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Copyright © 2019 Albuquerque Journal

SANTA FE – Attorney General Hector Balderas is warning sheriffs and police chiefs throughout New Mexico that they risk legal liability if they refuse to enforce the state’s new background checks law for gun sales.

The legislation, which takes effect this summer, emerged as one of the most fiercely debated proposals of the 2019 session, with sheriffs and their deputies turning out in force to testify against it. Some said they simply wouldn’t enforce it if it became law.

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But Balderas, a Democrat, sent a letter to every law enforcement agency in the state Thursday, warning them of a legal obligation to uphold the requirements outlined in Senate Bill 8, regardless of whether they agree with the legislation.

“As law enforcement officials,” Balderas said, “we do not have the freedom to pick and choose which state laws we enforce.”

His letter comes after at least 26 counties in New Mexico passed “Second Amendment sanctuary” ordinances in opposition to gun laws that were debated by state lawmakers this year.

Cibola County Sheriff Tony Mace, a Democrat, said Friday that law enforcement officers already have discretion in how they enforce the law. A deputy, for example, can issue a warning rather than a citation after pulling over a speeding driver, he said.

Furthermore, Mace said, the letter is premature because the new law doesn’t go into effect until July 1.

“We’re elected by the people in our communities,” he said of his fellow sheriffs, “and that’s what we’re looking at – what do the people in our communities want?”

Mace is president of the New Mexico Sheriffs’ Association.

All but a few of the state’s 33 county sheriffs opposed gun legislation debated by lawmakers this year.

The Legislature ultimately passed – and Gov. Michelle Lujan Grisham signed – bills requiring background checks before most gun sales and prohibiting the possession of firearms by domestic abusers. Another proposal – a “red flag” law allowing a court to order the temporary seizure of guns from someone deemed an immediate threat – failed to make it through.

Senate Bill 8 was perhaps the most controversial. It passed the Senate 22-20 and the House 42-27.

The bill will require a background check before nearly any gun sale, including between two individuals. There will be exceptions for sales between two close family members and between law enforcement officers.

Licensed dealers already must do the checks, but supporters of the legislation say a loophole in the system allows two individuals to arrange a sale on their own – through, say, a classified ad – and avoid a background check.

Senate Bill 8 calls for people who want to sell a gun to arrange for a licensed dealer to do the background check. The dealer could charge up to $35.

Supporters said the law will make it more difficult for criminals or others prohibited from having a weapon to obtain a gun. Opponents said that criminals will just ignore the law and that the background checks will be a burden on law-abiding gun owners.

In his two-page letter, Balderas said a police chief or sheriff who refuses to enforce the law could be held liable if a gun sale results in a prohibited person obtaining a firearm and doing harm.

“In short,” he said, “the taxpayers of your city or county assume the financial risk of your decision to impose your personal views over the law.”

The attorney general said he realizes that sheriffs and police chiefs have discretion over how to run their agencies. But personal political opinions “do not absolve us of our duty to enforce validly enacted laws,” Balderas said.

Discretion, he added, “cannot subvert the rule of law. All New Mexicans, including public officials, are equally subject to the law.”

During the legislative session, sheriffs repeatedly spoke out against the gun legislation, sometimes bluntly.

“As the sheriff of that county, I will not allow that law to be enforced,” Chaves County Sheriff Mike Herrington told the Journal after a Senate floor vote on the bill in February.

The state’s three most populous counties – Bernalillo, Doña Ana and Santa Fe – didn’t join the movement against the bill, and Lujan Grisham last month accused the sheriffs who opposed the new law of being part of a “national misinformation campaign” driven by the National Rifle Association.

Nonetheless, top-ranking House Republicans said the outcry shows lawmakers ignored the will of New Mexicans, especially those in rural parts of the state.

They are pursuing a petition to repeal the background check law by way of the rarely used voter referendum process.