NOTE: As provided in LFC policy, this report is intended for use by the standing finance committees of the legislature.  The Legislative Finance Committee does not assume responsibility for the accuracy of the information in this report when used in any other situation.

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(Parenthesis ( ) Indicate Expenditure Decreases)

(Parenthesis ( ) Indicate Revenue Decreases)

Duplicates/Conflicts with/Companion to/Relates to SB 47 (Personal Protection Act - Robinson) and SB 314 (Personal protection Act - Lyons)

SOURCES OF INFORMATION

Department of Public Safety, Office of Legal Affairs

Attorney General

Administrative Office of the Courts

Criminal and Juvenile Justice Coordinating Council

SUMMARY

Synopsis of Bill

HB 666 expands existing provisions for carrying concealed weapons to include persons who are licensed by the Department of Public Safety (DPS). Citizens must meet certain criteria for obtaining a license, including satisfactory completion of a handgun training course.

Significant Issues

Various, but difficult to summarize. See Substantive Issues.

FISCAL IMPLICATIONS

Due to a lack of data, an assumption of 5,000 applicants for the first year is used to determine the revenue and appropriation related to this legislation.

HB 666 would result in an indeterminate amount of additional work for DPS. Given that there is no available estimate of the number of people who would apply for a concealed handgun license each year, there is no estimate of the revenues that would be derived from application fees, nor of the expenditures that would be undertaken by DPS in administering the personal protection act.

ADMINISTRATIVE IMPLICATIONS

DPS reports there is potential administrative impact from passage of the proposed legislation on the agency. It is estimated that a minimum of two full time FTE, management analysts, will be necessary to carry out the department's functions regarding the Personal Protection Act. These FTE would be responsible for creating the internal infrastructure in order to receive, process, evaluate and issue licenses pursuant to the Personal Protection Act.

According to DPS, there are likely to be other minimal impacts on the New Mexico State Police Division, or the Training and Recruiting Division, both of which would be likely candidates to be involved in the requirements of the Personal Protection Act where the department is required to prepare and publish rules and curricula for approved firearms training courses to teach proficiency with handguns.

Also, there is also likely administrative impact based on the language found at Section 7, paragraph B, lines 16 through 23. This involves DPS required appearance in district court to defend against appeals of application denials. It is clear based on this language that the DPS would need to vigorously defend these actions, employing the services of in house counsel, the New Mexico Office of the Attorney General (AG) or contracting with outside counsel. While it may be true that many applicants would file an appeal pro se, DPS would be required to meet all appeals in district court with an attorney, and each attorney would need to have a Special Assistant Attorney General commission in order to represent the state. Additionally, if the applicant prevailed, costs would be awarded, making this a potentially huge financial impact.

CONFLICT/DUPLICATION/COMPANIONSHIP/RELATIONSHIP

The AG's office reports this statute, as written, may be unconstitutional under the current wording of the New Mexico Constitution.

Also, if House Joint Resolution (HJR) 7 is a constitutional amendment of the right to bear arms section that would eliminate the wording that nothing in that section is intended to permit citizens of this state to carry concealed firearms. If HJR 7 passes, then is submitted to the voters of the state and passes, this legislation would not face current constitutional problems.

HB 666 is an almost exact duplicate of Senate Bills 47 and 314. The main difference is that House Bill 666 would add a line to 30-7-2 Subsection C, making a second unlawful carrying of a deadly weapon offense a misdemeanor.

