Gun buy backs legal in New Mexico, AG's staff says after Sheriff Ferrari raises questions
The leader of a New Mexico nonprofit organization that has presented dozens of gun buy-back events throughout the state says she feels vindicated by a recent legal opinion from the attorney general’s staff maintaining such programs are legal under state law, despite an assertion by San Juan County Sheriff Shane Ferrari that they are not.
On Jan. 9, Chief Deputy Attorney General James Grayson explained in a letter to San Juan County District Attorney Rick Tedrow, copied to Ferrari, that gun buy-back events conducted by nonprofit organizations in partnership with law enforcement agencies do not violate a provision of a 2019 state law requiring that a federal instant background check be conducted prior to the sale of a firearm, except in certain circumstances.
“The plain language of the statute shows that a federal instant background check is not required at the type of gun buy-back event described above,” Grayson wrote in his letter, noting specifically that the statute does not apply to the transfer of a firearm as a gift. “As a result, there is no question that an individual could donate a firearm to a non-profit entity without being subject to the statute.”
Grayson wrote that, even though a law enforcement officer provides a surrendered firearm to a nonprofit worker for destruction after making sure it has not been reported as stolen during such events, that transfer is not regarded as a sale because the nonprofit worker does not provide anything of value to the law enforcement officer in exchange for the weapon.
“The gun buy-back involves two separate transfers of possession, neither of which requires a federal instant background check under (the statute),” he wrote. “The law enforcement agency, in effect, functions as an intermediary in a manner that does not trigger the background check requirement.”
Miranda Viscoli, the co-president of New Mexicans to Prevent Gun Violence, welcomed the opinion from the AG’s staff.
“One-hundred percent,” she said, affirming her confidence that such a review was going to validate her organization’s position on the issue.
“Now, the misinformation has to stop,” said Viscoli, referring to what she described as large-scale social media mischaracterizations of the actions and goals of New Mexicans to Prevent Gun Violence.
Ferrari, who had raised the issue of the legality of the programs in a Dec. 17 Facebook post on his Shane Ferrari for Facebook page, acknowledged receiving the letter from the chief deputy AG and said he understood the reasoning that if a buy-back program is conducted in partnership with a law enforcement agency, it does not run afoul of state law.
But he said the letter did not address his question about what happens if organization such as New Mexicans to Prevent Gun Violence conduct such events on their own, without the participation of a law-enforcement agency. He said he had reached out to the New Mexico Department of Justice, formerly known as the Attorney General’s Office, two days ago for a response to that question and was awaiting a response.
Dustin O’Brien, the chief deputy district attorney for San Juan County, said he had not had an opportunity to analyze the opinion with Tedrow, who he said has spent much of the past couple of weeks in Santa Fe for the start of the legislative session. But he said if such buy-back events are conducted with a law enforcement partner, he agrees with the position expressed by the deputy attorney general in his letter.
“I would trust the attorney general assesses it properly, but I have not had the chance to discuss it with Rick,” he said.
Hacked off or destroyed?
Ferrari said he also has been in touch with officials at the federal Bureau of Alcohol, Tobacco and Firearms about whether the firearms that are surrendered at such events are being destroyed properly. Customarily, the weapons are cut up with a gun saw immediately after their former owner turns them in.
Ferrari maintains that, according to photographs he has seen, many of them are not being properly destroyed, and he said ATF officials share his concerns.
“Even though they’re cut in half, they’re still considered firearms,” he said.
He said he had seen images of an AK-47 that reportedly had been surrendered at one of the gun buy-back events that had had its barrel hacked off while the receiver — the portion of the weapon that anchors the integrated gas piston and the trigger group, according to popularmechanics.com — had been left intact.
Viscoli flatly rejected that claim.
“I don’t know how he could have seen those images because they don’t exist,” she said.
The sheriff said it was his understanding that government officials will be reaching out to New Mexicans to Prevent Firearms soon to offer them education on what is legally required for the destruction of firearms.
Viscoli dismissed the idea that her organization is conducting the destructions improperly.
“There’s a lot of misinformation out there saying we’re turning them into sawed-off shotguns,” she said, scoffing and adding that when her organization destroys a gun, it makes sure the weapon is unusable.
“No gunsmith in the world can put these back together,” she said.
More: Gun buy-backs remain divisive topic in San Juan County
In his Facebook post that prompted an inquiry from the DA’s Office about the legality of gun buy-back programs, Ferrari took issue with the destruction of several guns by New Mexicans to Prevent Gun Violence in Farmington on Dec. 13, 2023.
He has contended that unwanted firearms that have been surrendered must remain in the custody of law enforcement officials until a destruction order or other disposition is obtained from a court.
Ferrari also said his reading of the opinion from the attorney general’s staff is that any gun buy-back event that isn’t conducted in conjunction with a law enforcement agency is not covered by the review. Viscoli has said her organization is considering presenting a gun buy-back event in Farmington without a law-enforcement partner after a Dec. 6, 2023, event that was supposed to be held here in partnership with the Farmington Police Department was cancelled by city officials after several citizens complained about it.
Viscoli interpreted Grayson’s letter differently than Ferrari, arguing that an event without a law enforcement partner requires only a minor change of procedure.
“You can’t give them any kind of thank you (card) until after the firearm is destroyed in front of them,” she said, noting that the firearm has ceased to be a firearm at that point.
Viscoli apparently was referring to a section of Grayson’s letter in which he wrote, “the transfer of possession at a buy-back event includes placing the firearm in a shredder that renders it ‘permanently inoperable’ such that it is no longer a firearm as defined (in the statute.)”
Turning down the heat
Viscoli said she hopes Grayson’s letter defuses some of the criticism she and New Mexicans to Prevent Gun Violence have been subject to over social media. She blamed Ferrari, as well as state lawmakers John Block and Stefani Lord — who have mounted an impeachment effort against Gov. Michelle Lujan Grisham for her public health order earlier this year that suspended the right of citizens to carry open or concealed firearms in public in Albuquerque — for encouraging much of that activity. She asserted they are abusing their political position by vilifying her organization.
Ferrari said he worries that firearms that have been stolen could be destroyed at gun buy-back events that take place without a law enforcement partner. He said he is continuing to question aspects of gun buy-back events because he wants clarification on those issues, and he wants the law to be followed.
“I’ve spoken to the U.S. Attorney’s Office, and they have no interest in charging them,” he said of organization that he believes have violated the law. “I have no interest in charging them.”
The sheriff said he is hoping to receive that clarification soon in the form of another opinion from the New Mexico Department of Justice.
“I’m just looking forward to getting it all done so everybody’s aware of the process that needs to take place,” he said.
Mike Easterling can be reached at 505-564-4610 or measterling@daily-times.com. Support local journalism with a digital subscription: http://bit.ly/2I6TU0e.
This article originally appeared on Farmington Daily Times: Gun buy-back programs legal in New Mexico: AG staff
