By Etta Pettijohn
Legislation restricting the ownership, sale and handling of firearms cleared one committee in the opening weeks of the 54th session.
Voting along party lines, the House Consumer and Public Affairs Committee advanced several such measures on Thursday after only an hours-long hearing.
Several bills vetoed or declared dead in committee last year are expected to sail through to adoption with a solid majority in both houses and a democrat governor to sign them into law.
Gov. Michelle Lujan Grisham has said she supports a legislative package to expand background checks to all gun purchases; and the adoption of “extreme risk protection orders (ERPO),” which allows family members, spouses, former spouses, stepchildren, and a host of others, to seek temporary court orders to confiscate firearms from someone they contend could hurt themselves or others.
Those with an interest in such legislation should contact their representatives in state government to offer opinions.
Here is a look at the bills introduced to this point. Lawmakers have until mid-February to introduce legislation, so there could be additional firearms laws filed in coming weeks:
HB 83 -- EXTREME RISK PROTECTION ORDERS
Representative Daymon Ely - (D-23) introduced the measure, also known as a “red flag laws” in 2018, but it stalled in committee. He has reintroduced it this session.
The bill authorizes the seizure of firearms and ammunition from individuals based on an accusation by those listed above that the accused poses a danger to him or herself or others. Those listed in the legislation that can petition for the seizures include: “spouse, parent-in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, a person who has a child in common with another person -- regardless of whether they have been married or lived together at any time -- or a person with whom the petitioner has been in a dating or intimate relationship.”
If adopted, petitioners can request an ex parte proceeding to determine whether the accused presents a danger to himself or others. Once the determination is made, the accused must surrender his or her firearms to law enforcement officials and is prohibited from buying, selling, or possessing firearms for a certain amount of time.
Thirteen states have adopted ERPO laws, and several others are considering such measures.
Opponents of the measure say it violates the Second, Fourth and Fifth amendments to the Constitution by allowing confiscation of property without being charged with a crime, or with representation in a court of law. The Second Amendment restricts the government from infringing on citizens’ right to keep and bear arms. The Fourth Amendment restricts the power of the police to seize and search people, their property, and their homes. The Fifth Amendment prohibits citizens from being deprived of life, liberty, or property, without due process of law.
“I am more confident than ever that this will help protect our citizens from violence and protect gun owners from government overreach,” said Ely. “It saves people both in terms of harming others and overwhelmingly in harming themselves.”
An ERPO protection order expires 10 days after issuance, and during those 10 days the court will conduct a hearing to determine if a one-year ERPO shall be issued.
HB 38, in its current form, lists criteria for determining whether to issue a one-year ERPO extension as: an act or threat of violence against one's self or another, whether or not involving a firearm; unlawful, reckless or negligent use, display, storage, possession or brandishing of a firearm; violation of an order of protection issued pursuant to the Family Violence Protection Act, a civil harassment restraining order or a similar law in another state; misuse of controlled substances or alcohol, or any arrest for a criminal offense that involves controlled substances or alcohol; and the recent acquisition of a firearm, ammunition or other deadly weapon.
Since Maryland passed the Red-flag law in 2018 there have been more than 302 requests to take guns from a person in “crisis.” Just under half of those individuals were ordered to turn over their guns and barred from possessing or buying a gun for a year.
Last November Anne Arundel County, Md police shot and killed a 61-year-old man while trying to confiscate his guns.
Just two months after Florida passed a red flag law in the wake of the Parkland School shooting, Broward County Sheriff’s Department bailiff Frank Joseph Pinter was accused of threatening a colleague that allegedly included the statement, “all you rats should be exterminated.”
Earlier, The Orlando Sun-Sentinel reported, Pinter was spotted at a courthouse atrium pretending to shoot at people below him. Another bailiff accused Pinter of saying to him, “I’m going to exterminate you.”
The Sheriff’s Department sought what is known as a “risk protection order” under Florida’s new law. After a judge determined that “there is reasonable cause to believe the respondent poses a significant danger of causing personal injury to himself or others in the near future” his guns, including his concealed carry permit, were confiscated. According to his attorney, that afternoon, deputies took all of Pinter’s guns, ammunition, and even his concealed carry permit. According to news reports, Pinter was unaware there had been a judgement against him until his guns were being confiscated.
Kendra Parris, an Orlando lawyer who has been critical of the law (https://www.abcactionnews.com/news/local-news/i-team-investigates/more-than-450-people-in-florida-ordered-to-surrender-guns-months-after-new-gun-law-took-effect), said that Pinter not being allowed to defend himself against these allegations presents a clear violation of Pinter’s Fifth Amendment right to protection against deprivation “of…property, without due process of law.
“When the only standard for seizure of property is a vague determination of risk to self or others based on evidence presented only by those who are seeking to seize property, what chance does the individual possibly have of keeping said property,” she said.
