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Government bodies, actors in N.M. no longer protected by ‘qualified immunity’

On April 7, 2021, New Mexico became the second state to officially ban the use of qualified immunity as a defense for public officials and bodies in civil rights cases with the passage of the New Mexico Civil Rights Act.

On April 7, 2021, New Mexico became the second state to officially ban the use of qualified immunity as a defense for public officials and bodies in civil rights cases with the passage of the New Mexico Civil Rights Act. (Illustration by Ivan Sanchez/Kokopelli)

The act has come as a result of nationwide debates in state legislatures over the misconduct that seems to plague many of the nation’s police departments, as well as the wave of conversations about the need for major policing reform in the wake of George Floyd’s death.

“Police officers rarely face criminal charges or even internal disciplinary measures when they engage in misconduct … Often, when police misconduct is discovered in one case, several more instances of misconduct committed by the same officer are uncovered in other cases,” wrote Daniele Shelby for the Innocence Project.

“Gov. Michelle Lujan Grisham has been careful to express that this bill is not an anti-police bill. Rather, it should be seen as a motivator for public officials to act professionally and within the bounds of the state and national constitutions.”

When the bill — aka HB 4 — was passed, New Mexico’s Speaker of the House Brian Egolf (D), who introduced the bill, said in a tweet: “This is a historic moment for New Mexico, as we ensure that all public bodies in our state are held accountable for violations of civil rights.”

“Qualified immunity is a court-created doctrine that allows public officials to escape accountability after they engage in misconduct, even when their actions send an innocent person to prison,” said Laurie Roberts, a state policy advocate for the Innocence Project.

In a case where a public actor violated an individual’s constitutional rights, because of qualified immunity, the individual actor may not be held liable or even pay anything in damages.

According to Nick Sibilla in a report published by Forbes, unpunished misconduct can cost police departments millions in legal fees and court settlements. “A 2014 study by UCLA Law Professor Joanna Schwartz found that lawsuits against the Albuquerque Police Department led to nearly $14 million paid out in civil rights settlements and judgments; officers didn’t contribute a single cent,” Sibilla wrote.

Now,  HB 4’s ban on the use of qualified immunity as a defense in civil rights cases means that victims whose constitutional rights are violated by public officials or public bodies can sue and hold the offending parties accountable.

Barron Jones, Senior Policy Strategist for the ACLU of New Mexico said, “HB 4 is an incredible victory for the people of New Mexico. For those harmed by government officials, it has often been impossible to hold anyone accountable. Fortunately, with this civil rights act, we are tipping the scales toward justice.”

According to Rebecca Brown, the Innocence Project’s director of policy, “Eliminating the legal doctrine of qualified immunity not only provides financial justice to victims of police abuse, including people who have been wrongfully convicted, but it also incentivizes police agencies to properly hire, train and supervise law enforcement to prevent abuses from occurring in the first place.”

This new act also extends to New Mexico State University, as the bill defines “institutions of higher education” as public bodies.

More broadly, the bill defines a public body as a “state or local government, created by the constitution of New Mexico or any branch of government that receives public funding, including political subdivisions, special tax districts, school districts and institutions of higher education …”

Although an individual police officer can be held liable in certain cases, bringing a claim against a university might be different.

When asked if he could be held liable for a violation of an individual’s constitutional rights, NMSU student Neal Bitsie, who currently serves on the NMSU Board of Regents, said that the regents are not personally liable for most of what they do. He explained that if there were a matter brought against him, then the university would assume liability because the regents are insured by the university.

Nevertheless, New Mexico’s legislature looks to be one of the leaders in the nation in addressing police reform. Of course, critics of the bill and similar legislation claim it could lead to a flood of lawsuits and settlements and ultimately cost police departments more money.

In a report published by the Santa Fe New Mexican, Santa Fe County Sheriff Adan Mendoza said he’s concerned a spike in civil rights lawsuits would “put a lot of smaller departments and smaller counties in jeopardy.”

Mendoza also indicated he believes the bill could undermine federal standards for use of force. “I think the way that it’s written, it values the life of somebody that’s probably refusing lawful commands and values their rights over that of the police officer,” Mendoza said.

Nick Sibilla reported that Gov. Michelle Lujan Grisham has been careful to express that this bill is not an anti-police bill. Rather, it should be seen as a motivator for public officials to act professionally and within the bounds of the state and national constitutions.

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