On March 8, 2019, Governor Michelle Lujan Grisham signed into law Senate Bill 8 (SB 8) enacted by the 2019 Legislature which requires background checks for guns sold privately and at gun shows.
Debate on the legislation was hot and heavy, but SB 8 past the Senate on a 22-20 vote and passed the House 42-27 vote. With the Governor’s signature Senate Bill 8 has now become law effective July 1, 2019. Governor Michelle Lujan Grisham also signed Senate Bill 328 which prohibits gun possession by someone who’s subject to an order of protection under the Family Violence Protection Act which prohibits the possession of firearms by domestic abusers.
BAKGROUND CHECK MANDATES OF NEW STATE LAW
Private gun sales will have to go through a federal firearms licensee to do a federal background check.
Licensed gun dealers are already required to do federal background checks on gun sales. The new state law requires a background check before any gun sale, including between two individuals. T
There are two exceptions: sales between two close family members and sales between law enforcement officials.
The new legislation plugs a “loophole” that allows two individuals to arrange a sale on their own to avoid a background check. Under the law passed, people who want to sell a gun they own must arrange for a licensed dealer to do the background check for them before they make the sale.
Licensed gun dealers charge up to $35 for federal background checks. Supporters argue the background check law will make it more difficult for criminals or others prohibited from having a weapon and obtain a gun. Opponents argued criminals will ignore the law arguing background checks are nothing more than a financial burden and annoyance to law-abiding gun owners who are exercising their constitutional rights under the Second Amendment and their right to bear arms
Elected sheriff’s across New Mexico strenuously objected to the legislation and mounted a strong lobbying campaign to defeat passage to the point of appearing before the legislative committees in mass, fully uniformed and armed to make their point of disdain for the legislation.
LAW ENFORCEMENT OPPOSITION
Elected County Sheriffs repeatedly spoke out against the gun legislation during legislative committee hearings. Some elected sheriffs testified that they simply would not enforce the legislation if it became law.28 of New Mexico’s counties and municipalities in the state have passed “Second Amendment Sanctuary” ordinances in defiance to enacted legislative gun control measures.
Republican House leadership said the law enforcement outcry showed that lawmakers ignored the will of the people, especially those in rural parts of the state.The Republican House leadership are pursuing a petition to repeal the background check law by way of the rarely used voter referendum process.
Governor Lujan Grisham last month accused the sheriffs who opposed the new law of being part of a “national misinformation campaign” driven by the National Rifle Association (NRA).
NEW MEXICO CHIEF LAW ENFORCEMENT OFFICIAL ISSUES WARNING
On April 4, 2019, Democrat Attorney General Hector Balderas sent a strongly worded letter of warning to virtually all sheriffs and police chiefs throughout New Mexico telling them that they risk legal liability if they refuse to enforce the new background checks law for gun sales.
Balderas advised them of their legal obligation to enforce law an its requirements outlined regardless of whether they agree with the legislation. In his letter, Balderas acknowledged that sheriffs and police chiefs have discretion over how to run their agencies. However, Balderas reminded the law enforcement command staff that personal political opinions and law enforcement discretion:
“do not absolve us of our duty to enforce validly enacted laws. … As law enforcement officials we do not have the freedom to pick and choose which state laws we enforce. … In short, the taxpayers of your city or county assume the financial risk of your decision to impose your personal views over the law. … [Discretion] cannot subvert the rule of law. All New Mexicans, including public [law enforcement] officials, are equally subject to the law.”
Balderas said a police chief or sheriff who refuses to enforce the law could be held liable if a gun sale results in a prohibited person obtaining a firearm and doing harm.
On April 5, 2019, Democrat Cibola County Sheriff Tony Mace, who is also president of the New Mexico Sheriffs’ Association, objected to Attorney General Balderas letter on two grounds:
1. Sherriff Mace felt the letter was premature because the law does not go into effect until July 1, 2019
2. Law enforcement officers have the discretion in how they enforce the law and Deputy Sheriff’s can issue a warning citation without charging.
Sherriff Mace is quoted as saying:
“[Sherriff’s are] elected by the people in our communities and that’s what we’re looking at – what do the people in our communities want?”
