On Friday, September 15, Governor Michelle Lujan Grisham announced an Amended Emergency Public Health 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:
On October 3, U.S. District Court Judge David Herrera Urias held a hearing on the Governors Amended Public Health Emergency Order banning firearms only in “public parks and playgrounds” where children and their families gather. Holly Agajanian, Chief General Counsel for Lujan Grisham, said during the October 3 hearing on the preliminary injunction request that New Mexico State Police would be able to enforce the ban if it were upheld. Violators would be subject to civil penalties.
On October 11, Judge Urias issued a 23 page order that refused to halt state enforcement of temporary firearms restrictions at Albuquerque-area parks and playgrounds. He ruled against gun rights associations and gun owners who sought a preliminary injunction against the firearm ban. The second order is set to expire November 3. Urias left the door open for a future ruling that would consider more in-depth evidence and argument from both sides.
Gun rights groups have claimed that restrictions imposed in a series of state emergency public health orders run afoul of the Second Amendment and are unfair to gun owners who want or need to protect themselves. After Urias temporarily blocked the initial, blanket restriction on the carrying of firearms in Bernalillo County contained in the Governors initial Emergency Health Order, the state narrowed the focus.
In the second 30-day Amended Emergency Public Health Order unveiled on September 15, the restrictions were altered to avoid the legal deficiencies of the first Order focusing only on parks and playgrounds. The governor’s second order cleared up what the gun rights groups argued was “vagueness” in defining where the restrictions applied. The governor has based both of her controversial public health orders in part on the harm of guns to children.
Firearms and other deadly weapons are prohibited in Albuquerque parks and recreation facilities under an administration order issued in 2020 by Albuquerque Mayor Tim Keller’s office. The rule excludes law enforcement officials and applies to any city property used for public school-related activities, including Civic Plaza. There are 14 parks currently affected by thar order. It too which being challenged in state District Court by gun advocates. A trial is set in that case for 2024.
Adhering with the latest U.S. Supreme Court ruling, Urias considered the national historical tradition of firearms restrictions and whether the gun rights groups have proved a “substantial likelihood of success on the merits regarding their challenge to the temporary restriction.” In his 23-page order, Judge Urias concluded that the groups failed to show the substantial likelihood required for him to impose the “extraordinary” relief of issuing a preliminary injunction to stop the governor’s firearms restrictions from being enforced. Urias wrote that whether the state of New Mexico can justify its temporary firearms restrictions as constitutional as the legal case progresses in his court “remains to be seen.”
Lujan Grisham reacted to the court’s ruling in a news release saying she was pleased. The Governor said this:
“While the public health order is temporary, the ruling shows that there is still a viable legal path for common-sense gun violence prevention measures in this country.”
REACTION BY SECOND AMENDMENT ADVOCATES
We The Patriots USA is one of the Plaintiff’s that filed suite against the Governor’s Executibve orders. Attorney Brian Festa, We The Patriots USA co-founder and vice-president said this about the ruling:
“We are deeply disappointed by Judge Urias’s decision today. Governor Michelle Lujan Grisham’s executive order is a gross abuse of her authority, and a violation of her oath to uphold and defend the U.S. and New Mexico Constitutions. Instead of protecting the fine citizens of New Mexico, she has taken action that seriously jeopardizes public safety in a city that has one of the highest crime rates in the nation. We plan to swiftly appeal the court’s decision to the U.S. Court of Appeals for the Tenth Circuit.”
LAW ENFORCMENT REACTION TO ORDER
The court’s ruling means law enforcement agencies will be able to enforce that part of the governor’s order banning firearms only in “public parks and playgrounds” where children and their families gather. But that is easier said than done.
When the Governor’s Orders were first issued in September, both the Albuquerque Police Department and the Bernalillo County Sherriff’s Office said they would not enforce the orders.
APD Police Chief Harold Medina issued the following statement in reaction to the court’s recent ruling:
“Mayor Keller and I have worked to keep guns out of city parks and near schools in Downtown Albuquerque for the same reason guns are not allowed on school property. These should be safe spaces. Families should not be afraid to go to parks or take their kids to playgrounds. … APD will investigate all criminal offenses involving a firearm. When officers encounter individuals who violate the state’s emergency order and possession is the only violation, they will forward those cases to the New Mexico State Police.”
