State ban on guns in parks, playgrounds halted

A federal judge in Albuquerque on Tuesday extended a temporary restraining order that effectively blocks a new state ban on the carrying firearms at public parks, playgrounds and other areas provided for children to play in.

U.S. District Judge David Urias said, after reviewing written arguments from both sides, he will decide Oct. 11 whether the latest temporary public health order from Gov. Michelle Lujan Grisham’s administration can be enforced in Bernalillo County.

About a half dozen groups representing gun owners contend the latest mandate is unconstitutional and vague and have asked the judge for a preliminary injunction to block it. They succeeded in convincing Urias to block a broader firearm restriction order imposed by Lujan Grisham and state Department of Health Cabinet Secretary Patrick Allen on Sept. 8.

An attorney representing the state of New Mexico contended at a hearing Tuesday that the amended version of an emergency public health order is narrow enough that it passes constitutional muster. She said the aim is to keep children safe from the increasing gun violence across the state’s biggest metropolitan area.

Holly Agajanian, chief general counsel for Lujan Grisham, told Urias in court that children need places where they don’t have to be afraid of people carrying guns, “where they don’t have to worry about whether the person with a gun is a bad guy.”

The amended order affecting playgrounds, parks and other areas expires Friday, but Agajanian told the judge at a hearing Tuesday that there will be at least one extension of the order.

Cameron Atkinson, a Connecticut attorney representing We The Patriots USA, Inc., cited the example of his client, longtime Albuquerque resident Dennis Smith, who regularly carries a loaded handgun in a holster on his body for self-defense when he goes to Los Poblanos Open Space.

Smith carries the weapon to protect himself from wild coyotes, stray dogs, and potential human attackers, Atkinson contends, and doesn’t want to stop. But the $5,000 penalty for violating the public health order would exceed his financial means.

“The amended public health order suffers from the same defect as the original public health order: the Defendants have made absolutely no effort to justify it under any of the exceptions to the Second Amendment’s guarantee of a right to public carry that the United States Supreme Court recognized,” Atkinson maintained.

“Instead, the Defendants continue to restrict the Plaintiffs’ Second Amendment rights to carry firearms in the places where the Plaintiffs need firearms the most to protect themselves and their families,” Atkinson said in a motion to the court.

Agajanian told the judge the state of New Mexico has “partners in the fight against violence” who make political decisions at the expense of people’s lives.

At the same time, she said, young children are learning “active shooter drills” in schools. And, Agajanian added, what are children to think when someone shows up at their neighborhood park carrying an AR-15?

In September, Albuquerque Police Department Chief Harold Medina and Bernalillo County Sheriff John Allen publicly refused to enforce the governor’s earlier order that temporarily suspended the right to carry guns in public in Bernalillo County, with some exceptions.

The governor enacted the temporary restrictions after the recent homicides of three children in Albuquerque, including an 11-year-old boy killed while he and his family drove away from an Albuquerque Isotopes baseball game.

During Tuesday’s hearing, Urias lamented, “Nobody knows more about rising gun violence (in Albuquerque) than the judges sitting here in this courthouse,” referencing federal prosecutions involving firearms. But he said he must abide by the U.S. Supreme Court decisions.

“My hands are tied. I can’t go back and say it’s such a terrible situation that I will allow the governor to go forward.”

Gun owner groups point out that the Supreme Court in 2022 found the government must justify its firearms regulation by demonstrating that it is consistent with the nation’s historical traditions. That rationale could permit states to prohibit the possession and carrying of firearms in “sensitive places,” like election polling places, the gun rights groups say. But they maintain that public parks, playgrounds and other areas provided for children to play don’t qualify.