On January 8, during a press conference held in the city of Las Cruces, New Mexico Governor Michelle Lujan Grisham called upon state lawmakers to pass a “red flag law” during the 2020 legislative session that begins on January 21. The “red flag” legislation is being co-sponsored by State Representatives Daymon Ely, D-Corrales, Joy Garratt, D-Albuquerque and State Senator Joseph Cervantes, D-Las Cruces.
During the January 8 press conference held in Las Cruces at the Doña Ana County Sheriff’s office, the Governor was flanked by Doña Ana County Sheriff Kim Steward, Representative Daymon Ely and Senator Joseph Cervantes, D-Las Cruces. Both Ely and Cervantes have supported gun control legislation in past.
During the press conference Gov. Lujan Grisham said a young cousin of hers suffering from mental illness committed suicide with a gun in 2012, and she had this to say:
“That is a horrific tragedy that plays out in so many families across America. And we cannot afford to lose one more nephew, one more first cousin, one more son, one more daughter, one more mother, one father, one more brother, one more sister [to suicide] … This is a temporary removal of a firearm from an individual who poses an extreme risk or threat to themselves or others.”
Senator Cervantes said the mass shooting at a Walmart in nearby El Paso in August showed the clear need for a red flag law and commented:
“The tragedy of the Walmart shooting is even more deplorable because the shooter, the killer, the murderer published a manifesto before the shooting online, announced his intentions, specifically to target Mexicans, said he wanted to assure Hispanics did not have the voting voice in this county. … Yet with that warning, with that manifesto published and known, no action was taken.”
State Representative Ely noted that in New Mexico, suicides make up 70% of all firearm deaths and the state’s suicide rate is at least 50% higher than the national rate. During the press conference, Ely had this to say:
“I’m confident that we are going to get this bill out of the house and out of the senate and to the governor’s office. We can no longer turn a blind eye to what’s happening with guns in our community”.
The legislation was pre -filed on January 8 ahead of the 2020 Legislative session. Under the proposed law a law enforcement officer or family member requesting an extreme-risk protection order would provide a sworn affidavit explaining in detail the facts and circumstance as to why the order is needed against a person. A judge could then issue a 15-day emergency order to seize the weapons and ammunition from that person and would schedule a hearing to determine if there was a need for a one-year order. When the court order expires, the guns and ammunition would then be returned to the individual.
According Representative Ely:
“This bill is a good balance between people’s rights to bear arms and public safety … It protects the public. It protects people who might be an imminent threat of suicide, and it protects law enforcement. That’s what this bill does.”
According to Governor Lujan Grisham the bill assures due process for gun owners by saying:
“You have to have a sworn affidavit, you’re under oath so there are real repercussions for someone who might use this in a negative way because that’s not the intent here at all.”
Zac Fort, the President of the New Mexico Shooting Sports Association said his organization opposed the red-flag law saying previous versions of the bill failed to protect the rights of gun owners. You can also anticipate the the National Rifle Association (NRA) will oppose the legislation in some manner.
Sheriffs across New Mexico announced they are opposed to the “red flag” law. Sierra County Sheriff Glenn Hamilton says the New Mexico Sheriffs’ Association wants to ensure gun owners keep their due process protections.
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 finds 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.)
If lawmakers pass the law, New Mexico would join 17 other states and the District of Columbia with “extreme risk protection orders.” Those states that have enacted “red flag” laws are: California, Colorado, Connecticut, Delaware, Hawaii, Florida, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Washington.
NEW MEXICO’S TWO OTHER GUN CONTROL MEASURES
Enactment of a “Red Flag” law would be a natural extension or a continuation of the work of the 2019 New Mexico legislature. Two major gun control measures were enacted by the 2019 New Mexico Legislature, one requiring back ground checks on private sales of guns and the other requiring domestic violence abusers to surrender firearms.
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 passed the Senate on a 22-20 vote and passed the House 42-27 vote. The Governor signed the legislation and it became law effective July 1, 2019.
The 2019 New Mexico Legislature passed Senate Bill 328 which prohibits gun possession by someone who’s subject to an order of protection under the Family Violence Protection Act. The bill was jointly sponsored by Democratic Senators Joseph Cervantes of Las Cruces and Antoinette Sedillo Lopez of Albuquerque and Democratic Representative Deborah Armstrong of Albuquerque. 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 such as battery on a household member.
