HOUSE CONSUMER AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
HOUSE BILL 27
56th legislature - STATE OF NEW MEXICO - second session, 2024
AN ACT
RELATING TO FIREARMS; AMENDING THE EXTREME RISK FIREARM PROTECTION ORDER ACT; INCLUDING HEALTH CARE PROFESSIONALS AS A REPORTING PARTY; EXPANDING VENUE FOR ORDER PROCEEDINGS; ALLOWING LAW ENFORCEMENT OFFICERS TO FILE A PETITION WITHOUT A REPORT FROM A REPORTING PARTY; PROVIDING AN EXPEDITED PROCESS FOR TEMPORARY ORDERS TO BE ISSUED AT ALL TIMES; REQUIRING IMMEDIATE RELINQUISHMENT OF FIREARMS UPON SERVICE OF AN ORDER; ALLOWING LAW ENFORCEMENT AGENCIES TO DESTROY, SELL OR TRANSFER UNCLAIMED FIREARMS; MAKING CONFORMING AMENDMENTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 40-17-1 NMSA 1978 (being Laws 2020, Chapter 5, Section 1) is amended to read:
"40-17-1. SHORT TITLE.--[Sections 1 through 13 of this act] Chapter 40, Article 17 NMSA 1978 may be cited as the "Extreme Risk Firearm Protection Order Act"."
SECTION 2. Section 40-17-2 NMSA 1978 (being Laws 2020, Chapter 5, Section 2) is amended to read:
"40-17-2. DEFINITIONS.--As used in the Extreme Risk Firearm Protection Order Act:
A. "court" means the district court [in the county in which the respondent resides] where a petition for an extreme risk firearm protection order is filed;
B. "extreme risk firearm protection order" means [either a temporary extreme risk firearm protection order or a one-year extreme risk firearm protection] an order granted pursuant to the Extreme Risk Firearm Protection Order Act and includes a temporary extreme risk firearm protection order;
C. "firearm" means [any] a weapon that is designed to expel a projectile by an explosion or the frame or receiver of any such weapon;
D. "health care professional" means a person licensed by the state to provide medical or mental health care services pursuant to the:
(1) Medical Practice Act;
(2) Nursing Practice Act;
(3) Physician Assistant Act;
(4) Professional Psychologist Act;
(5) Counseling and Therapy Practice Act; and
(6) Social Work Practice Act;
[D.] E. "law enforcement agency" means the police department of [any city or town] a municipality or university, the sheriff's office of [any] a county, the New Mexico state police [and], a district attorney's office [in the state] and the office of the attorney general;
[E.] F. "law enforcement officer" means a [public official or public officer vested by law with the power to maintain order, to make arrests for crime or to detain persons suspected of committing a crime, whether that duty extends to all crimes or is limited to specific crimes] full-time salaried and commissioned or certified law enforcement officer of a police or sheriff's department and [includes] an attorney employed by a district attorney or the attorney general;
[F. "one-year extreme risk firearm protection order" means an extreme risk firearm protection order granted for up to one year following a hearing pursuant to the provisions of Section 7 of the Extreme Risk Firearm Protection Order Act;]
G. "petitioner" means a law enforcement officer who files a petition for an extreme risk firearm protection order [petition];
H. "reporting party" means a person who requests that a law enforcement officer file a petition for an extreme risk firearm protection order and includes a:
(1) respondent's spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, co-parent of a child or child;
(2) person with whom a respondent has or had a continuing personal relationship;
(3) respondent's employer; [or]
(4) public or private school administrator; or
(5) respondent's health care professional; and
I. "respondent" means the person identified in a reporting party's request or a petitioner's petition or subject to an extreme risk firearm protection order [petition; and
J. "temporary extreme risk firearm protection order" means an extreme risk firearm protection order issued prior to a hearing pursuant to the provisions of Section 6 of the Extreme Risk Firearm Protection Order Act]."
