The Courts, COVID-19 and Red Flags

I am happy to fill this space this month. As for me, I am the domestic violence commissioner for Valencia County. If you should file for a domestic violence protection order, that case would go to me.

I work for the 13th Judicial District Court, and besides domestic violence case, I hear other kinds of family cases. Unfortunately, I stay very busy.

First, a report about life in the district courthouse in the time of COVID-19 — and then a bit about a new law you may have heard of.

1. The courts are still open. You can go inside and file a case, check on a case’s status, etc. All the judges are working hard dealing with an unprecedented situation. They are still hearing cases, issuing warrants, etc. The clerks deal face-to-face with the public every day and also take phone calls. There are also court staff who are “teleworking.”

2. The courts are challenged.

a. Hearings are not done in-person, but through the telephone or through the video program Google Meet. Dockets are not at a standstill, but such hearings take more time. Glitches occur, and the more complex the hearing, the less likely a telephonic or video hearing will be a substitute for the real thing. Questioning witnesses, making objections, using exhibits, evaluating credibility — these are not impossible via phone or video, but difficult.

b. Complex matters are slowed down. Speaking just for my own cases, most attorneys and some self-represented parties in such matters prefer to wait for in-person court to return before going forward.

c. Some of the district court’s most popular and important programs which serve the public — the monthly free legal clinic, our foreclosure program, the mediation docket and our drug courts — are either not happening or have been modified.

3. The courts won’t go back to old ways when restrictions start to lift.

a. No guidelines are set yet, but expect the courts to pay detailed attention to screening, spacing and scheduling. Expect that the courthouse will be as clean as ever. Expect participants in masks. There might plastic or plexiglass barriers.

b. The courts will continue to be friendly to phone and video proceedings on minor matters.

4. The courts are still figuring out the ultimate challenge — a jury trial. None of my cases use juries, so mercifully I don’t have to deal with this challenge. The New Mexico Supreme Court has given the green light to jury trials starting June 15. How many will show up for jury duty in the time of corona? How will a jury be selected? What will be done with the jurors when selected? These are all big questions, and our judges statewide are figuring our answers.

a. The grand jury, which hears cases presented by the DA’s office, and can return indictments of alleged criminal offenders, has been on hiatus, but is scheduled to convene again this week. The grand jury isn’t the same as a jury, which hears a trial, but is still a group of citizens acting as part of the judicial system at the courthouse, and thus will doubtless provide guidance about how to handle all juries.

All in all, the courts have performed well during their corona stress test. Instead of shutdown, we’ve had slowdown. Residents can still go to the courts for justice, and most cases are still moving along.

The Extreme Risk Firearm Protection Order Act

1. This law took effect May 20, 2020.

2. Sometimes referred to as the “Red Flag” law, this law allows law enforcement to petition the district court to issue a protection order requiring relinquishment of firearms by a person who poses a significant danger of causing imminent personal injury to himself or others by having a firearm.

3. The basics:

a. Law enforcement petitions the district court.

b. Law enforcement’s petition will make use of information provided by a “reporting party.” A “reporting party” could include family members, employers or school officials. This “reporting party” provides law enforcement information through a sworn statement.

c. The court can take immediate action on the petition and make a temporary order prohibiting firearm possession and requiring firearm relinquishment.

d. The person filed against has the right to a hearing within 10 days.

e. At the 10-day hearing, if the court finds that more likely than not that a person poses a significant risk of imminent personal injury, the court enters a one-year order prohibiting that person from firearm possession and requiring relinquishment of any firearms in that person’s possession.

4. Some law enforcement in New Mexico has expressed disagreement with the “Red Flag” law, and indicated not wanting to enforce it. To my knowledge, no local law enforcement takes this position.