In the wake of a shooting at a protest in Old Town Albuquerque last month, Mayor Tim Keller announced an adminstrative order banning firearms from city parks and recreation areas. Now the Albuquerque police are posting signs at the downtown Civic Plaza alerting gun owners to the ban, and say they’ll be making arrests if armed citizens fail to heed their warning.

Along with the signs, officers who encounter an armed individual will first give a warning and ask the individual to leave or allow police to disarm them. If they don’t comply within 10 minutes, police say they will make arrests.

The following steps will be taken if officers encounter an individual who is armed:

• Inform the individual that there is a gun ban at Civic Plaza
• Initial contact will serve as a public safety order to remove the firearm from Civic Plaza or to leave the premises with the firearm
• Explain that if the individual continues to possess a deadly weapon at the location, they may be cited or arrested and then the weapon may be seized
• Identify available exit routes and explain that the individual has no less than 10 minutes to comply with the order
• Following 2 warnings, the officer will take police action to include arrest

It sure looks to me like police are going out of their way to avoid making any arrests. Two warnings? Ten minutes to walk away? Why not simply arrest someone after one warning, or no warning at all? It may be because Mayor Keller’s order banning firearms from the downtown plaza is legally dubious, and any arrest made under the mayor’s administrative order isn’t likely to survive a court challenge.

New Mexico’s firearm preemption statute precludes cities like Albuquerque from passing their own local gun laws, but Keller is trying to get around that by declaring that parks, recreation centers, and the Civic Plaza are all “educational facilities.” As we reported when Keller’s order was first announced:

The mayor claims that, because parks and recreation centers are used for some public school activities, that means that they’re considered school grounds for the purposes of banning firearms. The mayor’s problem is biggest problem is that the state statutes actually proscribe specific limits on when those places may be off limits to legal firearms carrying.

The statute says that the ban on carrying firearms can take place at “any other public buildings or grounds, including playing fields and parking areas that are not public school property, in or on which public school-related and sanctioned activities are being performed” (emphasis mine).

“Are” being performed, not “can be performed.” Keller’s order bars firearm possession at parks and recreation centers, the city’s Convention Center (because graduations are performed there), Civic Plaza (because there’s playground equipment there and sometimes a nearby school uses the playground for P.E.), and “any other City of Albuquerque property public school-related and sanctioned activities are performed.”

Notice the difference? In this case, one word makes a big difference. State law does not allow Albuquerque to ban guns from the Civic Center just because it hosts graduations a few days a year. Similarly, they can’t ban guns from local parks or recreation areas unless they are actually in use by a local school. As soon as the soccer practice ends, so does the prohibition on carrying.

I’m still surprised that Keller could get the city attorney to sign off on his bizarre interpretation of state law, much less get the police to go along with it, but I suspect that’s why the APD is going out of its way to try to avoid making any arrests. Everyone from the mayor on down knows that it’s going to be a stretch to claim that a public square is really an educational facility, particularly when the city’s public schools aren’t even open for students. While kids are on summer break for the moment, classes will resume online-only beginning August 12th, and there won’t be any school-sanctioned activity on the plaza anytime soon.

A violation of the state law banning guns from school campuses could result in a 4th degree felony charge, and clearly Keller is hoping that the possibility of a prison sentence will be enough to keep anyone from carrying in the public square. It seems to me like the issue is ripe for litigation, and an Albuquerque resident hoping to challenge the law in court shouldn’t have to wait to be arrested in order to claim standing.

After all, every legal gun owner in the city’s been told via a mayoral edict that they can no longer carry in city parks and plazas, despite the fact that the state constitution clearly states that “No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.” Keller’s order is clearly outside the bounds of his authority, and I hope that a judge gets the chance to declare the mayor’s gun ban unconstitutional in the very near future.