HB 9 Unlawful Access to Firearm By Minor

Read the bill language at nmlegis.gov at this link.

HB 9 Summary: Sponsored by Reps. Herndon, Sedillo Lopez, Sariñana, Roybal Caballero, and Sen. Ivey-Soto. HB 9 is a legislative response to the tragic shooting death of 13-year-old Bennie Hargrove at Washington Middle School in Albuquerque in August 2021, who was killed by a 13-year-old classmate who used his father’s gun. HB 9 would impose a relatively low fine of $1,000 on the gun owner if a minor gains access to a gun in the home. If the child uses the weapon to commit a crime, the gun owner could be found guilty of a misdemeanor. The bill states that the owner of an unlawfully stored gun used by a minor to cause great bodily harm or death could be prosecuted under other statutes such as contributing to the delinquency or a minor or involuntary manslaughter without running afoul of double jeopardy laws.

History: According to the website of New Mexicans to Prevent Gun Violence, they attempted to pass a Child Access Prevention Bill in 2016, but it was filibustered in the first committee hearing and died. In 2019, HB 130 Additional Firearm Crimes & Penalties, sponsored by Rep. Linda Trujillo, stalled in House Consumer & Public Affairs for a month, passed as a Committee Substitute, and died when it was never heard in House Judiciary.

Why HB 9 Is Good for New Mexico

IMPORTANT UPDATE Feb. 2: We’ve heard the bill has been amended by the sponsor and we are now supporting this bill, as is New Mexicans to Prevent Gun Violence. We haven’t seen the amendments yet, but we hear they address all the concerns outlined below. Here are the suggested revisions from both the Attorney General’s Office and New Mexicans to Prevent Gun Violence.

Revisions suggested by the Attorney General’s Office, as outlined in the Financial Impact Report prepared by the Legislative Finance Committee include:

  • The current language of Subsection E, that “nothing in this section shall be construed to prohibit the concurrent prosecution of the person,” is susceptible to a more limited reading by a court. If the intent is to remove all double jeopardy, multiple-punishment implications of this newly created offense where the result is great bodily harm or death, the word “concurrent” should possibly be removed or replaced with a more generic descriptor such as “criminal.”
  • The language of Subsection A is unclear as to whether the authorization by a parent or guardian is always an element of unlawful access to a firearm by a minor. The drafters might consider replacing “when” with “is accessed by a minor” to clarify the apparent intent that unlawful access to a firearm is committed in two alternative ways – where a firearm is stored in a manner that (1) the firearm is accessed by a minor without authorization by a parent or guardian, or (2) the firearm is accessed by a minor (regardless of authorization by a parent or guardian) and subsequently used in the commission of a crime.
  • Alternatively, if the intent is that all unlawful access of a firearm by a minor requires proof of a lack of authorization by the parent or guardian of the minor and that the subsequent use in the commission of a crime is only a sentencing factor, the drafters could consider deleting “or when used in the commission of a crime” from Subsection A. Under that interpretation, it is unnecessary to include that language in Subsection A because it is not a determinative factor as to whether the defendant’s conduct is “unlawful.”

Revisions requested by the experts, New Mexicans to Prevent Gun Violence. This is getting somewhat “into the weeds,” as they say, but we’ve been asked to give specific examples of what needs amended:

  • Making this act unlawful would potential fit within a theory of involuntary manslaughter — a good concept except for the weak criminal penalties, ambiguous language, no clear mens rea [intention or knowledge of wrongdoing], and the double jeopardy issue. “To do so in such a manner” is too ambiguous and vague. “Without the authorization” could make consent a defense.
  • The words “based on objective facts and circumstances” could be widely interpreted.
  • The penalties for such a serious issue are weak: DA’s do not prosecute penalty assessments, and aside from domestic violence and DWIs, the FJDA does not enter into and prosecute misdemeanors unless certain criteria are met.
  • The double-jeopardy issue: In a practical application of this law, an officer charges someone under either theory in HB 9. That person walks into magistrate court and pleads guilty or no contest at his/her first appearance. Double Jeopardy will likely bar the prosecution from pursuing district court action on a felon.

It’s clear that this bill needs some revisions. It’s also clear that we need better legislation to prevent gun violence in our state:

  • In 2020, New Mexico had a gun death rate of 23.1 per thousand, almost twice the national average (11.9 per thousand). This rate is 55% higher than it was in 2010 in our state.
  • As of 2020, 40% of New Mexico households had at least one firearm present, with 64% of those kept loaded and 21% loaded and unlocked, according to the state Health & Human Services Dept.
  • In 2019, according to the Educational Fund to Stop Gun Violence (EFSGV), 40 children and teens were killed by guns in New Mexico, including 18 who used a gun to commit suicide.
  • EFSGV also reports that New Mexico had the 4th highest gun death rate in the country in 2019. The firearm homicide rate in our state increased 115% from 2014 to 2019.

Gun owners have a certain duty to prevent child access to firearms. We are losing close to three children every month in New Mexico to gun violence. It is our hope that we can make the necessary amendments in HB9 so that we pass a viable CAP law as our children deserve to be safe from gun violence.
                      Miranda Viscoli, Co-President, New Mexicans to Prevent Gun Violence