When the gun ban was initially issued in September, Bernalillo County Sherriff John Allen said it was unconstitutional and he said that his officers would not enforce it. Sherriff Allen said this at the time:
“I have enough violence here in Bernalillo County. I do not want to have political violence towards my deputies or here in Bernalillo County. … In reference to concealed carry and open carry, the Bernalillo County Sheriff’s office will not enforce this segment of the order.”
After the Court’s recent ruling, Sheriff Allen said this:
“I stand firm on what I said…getting repeat violent offenders with firearms off the street. That’s what we’re focused on.”
A spokesperson for the Bernalillo County Sheriff’s Office issued the following statement:
“The Sheriff’s Office will not enforce the public health order related to concealed and open carry in parks. Though we acknowledge the order’s intent, our attention is on the pressing violent crime issues in our community. We are prioritizing impactful initiatives, such as Operation Clean Sweep, that have a track record of reducing crime. Our dedication lies in strategic efforts and partnerships that genuinely address the gun violence crisis and improve quality of life.”
The New Mexico State Police did not explicitly say they would be giving people tickets for carrying guns in “public parks and playgrounds”. New Mexico State Police Chief Troy Weisler issued the following statement:
“The New Mexico State Police have been working hard in the Metro area, making a meaningful impact on crime. This ruling provides law enforcement with additional enforcement options when applicable. Gun violence continues to disrupt lives every day and State Police will continue to protect the public by focusing our efforts on the offenders perpetrating that violence.”
Links to quoted news sources:
ORIGINAL EMERGENCY HEALTH ORDER
It was 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:
OTHER PROVISIONS OF PUBLIC HEALTH ORDER
In addition to the banning of the carrying of firearms, the original Health Order has the following provisions:
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,
The New Mexico State Police has added officers in Albuquerque with funding for overtime provided.
The Children, Youth and Families Department immediately suspended 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.
ALL HELL BREAKS LOOSE
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 Attorney 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.
FIRST HEARING RESULTS IN INJUNTION
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 carry 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. Judge Herrera Urias did not rule on the constitutionality of the remaining provisions of the order.
GOVERNOR RENEWS PUBLIC HEALTH ORDER
On Friday, October 6, Governor Michelle Lujan Grisham renewed the Public Health Order aimed at combating gun violence and added some new provisions. The renewed order will remain in effect until November 3.
Those new provisions include the state will organizing gun buy-backs in Albuquerque, Española and Las Cruces.
Another new provision is to provide treatment to those seeking help battling addictions. The state’s health care system is ordered to ensure that those who request help with substance abuse receive “permanent, adequate treatment placement within 24 hours of the request.”
The expanded order also says the state’s Human Services Department will send letters requiring health care providers to “provide their plans to achieve continual behavioral health network adequacy.”
The renewal comes a little over a month after governor Governor Lujan Grisham declared gun violence a public health emergency following the high-profile shooting death of an 11-year-old boy, and initially enforced a short-lived ban on publicly carrying firearms in Bernalillo County.
Lujan Grisham said this in a statement:
“The fact of the matter is that New Mexicans are still being threatened, injured and killed by firearms. Just yesterday, two guns were found in the possession of students at an Albuquerque high school, and while thankfully no one was hurt, these incidents have profound psychological effects on our children. … The last four weeks have clearly demonstrated the impact we can have on violent crime when we work in better coordination, but the situation remains dire. We’re not letting up, and I’m continuing to make investments that drive down violence in our communities and protect our children.
During the press conference, the Governor said this:
“We want to demonstrate, and can today, that collected efforts and targeted resources can really make a difference in making an impact,” “We’re looking for sustainable long-term impacts that will stay the course so our communities are safer. … And we’re gonna keep at it until there’s not a single person in New Mexico who doesn’t feel like we’re turning the corner.”
The gun ban was clearly the most controversial part of the original September 8 Emergency Health Care Order. The 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. Specifically, no firearms are to be allowed on state property, including state buildings and schools. This also includes other places of education where children gather, such as parks. The order quickly resulted in condemnation by conservative Republicans and gun rights advocates. Several lawsuits, including from the National Rifle Association were filed and a federal judge blocked the ban in less than a week.
Lujan Grisham amended that portion of the order to only ban carrying guns in public parks and playgrounds across Bernalillo County, something the city of Albuquerque had already sought to do and which has been challenged in court. That too was challenged in court and the injunction was expanded.
