In a landmark law signed today, New Mexico barred all government employees from using “qualified immunity” as a legal defense in state court and created a new way to challenge government agencies that violate constitutional rights. By making it much easier for victims of police violence and other government abuses to sue for damages, the New Mexico Civil Rights Act marks one of the most sweeping police reform bills passed in the aftermath of the tragic killing of George Floyd.
Created by the U.S. Supreme Court nearly four decades ago (and found nowhere in the Constitution or relevant federal law), qualified immunity lets government officials escape legal liability for violating someone’s constitutional rights, unless those rights were “clearly established.” In practice, this means finding a prior case with identical facts from the same appellate jurisdiction where the violation occurred. This can spawn downright Kafkaesque results.
Consider James McGarry, who was wrestled to the ground in his own home in Lincoln County, New Mexico. A federal judge ruled that the officer responsible “used excessive force” in part because McGarry “posed no immediate threat.” Nevertheless, the judge, “with reluctance” granted qualified immunity because McGarry’s rights were not “clearly established” and “a nigh identical case must exist for the law to be clearly established.”
Since qualified immunity is a federal doctrine, it can only be fully abolished by Congress or the Supreme Court. But state and local lawmakers can still act to protect everyone’s constitutional rights.
Enter the New Mexico Civil Rights Act. Under HB 4, if a state or local government employee infringes someone’s rights within their scope of employment, the victim can sue the government employer for damages under the state constitution. Crucially, this new “cause of action” specifically bans qualified immunity as a legal defense.
In other words, agencies are held vicariously liable for the actions of their employees, while the individual government workers are not at risk of personal liability. Notably, indemnification was already a long-standing practice in the Land of Enchantment. 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.
HB 4 was supported by an ideologically diverse coalition, including the founders of Ben and Jerry’s, the Institute for Justice, the Innocence Project, the National Police Accountability Project, and the local chapters of the ACLU and Americans for Prosperity.
To get HB 4 across the finish line, the Act’s sponsors amended it to make a few concessions to municipalities. The law has a liability cap of $2 million, exempts certain infrastructure and water projects, and allows (but doesn’t require) courts to award attorney’s fees to prevailing plaintiffs. And while the Act generally has a three-year statute of limitations, those suing a law enforcement agency must provide the agency with “a written notice stating the time, place and circumstances of the loss or injury” within one year of the incident.
Yet even with those compromises, opponents of the bill still claimed it would lead to a tidal wave of costly litigation. But as the New Mexico Civil Rights Commission astutely observed, “the cost of protecting the rights of New Mexicans involves values fundamentally different from other budget questions the legislature faces.” Without a legal remedy to vindicate their rights, the legislature is effectively “forcing those harmed by government misconduct to bear the cost for the state or responsible local government.”
“In response to some of the commentary surrounding this measure, I will say: This is not an anti-police bill,” Gov. Michelle Lujan Grisham said in a statement. “This bill does not endanger any first responder or public servant—so long as they conduct themselves professionally within the bounds of our constitution and with a deep and active respect for the sacred rights it guarantees all of us as New Mexicans.”
Thanks to HB 4, New Mexico is now at the forefront of a growing trend to hold government officials accountable. Last June, Colorado became the first state to pass legislation that explicitly bans qualified immunity as a defense. While law enforcement lobbyists warned that Colorado’s reform would lead to mass resignations, that hasn’t come to fruition. According to the Denver Post, “at least 1,756 Colorado peace officers left their departments in 2020, which is fewer than the 2,061 separations recorded in 2019 and the 2,050 recorded in 2018.”
Over the past year, Connecticut, Massachusetts, and New York City have also approved bills limiting qualified immunity, though none are as broad as the reforms in Colorado or New Mexico. Massachusetts, for instance, only revokes qualified immunity for police officers who have been decertified. The New York City ordinance is only limited to “unreasonable searches and seizures,” including claims of excessive force. But infringing other constitutional protections, like the right to free speech, assembly, or equal protection, remain without a remedy.
Colorado’s law is broader since it covers any and all violations of the Colorado Bill of Rights, but only authorizes civil lawsuits against law enforcement officers. By comparison, the New Mexico Civil Rights Act covers violations of the New Mexico Bill of Rights and eliminates qualified immunity across the board for all civil servants, not just cops.
“For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights,” said Institute for Justice Attorney Keith Neely, who submitted testimony in favor of the New Mexico bill. “With the governor’s signature, New Mexico has made enormous strides toward holding law enforcement officers and other government employees accountable.”
MAIN IMAGE: New Mexico statehouse staff talk during a break on Wednesday, Feb. 19, 2020, at the New Mexico Rotunda in Santa Fe, N.M. (AP Photo/Russell Contreras) ASSOCIATED PRESS