When "red flag" laws were first adopted in Connecticut and Indiana about two decades ago, they were billed as a tool that law enforcement could use in extraordinary circumstances, but over the ensuing years the gun control lobby and their political allies have pushed to expand the use of Extreme Risk Protection Orders by both broadening the universe of who can file for an ERPO petition as well as mandating their use in particular circumstances. 

One of those mandates is at the heart of a new lawsuit filed against the Bernalillo County Sheriff's Office in New Mexico. Two years ago, 17-year-old Alexia Rael and her 16-year-old cousin Mario Salgado-Rosales were shot and killed in a car outside an Albuquerque mall by 52-year-old Bradley Wallin, who then took his own life. Wallin, who was the ex-boyfriend of Rael's mother Vanessa Salgado, had been accused of sexually abusing Rael and two other underage girls about a month earlier, and in her lawsuit accuses the sheriff's department of failing to take Wallin's guns away after the alleged abuse had been reported to authorities. 

Rael’s mother, Vanessa Salgado, alleges in a new lawsuit that Bernalillo County Sheriff’s deputies ignored a legal requirement that they use New Mexico’s red flag law to seize multiple firearms Wallin was known to possess.

Salgado’s attorney, Carey Bhalla, said that deputies could have taken actions to protect Rael, either by petitioning a judge to seize his firearms, or by arresting him on child abuse charges.

“It’s amazing to me that there were no steps taken to either take this guy’s guns away or take this guy off the street,” Bhalla said in a phone interview with the Journal.

The 2nd Judicial District Court lawsuit identifies as defendants Bernalillo County, Bernalillo County Sheriff’s Office and Manny Gonzales, who was the county sheriff at the time. The suit seeks unspecified damages.

In her suit, Salgado argues that New Mexico's "red flag" law requires police petition for an Extreme Risk Firearm Protection Order when there is “credible information from a reporting party that gives the agency or officer probable cause to believe that a respondent poses a significant danger of causing imminent personal injury to self or others.”

But as the suit also alleges, the Bernalillo County Sheriff's Office reportedly failed to investigate Wallin after Salgado reported Wallin's alleged abuse to several deputies, which raises the question of whether the department had probable cause to file for a petition. In retrospect, it's clear that Wallin continued to stalk the teen after Salgado demanded he leave the home and obtained an order of protection that prohibited him from contacting the teen, but according to the lawsuit, deputies didn't investigate Wallin's alleged abuse or his activities after he was kicked out of Salgado's home. 

After the homicides, an Albuquerque Police Department detective interviewed Wallin’s roommate, who said that Wallin was “infatuated” with Rael and believed that nothing was wrong with his sexual relationship with the girl.

The roommate also told police that Wallin routinely carried a gun and frequently drove by Salgado’s home and Rael’s workplace to keep tabs on the girl, the suit alleges. Wallin eventually rented an apartment that was five minutes by car from Rael’s workplace.

Wallin was aware that Salgado had obtained a restraining order against him and feared that she would force him to surrender his firearms to law enforcement, the roommate told police. Wallin also traded in his car to avoid Rael’s notice, the roommate said.

“All of these facts could have easily been discovered had (BCSO) attempted to investigate Wallin” or interview him about Rael’s allegations, the suit alleges.

And that seems to be the real issue here, not whether the sheriff's deputies should have filed a "red flag" petition with the courts. Wallin violated the order of protection, and there's no reason to believe he wouldn't also have violated the ERFPO had one been filed. At best, Wallin's legally-owned firearms could have been seized from him, but that wouldn't have prevented him from illegally acquiring another or using something else to murder the teens in their car. 

Taking Wallin's guns wouldn't have changed him or made him less of a threat to Rael. For that to happen, he would have needed to be locked up; a possibility had the sheriff's department investigated the allegations and made an arrest. 

Unfortunately for Salgado, the federal courts have repeatedly stated that police don't have an obligation to protect us as individual citizens, so I doubt her lawsuit is going to get very far. But this tragic incident is also an example of the false promise of safety and security that "red flag" laws provide. 

Ultimately, a "red flag" petition is a piece of paper, not a guarantee that someone's dangerousness has been defused once their legally-owned firearms have been taken. Even if deputies had investigated, absent an articulated threat of violence on Wallin's part they might not have had probable cause to file for an ERFPO, but they may very well have had probable cause to arrest him, charge him, and keep him behind bars until trial... or at least until he made bail.