It was a mundane and typical American activity. Families doing their back-to-school shopping in an El Paso Walmart. Suddenly a gunman opened fire. Scores were killed and injured. But they were not targeted indiscriminately. His target was Hispanics. He sprayed them with bullets.
Why Hispanics? In what is becoming all too common, the gunman posted a manifesto. He made his motives clear – there was, he complained, a “Hispanic invasion of Texas.”
In the wake of this, we again ask the questions: What is going on? And isn’t there anything we can do?
Yes. The 2nd Amendment is not without limits. The Supreme Court stated in 2008 that the 2nd Amendment should not be understood as conferring a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The court actually gave examples of things the states can do to protect their citizens that do not violate the 2nd Amendment. One of the things states can do is to pass an Extreme Risk Protection Orders (ERPO) law, also known as a “red flag” law.
ERPO laws provide for a special type of protection order that allows police to temporarily confiscate firearms from people who are deemed by a judge to be an imminent danger to themselves or others. The request for an order can come from relatives or friends concerned about a loved one who owns one or more guns and has expressed suicidal thoughts or talked about shooting people. Law enforcement can also request an order. Immediately after the guns are removed from the home, there is a hearing where the gun owner can contest the removal, have a lawyer and present evidence. The gun owner continues to have the right to contest removal, and the gun(s) can be removed from the owner for no longer than one year unless there is another hearing establishing imminent danger.
Seventeen states now have ERPO laws. In light of the El Paso/Dayton shootings, the U.S. Senate is finally considering passing an ERPO bill. Even conservative Senators, such as Lindsey Graham, have come out in support of ERPO.
New Mexico needs this law. Right now, if a manifesto is published by a shooter like the one in El Paso, threatening to kill a particular group of people, there is nothing we can do. No law allows that person to be arrested or detained. The person, and their guns, remain in their house and within easy access for the next mass shooting.
You don’t think such mass shootings could happen here? If not for the work of APD’s Crisis Intervention Team and a local doctor, we may have had an incident here in Albuquerque. Police were made aware of an individual who had weapons, maps, and a plan to commit a mass shooting. They were able to get the individual committed temporarily, but upon release, the guns would still be in the home. They could not legally remove them. The doctor involved was able to keep recommitting the individual until the police were able to persuade the person to relinquish the firearms voluntarily. With an ERPO in place, the guns could have been removed while the person received the help they needed without the firearms present.
It’s the beginning of the school year, and active shooter drills will be a part of our students’ experience in schools. Several NM communities have already had tragedy strike. We can and must do better.
As the Legislative session begins in January of 2020 we are hopeful. The Governor has made a very public commitment to meaningful gun safety legislation, as demonstrated earlier this year, despite loud and disingenuous opposition. She has been crystal clear that in addition to gun rights, we have a constitutional right to be safe in our communities. This is a priority she has not wavered from and that bodes well for ERPO.
Rep. Daymon Ely is a Democrat representing House District 23 in Albuquerque. Rep. Joy Garratt is a Democrat representing House District 29 in Albuquerque.