On January 5, legislation to expand New Mexico’s red flag passed the House Judiciary Committee on a party-lines vote. Before that, it passed the House Consumer and Public Affairs Committee on a party-line vote. New Mexico’s red flag law now goes to the House floor for a final vote in that chamber. If it passes in the House of Representatives, it will be forwardwed to the State Senate to again go through the committee process.
New Mexico’s red flag law currently allows everyday New Mexicans to ask a judge to temporarily take away someone’s guns if they are a danger to themselves or others. It does not specifically mention law enforcement. House Bill 12 amends the law allowing law enforcement officers to file those petitions while also removing the current 48-hour confiscation period now instructing law enforcement to confiscate those guns immediately.
Court data shows at least 160 petitions have been filed throughout the state since the law was first enacted back in 2020. However, there are different court interpretations of the law and whether or not law enforcement officers are allowed to file the petitions. Assistant Attorney general Jenn Vickery said this:
“The [Second Judicial District Court] which is Albuquerque, Bernalillo County, the judges there are already allowing law enforcement to file petitions. But … in the First Judicial Dsitrict in Santa Fe, a district court judge said a law enforcement officer wasn’t listed as a reporting party, so they denied the petition. So we’re seeing confusion in the judicial system where some judges mean who can be a reporting party.”
With respect to removing the current 48-hour confiscation period and allowing law enforcement to confiscate those guns immediately, Rep. Christina Chandler said this: .
“There’s a concern there that a person who might have been thinking about doing some dangerous things, either themselves or others, would use that 48 hours to achieve that end. So that they wanted to be able to just take the guns immediately, as more clearly in the statute.”
The link to the quoted or relied upon news source is here:
https://www.kob.com/new-mexico/proposal-to-expand-red-flag-law-heads-to-house-floor/
NEW MEXICO’S RED FLAG LAW
It was on February 25, 2020 that 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 everyday citizens, 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).
Under New Mexico’s “red flag law”, 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/
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.
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.
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.
HOUSE BILL 12
Since the red flag gun law took effect, several changes to it have been proposed as a way to make the law less cumbersome. Those changes have failed in past legislative session. This year, the proposed changes are embodied in House Bill 12.
House Bill 12 would clarify that law enforcement officers can directly initiate a court petition instead of being forced to waite for someone else to contact them. Rep. Christine Chandler, D-Los Alamos, one of the measure’s sponsors said this:
“There’s an ambiguity in the law that we’re trying to address.”
The bill would also require that firearms be relinquished immediately upon a judge’s order, instead of within 48 hours.
Backers of the change say the 48-hour requirement puts law enforcement officers and others, including the subject of the order, at increased danger.
Several law enforcement officials testified in support of the changes during the committee hearing, including State Police Deputy Chief Carolyn Huynh, former Taos County Sheriff, who said this:
“I think we should all agree that certain people shouldn’t have firearms or have access to firearms.”
Critics of House Bill 12 raised concerns about rogue law enforcement officers possibly abusing their expanded authority under the bill, while also renewing critiques about the underlying law itself. Anthony Sergura of the New Mexico Shooting Sports Association said this:
“Such drastic measures not only infringe on the rights of law-abiding citizens, they also infringe on due process.”
The red flag gun law, officially known as the Extreme Risk Firearm Protection Order Act, was used infrequently in the two years following its 2020 approval. But utilization of the law increased over the last two years as law enforcement officers have received more training on its workings.
New Mexico had the nation’s third-highest gun death rate as of 2022, behind only Mississippi and Louisiana, and gun-related hospital emergency department visits in the Albuquerque metro area increased by 22% over a recent two-year period.
Statewide, the number of temporary firearm seizure petitions filed by law enforcement agencies has jumped from 3 petitions in 2021 to 90 petitions last year, said Rep. Joy Garratt, D-Albuquerque. Of those 90 petitions, 86 were ultimately granted by a judge, she added.
However, the number of gun-related homicides and suicides in New Mexico decreased in 2023 compared to the previous year, according to data from the state’s Office of the Medical Investigator.
The link to the quoted or relied upon news source is here:
https://www.abqjournal.com/news/article_a6c921f4-ddb9-11ef-ab74-8762b08ef83d.html
https://www.abqjournal.com/news/article_a6c921f4-ddb9-11ef-ab74-8762b08ef83d.html
COMMENTARY AND ANALYSIS
New Mexico’s red flag gun law continues to generate heated debate nearly five years after its 2020 approval.
Democrats have a commanding 43-26 majority in the House and a 26 to 16 majority in the Senate. The biggest problem every year is the amount of time wasted to get legislation through the committee process which results in major legislation failing. Republicans consistently rely on the filibuster in the last few days of the session to kill Democrat initiatives remaining to run out the clock and the Democrats have only themselves to blame given their majorities in both chambers.
It’s not clear when the full House might debate House Bill 12, but legislature is at the the halfway point before it adjourns. There’s still plenty of time for it to clear the Senate before reaching the governor’s desk
The link to a related blog article is here: