One thing these two New Mexico sheriffs agree on: ‘Red flag’ law will end up in court – Las Cruces Sun-News

What every New Mexican should know about the state's new "Red Flag" law Las Cruces Sun-News

LAS CRUCES - New Mexico's Extreme RiskFirearmProtection Order Act will take effect on May 20, after Gov. Michelle Lujan Grisham signed it into law on Tuesday.

Addressing New Mexico sheriffs who opposed the bill and threatennot to enforce it, Lujan Grisham said ignoring the law was not an option.

"If they really intend to do that, they should resign as a law enforcement officer and leader in that community," she said.

A majority of New Mexico sheriffs opposed the law, which provides for civil orders requiring individuals to surrender their firearms within 48 hours if a court views them as presenting a threat to themselves or others.

While much of the opposition to the billcentered on the Second Amendment right to bear arms, critics of the bill also raised questions about due process rights, searches and seizures and the prospect of overreach by law enforcement.

San Juan County Sheriff Shane Ferrari on the day he took the oath of office, Monday, Dec. 31, 2018.(Photo: Hannah Grover/The Daily Times)

"We have a saying in law enforcement: You don't look for an elephant in a shoebox," San Juan County Sheriff Shane Ferrari told the Sun-News. "That restricts law enforcement from going outside the scope of their duties looking for things they're not supposed to. If I'm looking for a TV set, that doesn't mean I get to open your underwear drawer."

As originally filed, Senate Bill 5 would have required sheriff's deputies to search a respondent's home for firearms and ammunition, creating an opportunity for searches without a criminal warrant, Ferrari said. The bill was amended before passage, however.

In its final version, the law allows relatives, employers or school administrators to file affidavits requesting a law enforcement agency to petition a court for a civil order requiring an individual to surrender their firearms.

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"We still have some constitutional issues, where you're being ordered by the government to give up your guns when you didn't commit a crime," Ferrari said, while indicating relief that deputies would be serving a court order rather than entering someone's home to confiscate their guns.

"That's a fight for another day," Ferrari said. "At some point, either the U.S. Supreme Court or the New Mexico Supreme Court is going to have to look at these issues."

Doa Ana County Sheriff Kim Stewart, a supporter of the bill, agreed the law will be reviewed in court.

"It's groundbreaking legislation," Stewart said in an interview for the Sun-News. "It will be challenged in court and probably it should be. I think some of it hopefully will be clarified."

Doa Ana County Sheriff Kim Stewart at the podium during the Board of Commissioners meeting on Tuesday, August 13, 2019.(Photo: Algernon D'Ammassa/Sun-News)

Stewart said the law includes confusing language about standards of evidence to be met in considering a petition, and some conflation of criminal and civil process among other details.

She claimed credit for one improvement made to the bill during this winter's legislative session: What happens if a law enforcement officer is subject to a protective order seeking their guns?

"That's not something where agencies want to be pitted against each other," Stewart said. "That's got to be decided by someone other than the local agency. That's got to go to the Attorney General or the District Attorney's office."

On her recommendation, legislative staff incorporated the change in a floor amendment to the bill.

More:Doa Ana County Commission votes against supporting red flag bill

Other questions remain, Stewart said, including what her agency is supposed to do if a persondoes not comply with an order to surrender their guns.

"Can we search the garage? Does it mean we can search the barn? Where does that stop?" she asked. "What if he has a storage locker full of guns? Can we go and search the storage locker?"

An additional problem, in the event guns are confiscated, is that her agency would be stuck with the costs of storing and even the maintenance of impounded weapons. In this respect, she described the law as "an unfunded mandate."

She could not predict how often the new law would be used, but observed that a 2019 law allowing the confiscation of guns from domestic abusers and stalkers had not yet been used to impound a single weaponin Doa Ana County.

Stewart said she wished more sheriffs had offered input to improve the bill instead of categorically opposing it.

Legislative staff "are tasked to write a law and they would like the law to be as reasonable and realistic and valuable as possible," Stewart said. "When they reach out and the only answer is no, that hinders them."