SECTION 3. Section 40-17-4 NMSA 1978 (being Laws 2020, Chapter 5, Section 4) is amended to read:
"40-17-4. EXTREME RISK FIREARM PROTECTION ORDERS--VENUE.--Proceedings pursuant to the Extreme Risk Firearm Protection Order Act shall be filed, heard and determined in the district court for the county in which:
A. the respondent resides;
B. the respondent's conduct gave rise to the facts supporting the petition; or
C. the respondent's suspected firearms may be found."
SECTION 4. Section 40-17-5 NMSA 1978 (being Laws 2020, Chapter 5, Section 5) is amended to read:
"40-17-5. PETITION FOR EXTREME RISK FIREARM PROTECTION ORDER--CONTENTS.--
[A. A petition for an extreme risk firearm protection order shall be filed only by a law enforcement officer employed by a law enforcement agency; provided that, if the respondent is a law enforcement officer, the petition shall be filed by the district attorney or the attorney general.
B. A petitioner may file a petition with the court requesting an extreme risk firearm protection order that shall enjoin the respondent from having in the respondent's possession, custody or control any firearm and shall further enjoin the respondent from purchasing, receiving or attempting to purchase, possess or receive any firearm while the order is in effect.
C. If a law enforcement officer declines to file a requested petition for an extreme risk firearm protection order, the law enforcement officer shall file with the sheriff of the county in which the respondent resides a notice that the law enforcement officer is declining to file a petition pursuant to this section.
D.] A. A law enforcement officer shall file a petition for an extreme risk firearm protection order [upon receipt of credible information from a reporting party that gives the agency or officer] when the officer has probable cause to believe that a respondent poses a significant danger of causing imminent personal injury to self or others by having in the respondent's custody or control or by purchasing, possessing or receiving a firearm.
B. A petition for an extreme risk firearm protection order shall be filed only by a law enforcement officer employed by a law enforcement agency; provided that, if the respondent is an officer of a police or sheriff's department, the petition shall be filed by an attorney employed by a district attorney or the attorney general.
[E.] C. A petition for an extreme risk firearm protection order shall:
(1) state the specific statements, actions or facts that support the belief that the respondent poses a significant danger of causing imminent personal injury to self or others by having in the respondent's custody or control or by purchasing, possessing or receiving a firearm;
[F. A petition for an extreme risk firearm protection order shall] (2) be made under oath and [shall be] accompanied by a sworn affidavit signed by the reporting party or the petitioner setting forth specific facts supporting the order; and
[G. A petition for an extreme risk firearm protection order shall] (3) include:
[(1)] (a) the name and address of the reporting party;
[(2)] (b) the name and address of the respondent;
[(3)] (c) a description of the number, types and locations of firearms or ammunition that the petitioner believes the respondent has custody of, controls, owns or possesses;
[(4)] (d) a description of the relationship between the reporting party and the respondent; and
[(5)] (e) a description of any lawsuit, complaint, petition, restraining order, injunction or other legal action between the reporting party and the respondent.
D. If a law enforcement officer has good cause, the officer may petition the court orally; provided that a written petition shall be filed within twenty-four hours of the oral petition.
E. When a law enforcement officer declines to file a requested petition for an extreme risk firearm protection order, the law enforcement officer shall immediately notify the reporting party of the officer's decision and within forty-eight hours thereafter provide the reporting party with written notice stating the reasons for the decision.
F. A district judge shall be available to review a petition for an extreme risk firearm protection order at all times."
SECTION 5. Section 40-17-6 NMSA 1978 (being Laws 2020, Chapter 5, Section 6) is amended to read:
"40-17-6. [PETITION FOR] TEMPORARY EXTREME RISK FIREARM PROTECTION ORDER--[TEMPORARY] CONTENTS OF ORDERS--PROCEEDINGS.--
A. Upon the filing of a petition pursuant to the Extreme Risk Firearm Protection Order Act, the court [may enter] shall review the petition immediately and shall issue a temporary extreme risk firearm protection order if the court finds from specific facts shown by the petition that there is probable cause to believe that the respondent poses a significant danger of causing imminent personal injury to self or others by having in the respondent's custody or control or by purchasing, possessing or receiving a firearm before notice can be served and a hearing held.
