On Friday, September 8, that Governor Michelle Lujan Grisham announced and declared gun violence and illegal drugs a public health emergency with the issuance of a sweeping Public Health Care Order. The Public Health Order bans the carrying of firearms, concealed or openly, in any public space in Bernalillo County and any state property in New Mexico. Specifically, no firearms are allowed on state property, including state buildings and schools. This also includes other places of education where children gather, such as parks. The executive order was signed in the wake of a road-rage shooting death of an 11-year-old boy leaving Isotopes Park Wednesday, September 6. Lujan Grisham also cited the shooting deaths of 3 teenagers or children since late July, including the 5-year-old girl killed while sleeping in a mobile home in mid-August.
The Governor’s orders were also prompted in part by New Mexico’s and Albuquerque’s high violent crime and murder rates. According to a recent analysis from the nonpartisan Pew Research Center and based death-certificate data from the Centers for Disease Control and Prevention, New Mexico is among 5 states with the highest rates of gun killings in 2021. The Pew Research Center found 11.7 killings per 100,000 people in New Mexico, just below Alabama, Louisiana, Mississippi and the District of Columbia. Violent crime is also very problematic in Albuquerque where homicides set a record in 2022 with 120 people killed. The pace appears to be slowing down in Albuquerque in 2023 with 76 victims as of September 8. Firearms accounted for the vast majority of violent crimes at 83%.
FLURY OF LEGAL CHALLENGES FILED
The Governor’s actions have sparked federal lawsuits, cries for impeachment, protests and declarations by law enforcement that the orders will not be enforced. During her September 8 press conference, Governor Lujan Grisham said the Public Health Order will likely face a legal challenge. Lujan Grisham said this:
“I can invoke additional powers. … No constitutional right, in my view, including my oath, is intended to be absolute. … I’ve warned everyone that we expect a direct challenge, probably as you’re writing this we’re getting a challenge, and that’s the way it should work. But I have to take a tough direct stand, or basically I’m just ignoring the fact that we lost an 11-year-old, another child.”
On September 9, a federal lawsuit was filed by Albuquerque resident Foster Allen Haines in conjunction with the National Association for Gun Rights, or NAGR, claiming that Lujan Grisham’s order is unconstitutional and seeking damages. Timothy White, the attorney who filed the suit, said this:
“Nothing else to say really, just that the NAGR and Mr. Haines represent thousands of New Mexicans that are not going to put up with tyranny.”
As of Monday September 11, four lawsuits had been filed calling on a judge to issue a restraining orders immediately to halt the public health order arguing claiming it violates the Second Amendment right to bear arms. Groups suing the state over the prohibition include the National Association for Gun Rights, and We The Patriots USA, Inc. The Republican Party of New Mexico said late Monday it was preparing to file a lawsuit.
Tim White, the attorney representing the National Association for Gun Rights, had this to say about the Governor’s actions:
“It’s the danger to our democracy, because the executive, the legislative and judicial branches of our government, whether it’s state or federal, are supposed to stay in their lanes. … Governor Grisham’s health order – it’s not out of the lane, it’s not even in the country.”
Zachary Fort with the New Mexico Shooting Sports Association said the organization is preparing to legally challenge the order and will file a lawsuit within days. Fort said this:
“What the governor [is trying to] … do flies directly in the face of [New York State Rifle & Pistol Association v. Bruen the] decision by the Supreme Court, where they found that you have a constitutionally protected right to carry a firearm outside your own home. … The Supreme Court said that very clearly in their Bruen decision. So, it’s clearly contradictory to that.”
EDITOR’S NOTE: In the June 2022 Bruen case, the United states Supreme Court expanded the right of law-abiding Americans to carry guns in public for self-defense. The case ruling takes away the ability to take into account arguments about a compelling government interest, like the gun violence that Lujan Grisham said prompted her order. Now, judges must solely rely on whether any similar historical examples exist.