UNITED STATES HISTORY OF MASS SHOOTINGS
Since 1995, the United States has had 95 mass shootings, including seven of the 11 deadliest. Three of the 11 biggest mass shootings in American history have now taken place in the United States during the last two years.
There is no doubt we have a deadly mass shooting epidemic on our hands.
The mass shooting with guns in the last 10 years include: Orlando, Florida (49 killed, 50 injured), Blacksburg, Va. (32 killed), San Ysidro, Cal (21 killed), San Bernardino, (14 killed), Edmond Oklahoma (14 killed), Fort Hood (13 killed), Binghamton, NY (13 killed) Washington, DC (12 killed), Aurora, Colorado (12 killed), Sandy Hook Elementary School, Newtown, Conn (21 children and 6 adult staff members killed) and the largest mass shooting in this country’s history that occurred in Las Vegas, Nevada with at least 59 dead and at least 515 wounded and the Parkland/Stoneridge High School shooting that resulted in 17 children’s deaths. Since 1995, the United States has had 98 mass shootings, including seven of the 11 deadliest. Three of the 11 biggest mass shootings in American history have now taken place in the United States in the last two years. . There is no doubt we have a deadly mass shooting epidemic on our hands.
NM AND ABQ VIOLENT CRIME STATISTICS REFLECT EPIDEMIC
It has been reported that 400 New Mexicans get killed every year to gun violence. On Monday, September 24, 2018 the FBI released its “Crime in the United States” report providing the statistics on all the crimes reportedly committed in New Mexico and Albuquerque and in 2017.
Since 2010, violent felony crime rates and property crime rates have steadily increased in Albuquerque and in New Mexico statewide. According to the FBI report, the increase in crime in both New Mexico and Albuquerque continued in 2017. Statewide, New Mexico violent crime rates rose by 12 percent and property crime rates were up by 0.5 percent in 2017. The FBI reported that New Mexico had 16,359 violent crimes reported and 82,306 property crimes reported in 2017.
All the statistics for New Mexico and Albuquerque are in sharp contrast with national trends that crime is going down in the United States as a whole. According to the FBI report summary, in 2015 and 2016, violent crime had been increasing across the United States but in 2017, violent crime decreased 0.2% with the overall rate falling 0.9% percent.
In the United States as a whole, the property crime rates dropped for the 15th straight year, decreasing by 3% across the country. Nationally, the crime rate is 383 violent offenses per 100,000 residents and 2,362 property crimes per 100,000 residents.
Albuquerque’s violent crime and property crime rates are more than triple the national crime rates. On January 10, 2019, it was reported New Mexico is number one 1 In fatal police shootings. According to the Fatal Force database created by The Washington Post:
“For the fourth year in a row, New Mexico placed either first or second in the nation for its rate of deadly shootings by law enforcement officers”
In 2018, New Mexico ranked first in the nation, finishing the year with 20 fatal shootings by police officers around the state, a rate of 9.59 per 1 million people. Alaska had 7 total fatal police shootings was a close second, with a rate of 9.5 fatal police shootings per 1 million people. Connecticut had the smallest number of fatal police shootings with 0 reported.
In 2017, the state came in as No. 2, behind Alaska, but it was first in the nation in 2016. In 2015 New Mexico was in second place, behind Wyoming.”
On December 18, 2019, US Attorney General William Barr announced that the Department of Justice (DOJ) is initiating a major crackdown aimed at driving down violent crime in 7 of the nation’s most violent cities in the country. Not at all surprising is that Albuquerque is one of those cities. The other 6 cities are Detroit, Baltimore, Cleveland, Kansas City, Memphis and Milwaukee. All 7 cities have violent crime rates significantly higher and above the national average.
According to Attorney General William Bar, Albuquerque has a violent crime rate that is 3.7 times the national average per capita , and the cities aggravated assaults are 4 times the national average per capita. Albuquerque’s FBI Uniform Crime statistics for the years 2008 to 2018 reveal just how bad violent crime has increased in Albuquerque over the last 10 years. Violent crimes include murder, rape, robbery and aggravated assaults and have all increased. The hard numbers for the last 10 years reflect that crime has not declined much and that like a waive on a beach, it had “ebbed and flowed” over the years but have risen none the less to all-time highs.
