Can she do that?

New Mexico Gov suspends gun carry laws

Gov. Michelle Lujan Grisham of New Mexico shocked the nation last week when she announced an Executive Order that would temporarily suspend the state’s right-to-carry laws. The Order, along with a separate Executive Order addressing the fentanyl crisis, implements a public health order where the meat of the new regulations can be found.

Per the public health order, “No person, other than a law enforcement officer or licensed security officer, shall possess a firearm… either open or concealed” on public property in high crime areas for 30 days. Limited exceptions include firearms dealers, ranges, and transporting guns within a locked container or with a trigger lock. The restrictions on the order mean that the carry ban is limited to Albuquerque and surrounding Bernalillo County.

Some other facets of the order include:

• Monthly inspections of firearm dealers

• A ban on guns on state property and public parks

• Mandating a report on the demographics of gunshot victims

• Suspension of the Juvenile Detention Alternative Initiative, a program that focuses on reform rather than incarceration

• A program to test school wastewater for “illicit substances, such as fentanyl”

Gov. Grisham’s orders raise many questions and concerns from both sides of the aisle. The most obvious question is, “Why is she doing this now?”

The answer to that question is in the Executive Order itself. While Gov. Grisham cites a number of reasons, there are three that seem central to her decision to act:

• New Mexico experienced a 43 percent increase in gun deaths from 2009 through 2018, while the nation at large increased by 18 percent

• Guns are the leading cause of death for New Mexico children and teens, including the deaths of a 13-year-old girl on July 28, a five-year-old girl on August 14, and an 11-year-old boy on September 6, all of whom are specifically mentioned in the Order

• Two mass shootings in the state this year at Farmington and Red River

A second question is whether Gov. Grisham’s actions will reduce violence. My guess is that these band-aid solutions won’t have much effect.

First, the governor’s statistics seem to be questionable. New Mexico’s own data published online puts the most common cause of death for all age groups from one to 54 as “unintentional injuries.” For ages five to 34, the second most common cause of death is suicide while homicide runs third. The data doesn’t break down the cause of fatal injuries, but I’d be very surprised if gun-related injuries outpaced those from auto accidents.

Along the same line, I went back and found the details of the gun killings that Gov. Grisham cited in her Executive Order. With a single exception, I cannot see where the actions ordered would have prevented any of the deaths.

The 13-year-old girl killed on July 28 was killed by a 14-year-old boy. Measures to restrict access to the gun might have prevented this killing. A Department of Public Safety press release, notes that the boy’s father, who owned the gun, was charged with “Negligent Making a Firearm Accessible to a Minor Resulting in Death.”

The other cases seem to be related to criminal behavior. The five-year-old was killed as she slept in someone else's house, apparently the unintended victim of bullets meant for someone else. The 11-year-old boy was killed in an apparent road rage incident that left another woman injured.

In Farmington, an 18-year-old boy killed three women and injured six people including two responding officers. The shooter was armed with an “AR-15-style rifle” and two pistols. He legally purchased the rifle, but New Mexico law prohibits the possession of pistols by anyone under 19. As with many other mass shooters, the Farmington killer struggled with mental health issues including strained personal relationships, problems in school, and the trauma of his parents’ divorce.

The Red River shootout was entirely different. This incident, which left three dead and five injured, occurred at a motorcycle rally between rival members of the Outlaw Motorcycle Gang.

The common denominator between all of these incidents is that there is no evidence that prohibiting the legal carriage of guns by law-abiding citizens would have prevented any of them. While at least some of the guns involved were lawfully purchased and possessed, others were likely to be illegal in the first place and/or carried by people who had no intention of obeying the law. One incident occurred at the home where the guns were kept and others involved people who set out to intentionally do harm.

Going further, of the incidents cited by the governor, only two occurred in Albuquerque or Bernalillo County where the strictest measures will be in place. Neither of the mass shootings were in areas covered by the carry ban.

Finally, the $64,000 question is whether Grisham has the authority to suspend portions of the law with her Executive Order. On this point, you might be surprised at how the battle lines are forming. Some on the right, such as Fox Business contributor Jay Caruso, claim that Grisham has the authority because of overbroad emergency health statutes. On the other side, anti-gun activist David Hogg questioned the legality of the order saying, “There is no such thing as a state public health emergency exception to the U.S. Constitution.”

