On Tuesday, December 1, the interim Courts, Corrections and Justice Committee of the New Mexico legislature were told by law enforcement and local government officials that a state Civil Rights act would allow an onslaught of costly legal claims filed in state court over alleged infringements on free speech, freedom of religion and other constitutional rights. Committee members did not vote on whether to endorse the proposed law, which is expected to be debated during the coming 60-day legislative session, but the hearing gave a preview of the type of debate that will occur during the 2021 legislative session.
Under the draft of the proposed Civil Rights Act, individual law enforcement officers and all public officials in general would not be personally liable for damages would not have to pay any court-ordered damages. Such damages would be paid by the public agency or body that employs the defendant, as is currently the practice under state law.
CREATING AN NEW STATE CAUSE OF ACTION
On November 12th, 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.
Under the proposed law, claims of constitutional rights deprivations could 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 officers 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, including property damage.
DETAILS OF CAUSE OF ACTION
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 has been drafted 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 primary purpose of the new Civil Rights Act is to abolish the “qualified immunity” doctrine in a state cause of action that does not exist yet but will be created un the new state civil rights act.
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, especially to low wage government employees such as teachers. Teachers will be particularly vulnerable to charges that they are infringing on the rights of students first amendment rights of freedom od speech and religion.
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As drafted, the Civil Rights Act will first create cause of action for infringements of free speech, freedom of religion and other constitutional rights by all government employee, not just law enforcement, and would include teachers, firefighters, The new law would also bar the use of “qualified immunity” as a legal defense.
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.
“QULAIFIED IMMUNITY” DEFENSE STICKING POINT
Excluding qualified immunity as a defense is the major point of contention to the enactment of a state Civil Rights Act and the actual reason for enacting it and creating a new cause of action under state law. Abolishing qualified immunity has generated concern from the New Mexico Association of Counties about more expensive insurance policies.
Civil Rights Commission members who opposed recommending the enactment of a State Civil Rights Act testified the law would increase local governments’ insurance costs and lead to law enforcement officers leaving New Mexico. Former Belen Police Chief Victor Rodriguez, a dissenting member of the commission, said the Civil Rights Act would ultimately enrich lawyers, but not fundamentally help victims and added:
“The creation of a new state law is unnecessary.”
New Mexico State Senator Joseph Cervantes, D-Las Cruces, who attended the legislative committee, had this to say:
“The last thing we want to do here is pass an act that makes the cities and counties uninsurable.”
Senator Cervantes stated that instead of enacting a new Civil Rights Act, it would be better to amend the state’s Tort Claims Act under which some government misconduct lawsuits can be filed.
PUSHBACK ON OPPOSITION CLAIMS
House Speaker Brian Egolf, D-Santa Fe, pushed back on the claims that enacting a civil rights statute to hold government accountable in cases of flagrant violations is needed, in addition to the federal causes of action that are already in federal law. Egolf scoffed at the argument that employee misconduct or wrongdoing will lead to costly legal claims. Egolf pointed out that plaintiffs would still have to prove their cases before a court under the proposed Civil Rights Act and which would not allow the legal doctrine of qualified immunity to be used as a defense in such cases. According to Egolf:
“Getting rid of qualified immunity doesn’t throw the doors open to anyone who wants to get a big check from the government.
Former Supreme Court Chief Justice Richard Bosson, chairman of the Civil Rights Commission, state the New Mexico Legislature could create a fund to help offset any cost increase for smaller New Mexico cities and counties. According to Bossom:
“If there’s going to be a cost, that should fall, in our opinion, on the Legislature.”
COMMENTARY AND ANALYSIS
When Former Supreme Court Chief Justice Richard Bosson says “If there’s going to be a cost, that should fall, in our opinion, on the Legislature” it’s a reflection of a person use to making rulings usually for the benefit of just one party. Justice Bosom with his remark is not at all sensitive to the responsibility of the legislature to delivery essential services such as police protection, fire protection and education needs of its children and social services. Former Justice Blossom all too conveniently ignores the legislatures financial responsibility to its constituents who ultimately pay for judgments that will materialize as a result of a new cause of action.
It should come as no surprise that 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 to ease the burden of proof to recover damages in a court of law free of any “qualified immunity” defense. It’s 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.
It is highly likely public employee unions, including all law enforcement unions and local governments will make it known their 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 the New Mexico Tort Claims Act does not go 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 their jobs and not be proactive for fear of being sued.
It’s unlikely police will alter their actions given that actions of police are more “reactive” than “proactive” 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.
Other groups of public employees that will likely be affected are teachers and firefighters. It is easy to see how teachers could be accused of violating a student’s free speech and freedom of religion in science classes, history classes and sociology classes. Firefighters could also be easily accused of interference with rights of privacy or civil rights violations under any number of fact scenarios involving emergency procedures and administering medical care.
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. The only benefit of such legislation is to make recovery in state court a lot easier than in federal court.