Senate Republican Leader Gregory Baca says that Senate and House Republicans are moving forward with a lawsuit and that it is expected to be filed by Wednesday, September 13. Baca said this:
“Based on the past actions of the governor from the health orders we saw come out of the COVID crisis, we saw that one got extended, and extended, and extended … What we need to do is step in.”
The American Civil Liberties Union of New Mexico issued a statement on the lawsuits filed.
“We are closely monitoring the legal challenges to this executive order, recognizing that many people in our state are focused on the section related to firearms.”
However, other aspects of the governor’s order, such as making $750,000 available for increased state law enforcement efforts, are concerning to the ACLU. Lalita Moskowitz, litigation manager for the ACLU of New Mexico said this:
“This kind of approach leads to the over-policing of our communities, racial profiling, and increased misery in the lives of already marginalized people. The governor should be following evidence-based solutions such as meaningful diversion and violence intervention programs and addressing the root causes of violence.”
LAW ENFORCEMENT OFFICIALS DECLINING TO ENFORCE
On September 8, Albuquerque Police Chief Harold Medina said APD would not be enforcing the order. Medina emphasized that doing so could violate the APD’s police reform settlement agreement with the U.S. Department of Justice. Chief Medina emphasized the need to keep people charged in certain crimes in jail until trial but also to provide resources to the Metropolitan Detention Center, where 26 people have died since 2020 from a variety of causes, many of them health-related.
On September 11, Bernalillo County Sherriff John Allen, flanked by his undersheriff’s, held a press conference where he announced in no uncertain terms that his office will not be enforcing the Governor’s health care orders. Sherriff Allen said he understands the urge to do something to protect the public, but the ban is unconstitutional. Sheriff Allen said this:
“My oath was to protect the Constitution, and that is what I will do. … It’s unconstitutional, so there’s no way we can enforce that order. … This ban does nothing to curb gun violence”.
In a previous press release, Sheriff Allen said this in part alluding to violence against his deputies trying to make arrests under the health care order:
“Governor Michelle Lujan Grisham issued an emergency order temporarily suspending open and concealed carry laws in Albuquerque and throughout Bernalillo County for the next 30 days. This move has been positioned as a response to the alarming and tragic rise in gun violence, particularly the heart-wrenching death of an 11-year-old boy this past week.
However, as the elected Sheriff, I have reservations regarding this order. While I understand and appreciate the urgency, the temporary ban challenges the foundation of our Constitution, which I swore an oath to uphold. I am wary of placing my deputies in positions that could lead to civil liability conflicts, as well as the potential risks posed by prohibiting law-abiding citizens from their constitutional right to self-defense.”
Governor Lujan Grisham angerly shot back at Sherriff Allen on social media after his press conference and she said this:
“I don’t need a lecture on constitutionality from Sheriff Allen: what I need is action. What we need is for leaders to stand up for the victims of violent crime. We need law enforcement, district attorneys, public officials, school leaders and state agencies to use every single tool at their disposal to stop this violence. Period.”
On September 9 Bernalillo County District Attorney Sam Bregman, who was appointed by Lujan Grisham in January to fill the unexpired term of Raul Torrez who was elected Attorney General, joined Albuquerque Mayor Tim Keller and Police Chief Harold Medina saying they would not enforce the order.
“As an officer of the court, I cannot and will not enforce something that is clearly unconstitutional. … This office will continue to focus on criminals of any age that use guns in the commission of a crime.”
NM ATTORNEY GENERAL ANNOUNCES WILL NOT ENFORCE
On September 12, New Mexico Attorney General Raúl Torrez announced he cannot defend the governor’s public health order on firearms, exposing a divide between the state’s top-ranked elected Democrats.
In his letter to Lujan Grisham, Torrez said that although he agrees a debate is needed on the impact of gun violence, it cannot be rebranded a public health emergency to justify a blanket 30-day prohibition against carrying firearms in and around Albuquerque. He urged the governor to consider whether her time would be better spent on developing comprehensive legislation.
