On Wednesday September 18, Albuquerque City Councilors Isaac Benton, Pat Davis and Diane Gibson, citing more than a dozen shootings that have occurred at government buildings and public meetings around the country in the past 22 years, introduced legislation to ban guns on city properties. The ordinance bans guns on “any city structure, building, or office space which is owned, leased or otherwise occupied by the City for purposes of hosting the public, or conducting business with the public”. The proposed ordinance would include City Hall, all parks, libraries, and any place the City Council, city commissions or elected officials are holding an open meeting.
Davis on his own also introduced two other gun-related bills:
1. The first requires gun owners to keep their firearms locked up when outside of their immediate possession and control. The proposed laws would require people in Albuquerque to keep their guns locked in a safe at home or with a secure device in the car when they are not with them.
2. The second would make it illegal to threaten mass violence in Albuquerque, including over social media, which Davis said would allow police to initiate investigations sooner than they now can.
Violation of any of the proposed city ordinances would be a misdemeanor, meaning that the maximum penalty would be between 6 months to 1 year in jail and/or a fine of $5,000 if convicted in Metropolitan Court.
All 3 city councilors said they do not believe that the New Mexico Constitution should preclude communities from passing legislation they say would protect citizens.
City Councilor Pat Davis said of the proposed legislation:
“Quite frankly, we’re tired of waiting on Santa Fe and Washington to step up and do something. We’re living with our constituents every day who are worried about this.”
City Councilor Isaac Benton for his part said his primary goal is to keep guns out of public meetings and other places where residents must go to transact business with the government, such as when they file for building permits.
City Councilor Diane Gibson expressed the opinion that banning guns from city properties and meetings would create a safer environment for city employees as well as those who do business with the city or want to speak during public hearings. Gibson explained that the sometimes-contentious matters handled in public meetings and government centers do not mix well with guns. Gibson claims that she has heard from friends and acquaintances who are hesitant to attend public meetings and gatherings out of fear.
Gibson revealed the extent of her limited intelligence on the law and gun control issue when she said:
“I’m not naive; I understand there are going to be people who will not support this and will see it as just another firearm law, but the way I look at this is much broader than that. …”
MAYOR TIM KELLER’S EXECUTIVE ORDER
On August 16, Mayor Tim Keller issued an administrative instruction banning guns from city community centers and from the city’s health and social service centers. On September 23, The New Mexico Patriots Advocacy Coalition and Albuquerque resident Lisa Brenner filed a lawsuit alleging Mayor Keller’s executive order violates the New Mexico Constitution that prevents municipalities from regulating “an incident of the right to keep and bear arms”. The group acknowledges the right to keep and bear arms is not absolute right. The main argument of the lawsuit is that the New Mexico legislature has the exclusive authority to regulate guns.
LOCATIONS WHERE NEW MEXICO STATUTES PROHIBITS THE CARRYING OF FIREARMS
The New Mexico legislature has enacted a number of statutes that prohibit the carrying of firearms in identified locations. Following is a listing of those statutes with the statute citations:
1.In an establishment licensed to dispense alcoholic beverages (N.M. Stat. Ann. § 30-7-3(A)) unless, among other exceptions:
The possessor has a valid concealed handgun license; and
The establishment: a) does not serve alcoholic beverages for consumption on the premises; or b) is a restaurant licensed to sell only beer and wine that derives not less than 60% of its annual gross receipts from the sale of food for consumption on the premises, unless the restaurant has posted conspicuous signs prohibiting gun possession or verbally instructs the possessor that the carrying of guns is prohibited ( N.M. Stat. Ann. § 30-7-3(A)(4). );
2. Within or upon any game refuge, unless the person is crossing the refuge over a public road or trail with the firearm unloaded, or the director of the refuge granted the possessor a permit ( N.M. Stat. Ann. § 17-2-12. );
3. In the confines of a county or municipal jail; (N.M. Stat. Ann. § 30-22-14(B).)
4. On the grounds of a designated adult correctional institution ( N.M. Stat. Ann. § 30-22-14(A). );
5. On the grounds of a designated child detention or correctional facility ( N.M. Stat. Ann. § 30-22-14.1(A), (B)(1). );
6. For any loaded firearm, whether concealed or unconcealed, within a state park, except during designated hunting seasons or in certain authorized areas. ( N.M. Code R. § 22.214.171.124(A). )
7. Concealed handgun license holders are subject to the generally applicable possession prohibitions. N.M. Stat. Ann. § 29-19-8(A) provides that nothing in the Concealed Handgun Carry Act, N.M. Stat. Ann. §§ 29-19-1 – 29-19-14, are construed as allowing a licensee to carry a concealed handgun into or on premises where to do so would be in violation of state or federal law.
