2024 NM LEGISLATIVE UPDATE ON GUN CONTROL: 14 Waiting Day Period For Gun Sales Passes 2 Committees; Rebuttable Presumption Killed In Committee; No Guns At Polling Places Passes Senate

Notwithstanding that the 2024 legislative session being a 30 short budgetary session, Governor Michelle Lujan Grisham has announced her support of 21 measures she wants lawmakers to consider during the session to address public safety. The bills include raising the age to purchase a gun, regulating assault weapons, and increasing penalties for a range of crimes.  The governor is also asking lawmakers to discuss a handful of crime-related bills backed by both Democratic lawmakers as well as Republicans.

There are a number of gun control measures and crime measures that are now making their way towards passage by the 2024 New Mexico Legislature while others are being killed in committee. This blog article reports on 6 specific measures.

SENATE BILL  5  (BANNING FIREARMS NEAR POLLING PLACES)

On January 30, the New Mexico State Senate passed Senate Bill 5 on a 26-16 vote that will ban most firearms near polling places. It prohibits firearms within 100 feet of polling stations. An exception was created to allow voters to leave their guns in the car while casting a ballot. Postal boxes were removed from the 100-foot radius. People walking past, but not voting at, a polling place in the mall won’t be included. Off-duty law enforcement officers would still be allowed to carry their firearms. Violators would be charged with a petty misdemeanor and could face up to 6 months in jail and/or a maximum $500 fine.

Sen. Peter Wirth, D-Santa Fe, said he sponsored the bill after several poll workers in his district shared accounts of intimidation when people brought guns to their polling places. Wirth said this in a statement:

“Schools that act as polling places already have protections in place. … This bill simply levels the playing field and ensures that voters and our valued poll workers can feel safe and free from the threat of gun violence or intimidation at any polling location. Guns and voting simply don’t mix.”

https://www.abqjournal.com/news/local/senate-endorses-firearms-ban-at-new-mexico-polling-places/article_3afb692a-357a-569c-b50d-2f0dc254bbab.html

https://www.kob.com/new-mexico/bill-to-ban-guns-at-polling-places-in-new-mexico-passes-senate-committee/

Senate approves bill banning firearms near polling places

SENATE BILL 69 (14 DAY WAITING PERIOD TO PURCHASE GUNS)

On January 28, Senate Bill 69, which is the 14 day waiting period before a gun sale becomes final, passed the House Consumer and Public Affairs Committee on a 4 to 2 vote as well as the Senate Health and Public Affairs Committee on a 5 to 4 vote. Senate Judiciary Committee Chairman Joe Cervantes is sponsoring the measure along with Democratic  state Rep. Andrea Romero carrying the House version.  In the House,  conservative Democrat Rep. Patty Lundstrom was unable to stop the bill.  Supporters of the bill argue the longer waiting period will  save lives taken by impulsive acts of suicide and domestic and other violence.  Opponents argued  it will  simply thwart legal gun owners while the illegal purchase of guns continue.

The Senate Bill 69 version carves out an exception to the 14-day waiting period for people who already have their concealed-carry license, which some commenters speaking in opposition still applauded. Bill sponsor Sen. Joseph Cervantes, D-Las Cruces, and a gun owner, said the 14-day period is based on other states that have adopted waiting periods that have not been challenged in court. Hawaii also has enacted a 14-day waiting period.

Cervantes said the measure would close a federal loophole that, regardless if a background check has been returned, allows someone to receive a gun after three days by “default.” Cervantes said this:

“We think that there’s a background check being run. … But the default is that if they’re behind, or they’re slow … the presumption is, you get a gun.”

Senate Republican Gregg Schmedes, R-Tijeras,  questioned whether the measure is constitutional because of a 2022 Supreme Court opinion from Justice Clarence Thomas asking that firearm regulations follow the “historical tradition” of restrictions in the United States. Schmedes ask:

“Naturally, my question … is, is a 14-day waiting period consistent with our historical tradition of firearm regulation?”

Cervantes responded by saying he anticipated the court would reverse that decision.

