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Know the Laws: New Mexico

UPDATED May 5, 2016

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Below is information about state gun laws in New Mexico.  A restraining order or criminal conviction may make it illegal for an abuser to have a gun.  However, in addition to these state-specific laws, there are also federal gun laws that could apply.  To fully understand all of the legal protections available, it is important that you also read the Federal Gun Laws pages.

Please consider getting in touch with a domestic violence advocate in your community for more information on gun laws in your area. Please click on the NM Where to Find Help page to find domestic violence organizations and lawyers in your area. 

Basic Info and Definitions

back to topWhat is the difference between federal and state gun laws?

In these gun laws pages, we refer to both "federal gun laws" and "state gun laws."  The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.

One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself.  Throughout this section, we will be referring mostly to state laws.  Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well.  You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.

If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws.  Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws.  If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor.  If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor).  For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun?  If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.

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back to topWhat is the definition of a felony?

Under New Mexico state law, a felony is any crime that is punishable by a sentence of death or of imprisonment for a term of one year or more.*

* N.M.S.A § 31-1-2(D)

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back to topI am a victim of domestic violence and the abuser has a gun. Is that legal?

It depends.  Under New Mexico law, the abuser may be prohibited from possessing a gun if any of the following apply:

  • s/he is not a citizen of the United States;
  • s/he is not a resident of New Mexico (unless s/he is a member of the armed forces whose permanent duty station is located in New Mexico or is a dependent of such a member);
  • s/he is under age twenty-one;
  • s/he is a fugitive from justice;
  • s/he has been convicted of (or is currently under indictment for) a felony in New Mexico or any other state;
  • s/he is prohibited by federal law or the law of any other jurisdiction from purchasing or possessing a firearm (Note: under federal law, the respondent in a protection order is prohibited from having a gun);
  • s/he has been adjudicated mentally incompetent or committed to a mental institution;
  • s/he is addicted to alcohol or controlled substances;*
  • s/he has been convicted of a misdemeanor offense involving assault, battery or battery against a household member;
  • s/he received a conditional discharge, a diversion or a deferment or has been convicted of, pled guilty to or entered a plea of nolo contendere ("no contest") to a misdemeanor offense involving a crime of violence within ten years immediately preceding the application;
  • s/he has been convicted of a misdemeanor offense involving driving while under the influence of intoxicating liquor or drugs within five years immediately preceding the application for a concealed handgun license; or
  • s/he has been convicted of a misdemeanor offense involving the possession or abuse of a controlled substance within ten years immediately preceding the application.**

Also, as part of your protection order, the judge can order "anything necessary for your protection."***  Therefore, you may be able to specifically ask the judge to include a term in your protection order that prohibits the abuser from having a gun, but the judge will have to decide whether or not to order this. 

Note: Federal laws, which apply to all states, restrict an abuser's right to have a gun if s/he has been convicted of a felony or domestic violence misdemeanor; or if you have a protective order against him/her that meets certain requirements (even if the judge does not specifically include on the order that s/he cannot have a gun).  Go to the Federal Gun Laws page to get more information.

* N.M.S.A. § 29-19-4(A)
** N.M.S.A. § 29-19-4(B)
*** N.M.S.A. § 40-13-5(A)(7)

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Guns and Protection Orders

back to topI have a temporary protection order against the abuser. Can his/her gun be taken away?

Maybe, but not likely.  New Mexico law does not prohibit an abuser who has a temporary protection order against him/her from possessing a firearm.  

Under federal law, it could still be legal for him/her to have a gun if the judge gave you an ex parte temporary protection order (which means that no advance notice was given to the abuser), which is commonly done.  However, if the judge scheduled a court hearing and gave notice of the hearing to the abuser before giving you the temporary protection order, it is possible that it is illegal for him/her to have a gun under federal law.  The protective order must also meet certain other requirements, though.  Read I have a final order of protection against the abuser. Can his/her gun be taken away? (in our Federal Gun Laws section) to find out more.

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back to topI have a protection order against the abuser. Can s/he keep a gun or buy a new gun?

New Mexico law doesn't specifically state that a judge can prohibit the abuser from having a gun as a term in the protection order. However, the judge can order "anything necessary for your protection."* Therefore, you may be able to specifically ask the judge to include a term in your protection order that prohibits the abuser from having a gun but it will be up to the judge to decide whether or not to order it.  Also, a person is prohibited from getting a concealed handgun license in New Mexico if s/he is “prohibited by federal law” from purchasing or possessing a firearm.**  Federal law does prohibit the respondent in a qualifying protection order from having a gun - go to  the  the Federal Gun Laws page to get more information.

* N.M.S.A. § 40-13-5(A)(7)
** N.M.S.A. § 29-19-4(A)(7)

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back to topIs there anything I can do to make it more likely that the abuser's gun is taken away when I get a protection order?

Here are a few things that may help:

  • If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever threatened you with a gun(s);
  • Ask the judge to specifically write in your protection order that the abuser cannot own, buy or have a gun while the order is in effect. The form that you will have to fill out to petition for a protection order will have a place where you can request additional protections. You can ask that the abuser’s gun(s) be taken away in that section; and
  • Before leaving the courthouse, check to make sure that the gun restriction is written on your order.

