The law seems to say that only an employer, a school official, or family member can serve as a reporting party. But some courts and the attorney general believe that the language of statute must be read more broadly. They believe that law enforcement can serve as a Reporting Party if they have firsthand information to support the affidavit. When a law enforcement officer wants to be the Reporting Party, their local district attorney should act as the Petitioner.

In New Mexico, the Extreme Risk Protection Order Law clearly states that family members, employers, and school officials are authorized to serve as reporting parties. However, the law uses the word “includes” before this list. When a statute puts the word “includes” or “including” before a list, it means “includes, but is not limited to.” The New Mexico Attorney General has issued an opinion that the language of the statute means that anyone can serve as a reporting party. New Mexico appellate courts have consistently agreed with this interpretation in other contexts, but no court has yet issued an opinion in the context of an Extreme Risk Protection Order. Attorney General’s Opinion 

STEP 1. The Reporting Party reports their concerns to a law enforcement officer or the district attorney.

STEP 2. Law enforcement officer or the district attorney helps the Reporting Party complete a form affidavit. Affidavit form

STEP 3. The Law enforcement officer or the district attorney prepares a form petition based on the information in the affidavit.  Petition form

STEP 4. Law enforcement officer or the district attorney prepares a draft order for the court to sign. Order form

STEP 5. Law enforcement officer or the district attorney files the affidavit, the petition and the draft order in the district court where the Respondent resides. Instructions

STEP 6. The court reviews the affidavit and the petition ex parte (without a hearing) and either signs an order granting the request for the Temporary Order or denies it. If the court denies the request for a Temporary Order the case is over.  Denial form

STEP 7. If the court grants the request for a Temporary Order, the Respondent relinquishes all of their firearms to law enforcement or to a FFL within forty-eight hours or sooner, if ordered by the court.

STEP 8. If the court grants the Temporary Order, the court sets a hearing on the One-Year Order within 10 days.

STEP 9. If the Respondent wants more time to prepare for the hearing, they can file a request for a later date. The Petitioner cannot request an extension of time. Request to postpone hearing forms

STEP 10. The Court gives the Petitioner (law enforcement or the district attorney) and the Respondent notice of the hearing See notice requirements

STEP 11. The Petitioner contacts the Reporting Party and prepares them to testify at the hearing on the One-Year Order.

STEP 12. After the hearing, the court rules on the motion for a One-Year Order. If the court grants the petition and has not already received a copy of the relinquishment receipt based on the Temporary Order, the court orders the Respondent to relinquish all firearms to a law enforcement agency within forty-eight hours or sooner.  Final order forms

As of Spring 2023 the forms were not yet available on the court website. All the forms are available here These forms cover every possible outcome. No one has to create a court pleading.

If a law enforcement officer or district attorney determines that the threat of harm is not serious or that the danger is not imminent, they can choose not to file the petition. They are only required to file a notice with the Sheriff in the county where the Respondent resides stating that they are refusing to file. However, not filing a colorable petition is a risky choice for the law enforcement agency or district attorney’s office. If the Respondent subsequently uses their firearm to hurt themselves or others, the agency may be sued for damages under New Mexico‘s Civil Rights Act.

Not if the decision to file was made in good faith. In fact, filing a colorable Petition is the best way to prevent a lawsuit against law enforcement.

If the person who wants to be the Reporting Party works in law enforcement, it is best practice for the district attorney serve as the Petitioner.

This is a relatively new area of the law and each situation isa unique. A law enforcement officer can always reach out to the district attorney to get answers. Anyone can reach out to New Mexicans to Prevent Gun Violence to get more information about how the law works. Contact us

The New Mexico Law Enforcement Academy provides training. New Mexicans to Prevent Gun Violence also provides training free of charge to law enforcement and community members. To set up a free 45-minute Zoom training program. Contact us

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