What people in 'Second Amendment sanctuaries' should know about red flag laws

A new law allows law enforcement, including the district attorney's office and NM attorney general, to petition a district court to remove guns from people deemed a threat to themselves or others

Hannah Grover
Farmington Daily Times
  • Governor's spokesperson: Resolutions are opinions, not law
  • County Commission Chairman Jack Fortner anticipates law will face a legal challenge
  • The District Attorney's office has concerns with the law, which allows guns to be removed prior to a court hearing.

FARMINGTON — Less than a year ago, concerns about the constitutionality of several proposed gun laws prompted San Juan County, Bloomfield, Farmington and Kirtland to pass resolutions in opposition of these laws and declare themselves Second Amendment sanctuaries or Second Amendment preservation cities.

The bill that caused the most concern was the Extreme Risk Firearm Protection Order, better known as a red flag law. This bill allows representatives of law enforcement agencies to petition for firearms to be taken away from people deemed a threat to themselves or others.

The law, which takes effect in July, has caused concerns in many quarters, including some in San Juan County's district attorney's office, which will be deemed an eligible agency to petition for a court order to remove guns from a private citizen's property.

Opposition to the law from some in law enforcement drew a sharp response from the governor's office in Santa Fe, which warned of potential legal jeopardy for sheriffs and police chiefs who choose not to enforce the law.

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Many expect the law to be quickly challenged in court.

While "Second Amendment preservation city" resolutions passed with unanimous support in Bloomfield and Farmington, the County Commission and Kirtland Board of Trustees decisions were not unanimous.

Aztec declined to pass such a resolution, and its police chief supports red flag laws.

County Commission Chairman Jack Fortner said the resolution passed last year states that the county does not support unconstitutional gun laws. He said the commission stands by that statement.

Audience members raise their hands, Tuesday, Feb. 26, 2019, to show support for a Second Amendment Preservation City resolution during the Farmington City Council meeting.

A similar bill — Senate Bill 5 — passed the legislative session this year and Gov. Michelle Lujan Grisham signed it into law on Feb. 25.

The Farmington Police Department is still working with its legal department to determine what the Extreme Risk Firearm Protection Order requires and how the law that passed this year is different than the unsuccessful bill introduced last year, according to police spokeswoman Nicole Brown.

Sheriff says another law already solves the problem without taking away guns

However, San Juan County Sheriff Shane Ferrari has stated his office will not enforce the law despite the governor warning sheriffs that the law must be enforced or they should resign.

"I don't work for the governor," he said. "I work for the citizens of San Juan County."

San Juan County Sheriff Shane Ferrari speaks about pending gun control legislation, Tuesday, Feb. 19, 2019, during a San Juan County Commission meeting in Aztec.

Ferrari said it is just as important to protect people's rights as it is to enforce a law.

He said the governor has described the law as a tool, and he has the discretion to decide what tools are necessary. Ferrari said the Emergency Mental Health Law already allows officers to transport people who are a threat to themselves or others to receive a mental health evaluation and, if needed, temporarily detain the individual.

"I'm taking care of the problem," he said. "I'm just not going after inanimate objects."

He said people can use other objects to hurt themselves or others.

Sheriff Shane Ferrari signs paperwork. Monday, Dec. 31, 2018, after taking the oath of office.

Governor's office says law enforcement must enforce all laws

But Nora Sackett, a spokesperson for the governor's office, said law enforcement agencies can't pick and choose laws to enforce.

"Law enforcement officers swear, in their oath of office, to uphold the law, not to interpret it as they see fit," she said in an email.

When the governor signed a law last year requiring background checks on all firearm sales, New Mexico Attorney General Hector Balderas sent a letter to law enforcement informing them that not enforcing the law is a violation of their oath of office. The letter states that not enforcing the law sends "a dangerous message to our communities that severely threatens to undermine the rule of law."

Gov. Michelle Lujan Grisham talks about economic development in New Mexico during a visit to Farmington on July 11, 2019.

Police chiefs or sheriffs who refuse to enforce the law could be found liable under the New Mexico Tort Claims Act, the letter states.