I’ll qualify this discussion by saying that I’m not a lawyer, but I think that the legality of the order depends on exactly which provision we are looking at. Some provisions, such as increased frequency of firearms dealer inspections, fall within the governor’s executive authority and are probably legal.

On the other hand, the suspension of carry laws has the highest legal bar to clear. New Mexico has a slate of gun laws passed by the legislature. The two questions in my mind are 1) Does the law allow the governor to suspend state gun laws in a crisis? and 2) Does the current situation in New Mexico meet the legal requirements to invoke these emergency powers?

The public health order cites New Mexico’s Public Health Act of 1978, the Public Health Emergency Response Act of 1978, and the Department of Health Act of 1978, along with the “inherent constitutional police powers of the New Mexico state government” as the statutory authority behind the governor’s move. This constitutes quite a bit of legalese and to date, the internet’s legal eagles have not weighed in on the legality of the order, so here’s my unexpert opinion for all it’s worth.

I think New Mexico, like America, does have a gun problem. A problem, however, is not necessarily an emergency. That seems to be the case here.

New Mexico law defines “public health emergency” as “the occurrence or imminent threat of exposure to an extremely dangerous condition or a highly infectious or toxic agent, including a threatening communicable disease, that poses an imminent threat of substantial harm to the population of New Mexico or any portion thereof.”

On the one hand, the law cites legitimate health problems such as infectious agents or communicable diseases that pose an imminent threat of substantial harm. That would seem to eliminate normal gun violence from consideration as a public health threat.

On the other hand, the law also includes vague terms such as “extremely dangerous condition” and “any portion” of the New Mexico population. Those vague terms greatly expand the scope of the law and Gov. Grisham is probably relying on this larger reading of the law.

In fact, this reading of the law is now so expansive that it is probably unconstitutionally vague. If any “extremely dangerous condition” that affects “any portion” of New Mexico’s population, can be the subject of an emergency order, then the possibility of such orders is endless. Gov. Grisham could issue orders against traffic, unsafe ladders, rattlesnakes, dihydrogen monoxide, the sun, you name it. Any imminent danger to a single person could be the subject of an emergency order.

While such shenanigans might have passed muster under other Supreme Courts, I seriously doubt that the current Court will be amused if and when the case reaches them. And there will be a legal challenge. In fact, there already is. A gun-rights group is suing to block implementation of the order.

Gov. Grisham’s move is particularly poorly timed coming just over a year after the Supreme Court expanded Second Amendment rights when it struck down a New York law requiring concealed carry permit applicants to show a special need to defend themselves. Even more recently, the Court struck down President Biden’s expansive reading of the student finance law in an attempt to justify his student loan forgiveness program.

As I said earlier, we have a gun problem (and one that isn’t going to be solved by more guns), but the way to address the problem is to form a compromise faction and pass laws that target the illegal use of guns. Controversial autocratic moves by governors (or presidents) only serve to inflame the situation.

The situation is very similar to President Trump’s use of emergency powers as the solution to the immigration problem. I think most Americans agree that we have an immigration problem, but Congress’s failure to act does not transform the problem into an emergency. The same can be said of student loans.

Instead, when government executives attempt to bypass the legislature and impose top-down, one-sided solutions, they poison the well and make it less likely that anything will get done. Gov. Grisham just lent credence to those on the right who believe that authoritarian leaders are just waiting for the opportunity to swoop in and take their guns. That’s a very bad thing for the majority of Americans who want to enact targeted and meaningful gun reforms.

Indeed, Gov. Grisham’s order seems to be opposed by both of Albuquerque’s top law enforcement officials. Bernalillo County Sheriff John Allen said in a statement, “I have reservations regarding this order. While I understand and appreciate the urgency, the temporary ban challenges the foundation of our Constitution, which I swore an oath to uphold.”

Albuquerque Police Chief Harold Medina told his officers, “The governor made it clear that state law enforcement, and not APD, will be responsible for enforcement of civil violations of the order.”

Medina added, “Our officers at APD will continue to focus on the enforcement of criminal laws and arresting criminals who are driving the violent crime in the city.”

To me, that’s the right strategy. Focus on the people who are committing the crimes and avoid adding to public mistrust of police and government. And make sure that criminals stay behind bars rather than being released back to the streets.

“I don’t need more federal resources,” Medina said at a press conference. “I need more federal prosecutors.”