State’s red flag law needs to be used if it’s going to save lives

So much for concerns New Mexico’s red flag law would be used excessively to take guns from just about anybody.

It’s barely used at all, prompting questions as to why. Is it like our never-used Three Strikes law and too narrow? Is the public or law enforcement simply not aware of it? Or are the law enforcement officials who condemned red flag from the start refusing to use it?

Extreme Risk Protection Orders (ERPO or “red flag” laws) allow courts to temporarily seize a person’s firearms if they are considered a serious threat of harming themselves or others. N.M.’s red-flag law was passed in February 2020 and went into effect in May of that year. Since then, just nine petitions have been filed for court orders allowing gun seizures, according to the state Administrative Office of the Courts; just five of those resulted in one-year orders.

Compare those numbers to Florida, where lawmakers passed such a law after a 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland. Florida judges have acted more than 8,000 times to take guns out of the hands of those deemed to pose a threat to themselves or others. Granted, Florida has had its law on the books longer and has more than 10 times our population. But there is irony in a state firmly under GOP control being more inclined to challenge a potentially unstable person’s right to bear arms.

The latest school shooting in Uvalde, Texas, which claimed the lives of 19 schoolchildren and two teachers, has renewed the debate about what can be done to curb gun violence. Nineteen states, including N.M., have red flag laws. While others debate the merits of ERPOs, N.M. must contend with how to make its law (technically known as the Extreme Risk Firearm Protection Order Act) more useful.

Garen Wintemute, a University of California, Davis, professor who has studied gun violence, told the Journal “implementation has always been an issue. It’s a new policy and, without a local champion, it’s likely to sit unused.” No “local champion” is an understatement. Ever since the bill was proposed, some N.M. sheriffs have vowed they would not use it, in part over constitutional due process concerns.

Under N.M.’s red flag law, only a law enforcement officer or a prosecutor can file a petition in state court for an order to prohibit someone from possessing firearms. The petitions can be filed on request from a spouse, ex-spouse, parent, child, grandparent, school administrator or employer, though those individuals cannot file petitions directly. If a temporary 10-day order is granted, a hearing is then held to determine whether the order should be made permanent for one year. Such permanent orders can then be extended for an additional year if a motion is filed before it expires.

Rep. Daymon Ely, D-Corrales, one of the law’s sponsors, says it has proved to be “too cumbersome.” Rep. Joy Garratt, D-Albuquerque, another sponsor, says law enforcement needs to be better educated on it and cited the recent double murder-suicide near Cottonwood Mall as the type of case in which it could have saved lives.

In that case, police say a 52-year-old man shot and killed two teens, including the daughter of his ex-girlfriend, just over a month after a restraining order had been granted against him — filed due to threats directed at the teen girl.

Note there have also been two fatal shootings on/near Albuquerque Public Schools campuses this school year.

A spokesman says the Albuquerque Police Department will discuss ways to strengthen the red flag gun law this summer as part of Mayor Tim Keller’s Metro Crime Initiative. The Cottonwood Mall shooting should be Exhibit A on why the law was passed and should be used.

Lawmakers should ask Ely what would make it less “cumbersome,” see if law enforcement training is needed, consider whether the public needs to be made more aware this is an option, and weigh if it makes sense to adjust the law to allow family, spouses and partners to file petitions directly with the court, or to allow law enforcement to report an individual.

The law has been promoted as a way to save lives — but that only happens if it is used.