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 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.
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
On October 11, Judge Urias issued a 23 page order and he refused to halt state enforcement of temporary firearms restrictions at Albuquerque-area parks and playgrounds thereby upholding the Governors Amended Order for the time being. 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.
GOV. MLG AND CABINET GIVE UPDATE ON PUBLIC HEALTH ORDERS
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 Orders. 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.
- 20 seized guns in a city that saw more than 5,000 guns stolen and not recovered since 2018; and
- 38 fewer gunshots across three days in the Albuquerque area. Last year the city saw an average of 100 bullets fired daily.
Governor Lujan Grisham began the conference by emphasizing that the gun violence issue is not confined to just Albuquerque but is a larger issue. “We have far too many firearms in our community. We have far too many risks,” said the governor.
Senior Public Safety Advisor Ben Baker spoke at the conference. He started with a presentation of statistics. He reported since the order was implemented, there have been 502 people arrested, 20 firearms seized, and 1,370 traffic citations issued by the New Mexico State Police (NMSP), the Albuquerque Police Department (APD), and the Bernalillo County Sheriff’s Office (BCSO). Baker also cited a reduction in the number of gunshots detected before and after the ban.
Public Safety Advisor and former New Mexico State Police Director Pete Kassetas spoke on his role of advising the governor on how to best combat the actions of criminals. He mentioned the importance of speeding up the entire process of booking and prosecuting criminals. The governor chimed in, saying, “At the end of the day, if you can’t book people, we can’t arrest people. If we don’t arrest people, they continue to commit crimes, and it sends a pretty strong message.”
State Corrections Secretary Alisha Tafoya Lucero said that 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. The jail is notoriously stretched thin by staff vacancies and has been the site of more than two dozen inmate deaths since 2020, many of them while detoxing from drugs and alcohol. To help lighten the load on MDC, Tafoya Lucero said 48 of MDC’s “most staff-intensive, violent, dangerous, inmates” will be transferred to a state prison but did not specify details of when or where the transfer would happen. The current MDC population is 1,647 people or 84% full with the staffing vacancy of 38%.
Acting secretary with the New Mexico Children Youth and Families Department Teresa Casados said the statewide juvenile detention population has gone up 16%, or about 15 people, since Sept. 20 as part of the order. She said they’ve put 32 juveniles 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 three were in possession of a stolen vehicle and fleeing officers. She said six of the juveniles have since been released by a judge.
Department of Health Cabinet Secretary Patrick Allen stated that the amount of firearm injuries in kids 17 and younger has gone up 73% in the last four years, making it the leading cause of death in that age group. He emphasized the importance of preventing these issues early on and of stopping the “cycle of violence from person to person.”
Secretary of the Human Services Department Kari Armijo said they are taking “a more proactive approach” to get people treatment, enhance access to health care and wraparound services like housing and transportation. She said the department is dedicated to ensuring that people who need access to drug and alcohol treatment get help within 24 hours. Armijo said it has used data to identify and offer help to thousands of people on Medicaid who had an emergency visit related to substance or alcohol abuse. Out of 10,984 Medicaid members, 66% are receiving treatment or are engaged with a treatment plan, she said. Armijo said they have increased peer support workers in emergency rooms, are tracking treatment plans as they go forward and establishing a helpline for those who need treatment but haven’t gotten it yet. She said the department is also working with prisons and jails to ensure access to treatment for those being released and is working with schools to get alerts on students experiencing drug and alcohol abuse.
Environment Department Secretary James Kenneysaid wastewater testing for fentanyl in the Bernallilo County, Albuquerque and Rio Rancho school systems would begin testing next week with results expected within two weeks from then. Kenney said, much like how they tested wastewater for COVID, they will pop a manhole and have a robot collect samples every hour for eight to 24 hours. He said those samples are then sent to a lab. Kenney explained that New Mexico is the first state in the U.S. to set up routine surveillance of waste-water opioid sampling. The data will help the state identify where opioids are most abused and will give them information as to how and where the issue needs to be addressed.
Secretary Jason Bowie with the Department of Public Safety then spoke on the safe surrender program. Bowie emphasized that the gun buyback program hopes to reduce the access that kids have to guns by removing some of them from the community.
OTHERS REACT TO UPDATE
Others reacted to the Governor’s update.
Attorney Kate Loewe, who represents incarcerated people in MDC’s reforms settlement, said she is concerned for both those detained and those staffing the detention center. Loewe said this
“The jail is an already overburdened and understaffed facility. I cannot imagine how the county would be able to provide adequate medical care and security for such a large influx. … If we look at the deaths over the past year, the majority of people died just a few days into their incarceration. This is a particularly vulnerable time and I can only hope that the county and [the University of New Mexico Health systems] are prepared to provide adequate medical care and monitoring for so many people.”
Loewe said with so many resources going toward arrests, there needs to be “commensurate and adequate” resources for the community, like supportive housing, substance use treatment and funding for the public defender.
Chief Public Defender Ben Baur said this:
“Incarcerating children should not be a goal in and of itself. How does this actually improve public safety? Because without counseling, drug treatment, education, and a meaningful intervention, just holding a kid in a cell isn’t going to solve these problems.”
https://www.krqe.com/news/new-mexico/new-mexico-governor-gives-update-on-public-safety-initiatives/
https://www.koat.com/article/public-health-order-progress/45501584
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 that include 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.
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.” 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.
The link to a related blog article is here: