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'Red flag' bill Passes New Mexico Senate Judiciary Committee

Cristina Carreon
Alamogordo Daily News

Senate Bill 5, the Extreme Risk Firearm Protection Order Act quickly made its way through the New Mexico Legislature during the 2020 session.

The bill passed the Senate Judiciary Committee late Wednesday in a 6-5 vote, and will next go the floor of the New Mexico Senate for a vote.

Sen. Joseph Cervantes, Senate Judiciary Committee Chair and SB 5 sponsor posted the amended bill to Twitter after the meeting.

If passed into the law, New Mexico courts would be allowed to issue extreme risk protection orders to have guns and ammunition of a respondent considered at risk to themselves or others, seized for 10 days if a judge finds probable cause.

The gun owner and respondent would appear at a subsequent hearing when the order expires to determine if the firearms should be returned or if the order should be extended, according to the bill.

When an order expires, law enforcement agency would remove the order from the state computer-based criminal intelligence information system, which notifies law enforcement agencies about the order, according to the bill.

According to the amended bill, a petition for an extreme risk firearm protection order could only be filed by a law enforcement officer, who would be the first person to determine probable cause.

In just two weeks, the "red flag" bill has gone through the Senate Senate's Committee and the Senate Public Affairs Committee; where it quickly passed through last week.

The bill, sponsored by three Democrats, was undergoing revisions to address some concerns made my the bill's detractors on Wednesday afternoon ahead of heading to a scheduled hearing at the Senate Judiciary Committee that evening.

More:What to know about all the firearm bills filed for the 2020 New Mexico legislative session

Portrait of New Mexico Rep. Joy Garratt (D-29)

Rep. Joy Garratt (D-29) said she met with New Mexico State Police representatives roughly two weeks ago to discuss making revisions to the bill.

Garratt said that one significant reason she chose to co-sponsor the bill was to address the suicide rate in New Mexico and to improve gun safety.

"More than 50 percent of (suicides) are committed with firearms," Garratt said.

"That's why this is an emergency protection order, because it's when you suddenly realize this person has a gun and they are talking about suicide, let's get them into treatment but we need to get that gun away before they make a horrible situation."

Garratt said she and co-sponsor, Rep. Damon Ely (D-23) co-sponsored the bill in the 2019 legislative session but it died in Senate committees. 

Garratt encouraged people to read the bill, saying she had received feedback from residents concerned guns would be taken away from law-abiding citizens, or that the law would be abused.

"No, this only applies to someone in crisis, it's not about taking anybody's guns away, it's not starting a movement to remove Second Amendment Rights," Garratt said. 

"And you are civilly and criminally liable if you commit perjury in a sworn statement to a judge."

Garratt said one concern she heard was that the courts would be overburdened if the bill passes.

"Last year when I researched the statistics, I think something like 160 had been requested in California, so people are perpetuating that there is going to be thousands of these, there's not," Garratt said.

The bill now has a clear path toward the Senate floor for a vote.

MORE:Domestic violence reports declined in Otero County while crisis calls increased

Red flag bill hearing

The Senate Judiciary Committee convened at approximately 7 p.m. for a hearing on the red flag bill Wednesday night.

Sen. Mimi Stewart (D-17) mentioned the Aztec High School shooting in December 2017 in which two students were shot by a former student. Stewart said she, with the Legislative Education Study Committee, visited Aztec the following June and met with the Aztec Police Department Chief Michael Heal.

Stewart said the New Mexico Police Chief’s Association was focusing on school safety that year.

“And they were asking us to pass red flag laws, when asked more about that, he responded that he thought that judges should be permitted to determine if an offender should have access to firearms,” Stewart said.

“I believe this may help with some of the shootings that are happening in our schools that are so frustrating, so damaging and so horrific.”

Sen. Richard Martinez (D-5) said while he was not a “gun person” the legislation was difficult for him to support due to his district.

Martinez, a retired Magistrate judge, oversees Los Alamos, Rio Arriba, Sandoval and Santa Fe counties.

Martinez said he represents a district comprised of individuals who “believe in their rights to have weapons” and said he had received threats.

“Whether I vote for it or against it, I’m still going to be the bad guy,” Martinez said.

Martinez said removing someone’s guns will not necessarily prevent people from committing suicide.

“And the most likely weapon is a gun, those are very accessible, and they will continue to be accessible,” Martinez said.

Martinez supported another gun bill last year when he co-sponsored SB 8 Firearm Sale Background Check.

“It is common sense that we get background checks on everything; jobs, you work at the lab, you get appointed to a commission or a board, you have to go through a background check,” Martinez said.

More:Aztec police, schools sued in wrongful death lawsuit from AHS shooting

Martinez expressed concerns regarding determination of a person’s mental state.

Sen. Cervantes said the bill would not violate HIPPA laws and a judge should take into consideration a history of mental health but there is no requirement that records be produced.

Sen. Mark Moores (R-21) took issue with a portion of the bill.

According to the bill, a respondent who receives a temporary ERFP order would relinquish all of their firearms to a law enforcement agency within 48 hours of service of the order.

Moores referenced New Mexico Statute 43-1-10 subsection A3 which states that a peace officer may detain and transport a person for emergency mental health evaluation and care in the absence of a legally valid court order only if:

“The peace officer, based upon the peace officer's own observation and investigation, has reasonable grounds to believe that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Immediately upon arrival at the evaluation facility, the peace officer shall be interviewed by the admitting physician or the admitting physician's designee.”

“In 20 pages we have a much weaker law than what we had in one paragraph here,” Moores said.

Sen. Cervantes said the bill had been reworked to address concerns from its detractors.

"Frankly, many of the changes to the bill are concessions to those who were concerned, from the law enforcement community, about abuse, or making their jobs more difficult, so to those individuals who felt like they hadn't been heard yet, we're still listening to you," Cervantes said.

Cristina Carreon can be reached at ccarreon@alamogordonews.com, 575-437-7120 or on Twitter @Cris_carreon90.