On February 25 Governor Michelle Lujan Grisham held a major press conference to sign into law the “Extreme Risk Firearm Protection Order Act” also known as a “red-flag” gun bill that will allow firearms to be temporarily taken away from those deemed dangerous to themselves or others. The Governor placed the “red flag gun bill” on the 30-day legislative agenda thereby making it one of her top initiatives during the session. The new law will take effect May 20, which is 90 days after the 2020 New Mexico legislative session ended. New Mexico is now the 18th state to adopt such a “red flag” law.
NEW MEXICO’S “EXTREME RISK FIREARM PROTECTION ORDER ACT” PROVIDES FOR DUE PROCESS OF LAW
The “Extreme Risk Firearm Protection Order Act” or red flag law does contain significant safe guard provisions that protect a citizen’s 2nd, 4th and 14th Amendment Rights. The court proceeding and the process under the new red flag law and how it works is summarized as follows:
“A law enforcement officer, or a prosecutor in cases involving a law enforcement officer, are allowed to file a petition in State District Court for an order to prohibit someone from possessing firearms.
The petitions can be filed upon request from a spouse, ex-spouse, parent, child, grandparent, school administrator or employer.
If a law enforcement officer declines to file a petition upon request, the officer will have to file a notice of the decision with the county sheriff.
A District Judge can enter an emergency 10-day risk protection order if “probable cause” is found that an individual poses a danger of causing “imminent” injury to themselves or others.
The individual is then required to surrender all their firearms within 48 hours of a judge’s order or sooner.
A one-year order can be imposed after a court hearing, although such an order requires a higher evidence threshold.
One-year risk protection orders are subject to appeal.
All firearms are required to be returned to their owner within 10 days after an order’s expiration.”
Exclusive authority is given to law enforcement to make the decision to file a petition and 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.” Law enforcement officials will have to explain their decision with the filing of a court notice if they decide not to seek a judge’s order after receiving a report and evidence in support of the petition.
The “Extreme Risk Firearm Protection Order Act” signed by the Governor is a natural progression of the 2019 New Mexico Legislature passage of legislation 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.
On her FACEBOOK page, Governor Michelle Lujan Grisham posted the following:
“Today I signed into law an important measure enhancing public safety and reducing the risk of mass gun violence, creating extreme-risk protection orders and empowering law enforcement officers to temporarily disarm individuals who present a clear danger to themselves or others in emergency situations. With this life-saving legislation, New Mexico has balanced individual rights and public safety in a responsible way that will reduce our unacceptable suicide rate and other forms of gun violence. Today we are standing up – we do not accept the status quo; we do not accept the risk posed by dangerous armed individuals who have articulated their desire to cause harm. This law is a good public safety measure, and if it saves even one life, and it will, we will have done good work here.”
During her press conference, the Governor said this:
“If we can make a difference for one person, that’s the right difference to make. … We know this is a meaningful tool to address gun violence.”
During both the 2019 and 2020 legislative sessions, 30 of the state’s 33 elected county sheriff’s strenuously objected to the legislation as did virtually all Republican lawmakers. 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 also passed “Second Amendment Sanctuary” ordinances in defiance to the legislative enacted gun control measures.
After the Governor’s press conference, the New Mexico Sheriffs’ Association announced that a court challenge will be filed before the law takes effect in an attempt to block it from being implemented.
Cibola County Sheriff Tony Mace, the Chairman of the New Mexico Sheriffs’ Association had this to say:
“They’ve made this bill so horrible that we can’t [enforce it]. … Somebody hasn’t even committed a crime, and you’re taking their personal property.”
Chaves County Sheriff Mike Herrington said recently before county commissioners:
“This just violates too many constitutional rights for us to even enforce”
Despite the coordinated opposition to the “red flag law” by elected county sheriffs, some law enforcement officials backed it, including Governor Lujan Grisham’s appointed State Police Chief Tim Johnson and Albuquerque Police Department (APD) officials, including Deputy Chief Harold Medina who testified in favor of the legislation.
GOVERNOR’S RESPONSE TO SHERIFF’S OPPOSITION
During the press conference where she signed into law the “red flag law”, Governor Lujan Grisham was asked about sheriffs’ resistance. Lujan Grisham said elected law enforcement officials should resign if they are not willing to enforce the state’s laws including the new “red flag” by saying:
“They have to enforce the law. They take an oath to do that. … [They] don’t get to make those decisions.”
