Albuquerque, NM – Today, Attorney General Raúl Torrez urged lawmakers to consider amending New Mexico’s “Red Flag” law to better protect members of the public from individuals suffering from severe mental health issues or exhibiting dangerous behavior. AG Torrez also sent a letter to law enforcement agencies across the state offering to train officers on how the current Red Flag law works and how those agencies can help anyone who is concerned about someone who may be armed and dangerous.
“Most mass shootings in this country, including the most recent event in Lewiston, Maine, involve someone who is exhibiting signs of severe mental illness and threatening violence,” AG Torrez said. “Far too often we hear from family, friends and co-workers that they were concerned that someone was armed and dangerous, but they didn’t know what steps to take or what the law allows. We are fortunate to have Red Flag law in New Mexico which allows us to take guns out of the hands of dangerous people but we need to do more to both strengthen the law and train law enforcement personnel on how it can be used.”
After looking as Red Flag laws around the country, Torrez offered specific recommendations for the legislature to consider during the upcoming legislative session:
Immediate Surrender & Search Authority: Current law requires a judge to find that the respondent poses a significant danger of causing imminent personal injury to self or others, but the Act relies on voluntary relinquishment of firearms by the individual, grants the respondent 48 hours from service of the order for relinquishment, makes no provision for a search of the respondent’s residence, and punishes a failure to comply only with a misdemeanor. Most jurisdictions with red flag provisions require immediate relinquishment and provide law enforcement with authority to perform a search to verify that there are no firearms in the person’s residence.
Expanding the Definition of A Reporting Party & Protecting Their Identity: Current law does not expressly include law enforcement officers or medical professionals in the definition of a “reporting party”, and it is not clear whether law enforcement officers and medical professionals fit within the category of individuals expressly listed. This has led at least one judge to find that police officers cannot be the reporting party. Also, the Act does not contain any mechanism for sealing or redacting a reporting party’s name or contact information, which is likely to deter individuals from reporting dangerous people they know due to a fear of retaliation. Other jurisdictions allow police officers to initiate a proceeding on their own, and many other jurisdictions include medical professionals as reporting parties. In addition, several jurisdictions protect reporting parties by providing for the sealing or redacting of some or all of the documents at the emergency or temporary injunction phase of the proceeding until the firearms have been seized.
Align Other Laws to Trigger a Referral to Law Enforcement: Federal law prohibits the possession or receiving of firearms by an individual “adjudicated as a mental defective.” Recognizing the danger posed by these individuals having a firearm, the Legislature has required the Administrative Office of the Courts to notify the FBI of any state court finding satisfying the federal standard for entry into the national instant criminal background check system. NMSA 1978, § 34-9-19 (2016). Also, judges must provide notice that firearm possession is prohibited after a finding that an individual is incompetent to stand trial, is subject to an involuntary civil commitment, and other similar findings. Rule 1-131 NMRA; Rule 5-615 NMRA. These provisions are designed to keep such individuals from buying or possessing firearms, but they fall short of providing sufficient protection for the public because they do not contain a relinquishment requirement. The ERFPO Act could be amended to provide for judges to refer those same matters to law enforcement to determine whether to file a petition for an ERFPO.
“These are common sense fixes to a gun safety framework that both respects the Second Amendment right to keep and bear arms while also protecting society from individuals suffering from serious mental health issues or exhibiting dangerous behavior. It is a reasonable and balanced response to the gun violence epidemic in this county and I urge the legislature to give it serious consideration,” Torrez said.
A letter was sent to law enforcement agencies around the state on November 7th encouraging offices to schedule a training that our team of prosecutors will provide to them. A copy of the letter is attached.