Supporters of Senate Bill 69 argued it could save lives by providing a “cool-off” period for people experiencing suicide ideation. Sen. Martin Hickey, D-Albuquerque, said people struggling with addiction or mental illness sometimes experience “flares” of instability or high emotion. Hickey said this:

“I am very afraid that without a law like this we are going to continue to see the deaths of people who really don’t mean it.”

HOUSE BILL 114 (FIREARMS INDUSTRY ACCOUNTABILITY ACT)

On Friday, January 26, House Bill 114, called the Firearms Industry Accountability Act would make members of the firearms industry subject to civil penalties in certain cases received a do-pass recommendation in the House Judicial Committee by a 7-4 vote.  The bill would allow the New Mexico Attorney General’s Office and district attorneys to bring civil actions against people involved in the sale, manufacturing and marketing of firearms.

The bill also would allow private individuals to file civil lawsuits “to recover actual or punitive damages against a firearm industry member” who fails “to exercise reasonable controls” over the sale and manufacture of firearms.

Bill sponsor Christine Chandler, D-Los Alamos, told committee members  that one intent of the bill is to provide civil remedies for people harmed by straw-buyers — purchases by a person on behalf of someone prohibited from legally owning a firearm.

The practice of straw-purchases already is illegal under criminal law in New Mexico.

https://www.abqjournal.com/news/senate-version-of-14-day-waiting-period-advances/article_51bd6a54-bcad-11ee-b248-7f84be11c896.html

HOUSE BILL 129 (PENALTIES FOR FAILURE TO ADHERE TO 14 DAY WAITING PERIOD)

On January 29, the House Judiciary Committee approved a House Bill 129  that sets penalties for those who fail to adhere to a 14-calendar-day waiting period to purchase a firearm with a party-line vote. The committee approved HB 129 on a 6-to-4 vote with Democrats voting in favor and Republicans voting NO.

The bill was updated to state that the waiting period is 14 calendar days instead of business days.

Many representatives as well as public commenters criticized the waiting period as “not a cooling off period.” Rep. Andrea Reeb, R-Clovis  said this: .

“I guess I’m trying to see how that correlates with what you think it will do for somebody who wants to commit a shooting, for example, as you all know, I prosecuted the library shooter and he got the guns from his parents saying that were locked up and he knew the combination and he went and just do, so you know, not really see how that would have prevented that situation from a mass shooting that occurred, you know, in New Mexico, so I’m trying to see why leaving the cooling off period would affect that. ”

The bill’s supporters presented data showing that some of the most recent mass shootings were with new firearms purchased within 14 days of the event including a shooting in Farmington in which the shooter bought one of the guns used on the shooting shortly after his 18th birthday in October 2022 along with  guns legally owned by a relative before the shooting last May.

Three other issues opponents argued was that the bill “discriminates against rural communities” due to gun purchases having to drive long distances to get the gun purchasing process started.  They claim the waiting period endangers domestic violence survivors who might want a firearm to protect themselves from their abuser and claimed the bill contained some Second Amendment constitutional issues.

House Bill 129 now goes to the full House floor for a vote.

https://nmpoliticalreport.com/nmleg/house-judiciary-advances-14-day-firearm-waiting-period/#:~:text=The%20House%20Judiciary%20Committee%20approved,in%20favor%20and%20Republicans%20opposed.

HOUSE BILL 137  (ASSAULT WEAPONS BAN BIILL)

House Bill 137 is the Assault Weapons ban bill. It would ban gas-operated semi-automatic guns. It would also prohibit detachable magazines that hold more than 10 bullets, bump stocks, and other “machine gun” attachments which are designed to increase the rate of fire. It mimics a bill U.S. Sen. Martin Hein introduced in the Senate known as the GOSAFE Act. There are exceptions in the bill for government agencies, as well as Native American tribes and pueblos.  

The New Mexico Department of Justice and the Administrative Office of the Courts warned the bill may result in lawsuits against the State of New Mexico. The estimated cost of defending against legal challenges is $450,000 and an additional $5,500 per event to provide security to court personnel. Analysts also noted the bill is expected to result in more people ending up in prison, raising the costs of housing inmates.  

