On Friday, September 8, Governor Michelle Lujan Grisham declared gun violence and illegal drugs a public health emergency with the issuance of a sweeping Emergency Public Health Care Order. The original Emergency Public Health Order banned the carrying of firearms, concealed or openly, in any public space in Bernalillo County and any state property in New Mexico. Governor Lujan Grisham issued the September 8 order in response to recent shootings, including the death last week of an 11-year-old boy outside Isotopes Park in a road-rage incident and the shooting death of a 5-year-old girl who was asleep in a mobile home. The governor also cited the shooting death in August of a 13-year-old girl in Taos County.
The link to the September 8 Emergency Public Health Order is here:
During the one week after announcing her Executive Order and the Public Health Care Orders, all hell broke loose consisting of protests by armed citizens, federal and state lawsuits filed, a federal court hearing on a temporary restraining order, calls for impeachment, and calls for a special session.
AMENDED PUBLIC HEALTH EMERGENCY ORDER ANNOUNCED, NO SPECIAL SESSION ON CRIME
On Friday, September 15, Governor Michelle Lujan Grisham, held a news conference to announce an Amended Public Health Emergency Order issued by Secretary Patrick M. Allen Patrick M. Allen, Secretary of the New Mexico Department of Health, imposing temporary firearms restrictions, drug monitoring and other public safety measures. The press conference was held in the Bernalillo County Commission Chambers with the Governor joined by Speaker of the House Javier Martinez and Senate Pro Temp Mimi Stewart both of Albuquerque. The Governor proclaimed she was scaling back and amending the original order by banning firearms only in “public parks and playgrounds” where children and their families gather. The amended order eliminates sweeping bans on the public carry of firearms in Albuquerque and Bernalillo County.
Other new provisions in the September 15 Amended Public Health Emergency Order include:
- Directing the Corrections Department and Department of Homeland Security as well as Emergency Management to help the Metropolitan Detention Center and its contractors with staffing, space and screenings for those arrested and incarcerated.
- Directing all participating Managed Care Organizations (MCO) to immediately ensure people who need alcohol or drug treatment get it within 24 hours of their request.
- Directing the Human Services Department to send relevant MCO letters of direction requiring them to provide their plans to achieve continual behavioral health network adequacy.
The modifications focus on drug abuse and treatment. One new provision directs local health care providers to place people seeking drug and alcohol treatment in “a permanent, adequate treatment placement” such as inpatient or outpatient programs, within 24 hours.
The Governor announced she is directing law enforcement officers in “all jurisdictions” to “coordinate their efforts to make sure open, illicit, substance abuse, drug use is being addressed.” Speaking of arrests tied to the open use of drugs in public, Governor Lujan Grisham said this:
“[The state cannot allow illicit [drug] activity to occur. … The state has not actively been dealing with that accountability for a number of reasons. Not the least of which is treatment, incarceration, situations where we can’t get people booked; we don’t have enough prosecutors, any number of barriers.”
The link to the September 15 Emergency Public Health Order is here:
At the September 15 press conference, Lujan Grisham made it clear she is not going to call a special session after Republican leaders called for a special session on crime. The Governor noted the presence of Democratic Leadership as evidence that there is no need for a Special Session and saying there is agreement that something can be done now without special session.
GOVENOR REFERENCES GUN VIOLENCE SINCE ORDERS ISSUED
Governor Lujan Grisham started her September 15 news conference by referencing what happened in Federal Court with the issuance of a Temporary Restraining Oder as well as several instances of violence since she put the September 8 Public Health Emergency Order in place. The Governor said this:
“Since the week I declared an emergency, we have seen 296 shots fired in Albuquerque and Bernalillo County. … Last night, we saw violent crime move throughout the city that resulted in a gun injury, two carjackings, and a kidnapping with suspects not yet in custody.
“I want to point out that the conversation in that court was pretty clear that we are not wrong about this emergency, or about the issues related to violence, gun violence and public safety in general. … We have a very serious problem in our communities that require serious, immediate results.”
APPOINTMENT OF SENIOR PUBLIC SAFETY ADVISOR ANNOUNCED
During the September 15 news conference, Governor Lujan Grisham announced the naming of Ben Baker to the governor’s staff as a senior public safety advisor. Baker has been the Deputy Cabinet Secretary and Interim Law Enforcement Academy Director at the Department of Public Safety since 2021, and has worked in law enforcement since 1997.
