On Friday, September 8, Governor Michelle Lujan Grisham issued an Executive Order declaring gun violence and illegal drugs a public health emergency and on September 9 a sweeping Public Health Care Order was issued. The executive order was signed in the wake of a road-rage shooting death of an 11-year-old boy leaving Isotopes Park on September 6.
The link to review the Governor’s Executive Order is here:
https://www.krqe.com/wp-content/uploads/sites/12/2023/09/Executive-Order-2023-132.pdf
The link to review the Public Health Care order is here:
Click to access 090823-PHO-guns-and-drug-abuse.pdf
Within days of the Governor’s actions, 6 sperate federal lawsuits were filed challenging the legality of the Governor’s Executive Order and Public Health Care Order gun ban restrictions. Groups suing the state over the orders include the National Association for Gun Rights, We The Patriots USA, Inc. and the Republican Party of New Mexico. All of the cases have been assigned to U.S. District Judge David Herrera Urias of Albuquerque. Motions were filed in the cases seeking retraining orders and injunctions.
TRO HEARING HELD
On September 13, U.S. District Court Judge David Herrera Urias held a hearing on a request for a Temporary Restraining Order (TRO) and Injunction. Appearing were attorneys from New Mexico, Arizona and Connecticut who represented the Plaintiff’s.
Judge Herrera Urias heard arguments from Plaintiff attorneys all arguing the Public Health Care Order restrictions violated Second Amendment rights. Attorneys specifically referenced several U.S. Supreme Court rulings, including one from last year, that said the right to own a gun for self-defense exists in and out of the home. In the June 2022 Bruen case of New York State Rifle & Pistol Association v. Bruen, 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.
Attorneys for the Plaintiff gun rights advocates argued there is no legal precedent for a governor to issue the order, the order is too broad, and it causes irreparable harm to law-abiding citizens by depriving them of their rights. An attorney for the governor argued that the order is not a law but a temporary ban. Ultimately, the judge ruled in favor of the plaintiff gun rights advocates.
The Plaintiff attorneys representing Second Amendment gun rights advocates argued forcefully that the public health order would do little to stop criminal use of guns but instead impinge on the Second Amendment rights of citizens to bear firearms.
Albuquerque Attorney Marc Lawry representing one of the plaintiffs said this:
“The gun violence in this instance is committed by criminals and not by law abiding citizens. … It is laudable that [the Governor] is trying to do something about gun violence. … The level of gun violence in Albuquerque is abhorrent, but what is done has to be done in a reasonable manner that is not butting up constitutional rights.”
Plaintiff Attorney Anthony Napolitano, a Phoenix, Arizona attorney representing Gun Owners of America, focused on the Governors use of a public health care order to impose restrictions on gun ownership arguing it was an expansion on the Governor’s earlier restrictions and emergency orders issued to deal with the COVID -19 pandemic. Napolitano said this:
“If the government expands its powers in an emergency, it will declare emergencies more often.”
Cameron Atkinson, a Harwinton, Connecticut attorney representing “We The Patriots USA, Inc.” called the Governor’s use of a public health care order “a seminal moment in the American experiment. … We’re rapidly heading towards a public health state.”
The Governor was represented by her General Council Holly Agajanian who sat all alone at counsel table. Agajanian argued since the public health order is not a law and only temporary, it doesn’t have the same impact on the rights of New Mexicans. Agajanian said law enforcement officers who confront someone carrying a firearm have “no way to discern who the good guy is and who the bad guy is”. She also argued the public health order does not prevent anyone from buying a gun saying “[people] are not restricted from having guns altogether.” She asked the judge to keep the 30-day order in place by saying “Let’s give it 30 days and see what happens”. Judge Herra Urias rejected her arguments.
The governor’s 30-day order has been in place since Friday September 8 and was set to expire on October 8. After the judge’s decision, the Temporary Restraining Order (TRO) prevents the enforcement of the order. The TRO will remain in place until October 3 when another hearing will be held on a Permanent Injunction.
All other sections of the public health order will remain in effect. In a statement, the governor said she still plans on assigning more New Mexico State Police officers to Bernalillo County, and she is directing the health care system to immediately increase capacity to accept people experiencing homelessness and drug addiction.