B. If the court finds probable cause [pursuant to Subsection A of this section], the court shall issue a temporary extreme risk firearm protection order [enjoining] and shall:
(1) enjoin the respondent from having in the respondent's possession, custody or control a firearm; [and shall further]
(2) enjoin the respondent from purchasing, receiving or attempting to purchase or receive a firearm [while the order is in effect]; and
(3) order the respondent to immediately, upon service of the order, relinquish all firearms in the respondent's custody or control.
C. The court shall conduct a hearing on the petition within ten days of the issuance of a temporary extreme risk firearm protection order [to determine if a one-year extreme risk firearm protection order should be issued pursuant to this section].
D. A temporary extreme risk firearm protection order shall include:
(1) a statement of the grounds supporting the issuance of the order;
(2) the date and time the order was issued;
(3) a statement that the order shall continue until the earlier of ten days or such time as a court considers the petition at a hearing, unless an extension is granted at the request of the respondent pursuant to Subsection E of this section;
(4) the address of the court that issued the order and in which any responsive pleading should be filed; [and]
(5) the date and time of the scheduled hearing, to be held within ten days of the issuance of the order; and
(6) notice that a violation of the order is a misdemeanor.
E. The court may continue the hearing at the request of the respondent, but the hearing shall be set within thirty days of the respondent's request for continuance.
F. A temporary extreme risk firearm protection order shall be served by the petitioner along with supporting documents that formed the basis of the order and the notice of hearing [and the petition for a one-year extreme risk firearm protection order].
G. If the court declines to issue a temporary extreme risk firearm protection order, the court shall dismiss the petition without prejudice and enter an order that includes the reasons for the [denial] dismissal."
SECTION 6. Section 40-17-7 NMSA 1978 (being Laws 2020, Chapter 5, Section 7) is amended to read:
"40-17-7. HEARINGS ON PETITION--GROUNDS FOR ISSUANCE--CONTENTS OF ORDER.--In determining whether grounds for [any] an extreme risk firearm protection order exist, the court shall consider, at a minimum, the following:
A. any recent act or threat of violence by the respondent against self or others, regardless of whether the act or threat involved a firearm;
B. a pattern of acts or threats of violence by the respondent within the past twelve months, including acts or threats of violence against self or others;
C. the respondent's mental health history;
D. the respondent's abuse of controlled substances or alcohol;
E. the respondent's previous violations of any court order;
F. previous extreme risk firearm protection orders issued against the respondent;
G. the respondent's criminal history, including arrests and convictions for violent felony offenses, violent misdemeanor offenses, crimes involving domestic violence or stalking;
H. the respondent's history of the use, attempted use or threatened use of physical violence against another person; of stalking another person; or of cruelty to animals; and
I. any recent acquisition or attempts at acquisition of a firearm by the respondent."
SECTION 7. Section 40-17-8 NMSA 1978 (being Laws 2020, Chapter 5, Section 8) is amended to read:
"40-17-8. [ONE-YEAR] EXTREME RISK FIREARM PROTECTION ORDER--GROUNDS FOR ISSUANCE--CONTENTS OF ORDER--TERMINATION--EXPIRATION--RENEWAL OF ORDERS.--
A. If, after hearing the matter, the court finds by a preponderance of the evidence that the respondent poses a significant danger of causing imminent personal injury to self or others by having in the respondent's custody or control or by purchasing, possessing or receiving a firearm, the court shall issue [a one-year] an extreme risk firearm protection order.
B. An extreme risk firearm protection order shall expire three hundred sixty-five days after issuance.
[B. A one-year] C. An extreme risk firearm protection order shall include:
(1) a statement of the grounds supporting the issuance of the order;
(2) the date and time the order was issued;
(3) the date and time the order expires;
(4) information pertaining to any recommendation by the court for mental health or substance abuse evaluations, if applicable;
(5) the address of the court that issued the order; [and]
(6) notice that the respondent is entitled to request termination of the order prior to the expiration of the order; and
(7) notice that a violation of the order is a misdemeanor.
[C.] D. If the court declines to issue [a one-year] an extreme risk firearm protection order, the court shall state in writing the reasons for the court's denial and shall order the return of any firearms to the respondent.
