Closing the Loophole

A law that went into effect July 1 makes it harder for domestic violence perpetrators to own guns and encourages advocates to push further

"Your pathetic life is over," a man threatened his ex-girlfriend in a case filed in July, according to the woman's petition for an order of protection. Her statement continues: "He has made the following threats … [that] he is going to put a bullet in me."

After a judge granted the order of protection she was seeking, a judge deemed the man a credible threat and ordered him to give up his weapons within 48 hours, in accordance with a new state law that went into effect July 1.  

Fewer guns are in the hands of domestic abusers in Santa Fe County now that a state law has been in place since this summer, according to the Santa Fe County Sheriff’s Department records of weapons relinquished in cases such as the one above. But advocates to prevent gun violence want New Mexico to pass even more protections to prevent gun-related tragedies—including the Extreme Risk Protection Order Act, a “red flag” law that would take guns away from those at risk of suicide or committing acts of mass violence. 

Yet court representatives point to important differences between the law already passed and the proposed “red flag” law that could pose significant obstacles to passing further gun legislation in the 2020 session. 
The Santa Fe County Sheriff’s Department has assumed custody of eight guns relinquished in three separate domestic violence cases since the new domestic violence law, passed by the legislature last session, went into effect. The Santa Fe Police Department says it is not yet enforcing the law because officials need more time to create internal policies that align with the legislation, and a spokesman was unable to confirm whether any firearms have yet been relinquished to city law enforcement via court order.
At first, the man who told his ex-girlfriend he would leave her riddled with bullet holes signed one form stating that he did not have any weapons. He later signed a second claiming he had recently sold one firearm to his nephew, but a few days later the courts received a receipt from the Santa Fe County Sheriff’s Office for five firearms relinquished by the man. The police will hold the weapons for one year, until the order of protection expires.
The law passed by the Legislature this spring in Senate Bill 328 does two things to keep domestic violence victims safe from a potentially lethal altercation involving a firearm: First, the law allows New Mexico courts to order accused abusers in domestic-violence-order-of-protection cases to give up their guns if the individual is deemed a serious threat to the safety of a family member, spouse or romantic partner. Second, the law makes possession of a firearm while under an order of protection an arrestable criminal misdemeanor offense in the state. 
Advocates against gun violence say the success of these measures could work in their favor in the effort to pass other kinds of restrictions. 
The law also includes measures to protect the due-process rights of the accused. Before an order to relinquish firearms can go into effect, the accused party must show up for a hearing, the request for a domestic violence order of protection must be granted and the court must make a separate credible threat finding. Then, the accused has 48 hours to willingly relinquish firearms to law enforcement or face charges for breaking the terms of the protection order.
Language allowing law enforcement to issue search warrants for firearms and enter a residence to seize the weapons, however, was struck from the bill before it passed into law. Court representatives say these due-process protections are what make this law different from proposed “red flag” laws. 
Regardless of what comes next, all parties interviewed for this story agree that the new domestic violence law closes critical loopholes and protects the lives of vulnerable individuals. 

In New Mexico, 1 out of 3 women and 1 out of 7 men are likely to be the victims of domestic violence in their lifetimes. Nationally, women are more likely to be killed in a homicide by a domestic partner than by a stranger. A national study by the Violence Policy Center found that in 2017, 1,611 of the 1,948 who were murdered by men were killed by a man they knew, and 997 were the wives or intimate partners of the killer. Only 148 victims were killed by a male stranger.

Regardless of the gender dynamics of the relationship, though, the presence of a firearm increases the likelihood that an abusive domestic relationship will turn deadly.

A second case in which firearms were relinquished to Santa Fe County law enforcement, filed in September, is similar to the first. A man threatened to kill his ex-girlfriend and she went to the courts asking for a protective order. When the court granted the order, the man was banned from possessing firearms for a year and relinquished one gun.
In the third case, both parties of a divorced couple requested orders of protection against each other in the spring, the woman claiming that her ex-husband had a chronic history of abusing his family, including strangling her and beating his son. The husband accused the wife of drug abuse and neglect of their children. Ultimately, it was the wife who was deemed a threat to the children and ordered to give up two weapons for 18 days, to which she complied.
Under federal law, it is illegal for anyone who is under a domestic violence order of protection to own a firearm. But this federal law was virtually meaningless in New Mexico because it was unenforceable at the state level until the Legislature passed Senate Bill 328 this spring, says Patricia Galindo, senior attorney for the Administrative Office of the Courts. 
“Before, for anything that happened, federal action would have to take place and the federal police would somehow have to get involved, and/or the US Attorney’s Office would have to get involved to charge [a perpetrator] with a federal crime,” says Galindo.
“The bill closes several loopholes in state protections of domestic violence victims,” she says.
Local law enforcement agrees that the law will help keep victims safe from fatal violence.
“I think it makes it easier for us to do our job to protect domestic violence victims, especially when there’s an order of  protection in effect. … If you have an order of protection and it’s been issued by the court, I don’t think you should be in possession of firearms,” Santa Fe County Sheriff Adan Mendoza tells SFR.

A separate bill introduced last session that would have allowed law enforcement to temporarily confiscate firearms from individuals deemed an immediate threat to themselves or others, the Extreme Risk Protection Order Act, died in the Senate, but advocates hope to reintroduce the legislation in 2020. 

The so-called “red flag law” is designed to lower rates of suicide and lessen the risk of mass shootings by individuals who are in extreme states of psychological distress.
“They are two very different bills,” says Miranda Viscoli, the co-president of New Mexicans to Prevent Gun Violence. “ … But the good thing is that now that we’ve passed the domestic violence bill and we can see that the relinquishment process does work, it just helps the [Extreme Risk Protection Order] bill pass because a lot of the resistance was saying, ‘it’s too complicated to do the relinquishment process,’ and we now know that it’s not.”
But Galindo, the attorney at the Administrative Office of the Courts, says it’s also important to remember how these bills are different. 
“Our current DV firearms surrenders have multiple due process protections for the [accused] before someone loses the rights to have their firearms … it’s back-end loaded, which means the relinquishment can only happen after an extended court process” says Galindo. 
The so-called “red flag” law, on the other hand, she says is designed for extreme threats in which immediate action is necessary and would allow law enforcement to confiscate firearms right away, and “then the court process happens later.”

The detail of due process may be the greatest stumbling block for the Extreme Risk Protection Order Act if it is reintroduced in January. 

As the Albuquerque Journal reported last week, Democratic lawmakers backing the bill once again failed to reach a deal Wednesday with the New Mexico Sheriffs’ Association or with Republican legislators who worry its implementation would deny individuals their constitutional rights rights to bear arms without giving them the chance for due process. The governor has said a deal, or lack thereof, with those parties will not prevent her from supporting the idea. 

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