New Mexico

Balderas: NM laws lacking on gun safety

Lincoln Harmon, 2, died from a gunshot wound on December 8, 2021 in Rio Rancho. Outgoing Attorney General Hector Balderas has asked the incoming Attorney General, Raúl Torrez, to consider reviewing pending evidence and completing an assessment of whether there was “criminal guilt” in connection with the custody of the gun that killed Harmon. (Photo source: GoFundMe)

There is no doubt that the fatal accidental shooting of a 2-year-old Rio Rancho child by his 4-year-old brother in 2021 was a tragedy. But were the boys’ parents guilty of a crime?

The office of outgoing Attorney General Hector Balderas spent months reviewing a possible prosecution related to the December 8, 2021 death of Lincoln Harmon at his home. The firearm was the boy’s father’s off-duty weapon, which had been kept in a kitchen cupboard.

The father, Jonathan Harmon, a Santa Fe police officer, told investigators he was in another room when the fatal kitchen shooting occurred. His wife Courtney was caring for a newborn child elsewhere in the home at the time.

Balderas said Friday his office was still investigating whether there was “criminal liability” related to the gun’s unsafe storage.

As such, Balderas is asking new Attorney General Raúl Torrez to consider reviewing the pending evidence in the case and completing the legal analysis.

That has taken a lot of time so far, given what Balderas called a “blind spot” in New Mexico law, which covers improperly stored guns used by minors that result in serious bodily harm or death.

“This case clearly shakes the conscience of the community, yet lawmakers are squarely silent on conduct related to unsafe firearm storage,” Balderas told the Journal in an interview. “This is unfortunate because we should be able to protect these two minor children in a much more timely and aware manner. This really should be about the children and the loss of lives.”

If New Mexico had a law criminalizing unsafe storage, Balderas said, “and[a shooting]resulted in specific grievous bodily harm or death as you did in this case, we probably would have done it already (reimbursement of criminal charges).

He did not give details of the “pending evidence” in the case.

Balderas’ two terms as AG ended on December 31 due to term limits. His successor, Bernalillo District Attorney Torrez, won the November election to a four-year term.

District Attorney for the 13th Circuit, Barbara Romo, citing a conflict, asked the attorney general’s office to review the Rio Rancho Police Department’s investigation into the fatal shooting.

The criminal investigation was initially classified as Rio Rancho officials claimed that the police files in the case were not public under state law. A state district judge disagreed, ordering the release last summer after lawsuits were filed by the New Mexico Foundation for Open Government and the Santa Fe New Mexican.

Meanwhile, in response to a request for public records, Balderas released 53 pages of police interviews and other documents related to the probe last April.

These records showed that the two Harmon children were alone in the kitchen when the older boy pushed a kitchen chair onto a counter to get chewing gum in a cupboard and found the loaded gun on the top shelf. The 4-year-old either pulled the gun from a holster or pointed it up and accidentally fired the gun, hitting his younger brother under his lip, records showed.

The Harmons could not be reached for comment by the Journal Monday.

But under police questioning, the father told investigators he was sleeping in a room where the two boys had been, was woken up around 8 a.m. by a loud noise and heard the older boy screaming.

His wife was quoted as saying her husband is “very strict” about gun safety. She said the 4-year-old, who had toy pistols and a BB gun, never had trouble touching his father’s guns, although he enjoyed playing “dress up” with other police gear.

Balderas said his office was “trying to gather evidence of parent intent and child intent, so it becomes very complex because there are no proper laws that provide prosecutors with tools down the street.”

At the misdemeanor level, there is a negligent use of a firearm statute that doesn’t appear to apply to the Harmon case, he said.

The other option is to charge the case under a “very high standard of child abuse… and those aren’t the best tools.”

“Most people who have followed this case simply followed objective behavior that shocked the conscience of the community, but the legislature did not interfere,” Balderas said.

Balderas became president of Northern New Mexico College on Jan. 1, but said he plans to meet with Gov. Michelle Lujan Grisham and new House Speaker nominee Javier Martinez on the issue.

“I will ask the question as a direct result of this investigation: do they want to criminalize this behavior? If a young child can gain access to a firearm and something becomes fatal, will lawmakers consider whether to create punitive liability for adults, or will they further immunize that behavior? What the law lacks is that middle ground.”

A bill creating a new law on unlawful access by minors to a firearm was passed in committee during last year’s legislature.

But the bill’s sponsor, Rep. Pamelya Herndon, D-Albuquerque, told the Journal Monday she plans to reintroduce the measure during the 60-day session beginning Jan. 17.

“It’s gotten so much gun storage publicity outside of the state of New Mexico,” she said. “I keep saying it’s not that I want another crime in the books, but I do want the people who own a gun to be more responsible about how you store it because it saves the lives of many.” influences people.”

At a House hearing last year, Rep. Greg Nibert, R-Roswell, questioned why the state would want to criminalize acts that “in some cases are beyond the control of parents.” He said minors “can be quite proficient with guns, even at a young age” and in rural areas “count on them using the guns to protect their herds of sheep and cattle.”

Safekeeping laws have been enacted in more than two dozen states, according to a law analysis last year. Some include exceptions for firearms used for hunting, sporting, or agricultural purposes.

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