October 24, 2019

Legislator proposes temporary weapon confiscation from those who pose a danger to the public

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Earlier this month, Seattle police confiscated a cache of firearms from alleged neo-Nazi leader Kaleb James Cole after a county court named him in an Extreme Risk Protection Order. Police argued Cole posed a threat to the public and were therefore able to take his guns under a relatively new type of law—often referred to as a red flag law. 

Cole served as an example Wednesday afternoon in Santa Fe as the legislative Courts, Corrections and Justice Committee heard a pitch from Rep. Daymon Ely, D-Albuquerque, about enacting a similar law in New Mexico. Although, it’s unlikely Ely and other supporters will be using the term “red flag.”     

“I’ve been trained not to use that term, but it is the same thing,” Ely said, adding that mental health professionals prefer not to use the term. 

Ely said he used Cole as an example because it shows “The value of an extreme risk protection order.”

Ely’s Extreme Risk Protection Order Act would allow police to temporarily confiscate weapons from individuals a court has deemed a potential danger. The Albuquerque lawmaker said the proposal is similar to a bill he cosponsored during the 2019 legislative session. 

“This is a bill that allows law enforcement or household members to petition a court, and with evidence, convince a court that a person is an imminent threat,” he told the committee. 

Ely’s proposal was met with mostly support by committee members, but the sole Republican in attendance had some issues with the standards the courts and police would use to determine if someone is a threat. 

Rep. Bill Rehm, R-Albuquerque, said he could understand legal intervention for someone making “a credible threat on the internet,” but was concerned about the burden of proof in Ely’s proposal. 

“I think you need to use the highest standard if you’re going to deny a person a constitutional right,” Rehm said. 

But Ely argued a person’s right to own a gun would not be violated. 

“We’re not taking guns away forever, we’re not locking people up, we’re trying to save lives,” Ely said. 

Under the proposal, if a person is deemed by a court to be a danger and their guns are taken away, they would have the opportunity to argue their case in a court hearing. If no further action is taken after the initial confiscation, Ely said, the guns would be returned. But Rehm also argued those guns could be gone for much longer if extensions are filed. 

The proposal is far from becoming a law, or even a bill, at this point. 

Given that next year’s legislative session is a 30-day budgetary session, only the governor can put non-budget issues on “the call,” or signal to lawmakers what other issues can be addressed. 

A spokeswoman for Gov. Michelle Lujan Grisham said it’s still too early to say what the governor will put on the call, but that addressing gun violence is one of the governor’s top priorities 

“Common-sense gun safety legislation is and will remain a priority of the governor’s because New Mexicans have every right to be safe in their communities, and the governor will continue to look for ways to enhance public safety, whether it’s this kind of legislation, new community policing programs, additional community resources, or other avenues,” spokeswoman Nora Meyers Sacket said.   

Even if Ely’s proposal becomes a bill, passes both the House and Senate and is signed by the governor, it will likely face a legal challenge. 

Albuquerque attorney and a former Libertarian candidate for Attorney General Blair Dunn did not say whether he would file suit, but he is currently representing the New Mexico Patriots Advocacy Coalition in two different suits — one against the secretary of state and attorney general and another against the mayor of Albuquerque. 

Dunn said Ely’s proposal goes against individual rights and is simply not needed.  

“Red flag laws and the extreme risk protection order bill that Representative Ely intends to introduce violate the due process rights protected by the U.S. and New Mexico Constitutions,” Dunn said. “Further, this law would be redundant to laws that we already have on the books, designed to keep guns away from people that we have already afforded due process to take away their rights to keep and bear arms. we need to be discussing better enforcement of the laws we already have rather than further infringing on the constitutional rights of law-abiding Americans.”