All firearms are required to be returned to their owner within 10 days after an order’s expiration.”
https://www.abqjournal.com/1424533/gov-lujan-grisham-signs-red-flag-gun-bill-into-law.html
Exclusive authority is given to law enforcement to make the decision to file a petition and the petition must be based on whether there’s “probable cause” to believe the individual “poses a significant danger of causing imminent personal injury to self or others.” Law enforcement officials have to explain their decision with the filing of a court notice if they decide not to seek a judge’s order after receiving a report and evidence in support of the petition.
The “Extreme Risk Firearm Protection Order Act” signed by the Governor is a natural progression of the 2019 New Mexico Legislature passage of legislation which prohibits gun possession by someone who’s subject to an order of protection under the Family Violence Protection Act. Under the enacted legislation domestic abusers must surrender their firearms to law enforcement. The gun possession prohibition also applies to people convicted of other crimes.
COMPREHENSIVE REPORT ON GUNSHOT VICTIMS
Simply put, New Mexico is suffering a major crisis when it comes to gun violence and gun deaths. 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 7thhighest 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.
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.
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 and severity of injuries for gunshot victims reveals a concerning picture:
- 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
- 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%)
RELEASE OF INDIVIDUALS FOUND INCOMPETENT TO STAND TRIAL
On June 26, an analysis of the number of people released back into the community after being found incompetent to stand trial was provided to the Court, Corrections and Justice Interim Committee. The analysis was not completed and was unavailable when the competency bill legislation failed in the 2024 legislative session.
Major findings of the analysis are as follows:
- More than 3,200 people charged with crimes since 2017 in New Mexico have been released back to the community after being found incompetent to stand trial, according to an analysis that fueled Gov. Michelle Lujan Grisham’s call for a special session.
- More than 5,350 of the 16,045 dismissed charges were felonies, according to the analysis. The dismissals included those charged with first-degree murder, trafficking controlled substances, kidnapping, and abuse of a child, according to data of the state Administrative Office of the Courts.
- Other defendants charged with lesser crimes have been repeat offenders caught in a cycle of being charged and released only to be arrested again, charged, and let go after court-ordered evaluations showed they cannot participate in their defense and a judge ruled they were mentally incompetent to stand trial.
After seeing the analysis, Lujan Grisham called the number of criminal case dismissals “frankly, shocking.” The Governor said this:
“Some of these have been in court up to 40 times in a year. If we don’t interrupt that, the status quo that you see playing out in our communities every day will stay. … I’m trying to break that cycle [and] focus on the criminal competency loophole. … The notion that we would have 3,200-plus individuals reoffending for another year is more than I think any New Mexican should have to bear”.
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 high suicide rates, domestic violence killings and the threat of mass shootings, its about time that New Mexico’s “red flag law” is being enforced more and more by law enforcement. Notwithstanding, the fact that only 118 petitions have been filed over a full 5 years is somewhat of an embarrassment.
It more likely than not that the more than 3,200 people charged with crimes since 2017 in New Mexico who have been released back to the community after being found incompetent to stand trial would qualify to some extent for the filing of red flag petitions. Law enforcement in general needs to set aside their opposition to red flag laws and use far more initiative in filing petitions.