[D.] E. A respondent may request that the court terminate [a one-year] an extreme risk firearm protection order at any time prior to the expiration of the order.
[E.] F. At any time not less than one month prior to the expiration of [a one-year] an extreme risk firearm protection order, a petitioner may petition the court to extend the order. Each extension of the order shall not exceed [one year] three hundred sixty-five days. A petition [filed pursuant to this subsection shall comply with the provisions of Subsections E and F of Section 5 of the Extreme Risk Firearm Protection Order Act and shall be served on the respondent as provided in Section 9 of that act] for an extension of the order shall meet the same requirements as the original petition.
[F. A one-year extreme risk firearm protection order is a final, immediately appealable order.]"
SECTION 8. Section 40-17-9 NMSA 1978 (being Laws 2020, Chapter 5, Section 9) is amended to read:
"40-17-9. SERVICE OF EXTREME RISK FIREARM PROTECTION ORDERS.--[A one-year extreme risk firearm protection] An order issued pursuant to the Extreme Risk Firearm Protection Order Act shall be personally served upon the respondent by the sheriff's office in the county in which the respondent resides; provided that if the respondent resides in a [city or town] municipality that has a police department, the police department shall serve the order."
SECTION 9. Section 40-17-10 NMSA 1978 (being Laws 2020, Chapter 5, Section 10) is amended to read:
"40-17-10. RELINQUISHMENT OF FIREARMS.--
A. A respondent [who receives a temporary or one-year extreme risk firearm protection] subject to an extreme risk firearm protection order shall relinquish all firearms in the respondent's possession, custody or control or subject to the respondent's possession, custody or control in a safe manner to a law enforcement officer, a law enforcement agency or a federal firearms licensee [within forty-eight hours of] immediately upon service of the order or [sooner at the discretion of] as directed by the court.
B. A law enforcement officer, law enforcement agency or federal firearms licensee that takes temporary possession of a firearm pursuant to this section shall:
(1) prepare a receipt identifying all firearms that have been relinquished or taken;
(2) provide a copy of the receipt to the respondent;
(3) provide a copy of the receipt to the petitioner within seventy-two hours of taking possession of the firearms;
(4) file the original receipt with the court that issued the temporary or one-year extreme risk firearm protection order within seventy-two hours of taking possession of the firearms; and
(5) ensure that the law enforcement agency retains a copy of the receipt.
C. If a law enforcement officer has probable cause to believe that a respondent is in violation of an extreme risk firearm protection order, the officer may request a search warrant from the court that issued the order."
SECTION 10. Section 40-17-11 NMSA 1978 (being Laws 2020, Chapter 5, Section 11) is amended to read:
"40-17-11. PENALTIES.--A person who fails to relinquish, or who possesses or has custody or control over, [any] a firearm or who purchases, receives or attempts to purchase, possess or receive [any] a firearm, in violation of [a temporary extreme risk firearm protection order or a one-year] an extreme risk firearm protection order is guilty of a misdemeanor punishable pursuant to Section 31-19-1 NMSA 1978."
SECTION 11. Section 40-17-12 NMSA 1978 (being Laws 2020, Chapter 5, Section 12) is amended to read:
"40-17-12. EXTREME RISK FIREARM PROTECTION ORDER--REPORTING OF ORDERS--AVAILABILITY OF DATA.--
[A. The clerk of the court shall provide a copy of a one-year extreme risk firearm protection order or temporary extreme risk firearm protection order issued pursuant to the Extreme Risk Firearm Protection Order Act to any law enforcement agency designated to provide information to the national instant criminal background check system.
B. The clerk of the court shall forward a copy of any order issued, renewed or terminated pursuant to the Extreme Risk Firearm Protection Order Act to the petitioner and to the law enforcement agency specified in Subsection A of this section.
C.] A. Upon [receipt of a copy of a one-year extreme risk firearm protection order or temporary extreme risk firearm protection order, the law enforcement agency specified in Subsection A of this section] issuance of an order pursuant to the Extreme Risk Firearm Protection Order Act, the court shall enter the order into [(1)] the national instant criminal background check system.
