The sheriff loophole
When Congress passed the new gun safety law a few weeks ago, one change was the elimination of the so-called boyfriend loophole. This change means that red flag laws can now be applied to individuals other than a spouse.
New Mexico did not have a boyfriend loophole. We have a sheriff loophole. The sheriffs of most New Mexico counties have stated publicly that they will not enforce this law.
Red flag laws are intended to be used when a person has done or said violent things, leading others to fear this person might shoot someone.
New Mexico’s law, officially the Extreme Risk Firearm Protection Order Act, was enacted in 2020. Shortly afterward, 26 New Mexico sheriffs announced they would not comply. If a judge issues an order to take away someone’s guns, they said they won’t do it.
Nothing appears to have changed.
Here is how this law is supposed to work.
If you are worried about gun violence from a person who possesses firearms, and you fit the definition, you can ask a law enforcement officer to file a petition with a judge. The New Mexico law does not allow you to petition the judge directly.
You must persuade the law enforcement officer that this person, called the respondent, is dangerous to self or others. Then the law enforcement officer has to convince the judge. The respondent has the right to a hearing.
There are provisions to allow firearms to be taken for 10 days in an emergency or for a full year.
The definition of who can submit the request is broad. It includes a “a spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, co-parent of a child, child, person with whom a respondent has or had a continuing personal relationship, employer or public or private school administrator.” As you see, this covers boyfriends and former boyfriends.
If a judge grants the order, the law requires the sheriff to take away that person’s guns. That’s what 26 sheriffs said they would not do.
End of story. If you know your sheriff won’t take the guns away, why would you go through the painful process of asking? Just because he threatened to murder his ex-girlfriend or shoot up his former classroom?
The judge who would hear this case would probably be your own district judge, elected by you and your neighbors just as the sheriff was elected by you and your neighbors.
In a recent copyrighted story, the Albuquerque Journal found that in New Mexico, only nine such petitions have been filed. Only five of those cases resulted in one-year orders being approved. According to that story, 19 states have similar laws, and some of them have had thousands of cases approved.
We will probably see proposals to amend this law in January. I am guessing there will be legislation to close part of the sheriff loophole by allowing family members or other affected parties to file petitions directly. And there will be fierce opposition, as with any gun-related legislation.
But if the sheriff won’t enforce the order, changing the law won’t make much difference to the family member who is worried about the crazy nephew or the jealous ex-boyfriend.
If you had thought about maybe solving this problem by electing a new sheriff in November, in most New Mexico counties you are too late. Most sheriff races were decided in the primary.
We would all like to pick and choose which laws we follow and which ones we ignore. I used to think that did not apply to public servants who take an oath to uphold the law, but apparently that’s not the standard today.
Contact Merilee Dannemann through www.triplespacedagain.com.
This article originally appeared on Carlsbad Current-Argus: The sheriff loophole