"As the governor has now signed Senate Bill 5, it is law, and laws are not optional," Sackett said. "Resolutions are expressions of opinion and nothing more — they have no force of law. Law enforcement, including sheriffs, are expected to enforce the law and carry out their duties to protect New Mexicans as they have sworn to do, including this critical public safety legislation. Those who insist that they will do otherwise are selfishly and ignorantly putting NRA propaganda before the safety of their constituents."

Others are reading:Legislative session roundup: Controversial bills mark the start of the second week

Section 14 of the new law outlines "that failure to comply with duties established pursuant to a statute or law many serve as a basis for civil liability for a law enforcement organization," she said.

"In short: Any sheriff bragging about their eagerness to break the law — which is quite literally the diametric opposite of the reason for a law enforcement officer's existence — is not only destabilizing their community's faith in the rule of law and is not only putting their constituents at undue risk of gun violence by choosing to not use a viable and constitutional tool; they are also putting the organization they lead in legal jeopardy," Sackett said.

San Juan County Commission Chairman Jack Fortner said he anticipates the new red flag law will be challenged in court.

County Commission chairman believes the new law will be challenged in court

"I think the law will be challenged," Fortner said.

Once there is a court decision about whether the law is constitutional, Fortner said the county will determine how, or if, it will be enforced. He anticipates the court challenge will come shortly after the law becomes effective on July 1.

In addition to his concern that the law may violate the constitution, Fortner said he is concerned law enforcement officials will be placed in a dangerous situation when they go to confiscate the guns.

Fortner said the law does not outline the process for taking weapons away from people.

"It's almost as if a dangerous situation is being created by this law," Fortner said.

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Resolutions don't necessarily shield residents from red flag laws

Even if the police chief or sheriff in a community chooses not to enforce the new law, other law enforcement agencies may file petitions in district court for extreme risk firearm protection orders.

“The Second Amendment Preservation Resolution adopted by the city council last year does not affect the jurisdiction of the New Mexico State Police,” Brown said in an email statement. “The state police have the authority to enforce state law throughout New Mexico. Just like we support our federal law enforcement partners, our officers will assist state police if requested to (do) so.”

The law provides a broad definition of law enforcement agency and law enforcement officer. In addition to the state police, municipal police and sheriff's office, the law includes the district attorney's office and the New Mexico Office of the Attorney General in the definition of law enforcement agency.

That means attorneys employed by either the district attorney's office or the attorney general also have the authority to file petitions with the district court for an order removing the firearms from individuals deemed a threat to themselves or others. This order would be effective for one year. Ultimately, a district court judge will decide whether to issue an Extreme Risk Firearm Protection Order.

District Attorney's office concerned with some aspects of the new law

"We have some concerns about the way the law is written," said Assistant District Attorney Dustin O'Brien.

He said it isn't as bad as the bill introduced last year that would have given family members or even former romantic partners the ability to file petitions for Extreme Risk Firearm Protection Orders. Instead, the petition must be filed by a law enforcement officer, which could include an attorney in the District Attorney's office.

But O'Brien said the office is still concerned that the new law may allow for unconstitutional seizure of weapons.

San Juan County Chief Assistant District Attorney Dustin O'Brien at the rehearing of Timothy Allen in the Eleventh Judicial District Court in Aztec on October 10 2019.

"The law allows for the removal before the person can defend themselves in court," he said, adding that that is the real danger of the new law.

The law allows for a 10-day temporary order to remove guns from individuals prior to the court hearing.

Fortner echoed that concern. 

"How do you take someone's property away without prior notice? Forget the fact that it's a gun," he said.

Fortner said due process requires notice and that part is missing from the law.

"We all agree that dangerous, mentally-ill individuals should not have guns," Fortner said.

O'Brien said the district attorney's office will likely be hesitant to file petitions.

"In an appropriate circumstance, it may be utilized," he said.

Keep reading:Legislative session roundup: Governor sees mixed success getting priority bills passed

Hannah Grover covers government for The Daily Times. She can be reached at 505-564-4652 or via email at hgrover@daily-times.com.

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