Gov. Lujan Grisham’s administration is also expected to update the order with additional measures.
The judge and every attorney at the hearing agreed that gun violence is a serious issue in Albuquerque, and several of them commended the governor for taking action. However, the judge said it is in the public’s best interest to not suspend civil rights, which includes the right to carry a gun.
After hearing all arguments, Judge Herrera Urias granted a Temporary Restraining Order against New Mexico Governor Michelle Lujan Grisham’s Public Health Order banning the lawful carry of firearms in Albuquerque and across Bernalillo County. Judge Herrera Urias specifically found that the Governor’s Emergency Public Health orders were in direct conflict with the United States Constitution Second Amendment. The Temporary Restraining Order halts implementation of the orders pending a final hearing which the Court scheduled for October 3.
PROVISIONS AFFECTED
The temporary restraining order applies only to Section 1 and Section 4 of the Public Health Order and the sections are prohibited from being enforced by law enforcement.
Section 1 of the Public Health Order was drafted so as to apply only to Bernalillo County and the City of Albuquerque. Section 1 provides that no person, other than law enforcement or licensed security, shall possess a firearm, either openly or concealed, within cities and counties averaging 1,000 or more violent crimes per 100,000 residents and more than 90 fire arm related emergency department visits per 100,000 residents.
Section 4 states that “No person, other than a law enforcement officer or licensed security officer, shall possess a firearm on state property, public schools, and public parks.”
PROVISIONS NOT AFFECTED
There are 6 other major provisions of the public health order as well as implementation provisions that Judge Herrera Urias ruling left in place and those provisions are:
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 monthly 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.
The Department of Health will compile and issue a comprehensive report on gunshot victims presenting at hospitals in New Mexico, which shall include and if available:
- Demographic data of gunshot victims, including age, gender, race, and ethnicity;
- Data on gunshot victim’s healthcare outcomes;
- The brand and caliber of the firearm used;
- The general circumstances leading to the injury;
- The impact of gunshot victims on New Mexico’s healthcare system;
- Any other pertinent information
New Mexico State Police will send additional officers to Albuquerque with funding for overtime provided.
The Children, Youth and Families Department will immediately suspend the Juvenile Detention Alternative Initiative and evaluate juvenile probation protocols.
Violating the public health order could result in civil citations and penalties and a fine of up to $5,000.
REACTION TO RULING
Governor Lujan Grisham issued the following statement after the decision:
“Today a judge temporarily blocked sections of our public health order but recognized the significant problem of gun violence in this state, particularly involving the deaths of children.
I refuse to be resigned to the status quo. As governor, I see the pain of families who lost their loved ones to gun violence every single day, and I will never stop fighting to prevent other families from enduring these tragedies.
To be clear: gun violence and drug abuse are acute threats to public health and safety in this state. We will stay the course by increasing State Police presence in Bernalillo County, arresting the hundreds of violent offenders with outstanding warrants still on our streets, and directing our healthcare system to immediately expand capacity to accept persons experiencing drug addiction and homelessness.
Over the past four days, I’ve seen more attention on resolving the crisis of gun violence than I have in the past four years. Now is the time to bring clarity of purpose: New Mexicans must again feel safe walking home from school, driving to the grocery store, or leaving their hometown baseball stadium.
Who will stand up to protect families and children? I will.
And I call on leaders across the state, from local law enforcement to the Legislature to mayors and county commissioners: Stand with me to enact solutions that save people’s lives. Throwing up our hands is not an option.”
New Mexico Attorney General Raúl Torrez, who made it known his office would not defend the Governor’s orders in court, released the following statement:
“Judge Urias’ decision to block implementation of the Governor’s unconstitutional Emergency Order is not at all surprising and the Attorney General hopes that today’s ruling will prompt the Governor to abandon her unilateral and divisive approach to complex problems and engage in a more deliberative process that will yield tangible results for the people of New Mexico.