It also may be helpful if the judge explains what will happen to the abuser's guns, who will take them, and where they will be held once you leave the courthouse. If the judge agrees to add language that the abuser cannot keep his/her guns while the protective order is in effect, you may also want to ask that the judge:

  • Require the abuser to give his/her guns to the police, or require the police to go to the abuser's house and get them;
  • Make it clear to both you and the abuser how long the guns will be kept away from the abuser; and
  • Order that the police notify you when the guns are returned to the abuser.

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Guns and Criminal Convictions

back to topIf the abuser has been convicted of a crime, can s/he keep or buy a gun?

New Mexico state law says that a person cannot get a concealed handgun license if s/he has been convicted of any of the following crimes:

  • s/he received a conditional discharge, a diversion or a deferment or has been convicted of, pled guilty to or entered a plea of nolo contendere to a misdemeanor offense involving a crime of violence within ten years immediately preceding the application;
  • s/he has been convicted of a misdemeanor offense involving driving while under the influence of intoxicating liquor or drugs within five years immediately preceding the application for a concealed handgun license;
  • s/he has been convicted of a misdemeanor offense involving the possession or abuse of a controlled substance within ten years immediately preceding the application;
  • s/he has been convicted of a misdemeanor offense involving assault, battery or battery against a household member;
  • s/he has been convicted of a felony in New Mexico or any other state or pursuant to the laws of the United States or any other jurisdiction; 
  • s/he is currently under indictment for a felony criminal offense in New Mexico or any other state or pursuant to the laws of the United States or any other jurisdiction; or
  • s/he is a fugitive from justice.*

In addition, under federal law (which applies to all states), if the abuser has been convicted of a felony or a domestic violence misdemeanor, s/he cannot have or buy a gun.**   To learn more, go to our Federal Gun Laws page.

* N.M.S.A. § 29-19-4(A),(B)
** 18 USC § 922(g)(9)

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back to topHow can I find out if the abuser has been convicted of a crime?

Misdemeanor and felony records are open to the public, but they are not always easy to access.  If you know the exact courthouse where the abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

Federal law specifically prohibits possession of a firearm if the person is convicted of any felony or of a domestic violence misdemeanor. Criminal records that would make a person ineligible to purchase a firearm are also kept in the National Instant Criminal Background Check System (NICS).  However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS.  Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.

To read more about the NICS, please see the question, What will happen if the abuser tries to purchase a gun?

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The Abuser Isn’t Supposed to Have a Gun…Now What?

back to topWho do I notify if I think the abuser should not have a gun?

If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the State Police.  If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).

You can find contact information for sheriff departments in your area on our NM Sheriff Departments page.

You can find ATF field offices in New Mexico on the ATF website.  For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867).  Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.

A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials.  You will find contact information for organizations in your area on our NM State and Local Programs page.

Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law.  If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.*

* United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)

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back to topWhat is the penalty for violating state and federal firearm laws?

If someone who has been convicted of a felony is in possession of a gun, s/he could be committing a felony in the fourth degree and sentenced to up to 18 months in prison and up to $5,000 in fines.* (However, if ten years have passed since the person completed serving his/her sentence or period of probation, then this state law may not apply** but it would still be illegal under federal law for a convicted felon to possess a firearm.)   

It can also violate federal law for someone to have a gun when there is a protection order against him/her.  For more information, see our Federal Gun Laws page.

* N.M.S.A. §§ 30-16-7(A),(B); 31-18-15(A)(13),(E)(11)
** N.M.S.A. § 30-16-7(C)(2)(a)

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back to topWhat will happen if the abuser tries to purchase a gun?

Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS).  If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from buying a gun.  Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system.  Also, it is important to know that background checks are not required for private and online gun sales.  

If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate.  Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.

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More Information and Where to Get Help

back to topI do not have a protection order against the abuser, and s/he has not been convicted of a crime. Can s/he have a gun?

There can be other reasons (aside from criminal convictions and being the respondent on a protection order) that can make it illegal for someone to possess a gun.  The abuser may be prohibited from getting a concealed handgun license in New Mexico if any of the following apply:

  • s/he is not a citizen of the United States;
  • s/he is not a resident of New Mexico (unless s/he is a member of the armed forces whose permanent duty station is located in New Mexico or is a dependent of such a member);
  • s/he is under age twenty-one;
  • s/he is a fugitive from justice;
  • s/he is currently under indictment for a felony in New Mexico or any other state (but has not yet been convicted);
  • is prohibited by federal law or the law of any other jurisdiction from purchasing or possessing a firearm;
  • has been adjudicated mentally incompetent or committed to a mental institution;
  • is addicted to alcohol or controlled substances; or
  • s/he received a conditional discharge, a diversion or a deferment of a misdemeanor offense involving a crime of violence within ten years immediately preceding the application.*

If the abuser meets any of these criteria, s/he may not qualify for a concealed handgun license.  Either way, you can still make a plan for your safety.  See our Safety Planning page for more information.  You can also contact your local domestic violence organization for additional help.  You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety.  See our NM State and Local Programs page to find a local domestic violence organization near you.

For additional information on gun laws in New Mexico, you can go to the Law Center to Prevent Gun Violence website.

* N.M.S.A. § 29-19-4(A)

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back to topI have read through all of this information but I am still confused. What can I do?

Trying to understand both federal and state law can be confusing.  There are people who can help you better understand the law and your rights under the law.

  • You can contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111 x 2.
  • You can contact us by writing to our Email Hotline.
  • You can contact a local domestic violence organization in your area.

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