Atty General Advisory Letter

[NMBill]

www.nmag.gov/Opinions/Opinion.aspx?OpID=1318

This letter to the DA in Grants appears to undermine concealed carry rights and open the door to restricting carry in government buildings. Shades of Ruidoso. No mention of Section 6 of the Constitution. Bottom line -- the opinion green lights the banning of concealed carry in a County (non-court) building.

 

[jhow1nm2]

bad link, please repost

thanks!

 

[NMBill]

Works for me, but...

...here's a link to a pdf of the opinion:
http://www.nmag.gov/pdf/8 Sept. 2011-Lemuel Martinez-Advisory Letter[1].pdf

If that doesn't work, you can go to the Atty Genl's website www.nmag.gov and click on "Opinions". It is the latest opinion published.

It appears that the District Attorney's Office is currently housed in the Court building and, since firearms are not allowed in the courts, they have apparently applied the ban to the entire building. Now they are moving the DA's office to its own building and asked the AG if they can ban firearms there, too. The conclusion to the AG's opinion is:

"To summarize, we conclude that the Thirteenth Judicial District Attorney’s Office may implement reasonable security measures that include a prohibition on the carrying of firearms, including concealed handguns. As in McCormick, if members of the public are properly advised of a prohibition respecting the carrying of firearms as a condition to gain entrance to the offices of the District Attorney, the trespass statute could be used for enforcement purposes. To this end, it would be important that you, as District Attorney, have a clear understanding with Sandoval County regarding who is the “custodian” of the property for purposes of Section 30-14-1(C). If necessary, a contractual provision to that effect might be included in the District Attorney’s Office lease or other occupancy document. The Sandoval County Commission might also be requested to take the appropriate formal action in that regard."

As I mentioned earlier, no mention of the State Constitution, and the AG is recommending the County Commission adopt legislation for the ban. They are ignoring some very plain language in Section 6 of the Constitution -- "No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms."

 

[AH.74]

First of all- what IS it with these people who think that banning legally licensed people who have been checked by the state and FBI to carry, and who also have at least some minimal amount of verifiable training, is going to increase their "security"?

Second- I may go down to the AG's office personally on this one, with a copy of the NM state constitution in hand. This really is BS.

 

[PracticalTactical]

I talked to the AG's office and they recommended I write them a letter stating the constitutional concerns. I'll post a link to the letter here when I get it written.

Personally, I don't see how the District Attorney could have missed the constitutional prohibition (Art II Section 6) and the related case law. Aren't DAs supposed to pass a bar exam or something? The people in Grants should elect a DA who isn't a total goober.

 

[AH.74]

I talked to the AG's office and they recommended I write them a letter stating the constitutional concerns. I'll post a link to the letter here when I get it written.

Personally, I don't see how the District Attorney could have missed the constitutional prohibition (Art II Section 6) and the related case law. Aren't DAs supposed to pass a bar exam or something? The people in Grants should elect a DA who isn't a total goober.

Agreed- and the DA is a judge! It's ridiculous, really.

I have a letter drafted as well, plan on handing it in personally. Looking forward to seeing yours.

 

[PracticalTactical]

Agreed- and the DA is a judge! It's ridiculous, really.

I have a letter drafted as well, plan on handing it in personally. Looking forward to seeing yours.

I was going to post something a couple days ago but got a horrible stomach flu. Now that I'm eating food and drinking water again, I'll type something up. Can't hand it in personally, but I'll be sure and make as big a stink as I can over the interwebs.

 

[PracticalTactical]

I gave the opinion letter a more careful reading (now that I'm not dehydrated, starving, nauseated, etc) and they actually make a pretty solid case for the prohibition, as much as I don't like it.

Article II Section 6 of the state constitution guarantees a right to ownership and possession for lawful purposes, which basically means the state can make something unlawful and it would therefore not be protected, making that part of it basically worthless, the state can do whatever they want. Fortunately, that section also prohibits local governments from enacting any prohibition at all by themselves.

In short, the state can pretty much prohibit whatever they want when it comes to guns, but local governments cannot.

First they show case law supports local governments using trespassing statutes, which would mean they could post a prohibition and that would stick, but only if they had a document showing that they are the people responsible for the property.

Then they show that courts, even when operated by local governments, are under a statutory duty to provide for security, which may include a prohibition on weapons, and that the definition by state and federal law could be interpreted to include DA's offices.

Do I like it? No, but the legal theory appears to be pretty solid to my untrained IANAL eye, and I don't think we'd have much luck challenging it. I also doubt that any national organization would be willing to step in and try to help.

The good news through all of this is that they can't use this reasoning in other county or municipal buildings because they aren't covered by state law in any way to enact a prohibition on firearms the way a court or DA's office is, so the damage of this AG opinion is really quite limited.

 

[PracticalTactical]

A more detailed explanation:

http://www.practicaltacticaltraining.com/2011/11/understanding-the-limits-of-article-ii-section-6/

 

[AH.74]

I think you're off-base here. Practical.

Regarding trespass, they must make it clear to everyone that if they enter they will be in violation of trespass. They cannot simply charge someone. The person must be made aware. In the code it says people must be asked to leave and if they refuse then trespass applies. That is what those cases reference- the fact that the people had been made aware yet acted anyway.