Ferrari, on the other hand, said sheriffs opposed to SB 5 would have been on board with amending existing statutes providing for civil commitments in cases where a subject presents a danger.

"The one thing we agree on is this: People that are threatening themselves or others shouldn't have a firearm," Ferrari said."We already have a law on the books that allows law enforcement to take a person who's a threat to themselves or others and we can immediately take them down to the hospital."

Senate Bill 5 sponsors Sen. Joseph Cervantes, D-Las Cruces, right, and Reps. Daymon Ely, center, D-Corrales, and Joy Garratt, left, D-Albuquerque, during a floor debate at the New Mexico state Senate on Friday, Feb. 7, 2020.(Photo: Morgan Lee/AP)

Ferrari said the statute allows for legal counsel and judicial review, and focuses on getting treatment to people who need it rather than focusing on their property.

"Both sides would have agreed on that, but egos got in the way," Ferrari said. "They weren't happy with amending something. It was all about the title. It wasn't the new law that the new governor came up with. It was a campaign promise that was met."

Ferrari maintained thelawstill presents Fourth Amendment concerns regarding privacy and property. He called it "a Pandora's box skirting around constitutional limits" in ways that will be tested before judges.

Ferrari argued that the law can be manipulated by law enforcement to use a civil process for discovery of criminal evidence.

"Unfortunately, the train was really being driven by a lot of Second Amendment stuff because we're talking about guns here, and not everybody's a gun owner," he said. "Well, now let's talk about me beating on your door and coming into your house."

Stewart, on the other hand, said: "It's about having another tool in our bag and I think we use them let's give law enforcement a little more credit I think we use these things judiciously."

As elected law enforcement officers, Ferrari argued he and other sheriffs were exercising a duty to warn the public about legislation that endangered their liberties.

In opposition to gun legislation filedduring the 2019 legislative session, a majority of New Mexico countiespassed resolutionsstating they would not require their sheriffs to enforce the proposals if they became law.

More: What people in 'Second Amendment sanctuaries' should know about red flag laws

Ferrari spoke to the Sun-News days before Gov. Lujan Grisham signedthe bill and issuedher challenge to sheriffsresistant to enforcing the law. He made clear that sheriffs answered to voters.

"Our job is to stand between law enforcement and the public," he said. "We answer to no one but the public. No one. We're not overseen by a division of anything, we don't share our powers like country commissioners and city councilors.We are directly responsible for the people who put us in power. "

Enforcing protective orders under the act might also endanger his deputies, Ferrari said:"This can put law enforcement at risk and it also can put the public at risk. It definitely treads on that line of trust that we have."

For Stewart, the rhetorical focus on the Bill of Rights by sheriffs opposed to SB 5risked omitting the rule of law.

"I take an oath to the Constitution and the laws of the state of New Mexico," Stewart said. "If I swear allegiance to the Constitution of the U.S. only, I could never arrest a murderer or a rapist. The U.S. Constitution doesn't mention them. The only thing that gives me that power is the state."

Stewart's support for the law have made her unpopular with the New Mexico Sheriff's Association, which has firmly opposed red flag laws. "They don't talk to me," she said.

Kristin Wamle and Sam McBurney open carry at a Doa Ana County Commission discuss a resolution supporting a NM red flag bill in Las Cruces on Tuesday, Jan 28, 2020.(Photo: Nathan J Fish/Sun-News)

More:New Mexico 'red flag' bill protested at the state Capitol in Santa Fe

Where she and Ferrari agreeis that the new law has ambiguities and unclear consequences that will lead to court challenges and perhaps amendments in subsequent legislative sessions in Santa Fe.

"There are real legitimate questions that this doesnt address and that will certainly be ferreted out through the legal system and the judiciary," Stewart said.

Ferrari expressed little faith that lawmakers would improve the law next year, and did not guess how courts might rule on legal challenges to a law he criticized as both ill-conceived and rushed.

"What is more important," he asked, "that New Mexico joins the red flag club or that we have good legislation? Because we don't."

Algernon D'Ammassa can be reached at 575-541-5451,adammassa@lcsun-news.comor @AlgernonWrites on Twitter.

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