Baker had this to say about his appointment:
“This is an opportunity for all New Mexico public safety professionals from all disciplines – police officers, prosecutors, probation and parole personnel, corrections, emergency services and dispatchers – to unite under the shared goal of making our state a safer place to live. … I am grateful to the governor for trusting me with this critical responsibility.”
TWO DAYS AFTER TRO ENTERED
The governor’s announcement came just 2 days after U.S. District Judge David Urias issued a Temporary Restraining Order (TRO) suspending concealed or the open-carry of firearms in public places blocking part of the September 8 Public Health Emergency Order. Judge Herrera Urias specifically found that two provisions of the Emergency Public Health orders were unconstitutional and violated the Second Amendment right to bear arms. Another hearing in the federal case is scheduled for October 3.
Five sperate federal lawsuits have been 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.
The Federal Court Temporary Restraining Order suspending concealed- or open-carry of firearms in public places applies only to Section 1 and Section 4 of the September 8 Public Health Emergency Order.
Section 1 of the September 8 Public Health Emergency Order was drafted so as to apply only to the City of Albuquerque and Bernalillo County. 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.”
The temporary restraining order remains in effect until October 3 when another hearing will be held on a permanent injunction and leaves in place parts of the original order.
ADVERSE REACTION TO GOV.’S EMERGENCY PUBLIC HEALTH ORDER
Public reactions to the initial September 8 Public Health Emergency Order has been swift and mostly negative, sparking federal lawsuits, cries for impeachment, protests and declarations by law enforcement that the orders will not be enforced
On September 8, Albuquerque Police Chief Harold Medina said APD would not be enforcing the order.
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 Public Health Emergency Order.
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.
On September 12, New Mexico Attorney General Raúl Torrez joined in and announced he would not defend the governor’s Public Health Emergency Order.
In addition to the 6 lawsuits filed, at least two demonstration occurred, one in Old Town and one on Civic Plaza, with scores of demonstrators defiantly wearing holstered handguns on their hips or carrying rifles, including assault rifles, during the demonstrations.
Republican lawmakers threatened impeachment proceedings and even some influential Democrats and civil rights leaders warned that the move could do more harm than good to overall efforts to ease gun violence.
NRA AND REPUBLICAN PARTY FILE SEPARATE STATE ACTION
On Friday September 15, the National Rifle Association of America and the Republican Party of New Mexico filed a petition asking the New Mexico Supreme Court to strike down the Public Health Emergency Order in its entirety. Former New Mexico Supreme Court Justice and Criminal Defense Attorney Paul Kennedy filed the lawsuit.
The petition requests the justices to strike down the order “and clarify for the governor, and posterity, that gun violence and drug abuse are not ‘public health emergencies.” The petition argues that the state’s Public Health Emergency Response Act, which is the statute Lujan Grisham is relying on to issue the Public Health Emergency Order, pertains only to “infectious disease outbreaks.” Kennedy said the Public Health Emergency Response act “is clearly not directed to social problems. … [Gun violence] doesn’t even come close to being a public health emergency.”
The petition also argues that Lujan Grisham’s order violates both the U.S. Constitution and the New Mexico Constitution, which guarantee the right to bear arms. The petition argues that Lujan Grisham violated the separation of powers between the Legislature and the executive branch by “cutting the Legislature out of things that are clearly the purview of the Legislature” such as the regulation of firearms.
The petition to the New Mexico Supreme Court also challenges the sections of the public health order that were left in place by U.S. District Judge David Urias in the Temporary Restraining Order he issued. In particular, the state action challenges the requirement that the New Mexico Regulation and Licensing Department “conduct monthly inspections of licensed firearms dealers” and alleges that Regulation and Licensing lacks the jurisdiction to regulate gun dealers.
Other sections of the order that remain in force include reporting requirements for gunshot victims at New Mexico hospitals and wastewater testing for illegal substances at public schools.
REPUBLICAN LEADERSHIP CALL FOR SPECIAL SESSION
On September 15, the NM House Republican Caucus, the NM Senate Republican Caucus and the Republican Party of New Mexico issued a press release calling on Governor Lujan Grisham to immediately convene the Legislature in Special Session to deal with crime or force an Extraordinary Session by petition. In the press release, the Republicans listed 10 crime bills they sponsored that were introduced in the 2023 session that failed to be enacted blaming the Democrat majorities in both chambers,
In their press release, the Republicans said in part:
“The New Mexico House Republican Caucus … calls on Governor Lujan Grisham to immediately convene the Legislature in Special Session … to address the crime crisis in New Mexico. Absent action by the Governor to immediately address crime through the proper legislative channel, House Republicans are prepared to circulate a petition to convene the State Legislature in Extraordinary Session. …
“It is disingenuous for anyone to assert that Republicans ‘have no plan to tackle crime,’ said House Republican Leader Ryan Lane(Aztec). … Our Caucus has been fighting to address this growing crisis only to be ignored by Democrats in the Legislature. If Democrats are truly serious about crime, then let’s come back to Santa Fe and quickly pass these bills.”
