In May, 2020 African American George Floyd was killed while in the custody of Minneapolis police when a police officer used his knee on Floyd’s neck to subdue him, even after Floyd cried out repeatedly “I can’t breathe”. The death of Floyd caught on camera shocked the conscious of the country, and the world, resulting in mass protests to end systemic racism by law enforcement. New Mexico also had such protests in Albuquerque, Santa Fe and Law Cruces.
In response to Floyd’s killing, Governor Lujan Grisham and the Legislature took steps to deal with holding law enforcement accountable for civil rights violations, excessive use of force and deadly force. Those steps included requiring all law enforcement officers to wear lapel cameras and requiring the Law Enforcement Academy Board to revoke the certification of any police officer guilty of “unlawful use of force” or an officer who fails to intervene to stop the use of unlawful force by another officer.
Because of the Floyd killing and the killing of many other African Americans at the hands of police, ending the legal doctrine of “qualified immunity” has become a goal of the Black Lives Matter movement and many progressive Democrats throughout the country. Qualified immunity is seen as a barrier to holding police officers accountable when they use excessive force and deadly force.
After the Floyd murder, other states have enacted police reforms. The Colorado legislature passed a reform law that eliminated the defense of qualified immunity in state civil rights lawsuits and took it a step further by making police officers personally liable for up to $25,000 in damages. California has had a civil rights act for some time and it excludes “qualified immunity” as a defense for government employees named in lawsuits. The State of Massachusetts is considering amending its civil rights law to prohibit the defense of qualified immunity after the Massachusetts state’s highest court allowed the defense because it was not prohibited by statute.
“Qualified immunity” is a legal principle or doctrine that was created by the United States Supreme Court that shields government officials, including police officers, from lawsuits except in cases where a plaintiff can prove that officials violated “clearly established” rights. Qualified immunity is a high legal threshold that leads to many cases being dismissed in federal court cases. As it stands now, qualified immunity applies to federal causes of action in federal civil rights and wrongful death actions. It does not involve nor is it available as a defense in state causes of action. Wrongful death lawsuits in police use-of-force cases have cost New Mexico and the City of Albuquerque millions of dollars over the last 20 years. The postscript to this blog article contains an explanation of “absolute immunity” and “qualified immunity”.
NEW MEXICO CIVIL RIGHTS COMMISSION
The New Mexico legislature took steps to consider enactment of a state civil rights law creating a civil rights cause of action against law enforcement and public government employees that would specifically prohibit the defense of qualified immunity. Qualified immunity is viewed as a major barrier or obstacle to holding police officers accountable when they use excessive force. Governor Michelle Lujan Grisham called upon the New Mexico Legislature to create a Civil Rights Commission. It was in June that the 2020 New Mexico Legislative Special session convened during which the “New Mexico Civil Rights Commission” was created. There were 3 functions of the 9-member, bi partisan commission:
1. Review policies and develop policy proposals for laws for the creation of a civil right of action for the deprivation, by a public body or a person acting on behalf of or under the authority of a public body, of any right, privilege or immunity secured by the constitution of New Mexico.
2. Review the use of qualified immunity as a defense to liability by an employee of a public body for a claim that would be brought either under 42 U.S.C. Section 1983 or pursuant to the right of action considered by the commission.
3. Review and assess the need for and costs of additional insurance policies for public employees and public bodies, or for persons acting on behalf of or under the authority of public bodies.
EDITORS NOTE: Civil causes of action under the federal statute 42 U.S.C. Section 1983 are referred to as “Section 1983 Litigation” which are lawsuits brought under Section 1983 (Civil action for deprivation of rights) of Title 42 of the United States Code (42 U.S.C. § 1983). Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations. Section 1983 does not provide civil rights but it is a means to enforce civil rights that already exist.
Under the legislation, legislative officials appointed 6 members and the Governor appointed 3. The commission is required to be geographically and racially diverse. The bipartisan commission includes four Democrats, three Republicans and three unaffiliated members. Two of the governor’s appointees are Hispanic and one is African American.
The commission was given until November 15 to issue a report that considers changes to qualified immunity provisions that protect police officers from civil lawsuits. It is also tasked with recommending laws that create a civil right of action for violations of state constitutional rights.
COMMISSION RECOMMENDS ENACTMENT OF “CIVIL RIGHTS ACT”
On November 12th, after meeting at least 7 times since being formed and hearing expert testimony on legal and law enforcement issues, the New Mexico Civil Rights Commission voted to recommend the enactment of a “New Mexico Civil Rights Act.” The new Civil Rights Act would allow legal claims to be filed in State District Court over alleged infringements of free speech, freedom of religion and other constitutional rights. The Civil Rights Commission voted 5 to 4 in favor of enactment. The commission made it known that two separate reports will be prepared, one by the majority and one by the minority who voted in opposition. Both reports will be presented to legislative committees before the 60-day session that will begin on January 19, 2021.