The Governor did say that her administration would not retaliate by withholding funding from any counties that do not enforce the law. She also added that she believes law enforcement officers will eventually come around and decide to enforce it.
REPUBLICAN OPPOSITION TO RED FLAG LAW
As all Republicans cast their votes against the “red flag law” , they held up copies of the Constitution to show their objections to the law. Democrats should have held up copies of “death certificates” to symbolize victims of New Mexico domestic gun violence and suicides.
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 state.
The study found that New Mexio 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 their 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.
The 2nd, 4th, and 14th Amendments to the United States Constitution are part of the Bill of Rights. All three are often cited by the National Rifle Association (NRA), gun rights advocates and gun fanatics as prohibiting any meaningful and reasonable gun control legislation. The Amendments are as follows:
The 2nd Amendment 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.”
COMMENTARY AND ANALYSIS
Governor Michelle Lujan Grisham is 100% correct that elected law enforcement officials should resign if they will not enforce the state’s laws including the new “red flag”. The new red flag law is not a violation of the United States Constitution nor Bill of Rights as Republican law makers and County Sheriffs argue and it should be enforced. To refuse to enforce the law is a dereliction of duty and is grounds for removal.
WARPED INTERPRETATION OF THE BILL OF RIGHTS
Elected sheriffs who oppose the red flag law and refuse to enforce it show a serious ignorance of how the Bill of Rights and United States Constitution work. They also show a serious ignorance of the law. They 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 and the National Rifle Association.
The 2nd, 4th and 14th Amendments are not absolute rights and are often cited by gun fanatics and the National Rifle Association (NRA) to oppose any and all kind of reasonable gun control legislation. Each separately and together have limitations and exceptions, are subject to court interpretations and are not black and white restrictions with no exceptions.
The reality is that there are many limitations under the law and to our constitutional rights guaranteed by the 2nd, 4th and 14th amendments. Convicted and violent federal felons, who are still citizens of the United States, lose the “right to keep and bear arms” provided by the 2nd Amendment and in fact are given enhanced sentences for gun possession and use of a gun in the commission of a crime. Search warrants based on “probable cause” used by law enforcement for the seizure of personal property, including guns, are not “unreasonable searches and seizure” prohibited by the 4th Amendment. Despite what Sheriff Tony Mace says that property will be taken from people who have committed no crime, it is likely that his department and officers over the years have secured search warrants and taken property based on “probable cause” from people who have not committed a crime. Court orders and injunction relief secured with supporting sworn affidavits, evidence and testimony in civil petitions to the court provide for due process of law and do not violate the 14th Amendment.
In the “heinous world” of domestic violence and mass shootings, and the world mental illness and suicide where people cannot escape their demons and are imprisoned in their minds with no escape, 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.
Given New Mexico’s high suicide rates, domestic violence killings with guns and the threat of mass shootings, it is shameful that any elected New Mexico county sheriff are far more concerned about “second amendment rights” that they believe exist that allows almost anyone, including those who are likely to harm themselves and others and to have a firearm of their choosing. The elected sheriff’s hide behind the 2nd, 4th and 14th Amendments 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 SHERIFFS CANNOT ENFORCE ONLY THOSE LAWS THEY AGREE WITH
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 County 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 that 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 allow elected county commissions to appoint law enforcement who will respect their oath of office and set aside political philosophy and political agendas. A refusal by sheriffs to enforce the law should justify the Attorney General to send letters suspending a sheriff’s law enforcement certification.
Governor Michelle Lujan Grisham is commended and deserving of major kudos with her signing of New Mexico’s new red flag law. It should not come as a surprise to anyone that she supported and signed the legislation. Throughout her many years in congress, she consistently supported reasonable gun control legislation. For decades reasonable gun control legislation has gone nowhere in the National Rifle Association Republican controlled congress.
The Governor’s Office now needs to send copies of the “EXTREME RISK FIREARM PROTECTION ORDER ACT” to all 33 elected County Sheriffs as well as elected District Attorneys along with a letter. The letter should tell the elected County Sheriff’s in no uncertain terms that they have the legal obligation to enforce the red flag law. In the event they refuse to enforce the law they should resign or the District Attorneys should seek the Sheriffs removal from office. Further, the New Mexico Attorney should suspend the law enforcement certifications of any sheriff who refuses to enforce the law.
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 rights has no place in law enforcement.
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