Wednesday, January 15, 2020

Some Quick Thoughts on the Extreme Risk Firearm Protection Bill Currently Filed for the 2020 Legislative Session

 I will undoubtedly edit this but wanted to get something out there.

Two identical Extreme Risk Protection Order (ERPO, or "red flag") bills have been prefiled for the legislature and are on the Governor's "to do" list for the thirty day session. On the house side, HB 7 has been filed by Rep. Daymon Ely. On the Senate side, Sen. Joseph Cervantes and Mr. Ely have filed SB 5. These are both online and can be examined. As an aside, Rep. Patricia Caballero has filed HB 85 to ban "firearm converters" but that bill is so bizzarely written that I hope it simply dies.

The bigger issue is the ERPO bill, which as I said, has been on the Governor's to do list and is being pushed heavily by the gun control fraternity. I won't bore you with a rewrite here so go read the bill. What I will do is point out what I consider the most problematic aspects of it to a gun owner.

First and foremost is due process. These bills use a lower standard of evidence to issue an order, the so called "preponderance of evidence" standard or fifty percent plus a smidgen typical of civil lawsuits. This is in contrast to an intermediate standard such as "clear and convincing" that some states, for example, Florida, uses. And far lower than the "beyond a reasonable doubt" used in criminal adjudication.The good news is that this year's bill has a provision that the person seeking the order has to fill out an affidavit under oath, which means that if they mislead the court, they are subject to penalties such as being charged with perjury.

The bad news for gun owners would be that these cases are often ex parte (only one party need appear) and in any case, the person seeking the order, once it is issued, puts the gun owner into a position of being guilty until proved innocent.The initial orders are good for about fifteen days and you get your day in court. If you convince the court the request is not supported by sufficient evidence, you get your guns back. If not, say goodbye to them for a year.

But what about that day in court? In spite of the fact that your 2nd Amendment (and as enumerated in Art. II, Sec 6 of the state constitution) right to bear arms is on the table, as are your 4th and 5th Amendment rights to be secure from unlawful searches and seizures and loss of property without due process, you are at risk if you cannot afford counsel. The bill, while saying you have a right to counsel (well, duh...) does not provide you with one if you cannot afford one. So an indigent person or one of somewhat limited means will likely be showing up in court not only unfamiliar with the whole judicial process (as would be the case for most of us), but unable to afford competent legal advice. That is the most shocking problem in this bill from my perspective. It needs to be amended. As I said to Rep. Ely on the phone, I think this is a prime consideration for a lawsuit against the bill on due process grounds.

Finally, some of the wording in the bill is vague and could be a legal trap. Section C on pg. 13 of the present bill lists reasons one can be served with an ERPO. These include 'unlawful, reckless, or negligent use, display, storage, possession, or brandishing of a firearm". While brandishing is a fairly well established legal concept, I am not familiar with any NM law that defines some of these other terms. What is unlawful, reckless or negligent storage? If it is in the eye of the beholder, this is vague and can be twisted and turned to the use of a party unfamiliar with firearms.

Likewise, "misuse of controlled substances or alcohol". Are these well defined legal concepts or another opportunity for a gotcha? Finally, "the recent acquisition of a firearm". Really? Presumably one would have to have a context other than "gee, I like that Winchester".

I would encourage all gun owners to contact the bill sponsors as well as their own representatives and bring up these points. I'm not opposed to an ERPO bill as a concept because as someone who has a subscription to multiple newspapers, I read of cases where these bills are good tools if used as a precision instrument rather than as Maslow's Hammer. I do think these have to be narrowly drawn and preserve due process.

Its tough to strike a proper balance with these if one is thinking of real world situations. But find that balance we must.

Note as of 1-15-2020 10 a.m. I have repeatedly asked the New Mexico ACLU for an analysis of this bill. so far, crickets.