On January 25 the bill passed the House Consumer and Public Affairs Committee on a party-line vote. It was sent to the House Judiciary Committee.  

https://www.kob.com/tracker4/

SENATE BILL 122  (REBUTABLE PRESUMPTION)

On Monday, January 29, the Senate Health and Public Affairs Committee voted on a 5-4 vote to  table Senate Bill 122 know as the Reputable Presumption Bill.  The Reputable Presumption Bill provides that a criminal defendant who is charged with specified serious violent crimes, such as murder, is presumed to be a danger to the community and upon arrest must remain in jail until trial with no exceptions.

The aim of rebuttable presumption” is to make it easier for more defendants to be held in custody before they’ve been convicted and to keep them from committing new crimes. Proponents of rebuttable presumption say it will reduce violent crime.  Opponents of rebuttable presumption say courts can already keep a defendant behind bars and that reputable presumption shifts the burden of proof to defendants and violates the basic constitutional right of presumption of innocence until proven guilty.

Under the United State Constitution and the New Mexico Constitution, a person is presumed innocent until proven guilty and has the right to post bond  to be released until trial. Under existing New Mexico law, whenever prosecutors ask a judge to hold someone accused of a crime in jail until trial, they must prove that no release conditions will reasonably protect the safety of another person or the community.  The prosecution is required to prove “by clear and convincing evidence that (1) the defendant poses a future threat to others or the community, and (2) no conditions of release will reasonably protect the safety of another person or the community.”  Rebuttable presumption shifts the burden of proof from the state to the accused to show they are not a danger and should be released pending trial

The defeat of Senate Bill 122 came as no surprise. This is the third time that Rebuttable Presumption has failed to make it out of committee. Simply put, rebuttable presumption is unconstitutional.  The New Mexico Constitution is very clear that the prosecution bears the  burden of proof. The use of a rebuttable presumption and relying on different burden of proof and evidence by the prosecution to meet that burden is directly contrary to that constitutional provision. The New Mexico Supreme Court has also repeatedly made it clear the prosecutors burden of proof has two requirements: the accused person is dangerous, and no conditions of release will reasonably protect the community from them.

https://sourcenm.com/2023/01/31/some-lawmakers-unconvinced-rebuttable-presumptions-bill-would-make-it-through-the-courts/

Governor Lujan Grisham took strong exception to Reputable Presumption once again failing to pass and she  took note of the failure which was made possible by opposition from her own party. The Governor said this:

 I am dismayed that our Legislature has once again refused to undertake an honest, robust debate on the state of our pretrial release system. Crime is out of control and something needs to change. We have invested hundreds of millions of dollars in behavioral health services, education, economic opportunity – critical components that ensure every New Mexican gets a fair shake. However, I will not stand by as repeat violent offenders walk in and out of our courthouses without consequence. A rebuttable presumption is not an extreme policy, and ours is modeled after federal law that has been in place for decades. It is time for the Legislature and the public to stand up and give this proposal the robust debate that New Mexicans agree it deserves.

COMMENTARY AND ANALYSIS

Simply put, when it comes to  all the gun control legislation Governor Michelle Lujan Grisham is supporting in the 30-day legislative session not much if any will actually be enacted. Much of it is either dead on arrival or will not make it through committee mainly because it’s a 30-day session and there is simply not enough time to give all 21 measures a fair hearing.  That is why the Governor should again consider calling a special session to deal with gun control measures immediately after the 2024 session to address all the proposed gun control legislation.

Until 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.

If Governor Lujan Grisham is really serious about the State’s crime crisis and wants  to do something about it, she should be calling for the New Mexico Legislature to  enact an “Omnibus Gun Control And Violent Crime Sentencing Act” and do so during a special session of the legislature immediately following the 2024 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.  The only way to do that is with responsible gun control measures to reduce the availability of guns and to enhance criminal sentencings.

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About

Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.