In a letter to Lujan Grisham, Torrez said that although he agrees a debate is needed on the impact of gun violence, it cannot be rebranded a public health emergency to justify a blanket 30-day prohibition against carrying firearms in and around Albuquerque. He urged the governor to consider whether her time would be better spent on developing comprehensive legislation. In his letter to the Governor, Torrez said this:
“While I understand that frustration may have led you to undertake a unilateral approach to addressing the heart-wrenching challenge of gun violence in our community, I urge you to reconsider this course of action.”
PUSH BACK FROM DEMOCRATS
Governor Lujan Grisham has also been on the receiving end of major push back by Democrat legislators declaring her orders unconstitutional.
Democratic state Senator Joseph Cervantes of Las Cruces, who successfully sponsored a 2020 red flag law making it easier for authorities to take weapons from people deemed dangerous to themselves or others, said this:
“Having passed key gun safety laws working with her administration, I call on the Governor to rescind her order outlawing arms. An unconstitutional approach undermines the important collaboration gun issues deserve, and the important role of a Governor to lead genuine reforms.”
Speaker of the House Javier Martinez issued a statement on the Governors Orders am said in a statement:
“Like many New Mexicans and citizens of Albuquerque, I am heartbroken that we have parents in our community who are mourning the loss of their young children to senseless gun violence. It’s absolutely critical that city, county, and state officials continue working together to prevent firearms from falling into the wrong hands. While I have strong concerns about the effectiveness and enforceability of this approach, we need to be focused on moving forward solutions that actually reduce gun violence and make our communities safer.”
Five conservative New Mexico House Democrats also voice opposition to the Governors order. Those house Democrats are State Representatives Joseph Sanchez, Ambrose Castellano, Harry Garcia, Patty Lundstrom and Willie Madrid. All four sent a letter to the Governor that said in part:
We concur with law enforcement leaders that these executive orders violate law-abiding citizens’ Second Amendment rights and would require law enforcement officers to infringe upon these rights, which could expose officers, police agencies, and communities to civil litigation. We agree that the Governor does not have the authority to disregard both the New Mexico Constitution and the US Constitution.
Democrat United States Senator Martin Heinrich, who is running for a third term to the Senate and who is said to be eyeing running for Governor in 2026, gave what amounts to indirect criticism of the Governor when he said:
“The gun violence in New Mexico and across our country has had devastating impacts on families, communities, and our sense of safety. It’s why I led the effort on the first federal gun reform law passed in nearly three decades. There is more that can and should be done to stem the violence and ensure every American can feel safe at school, at the grocery store, or at the movie theatre. As we do that work, we need to focus on solutions that are constitutional and enforceable.”
REPUBLICAN OFFICIALS REACT
Republican Public officials were quick to react and condemn Governor Lujan Grisham’s orders.
State Republican Representative Stefani Lord of Sandia Park and John Block of Alamogordo called for Lujan Grisham’s impeachment, saying her order violates constitutional rights and is “illegal in nature.” Lord said this:
“This is an abhorrent attempt at imposing a radical, progressive agenda on an unwilling populous. … I have a newsflash for the Governor: The Second Amendment is an absolute right, and so is my authority to impeach you for violating your oath to New Mexico and the United States.”
New Mexico Senate Republican Leader Greg Baca issued the following statement:
“A child is murdered, the perpetrator is still on the loose, and what does the governor do? She throws the mayor of Albuquerque under the bus and then targets law-abiding citizens with an unconstitutional gun order. Tragically, this is what we have come to expect from an administration that refuses to take responsibility for the crime epidemic gripping our state. It is time for the governor to stop pointing fingers and admit that her soft-on-crime approach has failed and put the safety of all New Mexicans in great jeopardy.”