Under the proposed law, claims of constitutional rights deprivations would be able to be filed in all State District Courts around New Mexico. Currently, such claims of constitutional rights can only be filed in federal court but not in state courts. The practical effect under the current law is that whenever wrongful death cases are filed involving a police officer shooting, the case is removed to federal court where federal case law applies. In the state of New Mexico, the overwhelming number of officer involved shooting cases result in settlements and no jury trials. The proposed state Civil Rights Act will create a separate state cause of action and in turn a framework to recover for alleged constitutional infringements under state law. The new law would also bar the use of “qualified immunity” as a legal defense as is allowed in federal court. The proposed law would allow plaintiffs to seek only compensatory or actual damages, but not punitive damages. In other words, judgments secured in a state court cause of action would only be the actual costs associated with the injuries, such as medical bills, for injuries or losses incurred.
Under the proposed legislation, individual law enforcement and other government officials would not be “personally liable” to pay actual or punitive damages awarded by a jury, a judge or agreed to in a settlement. Under the proposed Civil Rights Act, such damages would be paid by the public agency or body that employs the law enforcement officer or government employee. Damages being paid by the public agency or body that employs the law enforcement or government employee sued is already required under the New Mexico Tort Claims Act. The new act would require public government entities to keep a file of all judgments and settlements under the proposed Civil Rights Act and make the records available under the state’s Inspection of Public Records Act (IPRA).
The legislation will now be drafted in a final form for introduction and consideration during the 2021 New Mexico Legislative session that begins on January 19, 2021. As being proposed, the new New Mexico “Civil Rights Act” will not allow the doctrine of “qualified immunity” to be used as a defense by law enforcement and public officials resulting in personal liability. The elimination of the qualified immunity defense raises the serious question if law enforcement and government employees will feel compelled or be required to carry some form a liability insurance. The actual cost of such insurance will also be raised as being prohibited.
Retired New Mexico State Supreme Court Justice Richard Bosson, the Civil Rights Commission’s chairman, had this to say in a written statement:
“[The proposed law will] provide a legal vehicle for New Mexico citizens to fully enforce rights granted them by the New Mexico Constitution without importing artificial obstacles to the truth-seeking process such as qualified immunity.”
House Speaker Brian Egolf, D-Santa Fe, for his part said he supports the proposed Civil Rights Act and said he intends to push for its passage during the upcoming session and said:
“I think giving New Mexicans the ability to vindicate their constitutional rights in a New Mexico courtroom is of fundamental importance.”
Speaker Egolf also said he would strive to make sure public employees’ concerns about the proposed new law, including increased insurance rates, are addressed.
Links to news sources are here:
NEW MEXICO TORT CLAIMS ACT
Even though New Mexico does not have a “Civil Rights Act” allowing public officials and law enforcement to be sued for violating someone’s civil rights under the State Constitution, it does have a Tort Claims Act. For the none lawyer, “tort” under the law is loosely defined as a civil wrong that causes a person to suffer loss, harm or financial damages. The Tort Claims act first grants immunity from liability to a governmental entity and any public employee and then provides for waivers of that immunity for certain areas.
Section 41-4-4 of the Tort Claims Act provides in part:
“A. A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by [the New Mexico Tort Claims Act] . … Waiver of this immunity shall be limited to and governed by the provisions of [the Tort Claims Act] …
B. Unless an insurance carrier provides a defense, a governmental entity shall provide a defense, including costs and attorney fees, for any public employee when liability is sought for:
(1) any tort alleged to have been committed by the public employee while acting within the scope of his duty; or
(2) any violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico when alleged to have been committed by the public employee while acting within the scope of his duty.
C. A governmental entity shall pay any award for punitive or exemplary damages awarded against a public employee under the substantive law of a jurisdiction other than New Mexico, including other states, territories and possessions and the United States of America, if the public employee was acting within the scope of his duty.
D. A governmental entity shall pay any settlement or any final judgment entered against a public employee for:
(1) any tort that was committed by the public employee while acting within the scope of his duty; or
(2) a violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico that occurred while the public employee was acting within the scope of his duty.
E. A governmental entity shall have the right to recover from a public employee the amount expended by the public entity to provide a defense and pay a settlement agreed to by the public employee or to pay a final judgment if it is shown that, while acting within the scope of his duty, the public employee acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death or property damage resulting in the settlement or final judgment.
G. The duty to defend … shall continue after employment with the governmental entity has been terminated if the occurrence for which damages are sought happened while the public employee was acting within the scope of duty while the public employee was in the employ of the governmental entity.
H. The duty to pay any settlement or any final judgment entered against a public employee as provided in this section shall continue after employment with the governmental entity has terminated if the occurrence for which liability has been imposed happened while the public employee was acting within the scope of his duty while in the employ of the governmental entity.”
WAIVERS OF IMMUNITY
There are specific waivers of immunity in the Tort claims Act. Immunity is waived and does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in:
The operation or maintenance of any motor vehicle, aircraft, watercraft. (41-1-5)
The operation or maintenance of any building, public park, machinery, equipment or furnishings (41-1-6)
The operation of airports. (41-1-7)
The operation of public utilities and services including gas, electricity, water; solid or liquid waste collection or disposal, heating and ground transportation. (41-1-8)
The operation of any hospital, infirmary, mental institution, clinic, dispensary, medical care home or like facilities. (41-1-9)
By public employees licensed by the state or permitted by law to provide health care services while acting within the scope of their duties of providing health care services. actions by licensed by the state or permitted by law to provide health care services (41-1-10)
During the construction, and in subsequent maintenance of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area. (41-1-11)
It is Section 41-4-12 of the Tort Claims Act that deals with liability of law enforcement officers:
“The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.”
