[Editor's Note: This is a continuation and completion of a multi-part series of articles on the Grant County Commission work session of Feb. 19, and regular meeting on Feb. 21. It will address the presentations for and against the gun laws at the legislative session.]
By Mary Alice Murphy
Late in the afternoon of the Grant County Commission regular session on Feb. 21, 2019, presentations began on the pros and cons of the gun legislation under consideration at the New Mexico 60-day legislative session, which will end March 15, and the resolutions on the commissioners' agenda on the issues.
Undersheriff Jess Watkins presented a statement from Sheriff Frank Gomez, who was unable to attend due to a prior commitment.
"I swore an oath to the U.S. Constitution, the New Mexico Constitution and to uphold the law of the state," Watkins said. "The sheriff and all of us take our oath seriously." Watkins read from the statement: "Proposed legislation at the New Mexico Legislature could affect the constitutionality of residents' rights. The sheriff understands that the constitutionality of these bills, if they are put into law, will be determined by the courts. Current federal law already addresses the transfer of weapons between individuals. Significant restrictions already exist on the federal and state levels. Added legislation addresses the confiscation of weapons under certain conditions. This legislation will impose a considerable burden on the office of the sheriff and a significant safety risk for deputies and residents. It may place the sheriff in conflict between what may or may not be constitutional. We ask the county commissioners to oppose the additional restrictions."
Commissioner Harry Browne asked the first question. "Given what you just said about whether it is constitutional, what process do you see for determining that?"
"It's still going through the legislature, so it may be amended," Watkins said. "Once this matter is signed into law, we will uphold it if and until it is challenged in court and a determination made."
Browne asked if the sheriff would wait until the process went through. "What would the Sanctuary County determination change? And I support not enforcing the law if it's determined to be unconstitutional."
Watkins said: "We swear an oath to uphold the law. The vast majority of gun owners are law-abiding. They legally possess their purchases. The sanctuary status lets citizens know we understand they legally own their guns. We understand your Second Amendment right and we back you up."
Browne noted that at the work session the issue of due process came up. "It looked to me in these bills that they require a court order to confiscate guns."
"The red flag bill creates extreme high risk to officers," Watkins said. "I don't know the final wording whether it requires a court order. We would have to enforce it whether it was constitutional or not until its constitutionality was determined."
Browne said he heard it today that under these bills, a person couldn't give or sell to a family member without a background check. "Some don't agree that the bill says that."
Watkins said there are two bills HB8 and SB8, with SB8 having been amended. "SB 8 does allow the exchange of guns between family members. HB 8 still doesn't allow it."
Commissioner Alicia Edwards said that same amendment needed to be added to the firearms transfer bill. "It needs to be in both. On Tuesday, the extreme protection order, the red flag bill, was discussed."
Watkins said even if a family member goes through due process on the red flag issue, "we cannot enforce it due to our capacity. I agree in theory that it is not safe to approach a house to enforce the red flag law even with a court order. It is a danger to us and the public, too. I have questions on it. This is a person, say that was already in jail and posted bond. They will have notice through their family that will make sure there are no guns.
Edwards said the state often gives unfunded mandates to the counties. "Is there any funding for this?"
Watkins said: "In HB 83, I see nothing allocated. Plus, if we confiscate guns, the law will require us to store them for another person up to a year."
Linda Pafford introduced support for the gun legislation. "I'm here to discuss the resolutions and why we think they should not be approved."
Shelby Hallmark pointed out that he was never able to find the resolution. "You need to make them readily available to the public. I spoke at the Tuesday work session about the resolution R-19-23. I did not speak to R-19-24. I am in specific opposition just to the Second Amendment Sanctuary County resolution. It's a proposal to change the structure of government. The bills are being amended and may not pass. The Second Amendment sanctuary county to me suggests the sheriff is allowed to defy a higher authority. It comes from the New Mexico Association of Sheriffs. I think we all need to know this is an outgrowth of anti-Semitic, racist rhetoric. That group is not the law of the land. Whatever you think of these proposals, they are not a threat to life or limb. I know the sheriff is concerned, but the bills don't reach unconstitutionality. Should the Grant County Commission pass a resolution to name the county as Second Amendment sanctuary county? It would stain the reputation of the county."
John Song read from a statement. He cited from the whereases that addressed New Mexico Statutes Annotated (NMSA) statutes. It is the duty and authority of the sheriff to provide for the safety of the residents and have care for property. He read several whereases in the resolution and stated where they were not following statute. "It sets the sheriff up for dereliction of duty, if he doesn't enforce state law."
He then began citing court cases in support of his position, as well as the 14th Amendment, which provides for due process. "The extreme protection bill has due process. If the board by passing the Second Amendment sanctuary county resolution tells the sheriff not to enforce and comply with the law. That sets the county up for litigation."
Commissioner Billy Billings commented that the resolution is not creating law. "This resolution is a statement to the legislators that they are overstepping their bounds. It is the courts who will decide whether the bills and if they become laws are constitutional."
Song said he was glad to hear the undersheriff clarify when they would act or react. "I think it does place a serious burden on the Sheriff's Department. I think it would place liability if a deputy decides not to enforce the law."
Pafford said she had a lot to say about R-19-24. "I hope to clarify some misconceptions. DC v Heller does allow for qualifications in the sales of arms. This resolution goes beyond federal laws. A background check is not required for exchange between family members. This resolution calls it pending legislation."
[Editor's Note: At this point this author had to flee the room because of a coughing attack. So, some notes did not get taken.]
Pafford noted that the county does not have the authority to declare a law unconstitutional, but they can determine who can't legally possess firearms.
She read several case studies the decisions that supported her opposition to the resolution. "I hear voices speak about regulatory creep. I speak on the merits of the bills. They do meet the government requirement to ensure the safety of the residents. It would be irresponsible to allow the sheriff to pick and choose which laws to enforce."
At this point the commissioners took a break before reconvening and making their decisions, which can be read in http://www.grantcountybeat.com/news/news-articles/49441-grant-county-commission-at-regular-session-022119-votes-in-favor-of-three-of-the-resolutions-that-received-public-input .
The rest of the meeting after the decisions can be read in http://www.grantcountybeat.com/news/news-articles/49467-grant-county-commission-work-session-021919-part-4
This article concludes the articles on the Grant County work and regular sessions of Feb. 19, and Feb. 21, 2019.