NM House Republican Leader Ryan Lane issued the following statement:
“It is unfortunate that the Governor has decided to politicize the death of an 11-year-old to push her anti-gun agenda. What’s likewise unfortunate is that with billions in revenue this state has not funded meaningful criminal justice reform including addressing reckless pre-trial release policies and behavioral health rehabilitation. The Democrat’s policies have created and exacerbated the crime crisis that is literally killing New Mexicans daily. It is unacceptable that it has taken this long to notice the number of everyday New Mexicans that are being affected by criminal violence.”
Republican Party of New Mexico Chairman Steve Pierce issued the following statement:
“She knew her order was illegal and did it anyway, just like the lawbreakers in our state. Criminals will not be affected by more laws since they don’t follow our laws now nor are they held responsible for breaking any of them.”
MAIN PROVISIONS OF PUBLIC HEALTH ORDER
It was on Thursday, September 7 Governor Michelle Lujan Grisham signed an Executive Order declaring gun violence and drug abuse a statewide public health emergency and declaring what she called an “epidemic of gun violence” in New Mexico. On Friday, September 8, pursuant to Governor Lujan Grisham’s Executive Order declaring gun violence and illegal drugs a public health emergency, NM Secretary of Health Patrick M. Allen Secretary issued a sweeping Public Health Oder.
The Public Health Order bans the carrying of firearms, concealed or openly, in any public space in Bernalillo County and any state property in New Mexico. Specifically, no firearms are allowed on state property, including state buildings and schools. This also includes other places of education where children gather, such as parks.
The Public Health Order is a statewide mandate, but it only suspends open and concealed carry laws in communities with extremely high violent crime rates and firearm-related emergency room visits which as it stands only includes Albuquerque. Bernalillo County and Albuquerque are the only two places in the state right now that are affected by the emergency order.
The Public Health Order requires monthly inspections of licensed firearm dealers and wastewater testing for certain drugs, such as fentanyl, at all public schools. The Regulation and Licensing Division will conduct inspections of licensed firearm dealers to ensure compliance with all sales and storage laws. The Department of Health, along with the Environment Department, will begin wastewater testing for illegal substances such as fentanyl at schools.
There are several exceptions to the order. The public health order does not impact private property, licensed firearm dealers, firing ranges, or shooting competitions. However, under the order anyone traveling between those locations must store their guns in a locked container or safety box.
Violating the public health order could result in civil citations and penalties and a fine of up to $5,000.
COMMENTARY AND ANALYSIS
There is absolutely no doubt that gun violence and violent crime are out of control in Albuquerque and in the state driven by the proliferation of guns and illicit drugs. Notwithstanding, Governor Michelle Lujan’s Grisham’s Executive Oder as well as the Public Health Care Order are misguided and they are unconstitutional.
Simply put, there is no such thing as a state public health emergency exception to the United States Constitution. The orders will likely be found so broad as to be a clear violation of US Constitutional Rights and the Second Amendment Right to Bear Arms. The blunt reality is that the Governor’s Executive Order and Public Health Order will not result in reducing gun violence nor address the proliferation of guns.
The Governor’s actions will accomplish nothing other than ginning up Republican and Second Amendment Rights advocate ire that in turn will contribute nothing to the discussion of real solutions to the state’s gun violence and high violent crime rates. Absent from the Governor’s September 7 and 8th press conferences was the presence of any of the New Mexico legislature Democratic leadership and that is very troubling and reflects she does not even have support of her own party.
GOVERNOR SHOULD IMMEDIATELY RETRACT ORDERS
Governor Lujan Grisham should immediately cancel and withdraw her Executive Order and the Public Health Care orders. The issuance of the orders will likely result in the Governor’s poll numbers of support to plummet even further given New Mexico’s “gun culture” which is too bad and its a self inflicted wound. A recent poll found that the Governor’s approval rating was at 47%.
It will not be the first time where Lujan Grisham issues Executive Orders that negatively impact her popularity. Her Public Health Care Orders regarding the Covid Pandemic had an impact on her popularity, but at least those orders could be easily justified involving a legitimate health care crisis and those health care orders were indeed constitutional and likely saved lives.
