Court reviews gun-carry restrictions under health order in New Mexico, as states explore options

By MORGAN LEE
Associated Press

ALBUQUERQUE, N.M. (AP) — An effort to suspend gun-carry rights in public parks, playgrounds and other recreational areas where children are often present went under the legal microscope Tuesday in a federal court in New Mexico, where the Democratic governor is testing the boundaries of her authority and constitutional law in response to violent crime in the state’s largest metro area.

U.S. District Judge David Urias extended a preliminary hold on temporary gun restrictions by Gov. Michelle Lujan Grisham through Oct. 11 while he considers blocking the restrictions indefinitely under a preliminary injunction, allowing more time for written briefs and deliberations.

Gun rights advocates argued that even a new, scaled-back version of the public health measure would deprive Albuquerque-area residents of constitutional rights to carry a gun in public for self-defense under the 2nd Amendment.

Enforcement of the temporary restrictions on guns is on hold pending authorization from the court, said Holly Agajanian, chief counsel to the governor. That leaves little or no way currently to determine whether people still are carrying guns in areas flagged for restrictions under the health order.

Urias has declined a request to explicitly block new provisions that suspend gun-carry rights at playgrounds, noting in recent court filing that the provision “may very well be constitutional.”

The standoff is one of many in the wake of the U.S. Supreme Court decision last year expanding gun rights, as leaders in politically liberal-leaning states explore new avenues for restrictions.

The governor’s chief counsel delivered an impassioned defense of the state’s public health order Tuesday, calling it a “temporary cooling-off period” in response to several recent shootings that killed children and evidence of surging gun violence.

“What we are talking about is the mental health of our children who have to practice hiding from gunmen when they’re at school,” Agajanian said. “I think that they’re entitled to go to a park, I think they’re entitled to go to the playground and not have to worry about whether or not somebody standing at the other end of the playground holding a weapon is a good guy or a bad guy.”

Advocates for gun rights have filed a barrage of challenges to the 30-day health order, which originally included broad restrictions on carrying guns in public.

In court on Tuesday, they said temporary restrictions on carrying guns in public parks could potentially bar admission to a shooting range located at a public park in Albuquerque and that restrictions on guns in public play areas for children are open to vague interpretations and would result in confusion. Agajanian clarified that the provision would apply to recreation facilities such as a public pools and community centers.

Much of the debate in court revolved around the definition of “sensitive” places, which are where guns can be restricted under recent Supreme Court interpretations of the 2nd Amendment.

Connecticut-based attorney Cameron Atkinson, who represents We the Patriots USA and Bernalillo County resident Dennis Smith, argued that “sensitive” places are locations where guns might disrupt a vital government function.

“It’s polling places and government locations where people can come in and disrupt the government function,” he said. “Well, you can’t come in and disrupt the government function at a playground.”

The governor plans to reissue her emergency orders on gun violence and drugs for at least an additional 30 days, Lujan Grisham spokeswoman Maddy Hayden said Monday in an email. She said the urgent approach to violent crime is spurring arrests and reining in gunfire, even as the enforcement of gun restrictions is on hold. The orders include directives for monthly inspections of firearms dealers statewide, reports on gunshot victims at New Mexico hospitals and wastewater testing for illicit substances.

Urias ruled last month that gun restrictions in the governor’s original order were likely to cause irreparable harm to people deprived of the right to carry a gun in public for self-defense.

The governor has tied the suspension of some gun rights to a statistical threshold for violent crime that applied only to Albuquerque and the surrounding area.

Attorney Marc Lowry, representing a former federal law enforcement officer in Albuquerque, said those thresholds based on FBI crime statistics and emergency room visits are vague and, for the average person, hard to interpret, creating uncertainty about where gun restrictions might apply in the future.

Agajanian argued on behalf of the governor that people who carry guns are capable of adjusting to temporary firearms restrictions.

“That is the sort of thing that we had to do every week during COVID, right?” she said. “I mean, people have to adapt. That’s just how we have to do it.”

State police would have authority under the governor’s order to assess civil penalties and fines of up to $5,000 for infractions. The sheriff and Albuquerque’s police chief had refused to enforce it.

The order has energized advocates for gun rights, including Republican lawmakers who have threatened impeachment proceedings against Lujan Grisham.

Some influential Democrats and civil rights leaders warn that the governor’s move could do more harm than good to overall efforts to ease gun violence, and the Democratic state attorney general has urged her to reconsider.

Other states including California, Washington, Colorado and Maryland have passed gun laws this year that face legal challenges.

Last week California Gov. Gavin Newsom signed nearly two dozen gun control measures, including ones banning the carrying of firearms in most public places while doubling taxes on guns and ammunition sales.

Newsom has acknowledged some of the gun measures might not survive in the courts. Last month a federal judge struck down a state law banning guns with detachable magazines that carry more than 10 rounds.