Parris said the risk doesn’t have to be “concrete, likely, or imminent, and can even be issued based on what someone thinks the accused is thinking. She offered as an example a case where the Orlando Police Department sought an ERPO for a young man who had praised online the Parkland High School shooter. The young man suggested he could be a school shooter in the future. However, he had no criminal record, record of interaction with the police, or history of mental health problems. Police found no evidence of an actual threat on any of his electronic devices, and he had never even owned a gun.
She also describes, on her website, a case involving a minor, who she said, had a dream of killing. She said neither of these individuals had guns, and both won their cases against law enforcement who filed the petition which would have prevented them from possessing a gun for at least one year.
“The people whom I’ve represented fought back because they care about their future not because they cared about owning firearms,” she told us. She thinks the law needs to be revised to only people with proof of gun ownership or those with histories of attempting to purchase one; and that the apparent threats posed in these cases needs to be better defined to include an "imminent" threat.
“As it’s written now the harm can be in six months or maybe in a year this person will go crazy.”
SB/HB 8 Firearm Sale Background Check
Introduced last year by Senators Richard C. Martinez - (D-5) and Peter Wirth - (D-25); and in the House by Debra M. Sariñana (D-21), Patricia Roybal Caballero (D-13), Joy Garratt (D-29), and Natalie Figueroa (D-30), it cleared the Consumer and Public Affairs Committee last week. If adopted, it would place a universal ban on all private firearms sales between law-abiding individuals and impose fees for approval.
Sheriffs from across the state attended the hearing and argued it would be impossible to enforce the law as written, and that it would do nothing to keep criminals from buying guns.
“This is a ‘feel good’ piece of legislation that provides no means of enforcement or mechanism to verify a background check is conducted,” Cibola County Sheriff Tony Mace said.
The Committee passed the bill 3-2 along party lines, with Democrats supporting and Republicans opposed, and is now in the House Judiciary Committee, which could be the last stop before it reaches the House floor for a vote.
SB 8, also gained a 4-3 vote in the committee. Sponsored by Sen. Richard Martinez, D-Española, and Senate Democratic floor leader Peter Wirth of Santa Fe, it would make it a crime to sell a firearm without conducting a background check. There are already laws requiring federally licensed firearms dealers to conduct background checks, and most gun show sales are run through background checks, but this proposal adds private sales between two individuals. It would also place a
$45 per transaction on all sales by requiring a federal dealer handle the background check.
HB 35 FIREARMS LICENSEE VERIFICATION
Sponsored by Miguel P. Garcia, (D-14), would require federal firearm licensed (FFL) dealers to pay the state $200 annually for the Department of Public Safety to run stolen gun checks on any used firearm an FFL purchases.
HB 40 BACKGROUND CHECKS, PRIVATE SALES AT GUN SHOWS
Another one sponsored by Garcia would require criminal records checks on private firearms sales at gun shows, despite the fact that several studies have shown these events are not a source of crime guns. Most guns used in crimes are stolen, according to a report by the University of Pittsburgh.
Lawful gun owners commit less than a fifth of all gun crimes, according to the study, led by epidemiologist Anthony Fabio of Pittsburgh's Graduate School of Public Health. An analysis of 762 crimes conducted by the college's Graduate School of Public Health shows that in nearly 80 percent of the crimes in which a gun was recovered by the Pittsburgh Bureau of Police Firearm Tracking Unit in 2008, the perpetrator was not the lawful owner of the gun. Read more: https://www.upi.com/Top_News/US/2016/07/25/Most-gun-crimes-not-committed-by-legal-gun-owner-Pittsburgh-study-says/2401469463802/#ixzz5dkHaVDCH
House Bill 87
Sponsored by Rep. Deborah Armstrong (D-17), and Sen. Antoinette Sedillo Lopez(D-16), the bill would prohibit individuals convicted of certain domestic violence misdemeanor crimes, or who are subject to a domestic violence protective order, from purchasing or possessing a firearm.
Violation of the measure would become a criminal offense. It would include, as firearm-prohibiting offenses, nonviolent misdemeanors with no physical contact between the parties (like harassment by telephone or email, or criminal damage to the property or jointly owned property of a “household member.”) Unlike federal law, this bill would require anyone subject to a protective order to surrender any firearms they own, possess, or control to law enforcement within 48 hours of the order. It authorizes law enforcement to seize any guns that are in plain sight or are discovered pursuant to a lawful search. Similar legislation had passed the Legislature in 2017 but was vetoed by Gov. Susana Martinez.
House Bill 130
Sponsored by Rep. Linda Trujillo (D-48), it would make gun owners criminally and civilly liable if a child gains unsupervised access to an unsecured firearm. New Mexico already has a first-degree felony child abuse statute on the books to hold adults accountable for putting children's lives or health at risk by leaving guns where kids can obtain them, and the tools exist to charge and prosecute parents or guardians in such cases.