On February 25, the New Mexico House of Representatives voted 41-27 to approve House Bill 12 that makes several changes to New Mexico’s Red Flag Law which allows firearms to be temporarily seized from individuals deemed to pose a danger to themselves or others. House Bill 12 clarifies that law enforcement officers can directly initiate a court petition to seize guns from those who pose a serious risk to themselves or others instead of having to wait for someone else to contact them. Under the current law, spouses, parents, children and employers are among the parties who can ask law enforcement agencies to file a court petition. The legislation would also require firearms to be relinquished immediately upon a judge’s order, instead of within 48 hours.
On March 9, House Bill 12 passed the Senate Health and Public affairs committee and will now be heard by the Senate Judiciary Committee chaired by Democrat Joseph Cervantes of Las Cruces with spirited debate expected and strong opposition by Republicans.
Democrat State Representative 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.”
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 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.”
LAW INFREQUENTLY USED UNTIL RECENTLY
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
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. 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 finds that a 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 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 the “Red Flag” Law Enforcement Task force 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 agreed 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.
LAW ENFORCEMENT OPPOSITION SUBSIDES
New Mexico sheriffs fiercely opposed the law when it was enacted. Many went so far as to vow never to enforce it arguing it violated individuals’ second amendment constitutional right to bear arms. Since its enactment in 2020, many law enforcement agencies have grown comfortable with the law. Several top New Mexico State Police officers joined bill sponsors on the House floor and testified in favor of the legislation as expert witnesses.
Republican representatives brought up fundamental concerns about the law, while also seeking unsuccessfully to amend the proposed legislation. Republican Representative Stefani Lord, R-Sandia Park, pointed out during the floor debate the state does not allow vehicles to be seized from individuals receiving treatment for alcohol addiction. Lord said this:
“We do not allow due process [with this law] before someone’s property is taken from them.”
Democrat State Representative Art De La Cruz, D-Albuquerque, pushed back during the floor debate against Republican questions about rogue law enforcement officers possibly abusing their expanded authority under the bill. De La Cruz said this:
“I feel dismayed that we feel confidence in our law enforcement when it’s convenient, and not so much confidence when it’s not convenient.”
Backers said that change would eliminate a potentially dangerous waiting period created by the original law, which Rep. Christine Chandler, D-Los Alamos, described as “illogical.”
The vote in the House of Representatives broke down largely along party lines. Rep. Joseph Sanchez of Alcalde was the only Democrat to vote against the measure. All House Republicans also voted in opposition.
The bill now advances to the Senate with just over two weeks left in this year’s 60-day legislative session.
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.
There’s still time for the legislation to clear the Senate before reaching the governor’s desk. The Senate Judiciary Committee should vote to approve House Bill 12 and forward it to the full Senate for final approval and forward it to the Governor signature