The Attorney General is committed to the legislative process and to working with Governor Lujan Grisham to build a safer community without sacrificing the constitutional rights of our citizens. We need more and better trained police officers; stricter gun laws and tougher guidelines for pretrial detention; robust mental health and drug treatment; rehabilitation programs to reduce recidivism; real-time data on gun crimes and gun trafficking; and a protective service framework that keeps today’s child victims from maturing into the next generation’s repeat offenders. Our collective efforts should be engaged in robust and meaningful dialogue around each of these issues, building consensus that challenges and harnessing our once-in-a-generation budget surplus to bring about transformative change.”
Senate Republican Leader, Sen. Greg Baca issued the following statement regarding the ruling:
“We applaud the judge’s ruling against the governor and her unconstitutional order. The governor’s malfeasance and utter disregard for the Constitution is alarming. By her own admission, she believes there are virtually no limits to the exercise of executive power. The Constitution says otherwise, and today, the court took action to remedy her blatant abuse of power against the citizens of New Mexico.”
Links to quoted news source material are here:
https://www.koat.com/article/federal-judge-blocks-new-mexico-gun-ban/45126592
GOVERNOR SENDING MORE STATE POLICE TO ALBUQUERQUE
In the wake of Judge Herrera Urias granting a Temporary Restraining Order on the Governor’s Public Health Care Order, Governor Lujan Grisham issued an order sending more State Police to Albuquerque to help address violent crime and to assist local law enforcement.
An unspecified number of New Mexico State Police officers will be assigned to Bernalillo County to conduct patrols, warrant roundups and narcotics operations and arrest violent offenders. State Police will work with the Bernalillo County Sheriff’s Office and Albuquerque Police Department and will develop an operational plan or tactical plan.
Governor Lujan Grisham said in a statement that the increase in State Police presence in Bernalillo County will focus on “arresting the hundreds of violent offenders with outstanding warrants still on our streets, and directing our healthcare system to immediately expand capacity to accept persons experiencing drug addiction and homelessness.”
Ray Wilson, NMSP spokesman, said this in a statement:
“The extra State Police officers assigned to the area will focus on carrying out traditional proactive policing to stop violent crime and take violent criminals off the street. … Officers will conduct traffic and criminal enforcement operations like saturation patrols, warrant roundups, and narcotics operations.”
Links to quoted news sources are here:
https://www.kob.com/new-mexico/new-mexico-state-police-assigns-extra-officers-to-bernalillo-county/
COMMENTARY AND ANALYSIS
What is very problematic and is conflicting with other laws is that the court issued a Temporary Restraining Order on Section 4 of the Public Health Order that states “No person, other than a law enforcement officer or licensed security officer, shall possess a firearm on state property, public schools, and public parks.” There already are many City, County and State laws on the books that prohibit firearms on state property, public schools, and public parks that have nothing to do with the Public Health Order. As a result, the TRO court ruling needs to be corrected to make it clear what other laws are enforceable.
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 were found to 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 says she thinks she has seen more attention on resolving the crisis of gun violence than she has ever seen in the past four years. Really, Governor, really? The Governor seems to have totally forgotten about the Farmington killings in May of this year that generated talk of a special session. On May 15, nine people were injured or killed by an 18-year-old male armed with an AR-17 style rifle in a mass shooting in Farmington, New Mexico. Three woman over the age of 70 were killed and 2 police officers injured. The 3 fatal shooting victims were identified as 79-year-old Shirley Voita, 73-year-old Melody Ivie, and 97-year-old Gwendolyn Schofield. Schofield and Ivie were mother and daughter. Police identified the suspect as 18-year-old Beau Wilson who was shot and killed by police. He was suffering from mental illness and went on a rampage.
The truth is the Governor’s orders have accomplished nothing other than ginning up Republican and Second Amendment Rights advocates ire that in turn will contribute nothing to the discussion of real solutions to the state’s gun violence and high violent crime rates. Now that the court has ruled, Governor Lujan Grisham should immediately cancel and withdraw her Executive Order and the Public Health Care orders.
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.
If Governor Lujan Grisham is indeed sincere about the State’s crime crisis and wants more immediate action, she should call a Special Session and propose the enactment of an “Omnibus Gun Control And Violent Crime Sentencing Act.” 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 responsible gun control laws and enhanced sentencings.
CRIME AND PUNISHMENT MEASURES
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 crime 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.
FINAL COMMENTARY
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.
Links to prvious blog articles are here: