Aug. 6—Family members of a 13-year-old Questa girl police say was shot to death by a 14-year-old acquaintance held a march last week to raise awareness of gun safety laws in the wake of her death — particularly a new one entitled the Bennie Hargrove Act.
William Brown Jr. — the father of the 14-year-old boy charged in Amber Archuleta’s death — became the first person charged under the law, named after an Albuquerque eighth-grader fatally shot by a classmate in 2021.
Under the law, which became effective in June, a gun owner who negligently stores a weapon that is accessed by a minor and used to commit great bodily harm or death — as is alleged in the Questa case — can be found guilty of a fourth-degree felony, punishable by up to 18 months in jail.
It’s not entirely clear how the weapon Brown’s son is accused of using in the shooting was stored.
According to a probable cause statement, Archuleta and three other minors, including Brown’s 14-year-old son, Porfirio Brown, were at Brown’s home on July 28 when the boy produced a pistol, pointed it at her and fired.
The elder Brown was not home at the time, according to the statement, but arrived at the residence shortly after the shooting, went inside the residence and stayed there with his son for about 30 minutes before they complied with commands to exit.
When interviewed by a State Police agent, “[Brown] said he does have firearms in the residence in which most were secured,” according to the statement. “While [Brown] was detained he made an excited utterance that all of the firearms in the residence are his.”
New Mexicans to Prevent Gun Violence co-president Miranda Viscoli said “the bill was specifically written for situations like this.”
“Every part of that was preventable,” she said. “It’s tragic. … Hopefully this will become an example of why gun owners need to safely secure their firearms so no more children are getting shot.”
Brown’s attorney Alan Maestas didn’t respond to calls seeking comment.
Criminal defense attorney Kelly Golightly, who isn’t involved in the Brown case, said in a phone interview Thursday the new law hasn’t been tested in New Mexico’s courts yet, making it ripe for challenge.
Golightly called the law a roundabout approach by the state to regulating a right that is protected by the U.S. Constitution.
“The bill was supposed to be about taking common sense steps to protect our kids,” she said. “But guns in a house are legal … it’s a Second Amendment-protected right. People who have guns do so because they are American citizens, and they are allowed to … and now, instead of going after the issue, we are trying to limit law-abiding citizens from being able to house these same weapons they able to hold.”
If Brown were her client, Golightly said, she’d be asking “What act did my client do or fail to do that was illegal?
“A law needs to put people on notice their actions are criminal,” she added. “So what was criminal? There is a lot to be asked about this. At what point does our right to bear arms become infringed upon when we say, ‘Yes, you have the right to have a gun, but you can’t use the gun because you kept it so thoroughly away from yourself and your family that nobody can access that gun?’ I think there is a big question there.”
The Hargrove Act does not specifically require gun owners to keep their weapons in a safe or to use a “firearm safety device,” which makes it inoperable.
However, it does say people whose weapons were accessed by a minor despite being kept in a locked container or “a location that a reasonable person would believe to be secure,” are not in violation of the law.
The law also includes exemptions for people whose weapons are accessed by minors when:
* It was carried on their person.
* It was during the course of self-defense or defense of another.
* It was accessed via an illegal entry to a person’s property.
* It was accessed with the permission of the parent’s guardian.
State Rep. Pamelya Herndon, D-Albuquerque, who sponsored the Hargrove Act, said she’s “happy a bill passed by the Legislature is actually being used for the purpose for which it was intended, but also sad we have to utilize the bill.”
Herndon said the bill was purposely drafted in such a way that it requires safe storage of weapons. But it doesn’t call for one specific method of storage, in order to accommodate the “economic diversity in the state.”
“One of the things we carefully thought about was what people can and can’t do,” she said. “Someone more affluent might be able to purchase a $3,000 gun safe. Someone who’s on government assistance maybe couldn’t afford that, but they still have a responsibility to store their gun safely.”
That could mean storing it “in grandmother’s cosmetics case with the key around their neck,” Herndon said. “If you laid a fully loaded gun on kitchen table, I don’t think that would be considered safe.”
In cases where the law is invoked, Herndon said the defendant will be given an opportunity to tell the court how they stored their firearm.
“It would be up to a judge or a jury to decide if there was safe storage,” she said. “I’m very confident it will stand up in court.”