CITY COUNCILORS URGE SPECIAL SESSION
Conservative Republican Albuquerque City Councilors Dan Lewis, Brook Bassan and Renée Grout and conservative Democrat Louis Sanchez announce they will be introducing city council resolutions on September 18 calling for the Governor to convene a special session focused on crime.
In addition to addressing the drug and mental health concerns, the resolution says a special session is needed to address reforming the pretrial detention system. The 4 city councilors are calling for funding of the warrant program for the next 5 years and passing legislation to impose a lifetime sentence for repeat offenders who use firearms. All four councilors are also sponsoring another resolution urging the governor to take no actions that violate constitutional rights.
Conservative Republican City Councilor Brook Bassan said this:
“When we’re talking crime here in Albuquerque, we are one of the most dangerous cities in America. … This is about making sure that we do everything we can. And we ask our governor for the support that we need so that she can do everything she can to help us while we also take some accountability … “Law enforcement is doing what they can, but it’s just not enough to keep us safe,” Albuquerque can’t wait any longer. We have people that go out to family outings, and they don’t know if they’re going to get home safe, and that is completely unacceptable.”
Links to quoted news sources are here:
COMMENTARY AND ANALYSIS
There is a very old adage called “the law of holes” which states “if you find yourself in a hole, stop digging.” It is a warning that when in an untenable position, it is best to stop making the situation worse. It appears that Governor Lujan Grisham has decided to use a back hole tractor by issuing an Amended Public Health Emergency Order as she digs her heels in further thinking that she can unilaterally amend an order that is still in litigation and where a hearing is pending on October 3.
The Governor is now faced with the reality that she now must defend both of her public health care orders as well as answer the complaint in the newly filed state action without the assistance of the Office of the Attorney General. New Mexico Attorney General Raúl Torrez has said he would not defend the Public Health Emergency Orders despite his office’s ethical obligation to do so. Torrez said the Governor can hire her own lawyer. Torres said that he is not “ethically permitted” to provide a defense to the Governor because he feels himself the order is not constitutional. Torrez says his office will not defend despite the fact that the Office of the Attorney General is required by the state constitution and the law to represent the state’s interests in civil litigation. The Office of Attorney General has the ethical obligation to provide a defense, no matter how weak, when called upon by the state and state officials when they are sued.
It’s likely U.S. District Court Judge David Herrera Urias will not look too kindly on the Amended Emergency Order given that it is nothing more than an attempt by the Governor to cure deficiencies in the original order and both are still unconstitutional the way they are written. Now the Governor is placed in the awkward position of trying to defend not one but two Public Health Emergency Order’s at the October 3 federal court hearing on a permanent injunction.
Given how aggressive the plaintiff’s in the 5 federal lawsuits have been, no one should be surprised if it is argued that the Governor and her Health Secretary acted in bad faith trying to unilaterally amend the health care order in an attempt to cure it of its constitutional deficiencies when they both knew that the Federal Court has jurisdiction over the Emergency Public Health Care Order and has gone so far as to slap the state with a TRO declaring provisions of it unconstitutional. To complicate things, the Governor is an attorney and she should know better than to poke the bear in the form of a federal court order.
The Governor has placed herself in an untenable position by feeling she has the unilateral authority to simply issue amended versions of and emergency health order that is in litigation with provisions declared unconstitutional. It is more likely than not that Plaintiff attorneys will now seek to call the Governor or Health Secretary Allen, or both, to testify at the October 3 hearing to demand an explanation.
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.
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. The blunt reality is that the Governor’s Executive Order and Public Health Orders will not result in reducing gun violence nor address the proliferation of guns. Notwithstanding, Governor Michelle Lujan’s Grisham’s Executive Oder as well the Public Health Care Order and Amended Order are misguided and they are unconstitutional.
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 ostensibly has 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 the Republicans 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. The Governor has indeed united Republicans, Democrats and Independents against her with her actions.
Now that the court has ruled, Governor Lujan Grisham should immediately cancel and withdraw her Executive Order and the first Public Health Care order as well as the amended order. Such action will render moot all 6 lawsuits.
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 day 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 measures to reduce the availability of guns and to enhance criminal sentencings.
Governor, please stop digging!