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A closer look at Senate Bill 5, the Red Flag Bill


UPDATE: Late Thursday, Feb. 13, the Red Flag Bill was passed in the state House of Representatives, 39-31. The vote was mostly along party lines, but joining all House Republicans who voted against the bill were seven Democrats, including three whose districts include part of Doña Ana County. Those three were Raymundo Lara of District 34, Rudy Martinez of District 39 and Willie Madrid of District 53. No word on when the bill will hit the desk of Gov. Michelle Lujan Grisham, but she has been a supporter of the bill and is likely to sign it. The 30-day legislative session ends Feb. 20.

Few things evoke Americans’ passion more than guns.

The passion is evident in New Mexico, as the state Senate voted 22-20 Feb. 7 in favor of Senate Bill 5, the Extreme Risk Firearm Protection Order Act, or the Red Flag bill. The state House of Representatives is likely to vote on the bill before the session ends Feb. 20.

New Mexicans should read Senate Bill 5 to get a better understanding.

To view the full bill as it stood on Feb. 7, click on the attachment at left, or click the link below:


A warning, because it is written with a lot of legal verbiage, it takes a couple of readings to get through the 19-page document. It took me about 20 minutes.

Below is an abbreviated overview.

What it’s about – Here’s the gist: If a citizen knows someone with a history of violence and/or mental illness has a motivation for violence and is known to be armed, the citizen may request law enforcement to petition the court for a temporary extreme risk firearm protection order. In other words, if you think someone is angry, frustrated or deranged enough to kill himself or someone else, you can let law enforcement know and, if they agree, they can petition the court to take away his firearms for up to one year.

Definitions – The first page or two explains terms.

Costs – Basically explains a reporting party doesn’t have to pay money.

Law enforcement involvement, part 1 – Once presented with the extreme risk situation by a reporting party, the law enforcement officer has the choice whether to file a petition. Whether the officer files or declines to file, a notice must be reported to the court.

Grounds for issuance – a petition begins if there is probable cause to believe the respondent “poses a significant danger of causing imminent personal injury to self or others” if he or she has a firearm. To determine the level of danger, the bill asks the courts to consider the following regarding the respondent:

  • Recent acts of violence
  • Pattern of violent acts or threats
  • Mental health history
  • Substance abuse history
  • Previous court order violations
  • Criminal history, including domestic violence and stalking
  • Cruelty to animals
  • Recent firearms acquisitions or attempts

Law enforcement involvement, part 2 – Before law enforcement can file the petition with the court, it must gather the following:

  • Name and address of reporting party
  • Name and address of respondent
  • Description, number and location of firearms or ammunition respondent is suspected of having
  • Relationship between the two parties
  • List of lawsuits, complaints, restraining orders or other legal action between the two parties

Timing – There is no timeline specified between the reporting party’s first request to law enforcement and law enforcement’s petition to the court. Once a petition is filed, the court has an unspecified amount of time to determine if there is probable cause to issue a temporary extreme risk firearm protection order. If that is issued, the court has 10 days to conduct a hearing to determine if the temporary order should be expanded to one year. The hearing can be delayed up to 30 days if the respondent requests a continuance.

Law enforcement involvement, part 3 – If the court issues the order, the law enforcement agency issuing the petition must serve the order.

Order denial – If the court declines to issue an order, it must enter an order saying why.

Law enforcement involvement, part 4 – Once an order is served, a law enforcement agency or federal firearms licensee has 48 hours or less to collect all firearms in the respondent’s possession.

Law enforcement involvement, part 5 – Once collected, law enforcement must prepare and provide to the court, the petitioner and the respondent a receipt of all firearms relinquished.

Reluctant respondent – If the respondent refuses to relinquish his or her firearms, or gets another firearm during the order, it’s a misdemeanor.

Law enforcement involvement, part 6, 7, 8 and 9 – If an order is issued, the agency must register it in regional and national law enforcement databases. When the order expires, the agency must ensure the order is removed from those databases. Then the agency must check more databases to make sure the respondent didn’t do something to get on another database. Then, if clear, the agency has 10 days to return any collected firearms to the respondent.

It’s awfully complicated, and I can see things in there to frustrate people on both sides of the argument. Key officials at the Albuquerque Police Department, and State Police Chief Tim Johnson are for the bill, but 30 of the state’s 33 county sheriffs oppose it.

Here’s something that frustrates me: At one point, the Senate’s Judiciary Committee added an amendment to the bill that has nothing to do with firearms. The amendment would have increased the maximum liabilities for damages in tort claims. For example, it would have increased the maximum for medical-expense damages from $300,000 to $1 million. I get annoyed by attaching unrelated amendments, especially combining two controversial things. Sen. Daniel Ivey-Soto struck that amendment.

In the Senate, the vote was mostly along party lines, except four Democrats who voted against it: John Arthur Smith, Gabriel Ramos, Richard Martinez and Clemente Sanchez.

As of this writing, there is not a date set yet for a vote in the House.