In 2019, New Mexico passed legislation to significantly strengthen its gun safety laws pertaining to domestic violence and criminal stalking, restricting firearm access by people convicted of various domestic violence crimes or stalking, as well as those subject to active domestic violence restraining orders.1
Domestic Violence Crimes
Effective July 1, 2019, New Mexico law now prohibits people from accessing firearms if they have been convicted of specified domestic violence offenses, including battery against a household member, criminal damage to a household member’s property, criminally stalking any person, regardless of the victim’s relationship to the defendant 2, or any other misdemeanor crime of domestic violence that is considered firearm-prohibiting under federal law.3 Note that New Mexico’s definition of “household member” includes family members as well as dating partners, whether or not they have resided with the person who abused them.4
New Mexico law also prohibits people from accessing firearms for 10 years after they have completed a sentence or period of probation for any felony, including but not limited to domestic violence-related felonies.5
Domestic Violence Restraining Orders
Effective July 1, 2019, New Mexico law now also prohibits people from accessing firearms if they are subject to certain domestic violence protective orders issued after notice and a hearing, if the court issuing the order makes a necessary finding that the respondent presents a credible threat.6 This law requires courts, when issuing a domestic violence protective order, to order the respondent to refrain from accessing firearms7 while the order is in effect if the respondent has received notice and had an opportunity for a hearing on the matter, and if the court determines that the respondent “presents a credible threat to the physical safety of the household member.”8 In such cases, the court must also order the respondent to delivery any firearm already in or subject to the respondent’s possession or control to a law enforcement agency, law enforcement officer, or federal firearms licensee for the duration of the domestic violence protective order,9 and the respondent must do so within 48 hours of receiving service of the order.10
If serving the order, a law enforcement officer or agency is directed to take possession of all firearms subject to the order of protection that are relinquished by the respondent, in plain sight, or discovered pursuant to a lawful search.11 The officer or agency must make a receipt identifying these recovered firearms with the court that issued the protective order, and must also file copies with the respondent, and the person who petitioned for the domestic violence protective order.12
Within 72 hours of the domestic violence protective order being issued, the respondent must file with the court the receipt identifying any firearms that were relinquished or taken by a law enforcement officer or agency, or instead “a declaration of non-relinquishment.”13
Gaps in New Mexico’s Domestic Violence Laws
While New Mexico significantly strengthened its domestic violence and firearm laws in 2019, its laws still generally do not:
- Prohibit individuals convicted of multiple domestic violence crimes from accessing firearms, including aggravated battery against a household member or assault against a household member, if those crimes are committed against dating partners and many other current or former family and household members;14
- Prohibit individuals subject to ex parte domestic violence protective orders from possessing firearms;
- Prohibit people subject to the state’s domestic violence firearm restrictions from legally accessing ammunition, unlike federal law:
- Require people who are convicted of domestic violence crimes to provide proof that they relinquished all firearms to the courts and law enforcement;
- Direct courts to issue search warrants for the removal of firearms in all cases where the court has probable cause to believe a person subject to a domestic violence protective order or who has been convicted of a domestic violence crime has illegally failed to relinquish their firearms; or
- Expressly authorize or require the removal of firearms or ammunition at the scene of a domestic violence incident.
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- 2019 NM S 328.
- N.M. Stat. Ann. § 30-7-16(A)(3); see N.M. Stat. Ann. § 30-3A-3 regarding definition of “stalking.”
- N.M. Stat. Ann. § 30-7-16(A)(3)(d), prohibiting individuals from accessing firearms if they have been convicted of “a crime listed in 18 U.S.C. § 921,” which defines a “misdemeanor crime of domestic violence” for the purposes of federal firearm laws at 18 U.S.C. § 921(a)(33).
- See N.M. Stat. Ann. § 30-3-11(A), (B) (defining “household member” and “continuing personal relationship.”
- N.M. Stat. Ann. § 30-7-16(A)(1).
- N.M. Stat. Ann. § 40-13-5(A)(2).
- More specifically, courts must order the restrained party to “refrain from purchasing, receiving, or possessing or attempting to purchase, receive or possess any firearm while the order of protection is in effect.” N.M. Stat. Ann. § 40-13-5(A)(2)(b).
- N.M. Stat. Ann. § 40-13-5(A)(2).
- N.M. Stat. Ann. § 40-13-13(A).
- N.M. Stat. Ann. § 40-13-13(B.
- N.M. Stat. Ann. § 40-13-13(C.
- N.M. Stat. Ann. § 40-13-13(D)(3).
- In relevant part, N.M. Stat. Ann. § 30-7-16(3) prohibits firearm access by people convicted of “battery against a household member pursuant to N.M. Stat. Ann. § 30-3-15,” but not those convicted of the more serious crime of aggravated battery against a household member pursuant to N.M. Stat. Ann. § 30-3-16, which can be charged as a misdemeanor or felony depending on the circumstances of the abuse. State law also does not prohibit firearm access by people convicted of the “petty misdemeanor” of “assault against a household member” pursuant to N.M. Stat. Ann. § 30-3-12. New Mexico law does now prohibit firearm access by people who have been convicted of any other “misdemeanor crime of domestic violence” within federal law ‘s definition. But that federal definition does not cover domestic violence crimes committed against dating partners or other current or former household members, unless they have been married or share a child in common. It also does not cover domestic violence crimes committed against family members unless the perpetrator is or has been a spouse, parent, or guardian of the victim, or “similarly situated” to a spouse, parent, or guardian.