8. A licensee may not carry a concealed handgun on private property where signs are posted prohibiting the carrying of concealed weapons, or when verbally told of the prohibition by a person lawfully in possession of the property. N.M. Code R. §§ 10.8.2.16(F); 10.8.2.27. )
10. A concealed handgun license also is not valid in a courthouse or court facility unless authorized by the presiding judge of a court (N.M. Stat. Ann. § 29-19-11.) or on tribal land unless authorized by the governing body of an Indian nation, tribe or pueblo. (N.M. Stat. Ann. § 29-19-10. ) Local court rules may prohibit firearms in courthouses or judicial complexes, with the Bernalillo County Second Judicial District Court and the Bernalillo County Metropolitan Court implementing such policies for court security.
New Mexico has NO statutes prohibiting firearms in the following places, although administrative regulations and orders may apply:
Places of worship;
Gambling facilities; or
NEW MEXICO CONSTITUTION AND CASE LAW
Article II, Section 6 of the Constitution of New Mexico, entitled “Right to Bear Arms” states as follows:
“No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.”
Article II section 6 was amended by voters on November 2, 1971 and November 2, 1986.
Following is a summation of New Mexico case law, with case citations, interpreting Article II, Section 6:
In State v. Rivera, 853 P.2d 126 (N.M. Ct. App. 1993), the Court of Appeals of New Mexico held that regulations that are reasonably related to the public health, welfare and safety do not violate article II, § 6. The court found that New Mexico Statutes Annotated § 30-7-4, which criminalizes negligent use of a deadly weapon, was a reasonable use of the state’s police power and did not violate the state constitution. (Rivera, 853 P.2d at 129.)
Similarly, in State v. Dees, 669 P.2d 261, 264 (N.M. Ct. App. 1983), the court of appeals rejected an Article II, § 6 challenge to former section 30-7-3, prohibiting the carrying of a firearm into a licensed liquor establishment. The court found that section 30-7-3 is “not an infringement upon the right to bear arms.” (Dees, 669 P.2d at 264.)
Conversely, in City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971), the court of appeals held that a local ordinance banning the carrying of all firearms, concealed or unconcealed, violated article II, § 6. In Moberg, the court distinguished between laws that merely regulate the carrying of firearms and the laws that completely prohibit the carrying of firearms. The court stated that a law prohibiting the carrying of concealed firearms is a permissible regulation of Article II, § 6. The ordinance at issue, however, prohibited the carrying of all firearms and was therefore a violation of Article II, § 6.
See also United States v. Romero, in which the court stated, in dicta, that the right conferred under article II, § 6 is not absolute and is subject to reasonable regulation. (484 F.2d 1324, 1327 (10th Cir. 1973). )
In 2004, the Supreme Court of New Mexico interpreted the meaning of the last phrase of the first sentence of article II, § 6, which reads “nothing herein shall be held to permit the carrying of concealed weapons.” In State ex rel. New Mexico Voices for Children, Inc. v. Denko, the court upheld a statute allowing license holders to carry concealed handguns, N.M. Stat. Ann. §§ 29-19-1 – 29-19-13, 2004-NMSC-11, 135 N.M. 439, 90 P.3d 458, rejecting the argument that the phrase prohibits the carrying of concealed weapons.
In Denko, the court held:
“The [New Mexico] Constitution neither forbids nor grants the right to bear arms in a concealed manner. Article II, Section 6 is a statement of neutrality, leaving it to the Legislature to decide whether, and how, to permit and regulate the carrying of concealed weapons.”
THE GOVERNOR AND THE NEW MEXICO LEGISLATURE HAVE BEEN ACTING ON GUN CONTROL
During the 2019 legislative session, laws mandating background checks on gun sales and a law prohibiting the possession of guns by convicted domestic abusers were passed and signed into law by Governor Michell Lujan Grisham.
On August 13, 2019 Governor Michelle Lujan Grisham convened a Domestic Terrorism Summit which by all accounts was successful. After the summit, major proposals were announced including:
1.Increase hate-crime penalties. The criminal penalty for those convicted of hate crimes would be increased. Currently, if a criminal defendant is proved to be motivated by the victim’s race, religion, age, gender or sexual orientation, the jail sentence can be enhanced by one year.
2. Expand the state’s mental health system. This has been a major priority of the governor given her longstanding positions on mental health over the years.
3. Create a new anti-terrorism law enforcement unit. This no doubt will be the responsibility of the Department of Homeland Security to implement and coordinate statewide law enforcement efforts.
4. Improve data-sharing about potential threats. The state Homeland Security and Emergency Management Department will start enrolling all 33 county sheriffs in a data-sharing program so individuals deemed a potential risk can be flagged and monitored.
5. Extending background checks on private gun sales to sellers of firearms.
COMMENTARY AND ANALYSIS
Albuquerque City Councilor’s Pat Davis and Isaac Benton are both running for another 4-year term on the Albuquerque City Council. With the proposed ordinances, Pat Davis, Isaac Benton and Diane Gibson show an ignorance of the law and an inflated understanding of their authority as Albuquerque City Councilors.
