The 2nd, 4th, and 14th Amendments to the United States Constitution are part of the Bill of Rights. All three are often cited by gun rights advocate’s and fanatics as prohibiting any meaningful control legislation. The Amendments are as follows:
The 2nd to the United States provides in part:
“… the right of the people to keep and bear Arms, shall not be infringed.”
The 4th Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things … “
The 14th Amendment provides:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
2020 NEW MEXICO LEGISLATURE ENACTS “RED FLAG” LAW
On February 14, after 3 long hours of emotional debate on the House Floor, the New Mexico House of Representatives passed the “red flag law” on a 39-31 vote. 17 states have already adopted “red-flag” laws, with 13 states passing them since the shootings at the high school in Parkland, Fla. The red flag bill was the most controversial legislation considered during the 2020 session. Much of the House floor debate fell along party lines with Democrats holding a 46-24 edge in the chamber. Virtually all 24 Republicans in the House voted against the bill. As Republicans cast their votes, they held up copies of the Constitution. Democrats should have held up copies of “death certificates” to symbolize victims of New Mexico domestic gun violence.
Senate Bill 5 establishes the Extreme Risk Firearm Protection Order Act. It will allow for the court-ordered seizure of guns from individuals deemed an imminent danger to themselves or others. Under the legislation, it allows law enforcement officers, acting on information provided by a relative, school administrator or employer, to seek a court order prohibiting someone from having firearms. Exclusive authority is given to law enforcement to make the decision to file a petition, but the petition must be based on whether there’s probable cause to believe the individual “poses a significant danger of causing imminent personal injury to self or others.” A court could order the temporary seizure of the person’s firearms for up to 10 days and until a hearing could be held. After a hearing, the ban could be extended one year. The original version of the bill would have allowed family and others to file the petitions, but that was taken out as a compromise to those that claimed that it would result in abuse.
Senate Bill 5 is a natural extension of the 2019 New Mexico Legislature passage of Senate Bill 328 which prohibits gun possession by someone who’s subject to an order of protection under the Family Violence Protection Act. 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.
Senate Bill 5 was a major priority of the Governor Michelle Lujan Grisham. She had the exclusive authority to place it on the agenda for the 30-day session. Soon after passage, Governor Michelle Lujan Grisham announced she will sign it into law once it reaches her desk. The Governor had this to say about passage in a statement:
“This is a tremendous victory for New Mexicans’ public safety. This tool will empower law enforcement to keep our communities safer. It will minimize the plain and unacceptable risks of gun violence and suicide all across New Mexico.”
Thirty of the state’s 33 elected sheriffs strenuously opposed the bill. Many of the sheriffs are now threatening to refuse to enforce the law. However, the new law also provides that law enforcement officers will not be immune to liability if they failed to carry out their duties under the Extreme Risk Firearm Protection Order Act or other state laws.
The Hobbs News-Sun reported Lea County Sheriff Corey Helton told an audience at a Eunice City Hall meeting that he is ready to go to jail, if necessary, for refusal to enforce the law. Helton said he’d be a one-term sheriff because a judge would place him under arrest. But he said he’d be able to sleep at night for standing his ground. Sheriff Helton believes the law is unconstitutional, violating the Second Amendment right to bear arms and 14th Amendment which prohibits unreasonable searches and seizures.
Republican lawmakers were quick to denounce the legislation as a breach of gun owners’ constitutional rights. Republican lawmakers raised the prospect of deadly confrontations between families and police officers who show up to seize firearms.
Representative James Strickler, R-Farmington, put it this way:
“I’m just afraid we’re going to have a dead police officer or a dead mom or dad who feel like their rights were infringed on.”
State Representative Cathrynn Brown, R-Carlsbad had this to say about the bill:
“[The bill] was probably written by a committee of people who don’t know how the real world works.”
ENACTED 2019 GUN CONTROL MEASURES
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 become law effective on 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.
BACKGROUND CHECK MANDATES OF NEW STATE LAW
Under the enacted 2019 enacted legislation, private gun sales must 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.
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 makes 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.
LAW ENFORCEMENT OPPOSITION
During both the 2019 and 2020 legislative sessions, elected county sheriff’s across New Mexico strenuously objected to the legislation that eventually was enacted. Elected sheriffs 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.
The 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.
NEW MEXICO ATTORNEY GENERAL ISSUES WARNING
Attorney General Hector Balderas is the chief law enforcement official for the state of New Mexico. The Attorney General chairs the law enforcement board that issues law enforcement certifications to virtually every law enforcement sworn officer in the state. Last year, County Sheriffs threats not to enforce background checks became so pervasive that on April 4, 2019, 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 and 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 wrote 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 saying law enforcement officers have the discretion in how they enforce the law and Deputy Sheriffs can issue a warning citation without charging.