TECHNICAL ISSUES

According to the Criminal and Juvenile Justice Coordinating Council (CJJCC);

a) Section 3, Subsection D, defines a handgun as "a firearm that is designed, made or adapted to be fired with one hand." However this definition is much less specific than the definition of a handgun already in the statutes, in Section 30-7-2.2, Subsection C, Paragraph (2): "a loaded or unloaded pistol, revolver or firearm which will or is designed to or may readily be converted to expel a projectile by the action of an explosion and the barrel length of which, not including a revolving, detachable or magazine breach, does not exceed twelve inches." Introducing a new and vaguer definition of handgun is likely to lead to unnecessary appeals and new case law. The current statutory definition of handgun is adequate.

b) Section 5, Subsection B refers to misdemeanor offenses involving crimes of violence. The CJJCC's experience with legislative proposals regarding crimes of violence suggests that there is no consensus regarding the definition of crimes of violence. The following is a list of misdemeanor and petty misdemeanor offenses that could conceivably be included in the category of violent offenses:

30-3-1 Assault

30-3-4 Battery

30-3-9 (B) Assault upon a school employee

30-3-12 Assault against a household member

30-3-15 Battery against a household member

30-3-16 (B) Aggravated battery against a household member

30-3A-3 (C) Stalking

30-6-1 (B) Abandonment of a child

30-9-12 (D) Criminal sexual contact (with force or coercion)

It would be useful if a decision were made about which of these offenses (or any others not listed here) would be violent offenses for the purposes of the personal protection act, so that those offenses could be listed in Section 5, Subsection B of the act.

SUBSTANTIVE ISSUES

CJJCC reports;

a) Section 5 Subsection B lists misdemeanor offenses which would lead to denial of an application for a license to carry a concealed handgun. However, misdemeanor weapons offenses are not mentioned. Given that a license to carry a concealed handgun must partly depend on a demonstrated ability to comply with the laws regarding weapons, misdemeanor weapons offenses must surely be included as grounds for denial. Those offenses are:

30-7-2 Unlawful carrying of a deadly weapon

30-30-7-2.2 (B) Unlawful possession of a handgun

30-7-4 Negligent use of a deadly weapon

30-7-13 Carrying weapons prohibited

b) Section 7, Subsection E requires notification within 30 days if the license is lost, stolen or destroyed. Subsection F provides for the replacement of the license, but does not specify whether this procedure is valid for persons who notify the loss or destruction of the license after 30 days. There is therefore no penalty for persons who notify after 30 days, or even after 60 days. To ensure that lost, stolen or destroyed cards are reported promptly, it would be advisable to include the following provisions:

• Reported between 30 and 60 days after being lost, stolen or destroyed: the license must be renewed ($50.00 fee).

• Reported more than 60 days after being lost, stolen or destroyed: person must apply for a new license.

c) Section 8, Subsection A indicates the required contents of a handgun training course and sets the length at between 10 and 15 hours (including both classroom instruction and practice). If they are to be properly addressed, the topics in the course would require more than 10 to 15 hours of instruction and practice, especially as some course attendees would have little or no prior knowledge of handguns. Twenty to 30 hours looks like the minimum time in which such topics could be meaningfully addressed.

DPS reports the most substantive issue is the language found at Section 7, paragraph b, lines 16 through 23. This language, at line 18, reads "… in the District Court of the County in which the applicant resides." The problem here arises because the choice of venue is the District Court in the county in which the applicant resides. DPS is housed in Santa Fe, within the First Judicial District, and all of the headquarter resources, those necessary to carry out the provisions of the Personal Protection Act, will be at the headquarters complex in the city of Santa Fe. It is recommended that the choice of venue be limited to the First Judicial District. This same venue limitation is found in several New Mexico Statutes involving administrative and other appeals. Among them are NMSA 1978, 7-8A-16, 10-11-120, 13-1-183(A)(1), 40-7A-6-(B), 58-21-10(B), 58-21-16(A), 58-22-27(B), 58-22-28(B), 58-22-29(A), 61-10-15(G), 61-27A-15 and 69-36-16(C). All of the above mentioned statutory sections provide for venue only within the First Judicial District. Since it could be anticipated that applications to the Personal Protection Act may be several hundred a month, and it may further be anticipated that many of those will be denied for very legitimate reasons (problematic conviction histories, inadequate record keeping on the part of some governmental entity regarding information on an individual, etc.,) and individuals will likely appeal the Department's denial of an application. It would be very unfair to DPS to require individuals to travel all over the State of New Mexico on an almost daily basis to defend against these actions. It is also estimated that there would be insufficient money in the Personal Protection Fund to cover the costs of additional attorney staff.

