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. The governor issued the restriction in the Emergency Health Order after the recent homicides of three children in Albuquerque, including an 11-year-old boy killed while he and his family drove away from an Albuquerque Isotopes baseball game.
The link to the September 8 Emergency Health Order is here:
Click to access 090823-PHO-guns-and-drug-abuse.pdf
During the one week after the Emergency Public Health Care Orders were issued, all hell broke loose consisting of protests by armed citizens, 5 federal and 1 state lawsuits were filed, calls for impeachment, and calls for a special session to deal with the state’s high violent crime rates. Albuquerque Police Chief Harold Medina, Bernalillo County Sheriff John Allen, Bernalillo County District Attorney Sam Bregman and New Mexico Attoerney General Raul Torrez all announced that they felt the Governor’s Emergency Public Health Order was unconstitutional and proclaimed they had no intention of enforcing it.
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 and granted he granted the TRO. Judge Herrera Urias ruled that the gun restrictions in the governor’s original order were likely to cause irreparable harm to people deprived of the right to carry a gun in public for self-defense and granted a temporary restraining order blocking it.
On Friday, September 15, Governor Michelle Lujan Grisham announced an Amended Public Health Emergency Order. The amended order scales back 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. The link to the September 15 Emergency Health Order is here:
Click to access NMAC-EO-2023-130-132-Amended.pdf
SECOND HEARING, SECOND INJUNCTION
On Tuesday, October 3, U.S. District Court Judge David Herrera Urias held a hearing on the Governors Amended Public Health Emergency Order. Judge Herrera Urias extended the Temporary Restraining Order effectively blocking the Governors ban on the carrying firearms at public parks, playgrounds and other areas provided for children to play in.
The Judge further said he will decide on October 11 whether the Governor’s latest temporary public health order from the Governor administration can be enforced in Bernalillo County after he reviews the written briefs and arguments from both sides.
During the October 6 hearing on the amended public health order, Plaintiff groups representing gun owners again argued the latest mandate is unconstitutional and vague and again asked the judge for a preliminary injunction to block it. During the September 13 hearing the same plaintiffs succeeded in convincing Urias to block the broader firearm restriction imposed by the Governor’s Emergency Health issued on Sept. 8.
CONSTITUTIONAL ARGUMENTS MADE
During Tuesday’s October 3 hearing, Governor Lujan Grisham’s Chief General Counsel Holly Agajanian, who also represented the State, argued that the Amended Emergency Health Order is narrow enough that it conforms with constitutional restrictions allowed by recent United States Supreme Court case law. The United States Supreme Court in 2022 found the government must justify its firearms regulations and restrictions by demonstrating that it is consistent with the nation’s historical traditions. That rationale could permit states to prohibit the possession and carrying of firearms in “sensitive places,” like election polling places. However, the Plaintiff gun advocates countered by saying that public parks, playgrounds and other areas provided for children to play don’t qualify.
Agajanian argued the aim of the amended order is to keep children safe from the increasing gun violence across the state’s biggest metropolitan area. She contended that children need places where they don’t have to be afraid of people carrying guns “where they don’t have to worry about whether the person with a gun is a bad guy.” The amended order affecting playgrounds, parks and other areas expires Friday October 6, but Agajanian told the judge that there will be at least one extension of the order.
Agajanian told the Judge Herrera Urias the state of New Mexico has “partners in the fight against violence” who make political decisions at the expense of people’s lives. At the same time, she said, young children are learning “active shooter drills” in schools. Agajanian added “what are children to think when someone shows up at their neighborhood park carrying an AR-15?”
Only 2 of the original 7 plaintiffs filed new motions against the governor’s updated order. During the October 3 hearing, those were the only attorneys the judge allowed to talk in court. Both argued the governor’s newest order is still too broad. Dudley Brown, plaintiff and president of the National Association for Gun Rights said this: .
“The simple fact is, as you look at the PHO (Public Health Order), it cannot apply to the areas where the governor is suggesting where kids might play, how could that possibly ever be enforced?”
Plaintiff Attorney Cameron Atkinson, a Connecticut attorney representing We The Patriots USA, Inc., responded to Agajanian by saying this:
“The amended public health order suffers from the same defect as the original public health order. The Defendants have made absolutely no effort to justify it under any of the exceptions to the Second Amendment’s guarantee of a right to public carry that the United States Supreme Court recognized. … Instead, the Defendants continue to restrict the Plaintiffs’ Second Amendment rights to carry firearms in the places where the Plaintiffs need firearms the most to protect themselves and their families. … Governments are going to react when judges tell them that they screwed up, and that’s what Governor Grisham did. We think she still screwed up, and we’re still here to teach her that the constitution actually matters in the state of New Mexico.”
Plaintiff Attorney Atkinson cited the example of his client Albuquerque resident Dennis Smith, who regularly carries a loaded handgun in a holster on his body for self-defense, when he goes to Los Poblanos Open Space. Smith carries the weapon to protect himself from wild coyotes, stray dogs, and potential human attackers, Atkinson contends, and doesn’t want to stop. But the $5,000 penalty for violating the public health order would exceed his financial means.
