On February 25, 2020, New Mexico enacted SB 5, the Extreme Risk Firearm Protection Order Act. Effective May 20, 2020, this law authorizes law enforcement officers to petition courts for a civil order to temporarily remove guns from a person who is found, through due process, to pose a significant imminent risk of violence to self or others.1 Individuals subject to these court orders are prohibited from accessing firearms for the duration of the order.2
This law directs law enforcement officers to file a petition for an extreme risk firearm protection order (or “ERPO”) if they receive credible evidence, amounting to probable cause, to believe a person poses a significant danger of causing imminent personal injury to self or others by having access to a firearm.3
In such cases, the law enforcement officer4 shall file a petition for an extreme risk firearm protection order in the district court for the county in which the respondent resides5 that lays out the specific statements, actions or facts that support the officer’s belief that the respondent poses a significant danger of causing imminent personal injury to self or others.6 The petition is submitted under oath and must be accompanied by a sworn affidavit signed by any party who reported this information. 7
The law specifies evidence for the court to consider, including but not limited to: recent acts or threats of violence against self or others, the respondent’s criminal and mental health history, the respondent’s abuse of controlled substances or alcohol, and the respondent’s recent acquisition or attempts to acquire firearms.8
Upon receiving the petition for an ERPO, the court must consider whether there is sufficient evidence of an emergency to grant a temporary ERPO lasting for up to 10 days (before a court hearing can be held). The court is directed to issue this temporary ERPO, prior to a full court hearing on the matter, if it finds probable cause, from specific facts shown, that the respondent poses a significant danger of causing imminent personal injury to self or others by having access to a firearm before notice can be served and a hearing held.9 If the court issues a temporary ERPO it must generally conduct a hearing within 10 days to determine whether to extent the firearm restriction through a one-year ERPO.10
If, after a hearing, the court determines by a preponderance of evidence that the respondent poses a significant danger of imminent personal injury to self or others by having accessing to a firearm, the court is directed to issue a one-year extreme risk firearm protection.11 This order must be personally served upon the respondent by the county sheriff in the country where the respondent resides, or by the the police department if the respondent resides in a city or town that has a police department.12
An individual who receives either a temporary or one-year ERPO must must relinquish all firearms in their possession, custody, or control13 in a safe manner to a law enforcement agency or officer, or to a federal firearms licensee, within 48 hours of service of the order (or sooner if the court specifies a shorter time period for relinquishment of the firearms).14 The law enforcement agency or officer or firearms licensee that takes temporary possession of the person’s relinquished firearms must prepare a receipt, as specified, verifying that relinquishment occurred, and provide copies of the receipts to the ERPO respondent, the petitioner for the ERPO, and the court that issued the ERPO.15
The respondent can request during the period of the order to hold a hearing to terminate the order early,16 and starting one month prior to the expiration of a one-year ERPO, the petitioner may petition the court to extend the order by up to one year under the same process used for filing new ERPO petitions.17
Our experts can speak to the full spectrum of gun violence prevention issues. Have a question? Email us at email@example.com.Contact
- 2020 NM SB 5; N.M. Stat. Ann. §§ 40-17-1 — 40-17-13. If the respondent is a law enforcement officer, then the petitioner must instead be a district attorney or the attorney general. N.M. Stat. Ann. § 40-17-5(A).
- N.M. Stat. Ann. § 40-17-11.
- N.M. Stat. Ann. § 40-17-5.
- Or District Attorney or Attorney general in certain cases – see footnote above.
- N.M. Stat. Ann. § 40-17-4.
- N.M. Stat. Ann. § 40-17-5(E).
- N.M. Stat. Ann. § 40-17-5(F).
- N.M. Stat. Ann. § 40-17-7.
- N.M. Stat. Ann. § 40-17-6(A), (B).
- N.M. Stat. Ann. § 40-17-6(C), (E).
- N.M. Stat. Ann. § 40-17-8.
- N.M. Stat. Ann. § 40-17-9.
- Or subject to their possession, custody, or control.
- N.M. Stat. Ann. § 40-17-10(A).
- N.M. Stat. Ann. § 40-17-10(B).
- N.M. Stat. Ann. § 40-17-8(D).
- N.M. Stat. Ann. § 40-17-8(E).