Legislators propose amendments to New Mexico red flag law

Two New Mexico legislators are proposing amendments to a state law that allows district courts to issue yearlong orders to prohibit individuals from possessing, purchasing or receiving firearms if they are found to pose a threat of injury to themselves or others.

The Extreme Risk Firearm Protection Order Act was enacted in 2020. The proposed amendments would specifically allow law enforcement and health care professionals to report potentially harmful behavior and expedite the order-issuing process.

Representatives Joy Garratt (D) and Christine Chandler (D) pre-filed House Bill 27, featuring the proposed amendments, Jan. 2. Governor Michelle Lujan Grisham included HB 27 in a list of legislative public safety priorities at a press conference on Jan. 12.

“We know that this bill works – and by that, I mean it saves lives,” Chandler said at the press conference. “We know that because it allows law enforcement to retrieve weapons from individuals who may be a harm to themselves or others.”

One amendment would require individuals to immediately relinquish their firearms and, if they fail to, allow law enforcement officers to obtain a search warrant to do so.

Currently, as written in the standing legislation, the ERFPO process begins when a reporting party – a family member, employer or school official – reports someone they know who is exhibiting threatening behavior to law enforcement. An officer can then petition the court to require the individual to relinquish their firearms to a law enforcement agency or Federal Firearm Licensee within 48 hours.

This 48-hour period is one of the most significant problems with the act as it is now, Sheila Lewis said – New Mexicans to Prevent Gun Violence ERFPO Trainer who helped draft the language of HB 27.

“Not only is the person expected to turn in their firearms, but they’re given 48 hours to do it, which is a lot of stewing time for somebody who is in a mental health crisis,” Lewis said.

The wording of the legislation is also prone to confusion as some law enforcement have been unable to act as a reporting party, if the person who initially reported does not want to continue with the ERFPO process, Lewis said

Depending on how judges read the current law, some believe law enforcement are implied as reporting parties; others believe they are not, Lewis said. The amendments would prevent this confusion.

“If a family member, employer or school official reports information to law enforcement but subsequently decides not to testify, some judges believe that the police officer cannot share that information with the court. HB 27 clarifies that law enforcement can provide any reliable information to the court, even without the reporting party testifying,”  An overview, compiled by Lewis of the amendments outlined in HB 27, reads.

Under HB 27, health care professionals would now be authorized to act as reporting parties.

“Currently, health care professionals have an ethical duty to prevent harm, but there is no statutory language authorizing them to break confidentiality under (ERFPO),” the overview reads.

The current ERFPO Act does not have explicit language allowing police officers to obtain search warrants if they believe an individual possesses firearms they will not willingly relinquish, Lewis said. HB 27 would permit the district court where the respondent resides to issue a search warrant over the phone 24/7 in this situation.

HB 27 would also clarify that courts should report ERFPOs into data banks, like the National Instant Criminal Background Check System, which keeps track of who can and cannot own a firearm. The ERFPO Act as it is requires law enforcement officers to input ERFPO information, however, current state practice holds that courts should do this, Lewis said.

Under the amendments, those who have guns taken from their possession would also be required to retrieve their firearms from law enforcement after their ERFPO ends. Law enforcement would be able to destroy unclaimed firearms without a court order if respondents fail to pick them up,  Lewis said.

The reporting party and search warrant amendments in HB 27 mirror suggestions Attorney General Raúl Torrez made to the legislature in November for the upcoming session.

“Attorney General Raúl Torrez is pleased that Legislators have incorporated amendments to the Extreme Firearms Protection Act, or the Red Flag Law, suggested by our office in Nov. 2023. The New Mexico Department of Justice will continue to work with legislators on any proposed legislation to meaningfully address crime and public safety in our community,” Torrez’s office said in a statement to the Daily Lobo.

The 2024 regular legislative session will take place Jan. 16 - Feb. 15, when the bill will be heard if it is deemed relevant by a committee.

“The goal is not to take people into custody; the goal is to take firearms into custody,” Lewis said.

Lily Alexander is the news editor for the Daily Lobo. She can be reached at news@dailylobo.com or on Twitter @llilyalexander.

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