COMMENTARY AND ANALYSIS
Attorney General Hector Balderas is the chief law enforcement official for the state of New Mexico and the Attorney General chairs the law enforcement board that issues law enforcement certifications to virtually every law enforcement sworn officer in the state. Attorney General Hector Balderas’ strongly worded letter to all of New Mexico’s law enforcement agencies is a major wake up call and the agencies would be damn fools to ignore it, especially the warning of potential civil liability.
When attorney General Balderas says “the taxpayers of your city or county assume the financial risk of your decision to impose your personal views over the law” what he is referring to is the real possibility of the family’s of victims of crime who have been killed suing a law enforcement agency for negligence or wrongful death when the victim is killed with the use of gun by a person who obtained a gun without a background check.
By law, law enforcement must take reasonable steps to enforce the background checks or run the very real risk of being accused of negligence that contributed to a person being killed. Any elected Sheriff who proclaims they will not enforce the law will be basically making an “admission against interest” that will no doubt be used in a court of law in a civil action for wrongful death.
The letter sent was in no way “premature” like Sheriff Mace would like everyone to believe. July 1, 2019 is roughly 10 weeks away, and given the law enforcement’s opposition, all will need time to implement policies and procedures to enforce the law and perhaps they may need training and assistance from the State Law Enforcement Academy. What would be pathetic is if the elected Sheriff’s just ignore the law-making background checks mandatory and make absolutely no effort to enforce it and not set up policies and procedures to enforce it.
Elected Sheriff’s cannot “pick and choose” the laws they like as AG Balderas correctly points out. It is downright laughable that Sheriff Mace compares mandatory background checks to issuing a warning citation without charging after pulling over a speeding driver. You cannot instruct law enforcement to use “warning citations” with the intent to subvert the law.
Imagine the scenario if a speeding driver is in fact drunk, given a warning, and then drives off speeding, and gets into an accident killing someone. Discretionary authority comes into play only with very minor infractions of the law and failure to secure a background check on a weapon of death is far more serious than a speeding ticket.
Elected County Sheriff’s have an ethical obligation to honor their oaths of office and enforce the criminal laws as enacted by the New Mexico legislature as best they can and in good faith. Sheriff Maes comments “[Sheriff’s are] elected by the people in our communities and that’s what we’re looking at – what do the people in our communities want?” was irresponsible.
Enforcing the laws is not contingent on what the “people in our communities want”, and no doubt there are many laws that people do not want enforced, like laws prohibiting DWI and the sale of marijuana. The legislation requiring back ground checks on private sales of guns and at gun shows sends a very strong message that the New Mexico gun culture needs to accept a level of responsibility to ensure that they know who they are selling guns to and make sure their weapon is not placed in the wrong hands.
The 28 counties and municipalities in the state that have passed “gun sanctuary resolutions” in defiance to the legislative gun control measures are engaging in “feel good” legislation to merely make a political statement. “Gun sanctuary resolutions” in all likelihood exceeds their authority that would probably set aside by the courts if ever challenged. Elected District Attorneys in the State should follow the lead of Attorney General Balderas and send the sheriff’s a similar letter.
Court challenges to the “gun sanctuary resolutions” could and should be mounted by the elected District Attorneys or appointed county attorneys for the courts to pronounce the resolutions null and void. District Court Orders should be sought mandating the Sheriff’s to not only follow the law but to promulgate policies and programs to get the background checks implemented.
The opposing counties and municipalities would better serve their residents and constituencies if they were to promulgate and implement policy measures and provide funding to help the Sheriffs and Police enforce the law regarding background checks and perhaps fund such services free of charge for their constituents.
On a more personal note, all too often elected officials who are seeking higher office while in office avoid making hard decisions in order not to offend their constituencies forgetting the importance of their current jobs. Attorney General Hector Balderas is commended for his action of reminding the elected Sheriff’s to do their jobs and place Public Safety above their political beliefs and to enforce the laws they swore to uphold. Attorney General Balderas has served with distinction as both New Mexico State Auditor and now as Attorney General and he has close to 3 years left in his second term as AG. Hector Balderas’ with his actions now are evidence that he made the right decision not to seek higher office putting public safety first for New Mexico and its citizens.