Although immunity is waived under the tort claims act for damages caused law enforcement officers while acting within the scope of their duties, there still is the duty to defend and pay for the damages by the government entity.
COMMENTARY AND ANALYSIS
The proposal is to create state Civil Rights Act and in it abolish “qualified immunity” as a defense that would cover virtually all government employees, not just law enforcement. It is likely that if a New Mexico Civil Rights Act is enacted, the New Mexico Tort claims act will also have to be changed to some degree. It is also likely that government employees will be compelled to carry some form personal liability insurance, an expense that may not be at all affordable or reasonable.
It should come as no surprise that a plaintiff’s lawyers, such as Speaker of the House Brian Egolf, are in favor of enactment of a Civil Rights Act. At the absolute center of the debate is whether the State Of New Mexico should go out of its way to create a whole new cause of action for violation of civil rights under state laws and state constitutional rights and easing the burden of proof to recover damages in a court of law free of any “qualified immunity” defense. It likely that the state law would also need to mandate some form of “election of remedies” providing that a plaintiff alleging violation of civil rights must decide to either to proceed in state court or in federal court under the civil rights act commonly referred to as a 1984 cause of action.
Many argue that a New Mexico Civil Rights Act is needed to stop the “culture of aggression” or systemic racism and stop the excessive use of force or deadly force by law enforcement. When it comes to the Albuquerque Police Department (APD), the city has paid out upwards of $64 million dollars over the last 10 years for excessive use of force and deadly for cases and civil rights violations stemming from a “culture of aggression” found by the Department of Justice (DOJ). For the past 6 years, APD has been under a federal court consent decree that mandates 271 reforms that APD and the city are still struggling to implement under the watchful eye of a federal judge and a federal court appointed monitor.
There is no doubt public employee unions, including all law enforcement unions and local governments will make it known their likely opposition on the need for a Civil Rights Act, especially one that does not provide for qualified immunity or that provides for personal liability of government employees. Notwithstanding what the New Mexico legislature decides, it will have to recognize it is a very big decision that no doubt will be ultimately very costly to taxpayers and if the New Mexico Tort Claims Act goes far enough.
One argument being made is that the elimination of “qualified immunity” will change how police will do their jobs and stop the use of excessive use of force and deadly force by police. Law enforcement on the other had make the argument that police will be reluctant to do do their jobs and not be pro active for fear of being sued. It’s unlikely police will alter their actions given that actions of police are more “reactive” than “pro active” when it comes to “use of force”, “deadly force” and self defense. When it comes to police officer involved shootings and civil actions, it always gets back to the issue of training in constitutional policing practices or negligent supervision. APD after 6 years and spending millions is still struggling with training in constitutional law enforcement practices. Officer involve shooting still happen, despite training.
From a practical standpoint, it makes little or no sense to enact a Civil Rights Act that creates a new cause of action for violations of state constitutional rights by government employees, abolishing qualified immunity only to have a Tort Claims Act that mandates a defense and payment of judgments for damages. It appears with the enactment of a Civil Rights Act as proposed, damage to a plaintiff, the liability of a government employee and the taxpayer wind up in the exact same place as to who pays for the damages under the Tort Claims Act.
ABSOLUTE IMMUNITY AND QUALIFIED IMMUNITY EXPLAINED
Certain government officials, including the President, prosecutors, judges and similar officials have absolute immunity. This doctrine shields those individuals from criminal prosecution and lawsuits, as long as their actions in question were within the scope of their jobs. For all other federal officials, the Court also held that federal officials who are trying to qualify for absolute immunity have the burden to prove “that public policy requires an exemption of that scope.”
For government officials trying to qualify for absolute immunity, the Court established a 2-part test that the official must satisfy:
First, the official must show that his position’s responsibilities had such a sensitive function that it requires absolute immunity.
Second, the official must demonstrate that they were discharging the protected function of the position when performing the acts in question.
Qualified immunity is a type of legal immunity created by the United States Supreme court that shields government officials from being held personally liable for constitutional violations. In 1982, the United State Supreme Court in the landmark case of Harlow v. Fitzgerald, 457 U.S. 800 (1982), held that federal government officials are entitled to qualified immunity. The Court reasoned that “the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.”
Qualified immunity frequently appears in cases involving police officers. Qualified immunity protects a police officer from lawsuits alleging that the officer violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. The Qualified immunity doctrine balances two important interests. Those interests are the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.
When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case. Violations of constitutional rights would include the right to be free from excessive police force or unjustified deadly force for money damages under federal law so long as the officials did not violate “clearly established” law.
Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. The result is that courts must resolve qualified immunity issues as early in a case as possible. Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions.
Links to news and research sources are here: