NEW MEXICO (KRQE) – In the last 12 years, New Mexico legislators have considered 104 bills focused on firearm controls, safety, licensing, or convictions. That means less than one percent of the 11,784 pieces of legislation considered in the Roundhouse over that time relate to firearm control. Of those 104 firearm-related bills, only 11 have been chaptered as laws. And data reveals that some of those laws are not being fully enforced.

Data Reporting

There are relatively few gun relinquishments in domestic violence cases

In 2019, the state passed a new law making it illegal for anyone convicted of battery against a household member, stalking, or criminal damage to property of a household member to possess a firearm. Part of the Family Violence Protection Act, the law aims to prevent violent gun crime resulting from domestic violence.

It allows law enforcement to take possession of guns that are relinquished by the owner, guns that are in plain sight, and guns that are found during lawful searches. The original version of the bill allowed a court to issue a search warrant if they had probable cause to believe that there were still firearms that hadn’t been turned in to police. But, that clause was removed before the bill became law.

Data suggests that enforcement of the 2019 relinquishment law under the Family Violence Protection Act may be falling short. The New Mexico Department of Public Safety predicted that “law enforcement agencies may need to become equipped to store, potentially, thousands of firearms” resulting from domestic violence-related relinquishments under the 2019 law. But since the law was enacted over two years ago, only 75 instances of relinquishment have occurred statewide, according to court records.

In total, only 569 domestic violence orders of protection — orders to relinquish firearms — have been filed since July 2019, court records show. In 494 instances, the involved parties filed a declaration that they had no firearms to relinquish.

Courts have limited ability to implement and enforce

While the 2019 relinquishment law intends to protect domestic violence victims from risky encounters with firearms, the law seems to fall short in some instances. This may be because New Mexico courts have limited power to enforce the law. In some cases, there may not be any indications that someone is a threat until they become one.

In one January 2021 case, an Albuquerque woman filed for an order of protection against her partner. The woman alleged that he had physically abused her and threatened to kill her. In court documents, she claims that for 13 years he had choked her, slammed her, and left bruises on her. For the victim’s protection, KRQE News 13 is hiding the identities of those involved.

“He threatened to kill me,” she wrote in January, asking the court for an order of protection. “He might kill or physically hurt me.”

A judge granted an order of protection, which prohibits the accused man from possessing or transporting a firearm. But court documents show that the portion of the order that would require the man to turn over any guns under the 2019 law was entirely crossed out. In other words, the court did not find him to be a “credible treat.”

In fact, it appears that the court had no indication that the accused suspect might possess or use a gun. When asking for an order of protection, the woman filing for protection made no indications on paperwork that the man had ever used a firearm. She didn’t check the box asking the court to order him to turn over any weapons, court documents show.

It turned out, he did have access to a gun. But perhaps the woman didn’t know this until she saw the gun herself, when he violated the order several months later.

There is no definition of “credible threat” within the Family Violence Protection Act, according to Sidney Hill, a spokesperson for the 2nd Judicial District Court. “Not all domestic violence cases are alike and some are more extreme than others,” he wrote in a statement to KRQE News 13. “Thus, it is important to understand that each domestic violence case is fact-dependent. Each judicial officer makes an individual determination as to the presence of a credible threat.”

In this case, the court decided there was no credible threat — until there was.

In March 2021, three months after the man was ordered to stay away from the woman, the man showed up at her mother’s home in Albuquerque. Without knocking, he entered, court documents allege. Just outside the home, the man yelled at her, pulled out a loaded handgun, and threatened to kill her, the woman’s attorney claims in court documents.

Fortunately, the accused man didn’t act on the threat. He reportedly put the safety on, put the gun away, and then physically pulled her to the ground. When the woman began screaming, her brother came to help. Police eventually arrived.

By April 2021, about four months after the woman initially filed for an order of protection, the court issued an order requiring the man to turn over any firearms he possessed, in accordance with the 2019 law. The order was mailed to the man, but the post office marked it as undeliverable. It was returned to the sender.

In the same month the protection order was filed, the man was charged with several felony and misdemeanor counts related to showing up at the woman’s mom’s home. In August, he pled guilty to one count, aggravated assault upon a household member, and was put on probation. KRQE News 13 was unable to confirm that he ever got the letter or that he ever turned over any guns.

