New Mexico Attorney General Raúl Torrez won’t defend Gov. Michelle Lujan Grisham from legal challenges to a new public health order. In a letter dated Sept. 12, Torrez cites four legal challenges filed since Friday when Lujan Grisham signed a new public health order that includes a 30-day suspension of open and concealed weapon carry in Albuquerque and Bernalillo County.
“Simply put, I do not believe that the Emergency Order will have any meaningful impact on public safety but, more importantly, I do not believe it passes constitutional muster,” Torrez writes.
The governor cited the shooting deaths of three children since July—including an 11-year-old boy last week—as well as two mass shootings in the state this year in Farmington and Red River as the impetus for the new health order.
In his letter, Torrez notes that as a career prosecutor, he has “grieved with too many victims of gun violence in New Mexico not to share your anger and frustration at the unacceptable toll that gun violence has exacted, especially among the youngest members of our community.” Moreover, he writes, he agrees with “the need to ‘start a debate’ about the devastating impact that gun violence is having on our citizens, especially our children.”
The lawsuits, filed in US District Court include one filed by the National Association for Gun Rights, as well as several private citizens and organizations, including Gun Owners of America and We the Patriots. The latter suit also includes as a plaintiff Albuquerque resident Dennis Smith, described as a “law-abiding” Albuquerque resident of 40 years who has carried a concealed weapon license for six years.
“Smith’s age makes it impossible for him to rely on speed of foot to elude an attacker or strength of body to overpower one,” the complaint reads. “Thus, Smith regularly carries a handgun loaded and holstered on his body for the purpose of self-defense whenever he leaves his home. Smith also engages in recreation on a weekly basis at New Mexico public parks—primarily Los Poblanos Open Space in Albuquerque, New Mexico. He regularly carries his handgun when he uses Los Poblanos Open Spaces to protect himself from wild coyotes, stray dogs, and potential human attackers.”
The suits, which ask for temporary restraining orders against the governor’s public health order, also cite last summer’s US Supreme Court ruling in New York State Rifle & Pistol Association Inc. v. Bruen, which struck down a concealed carry law in New York.
Torrez also cites the case, writing to the governor that the court emphasized in the Bruen case “that the importance of a governmental objective is irrelevant to the constitutionality of a state’s regulation of firearms. If the regulation interferes with an individual’s right to armed self-defense, it is presumptively unconstitutional and can only be upheld if the government is able to ‘affirmatively prove that its firearm regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.’”
As such, Torrez writes, “the novel reclassification of gun violence as a ‘public health emergency’ appears to have been adopted as a pretext to apply the extraordinary but narrowly proscribed powers of the [Public Health Emergency Response Act] to prohibit all citizens, regardless of their criminal intent or conduct, to possess firearms in public. Unfortunately, it is the very novelty of this approach that places it outside the ‘historical tradition’ of gun regulation in this country and thus unlikely to survive judicial scrutiny.” Nonetheless, Torrez says, “the issuance of an executive order in violation of core constitutional principles is not the appropriate method for bringing about such a debate, and its flawed legal foundation is likely to obscure, rather than highlight, meaningful solutions.”
The letter concludes with Torrez asking the governor to reconsider the order (read the entire letter here).
The attorney general is the latest in a growing number of Democrats criticizing the governor’s use of the public health order to restrict concealed and open carry of weapons.
Bernalillo County Sheriff John Allen, a Democrat, on Sept. 11 held a press conference to say he will not enforce the ban because the order is unconstitutional. Moreover, he added: “I have enough violence in Bernalillo County. I do not want to have political violence toward my deputies or here in Bernalillo County. My job is to keep the peace.” Allen also said he did not believe the law would “do anything to deter gun violence.” State Sen. Joe Cervantes, D-Las Cruces, on the site formerly known as Twitter, also called upon the governor to rescind the order: “An unconstitutional approach undermines the important collaboration gun issues deserve, and the important role of a Governor to lead genuine reforms,”
US Sen. Martin Heinrich, D-NM, yesterday also issued a statement subtly but clearing taking aim at the order: “The gun violence in New Mexico and across our country has had devastating impacts on families, communities, and our sense of safety,” Heinrich said. “It’s why I led the effort on the first federal gun reform law passed in nearly three decades. There is more that can and should be done to stem the violence and ensure every American can feel safe at school, at the grocery store, or at the movie theatre. As we do that work, we need to focus on solutions that are constitutional and enforceable. That’s what will save lives.”
The ACLU of New Mexico also issued a statement expressing concern over the new public health order, which emerged following the shooting death of an 11-year-old boy last week. “The ACLU of New Mexico is heartbroken over the recent death of a child and shares the governor’s concern for the well-being of our community,” ACLU of New Mexico Litigation Manager Lalita Moskowitz said in a statement. “However, we are equally concerned that her solution to the complicated problems of substance abuse, addiction, and gun violence is to pour more resources into law enforcement.”
In response to a request from SFR for a response to Torrez’s letter, the governor’s press secretary, Caroline Sweeney, wrote: “The governor’s office received the letter from the Attorney General Torrez and let me be clear—Gov. Lujan Grisham did not ask the attorney general to represent the state. The governor is looking for state leaders to step up and take bold steps to make New Mexicans safer from the scourge of gun violence. We invite the Attorney General to turn his attention to that effort.”