Also, there is also a potential problem with Section 11 of the proposed legislation in involving the preemption of the license by Tribal Law.

ALTERNATIVES

According to CJJCC the right to carry concealed weapons is predicated on the assumption that carrying concealed weapons may reduce the risk of being a crime victim, reduce the amount of harm caused during victimization, or reduce the crime rate. The validity of these assumptions is the subject of much debate, as can be seen on the web sites of the NRA and Handgun Control Inc. The CJJCC makes no evaluation of these assumptions without the opportunity for detailed study of the available research.

DPS reports the major alternative, which should be considered, is changing the language found at Section 7, page 7, paragraph b at lines 18 and 19 to read "in the District Court of the First Judicial District in Santa Fe."

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL?

According to CJJCC carrying concealed handguns would continue to be permitted only in the cases currently listed in Section 30-7-2 NMSA 1978.

AMENDMENTS

CJJCC recommends the following:

a) Change Section 3, Subsection D, to define a handgun as in Section 30-7-2.2, Subsection C, Paragraph (2): "a loaded or unloaded pistol, revolver or firearm which will or is designed to or may readily be converted to expel a projectile by the action of an explosion and the barrel length of which, not including a revolving, detachable or magazine breach, does not exceed twelve inches."

b) In Section 5, Subsection B, specify the misdemeanor offenses involving crimes of violence.

c) Include in Section 5 Subsection B the following misdemeanor offenses as grounds for denial of an application for a license to carry a concealed handgun.

30-7-2 Unlawful carrying of a deadly weapon

30-30-7-2.2 (B) Unlawful possession of a handgun

30-7-4 Negligent use of a deadly weapon

30-7-13 Carrying weapons prohibited

d) Amend Section 7, to include the following provisions:

• Reported between 30 and 60 days after being lost, stolen or destroyed: the license must be renewed ($50.00 fee).

• Reported more than 60 days after being lost, stolen or destroyed: person must apply for a new license.

e) Amend Section 8, Subsection A setting the length of handgun training courses (including both classroom instruction and practice) at no less than 20 hours and no more than 30 hours.

The AG reports there is no current wording in statute to prohibit a person who is subject to a restraining order or stay away order from obtaining a concealed weapons permit. This type of order is issued most commonly in domestic violence cases, even when no criminal charges are pending. During the time this order is in effect in domestic cases a strong argument can be made that a person should be restrained from being allowed to carry a concealed weapon. Statistically that is a time when there is the greatest potential for violence.

According to the AG, there will be an impact on the criminal system if this bill is passed. If there is a required certification or training process in place, and a suspect is found carrying a concealed weapon, the burden will be on the suspect to show he is legally carrying such a weapon. If he lacks the proper certification, that could be an inference drawn that the weapon is being carried for an illegal purpose. However, the converse is true. If the suspect had the proper verification, there may be proof problems if he has taken no other steps in furtherance of the criminal act.

The other side of the coin is that it will protect other types of citizens. For example, a woman who is being stalked could get the certificate and carry a gun. This would allow her protection she controls, and not force her to be out on the streets without protection from a stalker who could cause her physical harm. The current law allows the weapon to be concealed in her car, her home or her office. Yet she is often at her most vulnerable on the street, a place from which she is precluded from having a loaded concealed weapon.

There would most likely be a limited effect on gang related crimes. Gang members will carry weapons with or without any permit or law allowing them to do so. However, again if a permit process were required there could be an inference drawn that absent the required certification or training, the purpose of carrying the gun is unlawful.

LAT/gm