New Mexico Attorney General says there are flaws in Red Flag Gun Law

By John Cardinale

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    ALBUQUERQUE, New Mexico (KOAT) — On April 5, 82-year-old Juneanne Fannell was killed.

Police said her caretaker, Henry Cardana, shot and killed her after he asked to have her removed from their home.

When officers were inside the house prior to Juneanne’s death, they talked about the guns Cardana owned.

Video released shows one officer asking Cardana: “You’re a firearms guy?

“Oh, yeah,” Cardana said.

“Nice,” the officer said.

Target 7 has been staying on top of the story, asking whether the state’s red flag law could have been used.

Enacted in 2020, the law states law enforcement and prosecutors can petition the court to have someone’s firearms taken if there is a threat that they are going to do harm to themselves or others.

“What did you say?” Juneanne is seen asking on police body camera video

“I said you’re fine until I kill you,” Cardana said.

Some believe the red flag gun law could have saved Fannell’s life.

“In this case, it sounds like there was plenty of information that the law enforcement had that would have triggered the implementation of a red flag law,” KOAT Legal Expert John Day said.

Others believe the law couldn’t have been used.

“In this situation, probably not, because there had never been any prior incident. There were not really threats,” Cardana’s attorney, Rudy Chavez, said.

New Mexico Attorney General Raul Torrez is now sharing his opinion on the case and what the officers could have done differently.

“Based on what was said in the 911 call, and based on the statements that she (Juneanne) was making at the time; he probably could have filed the petition. It’s unclear whether or not there would have been enough of a factual basis for a judge to determine if red flag was warranted under the circumstances,” Torrez said.

However, Torrez said that even if the petition was granted by a judge, Juneanne still would have likely died.

Police responded to the home originally around 7 in the morning, and she was killed hours later.

“That kind of process, even if it is happening on an expedited sort of timeline, is difficult to do within an hour or a couple of hours,” Torrez said.

The current law is also set up that once a petition is granted by a judge the owner must turn in all their firearms within 48 hours.

If the guns are not given up, the owner is charged with a misdemeanor.

“Waiting 48 hours for somebody to voluntarily come in and turn their guns in, does not make any sense. And that is something that needs to change,” Torrez said.

Torrez said this is a problem with how our current red flag law is set up, as other states with red flag laws operate differently.

“In other jurisdictions, if a judge has found that there is a credible threat that this person presents the possibility of harming either themselves or someone else in the community, law enforcement officers are empowered to go immediately and recover firearms,” Torrez said.

He says another flaw in New Mexico’s red flag law deals with who is allowed to be a reporting party.

The current law does not contain any mechanism for sealing or redacting a reporting party’s name, which could deter someone from reporting dangerous people they know due to a fear of retaliation.

Torrez feels law enforcement officers should be able to be a reporting party.

“They may have reasons for not wanting to serve as the reporting party. That is why it’s important to have officers be able to step in and fill the gap,” Torrez said.

Target 7’s original investigation found there were only 55 cases in which prosecutors or law enforcement filed a petition.

Twenty-one counties in New Mexico never used it, including the county where Juneanne was killed.

We asked Torrez what he would do if the law is deliberately not being used.

“If we find out about that, we will take appropriate steps to correct that behavior and make sure that law enforcement understands that it must use every available legal resource to protect members of their community,” Torrez said.

Torrez said that in the next legislative session, a package will propose some changes to help enhance the red flag law.

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