Red-flag laws: Just 'feel-good' or preventative?

Sheila Lewis, a gun violence prevention trainer, spoke at length on Thursday to a cluster of people at Clovis' La Casa Senior Center.   

One focus was ERPOs – Extreme Risk Protection Orders.   

In simple terms, ERPOs, or red-flag laws, are aimed at preventing people who "pose a significant danger of causing imminent personal injury to self or others" access to guns, said Lewis, a member of New Mexicans to Prevent Gun Violence.  

Lewis feels ERPOs could help residents of New Mexico; a state where "the rate of gun deaths increased 76% from 2013 to 2022, compared to a 36% increase nationwide.​"   

"Why not take that extra step?" she said at the event sponsored by the Democratic Party of Curry County.   

But many feel ERPOs are unconstitutional, and not a solution to reducing gun violence.  

"I think it's a feel-good law for certain people who are anti-gun," said Malin Parker, longtime Roosevelt County sheriff slated to take a county commission seat in January. 

Why are ERPOs important?  

Lewis – a former defense attorney who represented gun violence perpetrators and victims – said gun violence is typically impulsive. ERPOs could provide a "buffer" period and help prevent mass shootings.   

"One of the things we know is mass shooters ... leave a lot of hints about what they're going to do," Lewis said. "They post on Facebook; they try to tell somebody 'I'm in trouble.' And if you don't listen and you don't respond, you can't make a difference. And this is a really good response."  

Furthermore, Lewis said ERPOs are important because they prevent someone from legally purchasing a gun for the period of the protection order. According to data compiled by the National Institute of Justice, 77% of mass shooters purchased at least some of the weapons used in the shootings legally from 1966 to 2019. 

Lastly, Lewis feels strongly this "buffer" period could help prevent suicide.  

According to Lewis' presentation, 58% of the 500 or so deaths via gun violence in New Mexico every year are gun suicides.  

"The most important thing about an Extreme Risk Protection Order is to remember it's about saving lives," she said.  

Lewis said many people don't know about the ERPO option. Expanding knowledge through talks like Thursday nights could be the difference between life and death, she said.   

"It's doable and it works," Lewis said. "That's the most important."  

How do ERPOs work?  

Three steps are required before a judge will issue an ERPO, according to Lewis.  

Step one: If a family member, employer or school official feels that someone "poses a significant danger of causing imminent personal injury to self or others by having a firearm" they will file a report to law enforcement. The goal of this is to have the person in crisis relinquish their firearm or prevent them from buying guns legally.   

This reporting party can be a wife who is fearful that her gun-owning ex-husband could kill her. Or parents of a child whose behavior has become increasingly alarming and worry they'll use a gun on others – or themself.   

Step two: Lewis explained how "based on that information, a law enforcement officer then files a petition asking the court to order the respondent to relinquish (bring) all of their firearms to a law enforcement agency or a Federal Firearm Licensee – an FFL) within 48 hours."  

Lewis stated that some factors the court will base their decision on could be substance or alcohol abuse, mental health history, or "any recent threat of violence." 

Step three: It's then up to the court or judge to see if the guns need to be relinquished.   

According to Lewis, if it goes through, there are two different ERPOs that can be given. 

The first is a "temporary order" which means it's good for 10 days. The other is a "permanent order" which means it's good for a year. But there's an option for the person in crisis to come into court during that year to tell the court why the ERPO should be dropped.  

According to Lewis, in 2023, 47 ERPO petitions were filed in New Mexico; 45 temporary ERPOs were granted. Those numbers are on pace to double in 2024. None were in Curry and Roosevelt County in 2023.   

ERPOs pushback  

But Parker, and many other local law officers and lawmakers, have long publicly expressed concerns that red-flag laws violate the Second Amendment, which ensures individuals' rights to "keep and bear arms."  

Parker also believes ERPOs are a violation of the Fourth Amendment, which ensures "the right of people to be secure in their persons (and houses) against unreasonable searches and seizures ..." 

"It goes against basically every right a person has," Parker said. 

"Anybody can make these claims against anybody, and then therefore they can order the sheriff or the local government to go in and seize somebody's firearms due to an unvalidated complaint," Parker said. "It's just mind boggling to me. 

"Denying access to a firearm to somebody that has a mental handicap or impairment who's hell bent to injure somebody is not going to stop them from injuring that person." 

And Parker believes red-flag laws are a slippery slope to additional unwarranted government control. 

"Are we going to start denying access to vehicles now too?" Parker said before adding "hammers" and "kitchen knives" to that list.  

In addition, the red-flag laws can place law enforcement in danger. 

"There's a lot of people in this world that believe so strongly in their constitutional rights that they'll die for those rights, and you know that just puts law enforcement in a terrible, terrible position," Parker said.  

Lewis' response to pushback  

Lewis said she understands why law enforcement has its reservations.   

"I appreciate the danger for police officers. It truly is dangerous. Our law is not written in a way that makes it safe for them," she said.   

To make the process safer, Lewis says law enforcement should use soft, gentle language and let the ERPO respondent know it's about "safety" – not punishment.   

"Don't want people to be locked up. We want guns to be locked up," she said.  

As for unwarranted claims, she said the judicial process is cumbersome, so if somebody doesn't need to do it, then they won't.  

During her presentation, Lewis addressed the concerns regarding how ERPOs are unconstitutional. One slide pointed out that "our law does not authorize seizure of firearms." With that said, "Failure to relinquish is contempt of court" and "contempt of court can be charged as a crime." 

She said she also doesn't want people to think guns are being taken permanently. Rather, they're being revoked for a period so a person doesn't use it to hurt themself or somebody else. Those same guns can be given back if a person has shown they're in an improved state of mind or the end of the ERPO period.

"It's not going to be huge numbers. We don't think there are that many people who are dangerous, mentally ill people," she said, "but there are some."