[(2) all federal or state computer-based systems and databases used by law enforcement or others to identify prohibited purchasers of firearms; and
(3) all computer-based criminal intelligence information systems and databases available in this state used by law enforcement agencies]
B. Upon receipt of a copy of an extreme risk firearm protection order, a law enforcement agency shall enter the order into the national crime information center computerized index and other criminal intelligence systems and databases used by the law enforcement agency.
[D.] C. An extreme risk firearm protection order shall remain in each state system for the period stated in the order. Entry into the computer-based criminal intelligence information system constitutes notice to all law enforcement agencies of the existence of the order. The extreme risk firearm protection order shall be fully enforceable in any county [city or town] or municipality in the state.
[E.] D. Upon the expiration of or upon receiving notice of the termination of an extreme risk firearm protection order, [issued pursuant to the Extreme Risk Firearm Protection Order Act, the law enforcement agency specified in Subsection A of this section] the court shall promptly remove the order from any state computer-based system into which it was entered pursuant to Subsection [C] A of this section and shall notify the national instant criminal background check system and all federal computer-based systems and databases used by law enforcement or others to identify prohibited purchasers of firearms.
[F. Following the expiration or termination of an order issued pursuant to the Extreme Risk Firearm Protection Order Act and upon written request, the law enforcement agency specified in Subsection A of this section shall provide a sworn affidavit to the respondent affirming that the information contained within the order has been removed from all state databases and systems identified in Subsection C of this section and any other state databases into which information about the order was entered and that the law enforcement agency has notified the national instant criminal background check system and all federal computer-based systems and databases used by law enforcement or others to identify prohibited purchasers of firearms. The affidavit shall be provided to the respondent within five days of the receipt of the request.
G.] E. If [any] an extreme risk firearm protection order is terminated before its expiration date, the clerk of the court shall forward a copy of the termination order to the office of the attorney general and the petitioner.
[H.] F. Aggregate statistical data indicating the number of extreme risk firearm protection orders issued, renewed, denied or terminated shall be maintained by the issuing court and the administrative office of the courts and shall be available to the public [upon request]."
SECTION 12. Section 40-17-13 NMSA 1978 (being Laws 2020, Chapter 5, Section 13) is amended to read:
"40-17-13. EXTREME RISK FIREARM PROTECTION ORDERS--FIREARMS RETURN--DISPOSITION.--
A. [Any] A firearm relinquished in accordance with the Extreme Risk Firearm Protection Order Act shall be returned to the respondent within ten days following the expiration or termination of [an] the extreme risk firearm protection order upon the respondent's request.
B. A respondent shall not be required to acquire [any] a court order granting the return of relinquished firearms.
C. The law enforcement agency in possession of the firearms shall conduct a national criminal records check and shall return the firearms if the agency determines that the respondent is not prohibited from possessing firearms pursuant to state or federal law.
D. Upon written request of the respondent, the law enforcement agency storing a firearm shall transfer possession of the respondent's firearm to a federally licensed firearms dealer or lawful private party purchaser designated by the respondent; provided that, if the transfer is the result of a sale, [that] the transferee [is] shall be the actual owner of the firearm thereafter and, except in the case of a federally licensed firearms dealer, prior to the transfer, the law enforcement agency [has conducted] shall conduct a national criminal records check [and determined] to determine that the transferee is not prohibited from possessing a firearm pursuant to state or federal law.
E. No fee shall be charged for [background] national criminal records checks required pursuant to [Subsections C and D of] this section.
F. The law enforcement agency transferring possession of a firearm to a transferee shall notify the transferee that it is unlawful to transfer or return the firearm to the respondent while the extreme risk firearm protection order is in effect. A transferee who violates this subsection is guilty of a misdemeanor and may be punished pursuant to Section 31-19-1 NMSA 1978.
G. A law enforcement agency in possession of a firearm pursuant to this section may destroy, sell or otherwise transfer the firearm if it remains unclaimed after three hundred sixty-five days from the date of the notice to the respondent of the agency's intent to destroy, sell or otherwise transfer the firearm. If a person other than the respondent claims to be the lawful owner of the firearm, the agency shall provide the firearm to that person only upon receipt of written proof of ownership."
- 20 -