NM's red flag gun law seldom used 2 years after passing

Jun. 5—SANTA FE — New Mexico's red flag gun law was approved in 2020 after a bruising debate that pitted gun control advocates and top state Democrats against Republicans and most county sheriffs statewide.

But two years after its enactment, the law that allows firearms to be temporarily taken away from those deemed dangerous to themselves or others is rarely being used.

In all, nine petitions have been filed statewide for court orders allowing gun seizures, according to data provided by the state Administrative Office of the Courts. And only five of those nine cases resulted in one-year orders being approved.

Rep. Joy Garratt, D-Albuquerque, who was among the sponsors of the 2020 bill, said law enforcement officers need to be better educated on the law, which is technically known as the Extreme Risk Firearm Protection Order Act.

She also said she believes some law enforcement officials have intentionally balked at utilizing the law.

"It's a tool that I think can be used more effectively," Garratt told the Journal.

Specifically, Garratt cited a recent double murder-suicide near Cottonwood Mall in Albuquerque as the type of case in which the state's red flag gun law could have been effective — if it had been utilized.

In that case, police say a 52-year old man shot and killed two teenagers — including the daughter of his ex-girlfriend — just over a month after a restraining order had been granted against him. The restraining order was filed due to threats directed at the teenage girl.

"If law enforcement had been aware of (the law), it could have prevented deaths," Garratt said.

As it currently stands, New Mexico's law stipulates emergency firearm petitions shall be filed by law enforcement when "credible information" is received that an individual poses a danger of causing "imminent personal" injury to themselves or others with a gun.

Meanwhile, at least some other states with red flag gun laws — there are currently 19 in all — have seen more frequent utilization.

In Florida, for instance, where lawmakers passed such a law after a 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, judges have reportedly acted more than 8,000 times to take guns out of the hands of those deemed to pose a threat to themselves or others.

Garen Wintemute, a University of California, Davis, professor who has studied gun violence, said evidence indicates one suicide death is prevented for every 10 to 20 red flag gun law orders issued.

Regarding New Mexico's law, he said it's not a surprise it has not been frequently used.

"Implementation has always been an issue," Wintemute told the Journal. "It's a new policy, and without a local champion, it's likely to sit unused."

Research done by Wintemute and his colleagues found that subjects targeted by California's red flag gun law — the nation's first of its kind — in an attempt to prevent mass shootings were predominately Anglo males with a mean age of 35.

Most of them had made explicit threats and owned multiple firearms.

Responding to threats

The firearm petitions that have been filed in New Mexico over the last two years came in response to threats — and in some cases — acts of violence.

One petition was filed in 2020 after a Farmington landlord told police his tenant had talked about going to Washington, D.C., to protect former President Donald Trump against current President Joe Biden, according to court records.

Another was filed after a Ranchos de Taos woman said her husband had beaten her and her son.

Most recently, an Albuquerque Police Department detective last month filed an emergency firearm petition after a mother reported her son had told her he "killed grandmas" and threatened he was "going to get my people" to get her husband.

The son is a U.S. Air Force veteran who has been diagnosed with bipolar disorder, depression and post-traumatic stress disorder.

He had four guns in his possession, including an AR-15 style assault rifle, and acknowledged thoughts of using one of the guns to commit suicide, according to court records. He also had reportedly told his mother he had started wearing a bowl over his head to keep others from entering his thoughts.

A hearing before a judge on whether the 10-day temporary seizure of the firearms should be extended for one year is scheduled for June 14.

Single case

Under New Mexico's red flag law, only a law enforcement officer or a prosecutor can file a petition in state court for an order to prohibit someone from possessing firearms.

The petitions can be filed upon request from a spouse, ex-spouse, parent, child, grandparent, school administrator or employer, though those individuals can not file petitions directly.

If a temporary 10-day order is granted, a hearing is then held to determine whether the order should be made permanent for one year's time. Such permanent orders can then be extended for an additional year if a motion is filed before it expires.

Of the nine petitions that have been filed around New Mexico since 2020, one was denied by a judge, two were dismissed by the filing party and five one-year orders were issued, according to data provided by the Administrative Office of the Courts.

The remaining case involving the veteran in Bernalillo County is still pending.

While that case marks the first time the law has been invoked in the state's largest city, Albuquerque Police Department spokesman Gilbert Gallegos said the agency will discuss ways to possibly strengthen the red flag gun law this summer as part of Mayor Tim Keller's Metro Crime Initiative.

Adjustments to the law

With New Mexico's red flag gun law only being used infrequently, potential changes to it have been floated.

Maddy Hayden, a spokeswoman for Gov. Michelle Lujan Grisham, said an amendment to the law allowing spouses and partners to file petitions directly with the court — instead of going through law enforcement — could be an option to increase usage.

A bill that would have expanded the type of situations in which emergency firearm petitions could be filed — and the category of people who could file them — was introduced in 2021 but failed to win legislative approval.

Meanwhile, Hayden also pointed out there is not a ready mechanism for situations in which a law enforcement officer is unwilling to file an emergency firearm petition.

But she also pointed out firearms may also be confiscated from individuals under other laws, and said one of the red flag gun law's chief goals was to create a way to remove firearms from those suffering from mental illness.

"This law has already resulted in firearms being removed from individuals who may have gone on to commit violence," Hayden told the Journal. "This is the intent of the law, and if this law has saved even one life, we are glad it is on New Mexico's books."

Ever since the bill was first proposed in New Mexico, however, some sheriffs have vowed they would not use it, due in part to concerns over constitutional due process issues.

"They've made this bill so horrible that we can't (enforce it)," Cibola County Sheriff Tony Mace said in 2020. "Somebody hasn't even committed a crime, and you're taking their personal property."

But Rep. Daymon Ely, D-Corrales, who was also a sponsor of the 2020 legislation, said a recent spate of mass shootings suggests more needs to be done to address gun violence.

"In my mind, it's a good start but it's too cumbersome," Ely said of the state's red flag gun law. "We just need to make it so it's not so complicated."