Sheriff Mace is quoted as saying:
“[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?”
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.
NEW MEXICO’S 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 when it comes to a red flag law. 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.
NEW MEXICO’S DOMESTIC VIOLENCE RATE
On September 16, 2017, according to an annual study published by the Violence Policy Center, it was reported women are more likely to be killed by men in New Mexico than nearly any other states.
The study found the state has the 10th-highest rate of women killed by men, marking the third straight year New Mexico had appeared toward the top of the list, while New Mexico’s overall homicide rate ranked lower.
Current statistics are 1 in 3 New Mexico women will experience domestic violence in thier lifetime. 18,000 domestic violence calls were made in 2017 with 8,000 calls made in Albuquerque. 30% of the calls had a child as a witness. Nationwide 3 women are killed daily from domestic violence.
New Mexico has ranked among the top 10 states with the highest rates of women killed by men during the last decade. The Violence Policy Center promotes gun control and found that each state at the top of the list of women killed by men have a high rate of firearm ownership which no doubt includes New Mexico’s gun culture.
COMMENTARY AND ANALYSIS
It is the likes of Republican State Representatives Cathryn Brown and James Strickler, and Republican Lea County Sheriff Corey Helton Democrat Cibola County Sheriff Tony Mace who do not know “how the real-world works”, let alone how the Bill of Rights and United States Constitution work. Brown, Strickler, Helton, Mace show a serious ignorance of the law. All 4 have a warped interpretation of constitutional rights that have rotted out all of their common sense and prevent any reasoning with them which is the mentality of gun rights fanatics. The 2nd, 4th and 14th Amendments, often cited by gun fanatics, are not absolute rights. Each separately and together have limitations and exceptions, are subject to court interpretations and are not black and white words. The reality is that there are many limitations under the law and to our constitutional rights guaranteed by the 2nd, 4th and 14th amendments.
In the “real world” of domestic violence, mass shootings, mental illness, and suicide, those who use guns are more interested in doing harm to others or themselves and could not careless about their constitutional rights. In the “real world”, many would say law enforcement violate constitutional rights whenever they sign off on a search warrant based on probable cause to seize private property. Search warrants based on probable cause are used daily as an effective tool to gather evidence of a crime. Extreme Risk Protection Orders require probable cause that a person poses and immediate threat to themselves or others before guns can be seized and for that reason are similar to search warrants relied upon by law enforcement.
What I learned as the Bernalillo County Chief Deputy District Attorney is that Albuquerque’s dirty little secret is that domestic violence is the number-one reason why a woman is admitted to the emergency room of the University of New Mexico Hospital. Statics in Albuquerque showed that after about the 10th or 11th time there is a call out of the Albuquerque Police Department to a home for domestic violence, it is usually to pick a woman up in a body bag. This fact makes it very troubling to understand why any elected sheriff would refuse to enforce New Mexico’s newly enacted red flag law and refuse to assist anyone who is at risk for great bodily harm in securing an Extreme Risk Firearm Protection Order .
ELECTED SHERIFF’S WHO REFUSE TO ENFORCE NEW RED FLAG LAW NEED TO RESIGN IMMEDIATELY
Given New Mexico’s high suicide rates, domestic violence killings with guns and the threat of mass shootings, it is shameful that elected New Mexico 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. They choose to promote their own fanatical “pro-gun” political philosophy and their own personal interpretation of the law and constitutional rights. New Mexico’s Domestic Violence cases make up a large share of violent crime cases. 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 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.
Elected County Sheriffs have an ethical and legal obligation to honor their oaths of office. They cannot pick and choose what laws the agree with and want to enforce.
Elected Sheriffs who refuse to enforce the law are also asking taxpayers to assume the financial risk of their decision to impose their personal views over the law. There is a real possibility of a relative of a dead crime victim in a domestic violence case will sue a county sheriff for negligence and wrongful death when that sheriff refuses to seek a protective order asked for by the crime victim to seize guns where there was enough probable cause evidence to secure it, but the sheriff declines saying such protective orders based on probable cause violate the constitution.
Any elected County Sheriff who refuses to enforce the new red flag law should resign immediately and the county commissions need to appoint law enforcement who will respect their oath of office and set aside political philosophy. Such a refusal should justify the Attorney General to send letters suspending law enforcement certifications.
Governor Michelle Lujan Grisham needs to sign the new red flag law as soon as possible making it law and send copies of the new law to all 30 elected County Sheriffs. The letter should tell them they have the legal obligation to enforce the red flag law and if they refuse to enforce the law, they need to resign their position. Too many have died in New Mexico from suicides and domestic violence to the point that “gun rights fanaticism” that places gun rights over victims has no place in law enforcement.
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