New Mexico's red flag law is the Extreme Risk Firearm Protection Order Act, codified at NMSA 1978 Chapter 40, Article 17. The Act is made up of...
Reviewed by Will Luker, Founder of CCW Hub. USCCA Training Counselor, USCCA Certified Instructor, NRA Certified Instructor, Law Enforcement.
New Mexico's red flag law is the Extreme Risk Firearm Protection Order Act, codified at NMSA 1978 Chapter 40, Article 17. The Act is made up of Sections 40-17-1 through 40-17-13 and may be cited as the "Extreme Risk Firearm Protection Order Act" (NMSA 1978 Section 40-17-1). It was enacted by Laws 2020, Chapter 5, and took effect May 20, 2020.
The Act creates a civil district-court process for temporarily removing firearms from a person who a court finds poses a significant danger of causing imminent personal injury to self or others by having custody or control of a firearm, or by purchasing, possessing, or receiving one. Proceedings are filed, heard, and decided in the district court for the county in which the respondent resides (NMSA 1978 Sections 40-17-2 and 40-17-4).
Under NMSA 1978 Section 40-17-5, a petition for an extreme risk firearm protection order may be filed only by a law enforcement officer employed by a law enforcement agency. If the respondent is a law enforcement officer, the petition is filed by the district attorney or the attorney general instead.
A private citizen cannot file directly. A citizen acts as a "reporting party" who asks a law enforcement officer to seek the order. Under the definition in Section 40-17-2 and the petition requirements in Section 40-17-5, a reporting party includes (but is not limited to):
A New Mexico Attorney General advisory letter (2021-08) reads the statutory list of reporting parties as illustrative rather than exclusive, because the definition uses the word "includes."
When a reporting party gives a law enforcement officer credible information that creates probable cause to believe the respondent poses a significant danger, the officer shall file a petition (Section 40-17-5(D)). If the officer declines to file a requested petition, the officer must file a notice of that decision with the sheriff of the county where the respondent resides (Section 40-17-5(C)).
The petition must be made under oath, accompanied by a sworn affidavit signed by the reporting party, and must state the specific facts supporting the request (Section 40-17-5(E) and (F)). The Act also forbids charging the reporting party for filing, service, warrants, subpoenas, law enforcement reports, or the cost of confiscating, storing, or destroying a firearm (NMSA 1978 Section 40-17-3).
Under NMSA 1978 Section 40-17-6, the court may enter a temporary order based on the petition, before notice can be served and a hearing held, if it finds from specific facts in the petition that there is probable cause to believe the respondent poses a significant danger. The temporary order enjoins the respondent from possessing, having custody or control of, purchasing, or receiving any firearm while the order is in effect.
The court must hold a hearing on whether to issue a one-year order within ten days of issuing the temporary order. The temporary order continues until the earlier of ten days or the date the court hears the petition. The respondent may request a continuance, and the hearing must then be set within thirty days of that request (Section 40-17-6(C) and (E)).
Under NMSA 1978 Section 40-17-8, after a hearing, the court may issue a one-year order if it 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 custody or control of a firearm or by purchasing, possessing, or receiving one. A one-year order is a final, immediately appealable order.
In deciding whether grounds for any extreme risk firearm protection order exist, the court must consider at a minimum the factors listed in NMSA 1978 Section 40-17-7:
Once a temporary or one-year order is issued, the respondent is enjoined from having any firearm in his or her possession, custody, or control, and from purchasing, receiving, or attempting to purchase or receive any firearm while the order is in effect (NMSA 1978 Sections 40-17-5(B) and 40-17-6(B)).
The clerk of the court provides a copy of the order to a law enforcement agency designated to report to the National Instant Criminal Background Check System (NICS). That agency enters the order into NICS and into the state and federal databases used to identify prohibited firearm purchasers, so that purchase attempts are blocked while the order is in effect (NMSA 1978 Section 40-17-12).
Under NMSA 1978 Section 40-17-10, a respondent who receives a temporary or one-year order must relinquish all firearms in his or her possession, custody, or control within forty-eight hours of service of the order, or sooner if the court directs. Relinquishment is made, in a safe manner, to one of the following:
The receiving officer, agency, or dealer must prepare a receipt identifying all firearms relinquished, give a copy to the respondent and to the petitioner, and file the original receipt with the court within seventy-two hours. The Act does not authorize transferring the firearms to a friend or family member during the order period; surrender runs to law enforcement or a federal firearms licensee.
A one-year order lasts up to one year (NMSA 1978 Sections 40-17-2 and 40-17-8). Under Section 40-17-8:
Under NMSA 1978 Section 40-17-13, any firearm relinquished under the Act must be returned to the respondent within ten days after the order expires or is terminated. The respondent is not required to obtain a court order to get the firearms back. Before returning them, the law enforcement agency conducts a national criminal records check and returns the firearms only if the respondent is not prohibited from possessing them under state or federal law.
At the respondent's written request, the agency may instead transfer the firearms to a federally licensed dealer or to a lawful private purchaser the respondent designates, subject to a background check on the transferee (except where the transferee is a licensed dealer). No fee is charged for these background checks. It is unlawful for a transferee to return the firearm to the respondent while the order is still in effect; a transferee who does so is guilty of a misdemeanor.
Under NMSA 1978 Section 40-17-11, a person who fails to relinquish a firearm, or who possesses, has custody or control of, purchases, receives, or attempts to purchase, possess, or receive any firearm in violation of a temporary or one-year extreme risk firearm protection order is guilty of a misdemeanor, punishable under NMSA 1978 Section 31-19-1.
A misdemeanor under Section 31-19-1 carries imprisonment in the county jail for a definite term of less than one year, a fine of not more than $1,000, or both, at the judge's discretion. The Act does not escalate a repeat violation to a felony; the offense is a misdemeanor for each violation.
The Extreme Risk Firearm Protection Order Act does not itself address a person's concealed handgun license. There is no provision in Chapter 40, Article 17 that requires surrendering a concealed handgun license or that revokes one automatically.
The practical effect still reaches a license holder, because while an order is in effect the respondent is prohibited from possessing firearms. A New Mexico concealed handgun licensee must remain qualified under NMSA 1978 Section 29-19-4, which requires that the person not be "otherwise prohibited by federal law or the law of any other jurisdiction from purchasing or possessing a firearm." A person subject to an active extreme risk firearm protection order cannot lawfully carry during the order period and, under NMSA 1978 Section 29-19-6(I), the Department of Public Safety may suspend or revoke a license when the licensee no longer satisfies the criteria for issuance. (Note: NMSA 1978 Section 29-19-13 is the statute creating the concealed handgun carry fund, not a license-revocation provision.)
An extreme risk firearm protection order is a civil order, not a criminal conviction. Standing alone, it does not place a person in every federal "prohibited person" category under 18 U.S.C. Section 922(g). During the order period, however, the respondent is barred from possessing firearms under state law.
The federal protective-order prohibition at 18 U.S.C. Section 922(g)(8) does not automatically attach to every ERFPO. That federal disability applies only to a court order that was issued after a hearing of which the person received actual notice and had an opportunity to participate, that restrains the person from harassing, stalking, or threatening an intimate partner (or the partner's or person's child), and that either includes a credible-threat finding or explicitly prohibits the use of physical force. A temporary ERFPO is issued without a prior hearing, and many ERFPOs do not involve an intimate partner, so federal Section 922(g)(8) liability is not a given. Whether a particular ERFPO triggers a federal disability depends on its terms and how it was issued.
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