Spencer: Issues With Extreme Risk Protection Order

By KHALIL SPENCER

Santa Fe

Extreme Risk Protection Order (ERPO, or “red flag”) bills designed to remove guns from those who have credibly put self or others at risk of gun violence have been prefiled at the legislature and are supported by the Governor.

In their present form, the bills have several highly problematic aspects. Of particular importance, and not just to gun owners, is the weakening of what constitutes due process under New Mexico law

Last year’s attempts to pass a defective bill died in Committee and have been resurrected with minor changes.

If there is any good news in this year’s bills compared to last year’s, it is that these bills would require a sworn affidavit, which means that if the petitioner willfully misleads the court, he or she could be subject to penalties such as being charged with perjury.

The bad news is that the due process rights of a red flag order recipient are weak.

Due process is what allows anyone to protect themselves in legal proceedings. The two ERPO bills being considered by the Legislature use a low standard of evidence, the so called “preponderance of evidence” “fifty percent plus a smidgen” rule typical of civil lawsuits.

This is in contrast to “beyond a reasonable doubt” used in criminal convictions. But unlike the results of a civil proceeding, an ERPO finding against a gun owner would deny a person  enumerated rights, such as the right to bear arms and be secure in one’s possessions. 

Proceedings in these cases can be ex parte (only one party need appear to obtain an emergency order) and in any case, if an order is issued, the gun owner is put into a position of being guilty until proved innocent. The initial orders are good for about two weeks.

You are deprived of your firearms until 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, they go away for a year.

But what happens during that day in court? Although your right to bear arms, enumerated in both the Federal and State constitutions is in limbo and your 4th and 5th Amendment rights to be secure from unlawful seizures and loss of property without due process are up for grabs, you have no guarantee of a rigorous defense.

The bill, while saying you have a right to counsel, does not provide you with one if you cannot afford one. A person of 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 from my perspective.

Finally, the bill suffers from vagaries that could set a legal trap. Section C 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 or unlawful use are fairly well established legal concepts, others in the list are vague. What is reckless or negligent storage? What is “misuse of controlled substances or alcohol”. Does it mean a conviction on a drug or alcohol charge?  Your neighbor claiming you drink too much? If definitions are in the eyes of the beholder, these can be legally misused.

 An ERPO bill can be a critical tool if used carefully. Its tough to strike a proper balance with these bills given they are designed for emergency situations but find that balance we must.

These bills should be amended to provide due process by first, guaranteeing legal counsel to those who cannot afford it, second, clear up or remove vague language that can be misused in the courtroom and finally, ensure that the standards of evidence are rigorous when these cases go to their 15 day hearings.

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