The Albuquerque Police Department located the handgun used in the incident, according to court documents, but KRQE News 13 was unable to determine if the suspect submitted the proper paperwork to show that he’s complying with the 2019 law and owns no other guns. In a statement, Sidney Hill from the 2nd Judicial District Court, explains that “the Family Violence Protection Act does not include authority for the court to issue a search warrant for someone’s home to check to see if there are indeed firearms in the home.”

“The courts are not an investigative agency charged with the responsibility to investigate allegations of a credible threat or any crimes. That is done by law enforcement and the district attorney’s office,” Hill says.

KRQE News 13 first reported on the limited ability of courts to enforce the 2019 law several years ago. At the time, one victim who filed an order of protection believed their ex had a gun. A judge did issue an order to relinquish firearms. But the respondent claimed they didn’t own any firearms. The courts, of course, have no way to check.

Despite the challenges in implementing and enforcing the 2019 law, Senator Antoinette Sedillo Lopez (D-Albuquerque), who sponsored the bill, feels like the law has prevented shootings.

While the number of domestic violence Orders of Protection is low compared to the number of domestic violence cases, “guns have been turned in,” Sedillo Lopez told KRQE News 13. “And because the presence of guns and domestic violence in a home increases the risk of a gun incident by five times, I believe some accidents have been avoided,” she says.

“Red Flags” rarely raised

Another firearm relinquishment law, the Extreme Risk Firearm Protection Order Act, went into effect in May 2020. The so-called “red flag” law allows law enforcement to identify individuals that may injure themselves or others using a firearm. If a court finds probable cause that the individual might harm themselves or others, the court can require the individual to hand over their guns.

In these cases, courts are supposed to consider things like patterns of violence, mental health, alcohol and drug abuse, and criminal history before ordering someone to relinquish their firearms. The state’s Department of Public Safety says the act “will save lives,” according to a fiscal report by the New Mexico Legislature. Similar laws in other states appear to have prevented mass homicides and suicides, according to the New Mexico Department of Health.

KRQE News 13 previously reported that this so-called “red-flag” law is rarely used. Only six Extreme Risk Firearm Protection Order petitions have been filed in the state since the law took effect over 18 months ago, according to court records. Three of those were granted by courts. One was granted then terminated.

Most gun legislation never becomes law

In 2021, New Mexico lawmakers considered 10 pieces of legislation relating to firearms. From clarifying ambiguities in the “red-flag” law to preventing the governor from being able to restrict ammo sales, the bills come from both sides of the aisle.

None of the gun-related bills introduced this year have become law yet. In 2020, only two of the nine pieces of gun legislation became law. In 2019, legislators considered 17 firearm bills. Four became law.

Over the last three years, gun-related legislation failed to become law in New Mexico about 85% of the time. That may seem like a high failure rate, but it’s roughly on par with the failure rate for all types of legislation introduced in the state over the last decade.

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The vast majority of gun-related legislation fails to become law in New Mexico. Data from NM Legislature.

When asked why New Mexico legislators don’t pass many gun-related laws, House Republican Spokesperson Matthew Garcia-Sierra blamed Democratic legislators: “Democrats have a majority in the Legislature and control the entirety of state government — the real question should be asked of them: Why does crime only matter when an election is coming up? We will not solve our crime problems while Democrats continue coddle criminals.”

Democratic Sen. Sedillo Lopez, on the other hand, explains that the barrier to implementing gun-related laws isn’t just political. It’s also cultural. “This state has a strong heritage of firearm use for hunting and for protection, especially in rural communities. There is a strong fear of government removing guns from a home,” explains Sedillo Lopez.

Sedillo Lopez has sponsored a couple of pieces of gun control legislation in the last few years, including a 2021 bill requiring firearms to be locked and secured. She says that gun safety, not banning guns, is key. But getting there is a challenge.

“My father used to say that if the government were to take away guns, only criminals and the government would have weapons, and that would not be good for democracy. So, I am not interested in removing guns from law-abiding individuals,” she says. “Unfortunately, every gun safety bill is portrayed as an assault on the Second Amendment.”