Dudley Brown, president of the National Association for Gun Rights, said this:
“Do we have to look at crime statistics before you carry a firearm for self-defense with your kids in a public area? Or when your neighbor places a sign in the street that says, ‘Kids at play.’ Is that now a gun-free zone. … This was the most egregious ban ever proposed in modern America.”
At the conclusion of the hearing, Judge Herrera Urias agreed with the Plaintiff’s and issued the TRO. Notwithstanding, Herrera Urias lamented and said this:
“Nobody knows more about rising gun violence than the judges sitting here in this courthouse [presiding over prosecutions involving firearms.] … My hands are tied. I can’t go back and say it’s such a terrible situation that I will allow the governor to go forward.”
Links to quoted news sources are here:
https://www.koat.com/article/new-mexico-governor-gun-ban/45433028
ABQ CITY COUNCIL ENACTS 2 RESOLUTIONS
On October 3, the Albuquerque City Council enacted 2 resolutions in response to Governor Michelle Lujan Grisham’s public health order which prohibits the carrying of both concealed and open carry of firearms in Bernalillo County for 30 days. Both City Council resolutions were sponsored by 4 of the 9 councilors: Conservative Republicans Renée Grout, Brook Bassan, Dan Lewis and Conservative democrat Louis Sanchez.
The first resolution passed on 7-2 vote and asks the governor to convene a special legislative session on crime. It also calls for a legislative focus on funding behavioral health programs, existing warrant enforcement programs and changing the pretrial detention process.
The second resolution asked city councilors to “reaffirm” their commitment to Second Amendment rights and urge the governor to abstain from limiting the rights of gun owners. It passed more narrowly, with the 4 bill cosponsors Conservative Republicans Renée Grout, Brook Bassan, Dan Lewis along with Conservative Republica Councilor Trudy Jones and conservative Democrat voting in favor.
RESOLUTION CALLING FOR SPECIAL SESSION
The first resolution which passed on 7-2 vote asking the governor to convene a special legislative session on crime was not particularly controversial. Notwithstanding, city councilors drafted and debated changes to the language of the bill. Progressive Demcrate Councilor Isaac Benton and Moderate Democrat Klarissa Peña criticized certain language used in the original resolution in regards to mental health and addiction, but after a handful of alterations, both ultimately voted in favor.
Although Moderate Democrat Councilor Peña voted in favor of the first resolution, she raised concerns about seeming to advocate for an increase in prison populations. In the resolution, a declining statewide prison population was cited, with a projected 3% decrease in 2024. In response, Peña said the majority of incarcerated people are jailed for minor infractions, or could be homeless or struggling with addiction. She added that people of color are disproportionately imprisoned for minor offenses. Peña said this:
“Are we saying that the prison population should be full?”
The two city councilors who voted against the resolution calling for the Governor to call a special session were Progressive Democrats Pat Davis and Tammy Fiebelkorn. Progressive Democrat Council President Pat Davis expressed reservations about directing the actions of another body of government. Progressive Democrat Councilor Tammy Fiebelkorn said she would like to see a special session but called the bill “political posturing” for demanding the governor call one. Fiebelkorn said this of Lujan Grisham:
“She has said no. … Instead of antagonizing her … telling her how she should do her job, I think now is really the time to come together.”
NO CHANGE OF MIND
Caroline Sweeney, a spokesperson for Lujan Grisham, said the governor has not changed her mind on the special session in light of the city council resolution. Sweeny said this in a statement:
“The governor has been clear — she does not intend to call a special session. … She is working with legislative leadership to prepare for the upcoming legislative session … the governor welcomes input on legislative changes and policy investments from partners around the state.”
The link to quoted news source are here:
COMMENTARY AND ANALYSIS
It is difficult to understand let alone justify Governor Lujan Grisham’s stubbornness when it comes to both of her Emergency Health Orders banning the carrying of firearms, concealed or openly, in public places. 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 truth is the Governor’s orders have accomplished absolutely 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. The law and public sentiments are not on her side and she needs to accept that reality. Now that the court has ruled, Governor Lujan Grisham should immediately cancel and withdraw her Executive Order as well as the first Emergency Public Health Order and the Amended order. Such action will render moot all 6 lawsuits.
With respect to calling a special session, at this point in time, that should now be considered a real waste of time. The blunt truth, the regular session of the New Mexico legislature is now a mere 3 month away. Rather than issuing executive orders declaring a public health crisis that are clearly unconstitutional and defending them in court, 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 for 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.
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.
- Require a permit to purchase all rifles and handguns. There are 15 other states require a permit to purchase or licensing. The best predictor of future performance is past performance. Firearm licensing has past performance. A John Hopkins University study in a comparative analysis, describes licensing as the most effective firearm policy. Connecticut notes a 28% decrease in homicides, 33% decrease in suicides 10 years post licensing. When you compare states with and without licensing, there is a 56% decrease in mass shootings. Studies reveal a decrease of gun trafficking of more than 60% after licensing. Missouri found similar increases in homicides and suicides when removing their purchase restrictions. Licensing is constitutional it has broad public support. Licensing brings in revenue to the state vs simply cost the state money.
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.