NOTE: As provided in LFC policy, this report is intended for use by the standing finance committees of the legislature.  The Legislative Finance Committee does not assume responsibility for the accuracy of the information in this report when used in any other situation.

The LFC is only preparing FIRs on bills referred to the Senate Finance Committee, the Senate Ways and Means Committee, the House Appropriations and Finance Committee and the House Taxation and Revenue Committee. The chief clerks are responsible for preparing and issuing all other bill analyses.

Only the most recent FIR version, excluding attachments, is available on the Intranet. Previously issued FIRs and attachments may be obtained from the LFC office in Room 416 of the State Capitol Building.

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

SUMMARY

Synopsis of Bill

HB 673 would prevent state agencies, boards commissions, institutions, and political subdivisions of the state and their agencies, boards, commissions or institutions from accepting grants or loans of federal funds that were conditioned upon the state or local entity's participation in, creation or maintenance of a national firearm registration database. The legislation would further prohibit state agencies, officers, employees and local government agencies, officers or employees from charging or collecting a fee in connection with action taken to implement the Brady Act.

The legislation would make it unlawful for a person acting in their official governmental capacity or in the scope of their employment to acquire information concerning an individual because of the operation of the Brady Act and to communicate that information to a person not legally entitled to have it or to fail to destroy information acquired in such a manner within 48 hours of acquiring it unless retention was specifically required by federal law. The legislation would allow civil actions against anyone who violated the act and treble the amount of damages plus reasonable attorneys fees if successful. The legislation would prevent state agencies, boards, commissions or institutions and political subdivisions of the state, their agencies, boards, commissions or institutions to take any action whatsoever to implement any federal law that created or maintained a national firearm registration database. State or political subdivision agencies or departments would be required to instantaneously destroy all information submitted to them concerning any person not found to be prohibited from purchasing or possession firearms. For a violation of these provisions, there would be civil sanctions in treble the amount of damages plus reasonable attorneys fees if successful.

Significant Issues

The legislation as drafted places significant restrictions on law enforcement's use of the information contained in federal law enforcement files.

The Attorney General's Office reports (1) Damages are recoverable for a wrongful act that has injurious consequences. A plaintiff will have the burden to prove damages. Top the extent that HB 673 allows for a claim for damages against New Mexico, or any of its branches, agencies, departments, boards, instrumentalities, or institutions, or any governmental entity, or local public body, or any public employee, the entity or public employee will be immune from liability except as provided in the Tort Claims Act. (2) Generally, statutory treble damages are restricted to those classes of cases where there is an element of reckless behavior, or other bad conduct or bad motive. Under HB 673, a business can be held absolutely liable for damages for erroneous disclosure of for failing to destroy certain information within 48 hours, regardless of whether the business acted intentionally or negligently.

FISCAL IMPLICATIONS

According to DPS, if New Mexico becomes a point of contact state, the state would depend on fees to operate. At this time, DPS does not conduct "Brady checks" for licensed firearm dealers.

The Administrative Office of the Courts (AOC) reports the fiscal impact to the courts is unknown at this time. The courts statewide participate in many community-directed legal efforts which receive federal funds to implement. Should this legislation be enacted, these court-administered programs may be adversely affected.

ADMINISTRATIVE IMPLICATIONS

AOC reports, should this legislation be enacted, these court-administered programs may be adversely affected.

TECHNICAL ISSUES

DPS reports the language on lines 11 through 14 on page 2 could significantly hamper law enforcement in conducting a variety of routine investigations where a firearm might have been involved in some manner in the criminal activity. Perhaps the worst case scenario was that if a firearm was stolen or recovered, the law enforcement agency investigating or recovering the firearm would be unable to utilize information acquired through the Brady Act in order to conduct its investigation. A law enforcement agency could be precluded from questioning a suspect if they had burglarized a particular individual's premises and acquired a stolen firearm because the information about who owned the firearm might have come through the Brady Act. Certainly, the suspect is not entitled to have that information. The legislation, as drafted, uses the term "communicate" without qualification. The language on lines 15 through 18 requires destruction of Brady Act information within 48 hours of acquiring it unless federal law required that it be retained. The federal law may not require that information obtained through the Brady Act be retained, however, it might be important information in the reporting of a criminal investigation, i.e., that a firearm that was recovered had been purchased by a particular individual. This could be an important fact for a police officer to report in his investigative report but this legislation, as drafted, would seem to preclude him from reporting said information in his investigative report. Instead, he would be required to destroy that information within 48 hours of receiving it. The language on lines 7 through 10 on page 3 causes similar concerns because it requires state agencies and departments and political subdivision agencies and departments to destroy "instantaneously" any such information submitted to them. If the information were indeed destroyed "instantaneously", then an investigating officer would never have the benefit of that information and wouldn't be able to use that type of information in conducting their investigation. Such information might be very useful, in fact, critical to solving crimes that involve the use of a firearm.

OTHER SUBSTANTIVE ISSUES

DPS reports that there is no firearms registration database.

LT/prr