New Mexico AG grants limited authority to attorneys defending public health order

Federal judge to hear first arguments Wednesday afternoon; Governor calls for ‘immediate and swift action’ as others call for action during January legislative session

By: - September 13, 2023 3:00 am
New Mexico Attorney General Raúl Torrez stands at a wooden podium. Another man in a dark suit looks on.

New Mexico Attorney General Raúl Torrez. (Photo by Gino Gutierrez for Source NM)

New Mexico’s Attorney General Raúl Torrez will not defend the state government against any challenges to the public health order issued Sept. 8, but administration lawyers and outside counsel still can.

In a letter on Tuesday to Gov. Michelle Lujan Grisham, Torrez said he cannot defend her and the state’s health secretary in court because he believes the emergency order restricting public possession of firearms in Albuquerque and Bernalillo County is a constitutional violation.

Torrez wrote that he recognizes state law obliges him to defend state officials when they get sued for something they did while in office, however, “my duty to uphold and defend the constitutional rights of every citizen takes precedence.”

However, Torrez has granted a limited commission for administration lawyers or outside counsel to defend Lujan Grisham and New Mexico’s secretary of health Patrick Allen, according to a spokesperson for Torrez.

Lujan Grisham and Allen are named as defendants in four cases pending before a federal judge in Albuquerque.

At 1 p.m. on Wednesday, U.S. District Judge David Urias will hear arguments on a request that the order be stayed by three gun rights groups.

A review of online court records on Tuesday showed no attorneys have officially stepped in to defend the administration.

A spokesperson for the governor said Tuesday afternoon that the governor’s office received Torrez’s letter.

“Let me be clear — Gov. Lujan Grisham did not ask the attorney general to represent the state,” said Caroline Sweeney. “The governor is looking for state leaders to step up and take bold steps to make New Mexicans safer from the scourge of gun violence. We invite the Attorney General to turn his attention to that effort.”

No attorney may defend a state official in court without a commission from the state attorney general, said Lauren Rodriguez, director of communications for the AG’s office.

The commission only extends to legal defense in a trial. It does not authorize the administration to appeal any decision in the event that the trial court invalidates the public health order, Rodriguez said.

The cases in federal court asking for a judge to stop the public health order are not yet at a point of trial.

Lujan Grisham told CNN early on Tuesday morning that though she had sent New Mexico State Police to Albuquerque and Bernalillo County, the order had not yet been enforced at the time of the interview.

Source NM left a voicemail with a state police spokesperson on Tuesday afternoon asking if that remained the case.

“We haven’t issued any civil penalties, but that doesn’t mean we are not, and that we don’t have the ability to do that,” Lujan Grisham said in the interview with CNN. “You are not safe going to work, getting your prescription drugs, or going to a public park.”

Centers for Disease Control and Prevention (CDC) data show that gun death rates in 2022 remained near highs not seen since the mid-90s and have not returned to levels recorded before the COVID-19 pandemic.

Children in New Mexico had the ninth highest per capita rate of firearm deaths among the states in 2021, according to an analysis of CDC data by KFF. Even in states with lower rates, they are still much higher than in comparable countries, KFF found.

Lujan Grisham said 143 children died from gun violence between 2017 and 2021.

“It is unacceptable, and it calls for immediate, swift and bold action,” she told CNN. “The evidence bears out, over and over again: fewer guns on the streets makes everyone safer, and I’m focused on everyone’s constitutional rights, not just those the NRA says I should be focused on.”

Opponents everywhere

While much of the opposition to the public health order has come from the political right in New Mexico, civil rights advocates have also raised concerns about the order overstepping the authority of the executive branch, infringing on New Mexicans’ privacy rights, and pouring money into policing.

A spokesperson for the New Mexico chapter of the American Civil Liberties Union said on Tuesday the organization is concerned about the search and seizure aspect of the order.

“If law enforcement were actually going to try to enforce the firearm provisions within the order, it would be utterly foreseeable that it would lead to privacy violations,” the ACLU said in a written statement. “The concern is also that the most direct impacts of this would primarily fall upon communities that already experience the worst outcomes of over-policing.”

Torrez wrote that he does not believe the emergency order will have any meaningful impact on public safety.

U.S. Sen. Martin Heinrich on Monday night said there’s more that can and should be done to stop gun violence and ensure a feeling of safety. But his statement wasn’t exactly an endorsement.

“As we do that work, we need to focus on solutions that are constitutional and enforceable,” Heinrich said. “That’s what will save lives.”

Asked about opposition to the order from Torrez and Bernalillo County Sheriff John Allen, Lujan Grisham said they had no plan to reduce gun violence.

“That’s their opinion. They have no bold actions,” Lujan Grisham told CNN. “It’s not for police to tell me what’s constitutional, or not. They haven’t supported one — not one — gun violence effort in the state of New Mexico.”

She listed domestic violence protections and universal background checks.

“It’s about making sure that everyone is safer while we do bolder work to get at both the drug epidemic and the gun violence epidemic,” Lujan Grisham said Tuesday. “It’s not a ban, it’s a temporary pause so we can make this community safer.”

Lujan Grisham said there are at least 35,000 shots fired in Albuquerque each year. A spokesperson for APD was not immediately available for comment.

“Violence is growing,” Lujan Grisham said. “Every single investment and strategy, including a bold call to action, has failed.”

Police legislative priorities

Torrez in his letter encouraged Lujan Grisham to consider whether the time and energy dedicated to defend the order in court “might be better utilized in the development of a comprehensive legislative response to the problem of gun violence for the New Mexico Legislature to consider during the upcoming session.”

Torrez and Lujan Grisham have in the past agreed on certain aspects of their legislative agenda. They along with the current Bernalillo County District Attorney Sam Bregman have advocated for lawmakers to establish “rebuttable presumptions” that would make it easier to lock people up in local jails before going to trial.

As examples of preventing gun violence, Lujan Grisham pointed to funding in the state budget for crime labs and $150 million for retention bonuses for police and recruiting new police officers.

Shortly after the attorney general’s letter was released on Tuesday, the mayor of Albuquerque and the head of its police department issued a statement saying they will re-introduce a package of proposed changes to state law called the Metro Crime Initiative.

Among their 54 suggestions include:

  • Closing loopholes in the state’s red flag law.
  • Allowing local governments to restrict assault rifles.
  • Longer criminal sentences for people convicted of second degree murder using a gun during a retail theft or a drug-related crime,
  • Create new crimes for randomly firing a gun in public or carrying a gun while intoxicated.

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.