Rather than issuing executive orders declaring a public health crisis that were ostensibly a knee jerk reaction to the killing of a child in a road rage incident, the Governor’s efforts would be better spent on proposing meaningful legislation she wants in the upcoming 2024 legislative session which begins on January 16, 2024. The session is the 30 short session where the Governor will dictate what measures can be considered.
ENACT “OMNIBUS GUN CONTROL AND VIOLENT CRIME SENTENCING ACT”
If Governor Lujan Grisham is indeed sincere about the State’s crime crisis she should propose the enactment of an “Omnibus Gun Control And Violent Crime Sentencing Act.”
CRIME AND PUNISHMENT MEASURES
The message that must be sent out loud and clear to violent criminals by our elected officials is that New Mexico has a zero tolerance of violent crimes committed with firearms and the only way to do that is with with enhanced sentencings.
The following crime and sentencing provisions should be included in the “Omnibus Gun Control And Violent Crime Sentencing Act”:
Allow firearm offenses used in a drug crimes to be charged separately with enhance sentences.
Making possession of a handgun by someone who commits a crime of drug trafficking an aggravated third-degree felony mandating a 10-year minimum sentence.
Increase the firearm enhancement penalties provided for the brandishing a firearm in the commission of a felony from 3 years to 10 years for a first offense and for a second or subsequent felony in which a firearm is brandished 12 years.
Create a new category of enhanced sentencing for use of a lethal weapon or deadly weapon other than a firearm where there is blandishment of a deadly weapon in the commission of a felony with enhanced sentences of 5 years for a first offense and for second or subsequent felony in which a lethal weapon other than a firearm is brandished 8 years
Increase the penalty of shooting randomly into a crowded area a second-degree felony mandating a 9-year sentence.
Increase the penalty and mandatory sentencing for the conviction of the use of a fire arm during a road rage incident to a first degree felony mandating a life sentence.
Change bail bond to statutorily empower judges with far more discretionary authority to hold and jail those pending trial who have prior violent crime reported incidents without shifting the burden of proof from the prosecution to the defense.
GUN CONTROL MEASURES
Gun control measures that should be included the “Omnibus Gun Control And Violent Crime Sentencing Act” would include legislation that failed in the 2023 legislative session and other measures and would include the following:
Call for the repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby, but what is the real rational for allowing side arms and rifles to be carried down the street other than to intimidate others.
Restrict the sale, manufacture and possession of AR-15-style rifles along with semiautomatic firearms and make it a fourth-degree felony to purchase, possess, manufacture, import, sell or transfer assault weapons in the state.
Prohibited magazines with more than 10 rounds.
Prohibited the possession of semiautomatic firearm converter that allows the weapon to fire more rapidly.
Established a 14-day waiting period for the purchase of any firearm and requires a prospective seller who doesn’t already hold a valid federal firearms license to arrange for someone who does to conduct a federal background check prior to selling a firearm.
Established a minimum age of 21 for anyone seeking to purchase or possess an automatic firearm, semiautomatic firearm or firearm capable of accepting a large-capacity magazine.
Ban the manufacture, sale, trade, gift, transfer or acquisition of semiautomatic pistols that have two or more defined characteristics.
Revised the state’s Unfair Practices Act to target the sale of illegal firearms and parts, allowing the filing of lawsuits to enforce the act.
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.
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.
Mandate the school systems and higher education institutions “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.
The Omnibus Gun Control And Violent Crime Sentencing Act Omnibus Gun Violence And Sentencing Act must include funding for the criminal justice system. This would include funding District Attorney’s Offices, the Public Defender’s Office, the Courts and the Corrections Department and law enforcement departments across New Mexico.
Until the Governor and the New Mexico legislature get serious about New Mexico’s gun violence crisis and enacts reasonable gun control measures in conjunction with crime and punishment measures, we can expect our violent crime rates to continue to increase, and God forbid, yet another killing of a child which is what prompted the Governor to issue her executive orders in the first place.