Regarding the security of courts, fine- that's no problem. The problem is, they are stretching logic to claim that the DA's offices, housed in a separate building, are court offices. They certainly are not- either a facility is a courthouse, or it is not.

There is no way article 6 section 2 does not completely over-rule what they are trying to do. I think their logic is all wrong.

My letter is being hand-delivered tomorrow to the SF office. A copy will go out to the DA.

 

[NMBill]

Not so sure, PracTac

The County is required to house the DA's office and they will be housed in a county building. The County is responsible for maintaining, cleaning, securing and providing utilities to the building. I believe it is clear that the County is the "custodian" of the building. The AG suggested, "To this end, it would be important that you, as District Attorney, have a clear understanding with Sandoval County regarding who is the “custodian” of the property for purposes of Section 30-14-1(C)." Stating that the DA is custodian of the building in some sort of agreement does not make it so.

The AG is suggesting that the DA make some sort of end run -- if the DA is the "custodian", then they can deny entry under trespass law. Were this to go to court, the DA's claim that he is the building's custodian, would not stand up to scrutiny. "Do you own the building?" -- "No". "Do you clean and maintain the building and grounds?" -- "No". "Are you responsible for utilities?" -- "No". "Then why do you claim to be custodian of the County building?" -- "Because, this agreement says so???". "Are you saying the County entered into an agreement with the DA, in order to regulate the right to keep and bear arms?" -- "Er, uh, no, no. I wouldn't say that".

OK, IANAL, but I think this is a pretty clear attempt to twist the law and end run the State Constitution. The entire opinion revolves around some unspecified agreement to grant "custodial powers" to the DA, even though it is clear, under New Mexico statutes, that the County is the custodian. Rant off.

 

[PracticalTactical]

Iffy enough though

The opinion makes it iffy enough that I wouldn't try and carry there.

By the time they're arguing over who is the custodian, you are up on trespass charges and have lost your CHL, and the lawyer's fees are piling up by the six minute increment. If you're lucky you'll be 20 grand in debt and maybe get your CHL and/or gun back.

Of course they have to post the prohibition or verbally notify before attempting to enforce it. And yes, use of the statute relies on the custodianship of the property being properly established, and those are great weak points to attack it legally. But, they do make a pretty solid case for the local unit of government being authorized by state statute to prohibit weapons in the DA office. It's like municipal and magistrate courts, they prohibit guns too.

Plus, I really doubt anybody can find a judge willing to scrap it with the DA's office on the issue.

We have to pick our battles.

I think our energies are better spent amending the state statute to forbid them from disallowing arms outside an actual court or strengthening Article II, Section 6 against the state government.

 

[NMBill]

Right

I wouldn't carry there either.

Lawyers/judges will tend to protect their own.

 

[AH.74]

But, they do make a pretty solid case for the local unit of government being authorized by state statute to prohibit weapons in the DA office. It's like municipal and magistrate courts, they prohibit guns too.

I completely disagree with the first part. I don't understand how you see it this way.

As far as the second part, courts are courts. That is very clear and specifically outlined in the state prohibitions. Other general public offices, not at all.

If you let them take this inch, watch out- they'll be taking miles all over the place before we can bat an eye.

 

[PracticalTactical]

I completely disagree with the first part. I don't understand how you see it this way.

As far as the second part, courts are courts. That is very clear and specifically outlined in the state prohibitions. Other general public offices, not at all.

If you let them take this inch, watch out- they'll be taking miles all over the place before we can bat an eye.

Well then by all means, oppose it. I just don't have the time and have to take a pass on this one. What little time I have for gun rights issues I have to spend on things down here in Cruces that I know will bring results.

Keep us updated.

 

[AH.74]

Well then by all means, oppose it. I just don't have the time and have to take a pass on this one. What little time I have for gun rights issues I have to spend on things down here in Cruces that I know will bring results.

Keep us updated.

You don't have time to mail that letter you wrote? You had time to make a phone call.

With all due respect, Practical, if we all had that attitude nothing would ever get done outside our little circle. Just because it isn't local doesn't mean it won't drastically affect you sometime down the road. This "opinion" has the potential to cause a lot of harm all over the state.

 

[PracticalTactical]

I didn't write a letter.

My decision to not pursue this one wasn't based on geography, it was based on probability of success. I feel my limited time is better spent on things I know will make a difference.

The impact of this letter is also limited to DA offices and other court-related things. If later they try to creep it out beyond that, I will be all over it.

 

[AH.74]

I didn't write a letter.

My decision to not pursue this one wasn't based on geography, it was based on probability of success. I feel my limited time is better spent on things I know will make a difference.

The impact of this letter is also limited to DA offices and other court-related things. If later they try to creep it out beyond that, I will be all over it.

You're not just an average joe. You're a certified instructor and your voice carries weight. Probability of success is absolutely zero if no one lets their voice be heard. They need to hear from the people they're paid to work for.

I'll leave it at that.

 

[PracticalTactical]

Ok ok

All right, I'll see what I can do. Give me a few days.

I still think they have made a pretty strong case, but I'll see if I can put a few rounds into the weakest parts for incapacitation purposes.

No guarantees.