On January 28, after more than two hours of emotional testimony, Senate Bill 5 entitled the “Extreme Risk Firearm Protection Order Act” also known as “The Red Flag Gun Law”, passed the Senate Public Affairs Committee on a party-line vote of 4 Democrats for and 3 Republicans against. The legislation is sponsored by Senator Joseph Cervantes of Las Cruces, Representative Damon Ely of Corrales and Representative Joy Garratt of Albuquerque. The legislation is backed by Democratic Governor Michelle Lujan Grisham, who added it to the agenda of the 30-day session.
The Senate Public Affairs Committee hearing was held in the Senate chambers to accommodate the audience. In an extraordinary move of caution, the over 200 people who showed up to attend the hearing were screened for weapons upon entering the Senate Gallery.
In argument before the committee, State Senator Joseph Cervantes, D-Las Cruces, one the bill’s sponsors, cited last year’s shooting rampage in El Paso, Texas where the gunman targeted Hispanics and New Mexico’s high rates of gun deaths and suicide as reasons to enact the legislation. Senator Cervantes had this to say:
“It’s time that New Mexico provide a mechanism for law enforcement and family members to protect themselves when individuals announce their intentions to do harm.”
Opponents of the Red Flag law questioned law enforcement agencies’ ability to temporarily store seized guns and also argued the proposed law would be misused in heavily contested divorce cases.
As what happened last year, this year’s red-flag gun bill once again has strong opposition from the states elected County Sheriff’s with 30 of the state’s 33 county sheriffs opposing the measure. Upwards of 20 elected county sheriffs showed up for hearing, they were allowed to carry guns in the chamber and all argued that if Senate Bill 5 became law, it would infringe on individual’s constitutional rights.
New Mexico State Police Chief Tim Johnson and top Albuquerque Police Department officials, including APD Deputy Chief Harold Medina support the bill.
Governor Lujan Grisham has acknowledged that getting the bill to her desk will be hard but said she’s confident it will happen and had this to say:
“It will not stop all gun violence. … It will not stop all suicides. But if it saves one life, it’s worth it.”
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.
WHAT THE BILL DOES
Under Senate Bill 5, a relative, household member or law enforcement officer would file a sworn affidavit and petition in state District Court seeking an extreme-risk protection order to prohibit someone from possessing firearms that pose a serious threat to themselves or others. The petitioner would have to disclose whether there’s any other pending legal action between the two parties. A judge could issue a 15-day emergency order to seize the weapons and ammunition from that person. There would also an option for a one-year firearm prohibition, based on a “preponderance of evidence” 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, one of the sponsors:
“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.”
Red flag laws have been approved in 17 states and the District of Columbia. While the laws differ, many states have enacted them in response to mass shootings, such as the February 2018 shooting in Parkland, Florida that left 17 people dead. Red flag laws have survived court challenges in some states.
Supporters describe Senate Bill 5 as a common-sense way to save lives by taking guns from people who are an immediate threat.
Opponents say the law will result in abuse and could result in innocent people losing their guns. 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 National Rifle Association (NRA) will oppose the legislation in some manner.
After the Senate Public Affairs Committee meeting, state Senator Joseph Cervantes, who is also a respected trial attorney, said he felt confident the proposed law will be upheld as constitutional if challenged. Cervantes added the bill will be amended in the coming days based on feedback from law enforcement officials and others.
NEW MEXICO SUICIDE RATE
Most gun deaths in New Mexico are a result of suicide and therefore the state’s suicide rate is a critical part of the debate. Overall, the state 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 that are largely rural areas of the state have suicide rates at least twice the national average, which is 14 suicide deaths per 100,000 people. Studies in states that have “red flag laws” and that have “risk-based firearm seizure laws” were associated with reduced suicide rates.
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.
COMMENTARY AND ANALYSIS
The biggest criticisms against “red flag” laws are that they violate a citizen’s United States Constitution Second amendment right to bear arms. Such an argument resonates with the New Mexico gun culture. 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, but that is not what the proposed red flag law does. Both arguments are made by the 30 of the state’s 33 county sheriffs opposing the proposed measure.
Governor 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.
What is shameful is that elected county sheriffs are far more concerned about “second amendment rights” that allows almost anyone, including those who pose a harm to themselves and others, to have a firearm of their choosing. The elected sheriff’s hide behind the 2nd Amendment so as not to protect or enforce the rights of others who have the rights of “life, liberty and the pursuit of happiness” just as much guaranteed under the constitution as the right to bear arms.
The elected sheriffs who oppose the meaningful gun control legislation that the red flag law represents ignore their duty and responsibilities to serve and protect the general public that elected them preferring to promote their own “pro gun” political philosophy and their own personal interpretation of the law. The public’s safety and enactment of laws for the protection of those that easily become victims of gun violence, even by family members, should be law enforcement’s number one priority, not enforcing only those laws they feel that conform to their own “pro gun” philosophy. The enactment of laws is the responsibility of the legislature, not law enforcement. The meaning and interpretation of the laws enacted is the responsibility of the court’s, and not of law enforcement.
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 address New Mexico’s gun culture. The problem is, no one knows for certain to what extent those laws are being ignored by the elected sheriff’s. Notwithstanding, 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 from those who pose a risk to themselves and others.
Unless congress enacts responsible gun control measures, which is not at all likely, 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 the red flag law, and if one suicide can be prevented and if just one shooting by a mentally ill person can be prevented by it, it is worth it.