Red flag law threatens 2nd Amendment freedoms – Dave Tofsted, guest column, LC Bulletin 3/6/2024

The affidavit form used to implement the Extreme Risk Firearm Protection Orders  and a related petition form, under New Mexico’s “Red Flag” law, are the enabling instruments government can use to confiscate an individual’s firearms temporarily or permanently.

Yet these forms contain unresolved loopholes that can unjustly affect the reporting party, respondent, or law enforcement officers, including school educators, employers and prosecutors.

For instance, every respondent will be immediately registered on the National Instant Criminal Background Check System (NICS), which could affect their rights to employment and/or community reputation. The initial affidavit form does not explain to the reporting party that they will be subpoenaed to testify at a court hearing in the county where the respondent resides. This form also does not warn the reporting party of the penalties for malicious or deliberately false statements, nor is there any indication that a copy is to be given to the reporting party. 

Both forms require detailed evidence of the accused’s firearms and ammunition, their numbers, type and location. These forms, which must be notarized, also require evidence of intimate personal details of the respondent: age, health, personality, criminal record, mental state, including any past, present or future basis for issuing any future protection orders under this law. These forms require the reporting party to indicate who is at risk and invite additional comments and observations in addition to the 30-plus inquiries listed on each form. The reporting party is also expected to divulge any relationship between everyone listed in the affidavit, the petition or court hearing including personal, emotional or legal information.

The law enforcement officer and the court then adjudicate the evidence. The process of confiscating the respondent’s firearms and ammunition could be immediate, at the court’s discretion, while notification of the court hearing is only issued to the respondent 10 working days in advance. Such short notice regarding the hearing and possible confiscation of firearms conflicts with the right to sufficient time to obtain legal advice and prepare rebuttal.

The obvious threat to the guarantees of the 2nd Amendment posed by this red flag law is manifest in the ease with which the affidavit form may be initiated. Anyone, regardless of their relationship, spouse, family member, ex-partner, employer, co-worker, school administrator, without regard to possible bias, or qualification, may act as a reporting person.


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