Yet some days before, Hamilton appeared to be willing to help businesses defy the order, given a post on Sierra County NM Square’s Facebook page:
“Bernie, as the ‘Chief’ Law Enforcement Officer in Sierra County, I am prepared to step in and protect any citizen within Sierra County against un-Constitutional edicts and forced compliance of unlawful and un-Constitutional executive orders issued by either the federal government and/or the state government. I first have to have those businesses or institutions refuse to comply with these orders before I can stop the enforcement thereof. Many of the business owners, who have been labeled un-necessary or non-essential, have gone like sheep to slaughter and refused to question or resist these over-reaching and un-Constitutional demands. Believe me when I say I am ready and willing to become the line of defense between the citizen and an oppressive government official. This is from Sheriff Glenn Hamilton, Sierra County, New Mexico.”
Hamilton cleared up the confusion in an April 27 interview with the Sierra County Sun.
“I would not stand between the State Police and a business owner who has taken it upon himself to disobey the order—for whatever enforcement action the law would allow, such as a citation,” Hamilton said.
Hamilton said the Governor’s executive order can only be enforced by the State Police and Department of Health. However, the Department of Health has not promulgated civil laws on the Public Health Act, therefore the State Police is effectively the Governor’s only enforcement arm.
When the Governor’s April 6 order was put in effect, the State Police would first make a phone call to non-essential businesses accused of defying the order, “and ask them to stay closed,” Hamilton said.
If a second complaint was made, then the State Police would go to the business for “a face-to-face,” verbally ordering them to “cease and desist,” Hamilton said.
If a third complaint was made, then the State Police would decide whether to issue a written citation “under State Law 24-1-21,” Hamilton said, which is the Public Health Act.
“Any violation of the Public Health Act is a petty misdemeanor punishable by a $100 fine or six months in jail or both,” Hamilton said.
The person accused must be given a hearing before they can be cited a second time, Hamilton said.
The current practice of the State Police, however, has now been stepped up to a face-to-face call and investigation at the first-complaint stage, Hamilton said.
State Police Captain Tim Johnson asked local sheriffs to help with the face-to-face calls and investigations, since it would “be taken better,” Hamilton said, if the officer is known to the business owner.
Hamilton said he and “local businesses and churches have heard unverified stories” that State Police are showing up at these face-to-face first calls and ordering owners “to chain and shutter their businesses.”
“The Fourth Amendment has not been suspended yet, and that would be a seizure,” Hamilton said.
Once a business owner goes to hearing on a violation of the Public Health Act and is found guilty, and still doesn’t comply, Hamilton said then the State Police could seek a court order to chain and shutter a business or a restraining order from the Attorney General.
“I will stand with business owners and church leaders if they try to shutter their businesses and churches without the proper warrants and court orders,” Hamilton said.
Hamilton pointed out that the Governor has deemed gun stores non-essential businesses, although the federal government has said they are protected under the Second Amendment and should remain open.
“But the Tenth Amendment says the federal government can’t tell the states what to do,” Hamilton said, therefore gun stores are in the same boat as other businesses deemed non-essential.
“When the federal government said gun stores are constitutionally protected, the Governor said, ‘not in my state they’re not,’” Hamilton said.
“This has caused public animus,” Hamilton said. “Second Amendment advocates feel it is punitive.”
“It’s the same with Walmart,” Hamilton said. “They’re selling clothes and shoes while clothing and shoe stores are deemed non-essential. The law is not being applied equitably.”
Locally the two store-front gun stores, one in Elephant Butte and one in Truth or Consequences, have both shut their doors. The Elephant Butte gun store is still selling online, Hamilton said, but would like to offer road-side service; however, it is obeying the order.
The only cease-and-desist verbal order given locally by State Police was to Pipes and More in Truth or Consequences. They have since gotten State permission to operate, since they sell the apparatuses needed to ingest medical marijuana. The business therefore was allowed to reopen.
An informal estimate, based on businesses communicating with Sierra County, TorC Rotary and the Sheriff’s Department, Hamilton said, “is that one-third of the businesses in the area will not open again if this goes on for two more weeks.”