First Judicial District Attorney Mary Carmack-Altwies is carrying the banner for the so-called red-flag gun law. And she’s decided her office will, too.
Attorneys and investigators in the District Attorney’s Office recently received training on how to use the year-old law, which is aimed at removing guns from people who pose a threat to themselves or others and prevents them from buying new weapons for up to a year.
The law — called the Extreme Risk Firearm Protection Order Act — was one of the most controversial pieces of legislation in the 2020 Legislature, reviled by gun-rights advocates and even some in law enforcement who complained it would have little effect on someone who wanted to take a life. They also complained it would violate due process, as well as the Second and Fourth amendments.
Several sheriffs in New Mexico warned they would not enforce the law after it was passed.
But Carmack-Altwies, in her first year as district attorney for a three-county area that includes Santa Fe, said the law has been underutilized and she’d like to see it used more.
“Extreme risk laws have yielded excellent results in other areas of the country in reducing the harms of gun violence,” she wrote in an email. “We’ve been in conversation with New Mexicans to Prevent Gun Violence to ensure that we can help to utilize this evidence based tool to its fullest.
“My hope is that with training and collaboration, [we] can help to protect the public by getting guns out of the hands of those who pose a serious risk of violence … while also respecting Second Amendment rights,” she added.
The legislation allows law enforcement officials to petition the court for an order authorizing them take control of weapons from people deemed to be high risk, based on one threatened or committed act of violence, mental health history, substance abuse or violations of court orders. But police and prosecutors must prove to a judge’s satisfaction there is probable cause to do so.
Only four petitions citing the law have been filed statewide since it took effect in May 2020, according to the Administrative Office of the Courts.
- A Farmington police officer obtained an order to remove five weapons in September from a man who was firing his weapons in his yard and from inside his home at officers, according to court records. The man’s son was the reporting party and said his father was a veteran having a post-traumatic episode.
- The District Attorney’s Office in Carlsbad obtained an order in August 2020 authorizing it to take control of three weapons — including a 12-gauge shotgun, a .40-caliber handgun and an AR-15 semi-automatic rifle — from a man whose ex-girlfriend reported he’d threatened to harm her and himself.
- The District Attorney’s Office in Taos obtained an order in August 2020 to remove firearms from a man with a history of domestic violence based on reports from his ex-wife that he had threatened to shoot her and her son and tried to hire someone to beat her up, according to court records.
Of the four cases in which the law was cited, its only unsuccessful application originated in Santa Fe.
In that case, Santa Fe Police Department Officer Javier Vigil petitioned state District Judge Sylvia LaMar in September for an order, seeking to take control of a shotgun owned by a man whose mental health provider reported he was armed and suicidal.
LaMar granted a temporary order — good for 10 days until a hearing can be held — in the case.
Eventually, however, she denied the petition because the doctor who reported the man’s behavior was was not an approved reporter — defined as a current or former spouse, family member or school official — as required by law.
In addition “no one appeared at the hearing and no return of service was filed,” according to the order.
“It appears there was no subpoena sent to the Santa Fe Police Department or Detective Vigil for his appearance at the hearing,” Vigil’s supervisor, Capt. Aaron Ortiz, wrote in an email Tuesday.
Santa Fe County Sheriff Adan Mendoza said Tuesday his officers received a copy of the law and in-house training shortly after the law went into effect. He said he wasn’t sure why none of his approximately 90 deputies have implemented it since then, because he doesn’t personally respond to calls.
Mendoza said he didn’t want to speculate without speaking to his deputies whether none of them had applied for orders because they hadn’t had an appropriate occasion to do so, or for some other reason, such as being unfamiliar with how to employ the law.
“The deputies are aware of the law and have the ability to use it instances where they feel it’s necessary,” he said.
A state police spokesman wrote in an email officers in the agency are “trained up as laws are passed,” but he added they have not “handled any enforcement related to this particular law.”
New Mexicans to Prevent Gun Violence member Sheila Lewis, an attorney who conducted the training for the District Attorney’s Office, said applying the law can be an unfamiliar process for law enforcement officers because it requires petitioning the court. Most officers, she noted, are not lawyers.
Carmack-Altwies said in a phone interview the District Attorney’s Office is partnering with New Mexicans to Prevent Gun Violence to learn more about applying for the orders because the process is unfamiliar even to her staff.
“[New Mexicans to Prevent Gun Violence] is helping us set up not only the training to learn how to do it, but also the legal knowledge to file our first ones and work through that process because no one in our office has done that,” she wrote in an email.
Lawmakers introduced a bill during the most recent legislative session that would have included law enforcement officers as qualified reporting parties who could petition he court for an order independently, based on their own observations.
Currently, the law requires a family member, a school official, an employer or someone who has had a “continuing personal relationship” with the subject of the order to ask law enforcement to petition the court for an order.
The bill died in committee, which sponsors attributed to other pressing priorities during the session.
Deputy District Attorney Haley Murphy, one of the approximately two dozen staffers recently trained on the law, said she was surprised to learn prosecutors qualified as “law enforcement officers” under the provisions of the legislation. She said she’s not used to considering herself as part of that group.
But Murphy said she sees the law as “a valuable tool … in a state where gun violence is significant threat to communities,” adding statistics show domestic violence victims are much more likely to become homicide victims during subsequent events in which their abuser has access to a gun.
“I don’t see us doing a ton of these in a year,” she said, though she added, “I think we are going to be have to very conscientious and thoughtful [in applying the law]. The Second Amendment exists for a reason, and this is not an anti-gun law. This is a targeted approach to [dealing with] people who pose a serious threat.”