The order also says the state’s Human Services Department will send letters requiring health care providers to “provide their plans to achieve continual behavioral health network adequacy.”
When asked how the Governor’s Office would achieve the new measures related to substance abuse in a state historically stretched thin in behavioral health care, spokeswoman Maddy Hayden said this:
“(The Public Health Department has) implemented new data and monitoring requirements to increase accountability to ensure that Managed Care Organizations are in compliance. … “Data collection is ongoing and we are working with the MCOs to make sure they are providing timely care.”
The extended order includes the several initial measures, including testing wastewater at schools for drugs like fentanyl, monthly inspections of licensed gun dealers for violations, allowing police to book juveniles into jail without social services’ permission and sending New Mexico State Police officers to help local authorities fight crime in Albuquerque and Bernalillo County.
While deputies and officers have arrested hundreds of people following the order, it is unclear what effect that has had on gun violence and where the other initiatives, such as testing school wastewater, stand.
The Governor Spokeswoman Maddy Hayden also address what is being done to combating gun violence. Hayden told the Albuquerque Journal the Governor’s Office is working to gather current data on shootings to assess changes since the order was enacted. She said this:
“In the meantime, I can tell you that there has been an unprecedented coordinated effort among state and local partners to take action against violent offenders in Albuquerque.”
Hayden said they have not yet collected data to share on the testing of school wastewater for drugs.
State Health Secretary Patrick Allen said this in a statement
“Gun violence is a leading cause of death among young people in New Mexico. That should horrify all of us. … It’s vital that we all work to nurture a culture of responsible firearm ownership and safety. …By supplying free trigger locks and orchestrating safe surrender events, we join forces with our communities, courageously tackling the menace of gun violence to ensure the safety and well-being of every New Mexican.”
Links to quoted news sources are here:
GOV. MLG GIVES UPDATE
On October 10, Governor Lujan Grisham, along with members of her administration held a press conference and gave an update on the public safety initiatives under her Executive or and the Emergency Public Health Order. During the news conference, the governor’s Cabinet members individually touted what they saw as the health order’s successes in tackling gun violence. Those successes included the following:
- The arrest of 502 people in less than 20 days with at least a hundred on misdemeanors. There has been an increase in the number of average daily bookings at the Albuquerque Metropolitan Detention Center since the order. Recent arrests led to an 11% increase in the jail population at the Metropolitan Detention Center.
- 20 seized guns in a city that saw more than 5,000 guns stolen and not recovered since 2018.
- 38 fewer gunshots across three days in the Albuquerque area. Last year the city saw an average of 100 bullets fired daily.
- Statewide juvenile detention population has gone up 16% since Sept. 20 as part of the order. 32 juveniles are now behind bars and 13 of those arrests required an override where a risk assessment tool suggested releasing them until trial. Four of the 13 had a gun on school property, one was detained for assault on a school employee, and 3 were in possession of a stolen vehicle and fleeing officers.
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 by including banning the carrying of firearms, concealed or openly, in public places when she is an attorney, she should know better and understand the constitutional problems. 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.
A simple Executive Order containing all the other provisions of the two orders, absent the gun ban, with a law enforcement surge sustained indefinitely, would have accomplished just as much if not more with no backlash. The truth is the Governor’s gun ban order accomplished very little other than ginning up the Republicans and Second Amendment Rights advocates that in turn will contribute nothing to the discussion of real solutions to the state’s gun violence and high violent crime rates.
If Governor Lujan Grisham is indeed sincere about the State’s crime crisis and wants tangible results, she should call for the enactment of an “Omnibus Gun Control And Violent Crime Sentencing Act” during the upcoming 2024 legislative session or call for a special session. 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 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.
Links to related blog articles are here:
Federal Judge Issues Temporarily Restraining Order Blocking Enforcement Of Two Provisions of Gov. MLG’s Ban On Carrying Guns In Public; TRO Includes Provision On Possession Of Firearms On State Property, Public Schools, And Public Parks; More State Police To City; Gov. Should Rescind Orders And Seek Omnibus Gun Control And Violent Crimes Sentencing Act
Gov. MLG Declares Gun Violence Public Health Emergency; Public Health Care Order Issued Suspending Open and Concealed Gun Carry Laws; Lawsuit Filed Claiming Orders Violate Second Amendment Rights; Governor’s Actions ILL Advised And She Should Retract Orders; Enact “Omnibus Gun Control And Violent Crime Sentencing Act”