Advocates to push changes to ‘red-flag law’ during session

Dec. 31—A Santa Fe woman whose adult son had a history of undiagnosed mental health problems sought a court order earlier this year seizing his guns and prohibiting him from possessing firearms for a year, court records say, he threatened her and then drove off in her neighbor’s car.

New Mexico State Police encountered her son walking along Interstate 40 near Cuervo a few days later, not far from the stolen car, which he’d abandoned along the freeway after it ran out of gas, according to a police report.

He voluntarily relinquished an unloaded .38 caliber handgun. The following month, a judge held a hearing and granted his mother’s petition, barring the then-21-year-old from having any guns for a year under the Extreme Risk Firearm Protection Order Act.

Use of the law, passed in 2020 and commonly referred to as a “red-flag law,” has been increasing, despite what advocates say are potentially fatal flaws to the effectiveness of the orders which they hope to address during the upcoming legislative session which starts in late January.

While only four petitions seeking orders were filed in 2020, there were 21 filed in 2021, 16 in 2022, 47 in 2023 and 94 in 2024, according to data from the Administrative Office of the Courts.

How it works

As written, the law — which was embraced by gun control advocates but opposed by gun-rights supporters and even by some in law enforcement who complained it would have little effect on someone who wanted to take a life — allows police to petition a court for an order authorizing them to take control of weapons from people deemed to be high risk for up to a year, if they can convince the judge the person poses a risk to harm themselves or others.

Recent or previous acts or threats of violence, a person’s mental health history, criminal record, substance abuse, violations of court orders and a recent acquisition or attempted acquisition of firearms are among factors the court can consider when determining whether to grant such petitions.

One limiting factor, however, has been the requirement that law enforcement officials must obtain an affidavit from a “reporting party” which includes credible information to support seizing a person’s guns. The statute describes a reporting party as a partner, certain close family members, an employer or a school administrator, although a subsequent Attorney General’s opinion concluded “any individual regardless of their relationship” to the person could ask law enforcement to seek a petition.

However advocates have sought to expand the definition of reporting party to include law enforcement and mental health workers, saying a narrow interpretation by judges — and fear on behalf of family members to seek such petitions — continues to limit its use.

Previous attempts to amend the law have died in committee in the Legislature. However New Mexicans to Prevent Gun Violence executive director Miranda Viscoli said in a phone interview Tuesday the group will push to tweak the language of the bill again in the upcoming session.

In addition to expanding the definition of reporting party, Viscoli said, the group wants to remove a provision of the law that gives individuals served with a Extreme Risk Firearm Protection Order 48 hours to relinquish their guns, making the order take effect immediately.

“Someone who is mentally unstable is also being told they can’t have firearms so that is very dangerous,” she said.

Viscoli compared the law to a “clunky car” that works, but just barely.

“It will get you there if you are lucky, but why do we have to have a clunky car when we could get the amending done and make it easier for law enforcement and mental health professionals to use it?” she asked.

By the numbers

Not surprisingly the highest number of petitions originate in Bernalillo County, which includes most of the Albuquerque metropolitan area. The number of petitions and orders originating in the First Judicial District — which includes Santa Fe, Rio Arriba and Los Alamos counties — have also slightly increased.

While only one petition — which was denied — was requested in the district in 2020, and zero in 2021, four petitions originated in Santa Fe County in 2022 and six came from the district in 2023, three from Santa Fe and three from Rio Arriba County.

As of Christmas Eve, six petitions had been filed in Santa Fe County in 2024, of which three were granted. Three were filed in Rio Arriba County over the course of the year, one of which was granted. Several involved minors.

No petitions have been filed in Los Alamos County since the law was passed.

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