The proposed City Council ordinances they are sponsoring are nothing more than a reelection publicity stunt by Pat Davis and Isaac Benton 6 weeks before an election to get them on the front page of the Albuquerque Journal and the news stations, and Gibson went along with it. It worked, but will it work with the voting public come November 5, 2019 election?
All three cited more than a dozen shootings that have occurred at government buildings and public meetings around the country in the past 22 years. Only now are they suggesting that the city do something and after Mayor Tim Keller issued an administrative executive order.
The New Mexico Patriots Advocacy Coalition filing a lawsuit over Mayor Keller’s Executive Order banning guns on city property alleging it violates the New Mexico Constitution that prevents municipalities from regulating “an incident of the right to keep and bear arms” is seriously misplaced. It is an action that should have been brought against the City Council. The Mayor’s Executive Order is not legislation enacted by the City Council, the city’s governing body. It is an “administrative order” or “management executive order” on the use of public buildings and facilities such as that implemented by the courts designed to protect the public. The Office of the Mayor has inherent authority to issue executive orders on the use of city own facilities.
All 3 of the proposed city ordinances likely violate the New Mexico Constitution prohibiting municipalities from enacting legislation regulating citizens “right to bear arms” under Article II, Section 6 of the Constitution of New Mexico. The proposed city ordinances clearly exceed the authority of the Albuquerque City Council which is zero under the New Mexico Constitution. It is as if the 3 City Councilors did not even bother to ask the City Attorney’s office to brief them on the state’s existing gun control laws, but no doubt they wanted the publicity.
City Councilor Pat Davis said no city in the state has challenged the constitutional provisions which is simply not the case. In City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971), the court of appeals held that a local ordinance banning the carrying of all firearms, concealed or unconcealed, violated Article II, § 6 of the New Mexico Constitution. What is an outright lie is when Davis says Santa Fe is not doing anything, which is not the case given the legislation enacted in the 2019 legislative session and the Governor’s gun control summit. Even more legislation is likely to be considered for the 2020 New Mexico Legislature.
Gibson complains that contentious meetings before the city council and government centers do not mix well with guns. That may be true, but what she forgets to mention is that APD has armed APD officers stationed at each city council meeting. APD security can be demanded at public meetings, and there is a security desk at the entrance of city hall. Further, the Office of the Mayor has full time APD security detail. There have been times in the past where city councilors have been threatened with violence and city hall has been locked down. Like it or not contentious meeting are part of the process.
When City Councilor Diane Gibson says “I’m not naive; I understand there are going to be people who will not support this and will see it as just another “firearm law …” what she really is doing is showing an absolute ignorance of her authority as a city councilor and the laws and rights under the US and New Mexico constitutions. The only time Gibson sounds intelligent on the law is when she keeps her mouth shut.
INCLUDE CONTROL LEGISLATION IN CITY’S 2020 LEGISLATIVE PACKAGE
Each year the city council enacts its “legislative package” resolution before the New Mexico Legislature requesting and identifying legislation and projects that the city wants the Governor to support and that the legislature should enact. It’s no secret that the legislature will be seeking to enact further gun control laws that the Governor will also want to support.
Councilors Davis, Benton and Gibson should abandon their efforts to have the City Council enact gun control legislation and simply add all 3 proposals to the 2020 city legislative package, but that would mean no publicity for them.
Legislation the City Council should consider being put in the City’s 2020 Legislative package should include:
1.Repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote. There is no doubt such action would generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby.
2. Ban in New Mexico the manufacture, sale and distribution to the general public of semi-automatic firearms, AR-15 style rifles, assault weapons, semi-automatic pistols, semi-automatic shotguns and weapons to the general public in New Mexico.
3. 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.
4. 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.
6. Enact “red flag” legislation for a violence restraining order and allow for an “extreme risk protection process” to prohibit an individual deemed by a judge as posing a danger to themselves or others, from the purchasing or possessing firearms or ammunition and allow law local law enforcement to remove firearms and ammunition in the individual’s possession.
7. Expand restrictions on firearm possession by or transfer to a person subject to a domestic violence protection order or a person convicted of a domestic violence misdemeanor.
8. Allocate funding to the school systems and higher education institutions to “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.
9. Enact a statute prohibiting firearms to be carried in City and County buildings, hospitals, places of worship, sports arenas, gambling facilities and polling places.
Now that Davis, Benton and Gibson have gotten their publicity, maybe the City Attorney will tell them the City will in all likely be wasting thousands to defend the legislation if enacted by the City Council in court. The City Attorney Office needs to use sufficient resources to defend the Mayor’s Executive Order banning firearms in municipal offices and facilities. With any real luck, voters will see that Pat Davis and Issac Benton are grand standing and will vote them both out of office come November 5. As for Diane Gibson, her district is stuck with her for two more years.