On December 31,2019 the Albuquerque Police Department (APD) officially recorded the 82 homicide for the city, an all-time record. On January 1, 2020, APD reported the first homicide of the year. It was on December 9, 2019, the city recorded its 74th homicide breaking the previous record of 72 murders set in 2017. Before 2017, the last time the City had the highest number of homicides in one year was in 1996 with 70 murders that year. In addition to the 82 homicides in 2019, APD Homicide detectives are also working on a back log of active cases from previous years.
DOMESTIC TERRORISM SUMMIT
On August 6, 2019 Democratic Governor Michelle Lujan Grisham announced a “Domestic Terrorism Summit”. She invited top state law enforcement officials and legislative leaders from both political parties. The call for the summit was in reaction to the August 3 mass shooting in El Paso, Texas that killed 22. The goal of the summit was to come up with precautions against domestic terrorism. By all news report accounts, the summit was a success.
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 state wide 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 that individuals deemed a potential risk can be flagged and monitored.
5. Extending background checks on private gun sales to sellers of firearms.
ANALYSIS AND COMMENTARY
It should come as no surprise to anyone that Governor Michelle Lujan is call upon the 2020 New Mexico Legislator which starts on January 21, 2020 to enact a “red flag” law. Throughout all her years as a congresswoman for the First Congressional District, Michelle Lujan Grisham was a strong advocate for gun control measures on the federal level and she continues to do so as Governor on the state level. Governor Michelle Lujan Grisham knows full well New Mexico needs to enact reasonable and responsible gun control measures and that a “red flag law” is just one step in the right direction.
STEEP CLIMB FOR RED FLAG LAW
During the 2019 session, a red flag bill sponsored by Democratic Representative Damon Ely past the house but failed in the Senate. The bill was one of the more controversial bills causing New Mexico Sheriffs around the state to lobby heavily against it. After the 2019 session, the Governor signaled that she would place another “red flag” law on the 2020 call. You can now expect the same opposition from law enforcement during the upcoming session unless she acts to get their support.
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. Twenty-eight of New Mexico’s counties as well as a few municipalities in the state have passed “Second Amendment Sanctuary” ordinances in defiance to the enacted legislative gun control measures. Things got so bad that Attorney General Hector Balderas sent a strongly worded letter to all the elected Sheriff’s reminding them of their legal obligation to enforce the laws regardless of whether they agree with the legislation. The Attorney General wrote the sheriffs saying:
“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.”
Lujan Grisham has said a “red flag” law will make communities safer and for that reason she has attempted to work with the Sheriff’s to reach a compromise, but has been unable to win support for a “red flag” law thus far from the Sheriffs. The New Mexico Sheriffs Association opposes “red flag” laws believing they are ineffective and that they infringe on Second Amendment constitutional rights to bear arms.
Sheriffs are elected officials just like the Governor, and as such the Governor has little control over how they should approach law enforcement. For that reason alone, the Governor needs to do whatever she can to convince all New Mexico Sheriff’s to support the law. Also, Attorney General Hector Balderas should lend his weight and prestige of his office to get the law enacted.
Included in the discussions with the elected Sheriff’s should be an offer of state funding to support the enforcement of the law. The Governor needs to ensure that there are sufficient votes in both the House and Senate to enact the legislation even before the session begins, otherwise it may be a lesson in futility.
COMPREHENSIVE DOMESTIC TERRORISM AND GUN VIOLENCE ACT
The New Mexico Legislature needs to enact a Comprehensive Domestic Terrorism and Gun Violence Act. Such legislation needs to include:
1. A 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.
2. 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.
3. 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.
4. 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.
9. 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.
10 . Introduce a Constitutional Amendment repealing 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, but it’s a discussion that should be made.
The two major gun control measures enacted by the 2019 New Mexico Legislature, one requiring back ground checks on private sales of guns and the other requiring domestic violence abusers to surrender firearms, were a good start to addressing New Mexico’s gun culture. The enactment of a “red flag” law will be another small step in the right direction. Far more needs to be done by the New Mexico legislature to combat gun violence and to keep the public safe.
Unless congress acts, we can expect more mass shootings at soft targets such as schools, movie theaters, malls, department stores and major public events like concerts and at state fairs. The mass shootings will again be followed by the predictable cycle of news coverage, more outrage, more nighttime candle vigils, more funerals, more condolences, more rhetoric demanding action. It could easily happen in New Mexico
New Mexico Governor Michelle Lujan Grisham and the New Mexico State Legislature are wise to do all they can and enact as many state laws to prevent gun violence in the State as they can.
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