A prosecutor’s purpose
First, a caveat — this is not meant to be an opinion piece in favor of or against this law. Rather, it is meant to educate readers on the law’s history, intent, scope and implementation.
In 2020, New Mexico became the 19th state to enact a so-called Red Flag Law. New Mexico’s Extreme Risk Firearm Protection Order Act (NMSA 40-17-1 et al.) (ERFPO Act), commonly referred to as the “red flag” law, was enacted by the New Mexico Legislature and signed into law by Gov. Lujan Grisham at least partially in response to the mass shooting by a lone gunman at a Walmart in El Paso in August 2019 that killed 23 people.
The law, which went into effect in May 2020, enables law enforcement officials to petition a judge to order the temporary seizure of firearms from an individual when there is probable cause to believe that individual will harm themselves or others.
If a reporting party, as defined in the statute, gives a law enforcement officer credible information to believe the subject poses a significant danger of causing imminent personal injury to self or others, the officer will file the petition containing the information previously provided, along with any supporting documents and containing a sworn affidavit signed by the reporting party. The petition must be filed in district court in the county where the imminent threat exists.
Once probable cause is established in the petition and affidavit, the court will issue a temporary ERFPO. Under the law, the subject has the choice to either surrender the firearms — within 48 hours of the order — to law enforcement or to a licensed firearms dealer for safekeeping until the order expires or is rescinded.
The judge must then schedule a hearing within 10 days from the filing of the petition, during which the judge will determine by a preponderance of the evidence if the firearms should be returned to the owner, or to issue an ERFPO for up to one year. Preponderance of evidence is the lowest burden of proof in the New Mexico judicial system, contrasted with probable cause needed for arrest or seizure of property and beyond a reasonable doubt needed to convict a person of a crime, the highest burden of proof for obvious reasons.
Preponderance of the evidence is the ordinary standard of proof in civil cases and is frequently explained as meaning “more likely than not.” The law also allows persons subject to an ERFPO to sell or transfer seized/surrendered firearms to a licensed firearm dealer or other legally-eligible individual.
The statute outlines nine specific factors that the court must consider at every such hearing in making its decision whether to issue an ERFPO. These factors include any recent threats or acts of violence, pattern of threats of violence or suicide, mental health and criminal history, substance abuse issues, and recent attempts to acquire a firearm. Once the ERFPO is granted and served on the individual, it becomes immediately enforceable in any city, town or county in the state.
The red flag law in New Mexico was born from a desire to reduce gun violence, the theory being that shooters often show “signs” that an imminent threat exists. Of course, any restriction of gun ownership and possession is inevitably going to face controversy in a state such as ours with a rich history and culture of gun ownership and where defense of the Second Amendment is held sacred by many.
It is hard to predict whether the ERFPO Act will do what it was intended to do but consider this final thought: New Mexico has the second lowest number of filed ERFPO petitions of any state with a red flag law and continues to rank among the highest in gun violence deaths.
(Barbara Romo is the District Attorney for the 13th Judicial District of New Mexico which encompasses Valencia, Cibola and Sandoval counties.)