Red flag proposal violates due process
Problems with plan range from leaving other weapons to not supplying an attorney
At a press conference in Las Cruces, flanked by the bill’s sponsors, Gov. Michelle Lujan Grisham confirmed that the “Red Flag” or “Extreme-Risk Protection Order” bill which failed to pass in the 2019 legislative session will be back in the 2020 legislative session. While some minor changes have been made from the version of the bill presented in 2019, 2020’s Senate Bill 5 still suffers from the same fundamental flaw — it fails to protect our civil liberties.
At issue is the bill’s treatment of our constitutional right to due process as well as our right to keep and bear arms. An “extreme-risk protection order” would be issued through an ex parte process — the party subject to the order would first discover such an order had been pursued when the sheriff’s department is at the door seeking to take all firearms and ammunition present in the house into police custody. A hearing would then be set sometime in the next 15 days where the accused party would then be able to plead their case to a judge.
Is sending an unexpected police tactical team to the door of someone who is experiencing a mental health crisis really the best option? There is no requirement in the bill to connect the accused individual with mental health resources. Police would simply take the firearms and ammunition and leave. The police would only confiscate firearms; any other types of weapons, such as machetes or other knives, would be left in the possession of the accused party.
It is vitally important to point out that this order is a civil order, not a criminal one. Therefore, comparisons to holding someone in custody after a crime has been committed, but before charges have been filed, fall short. No crime has been committed or is alleged to have been committed — the accused party’s rights have been taken away on a suspicion that they might commit a crime (or harm themselves) in the future.
A single round of the common 9mm handgun ammunition is about 0.4 inches in diameter and about 1.1 inches long. Where could this be hidden in a house? Just about anywhere. When executing an order, police would have wide ranging authority to search anywhere in the residence of the accused party. Given that police officers themselves could seek an order against an individual, the bill would legalize invasive police searches without probable cause of a crime being committed.
Further, when the accused party receives a court date, he or she will not receive counsel without the financial wherewithal to afford a private attorney. In District of Columbia v. Heller, writing for the majority, Justice Antonin Scalia wrote: “the Second Amendment protects an individual right to possess firearms.” The accused party’s constitutional right to own a firearm for the next year is on the line when he/she finally receives a hearing. By only permitting an attorney to those with the financial means, the bill would codify that your rights as a New Mexican are dependent on your financial resources.
Due process is a cornerstone of our legal system. To claim that “ExtremeRisk Protection Order” 2020 Senate Bill 5 meets the legal definition of due process is to dilute the meaning of due process. A dilution of this legal right impacts all New Mexicans, not just gun owners.