In response to the protests over police use of force in the aftermath of the May 2020 killing of African American George Floyd was killed while in the custody of Minneapolis, 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.
The New Mexico legislature took steps to consider enactment of a state civil rights law. The goal is to create 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. On November 12th, the New Mexico Civil Rights Commission voted 5 to 4 in favor of enactment. of a “New Mexico Civil Rights Act.”
HOUSE BILL 4
House Bill 4 was introduced for consideration in the 2021 New Mexico Legislature enacting a “New Mexico Civil Rights Act.” New Mexico House Speaker Brian Egolf and Representative Georgene Louis, D-Albuquerque are the sponsors of Bill 4.
The New Mexico Civil Rights Act would allow plaintiffs to file a lawsuit in state court against a public body or someone working on the public’s behalf to recover damages for violations of their civil rights under the New Mexico State Constitution. Public bodies and agencies already can be sued in federal court for violating the United States Constitutional rights and plaintiffs can recover monetary damages if they’re successful. However, New Mexico does not have a similar state law allowing the victims of state constitutional violations to recover damages in state court.
The New Mexico 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. According a legislative analysis of the bill, the New Mexico Constitution may offer broader protections or cover rights that don’t exist under federal law.
The practical effect under the current law is that whenever wrongful death cases are filed involving a police officer shooting and civil rights violations, the case is removed to federal court where federal case law applies. In the state of New Mexico, the overwhelming number of police 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 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.
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 under the new state civil rights act. The defense of “qualified immunity” would be abolished as a defense that would cover virtually all government employees, not just law enforcement.
The doctrine of “qualified immunity” is a United States Supreme Court defense doctrine used as a defense by law enforcement and public officials in federal cases. The elimination of the qualified immunity defense raises the serious question if government agencies that are not self-insured will lose their insurance coverage or even be able to afford it.
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).
Another question raised is if law enforcement and government employees will feel compelled or be required to carry some form a liability insurance on their own. The actual cost of such insurance is very real to government agencies already cashed strapped and 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 of speech and religion.
Links to news sources are here:
“QUALIFIED IMMUNITY” DEFENSE EXPLAINED
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.”
The qualified immunity defense is used 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.
HB 4 APPROVED BY FIRST HOUSE COMMITTEE
On Monday, January 25, the New Mexico Civil Rights Act, House Bill 4, passed the State Government, Elections and Indian Affairs Committee on a 5-3 vote. It will now be presented for a hearing before the House Judiciary Committee which will likely be the last stop before reaching the full chamber. The testimony taken and the vote revealed just how controversial the legislation really is and the financial impact to government funding it will have,
House Speaker Brian Egolf, a cosponsor of the bill had this to say:
“We will begin to make the New Mexico Constitution more of a living document. Something that has greater meaning to the people of our state and will also hold public officials and public employees who commit misconduct—hold them accountable.”
EXPECTED ARGUMENTS MADE IN SUPPORT
Supporters of the act emphasized the need for the legislation primarily concentrating on the need to hold law enforcement and government bodies accountable in state court for civil rights violations. Amongst the type of cases cited in support of the need of the act were the shooting of a woman having a psychotic episode by Bernalillo Sheriff’s Deputies and the wrongful arrest of a high school teenager by and APD Detective because of mistaken identity. News accounts of the committee’s hearing glossed over what happened in the two cases offered in support of the legislation. The two cases merit review.
THE ELISHA LUCERO SHOOTING
Tijeras resident Elaine Maestas, whose younger sister Elisha Lucero, was shot 21 times by Bernalillo County sheriff’s deputies in 2019 and she had this to say during the January 25 committee hearing in support of the Civil Rights Act:
“For me, it’s unbelievable that police are entrusted to make life-and-death decisions, yet they’re held to some of the lowest standards when it comes to accountability”.
It was in July, 2019, mentally ill Elisha Lucero, 28, was shot to death in front of her RV, which was parked in front of her family’s South Valley home. Deputies had responded to the home after a relative called 911 saying Lucero had hit her uncle in the face. According to the 911 call, a relative said Lucero was mentally ill, needed help, and was a threat to herself and to everybody else. Just one month prior, Lucero had called BCSO and asked to be taken to the hospital for mental health issues.
According to the lawsuit by the Lucero family, when deputies arrived, they said Lucero initially refused to come out of the home. The 4-foot-11 Lucero, naked from the waist up, rushed out running and screaming and armed with a kitchen knife attacking the officers. The Sheriff Deputies pulled their revolvers and shot Lucero. The sheriff deputies were not wearing lapel camaeras The sheriff deputies reported that they were fearful for their lives. According to an autopsy report, Lucero was shot at least 21 times by the Sheriff Deputies. The autopsy also revealed Lucero had high levels methamphetamine in her system.
On March 6, 2020, it was reported that the family of a mentally ill Elisha Lucero, 28 settled their lawsuit with Bernalillo County for $4 million dollars.
A CASE OF MISTAKEN IDENTITY
On December 5, 17-year-old Albuquerque High School Student Giselle Estrada was charged by a criminal complaint with the murder of Calvin Kelly. The criminal complaint was “sealed” in Juvenile Court meaning no one had access to it nor able to read it without the court unsealing it for review. A warrant was issued for Estrada’s arrest, she was notified by the public defender and she turned herself in.
Estrada was booked into the juvenile detention center on an open count of murder, armed robbery and conspiracy charges in the July 10 slaying of Calvin Kelly. APD Detectives for their part said Estrada’s refusal to speak left them with no choice but to book her on the charge of murder and jail her once she turned herself in. Estrada’s defense counsel repeatedly told APD and the District Attorney office that they had the wrong person and it was a case of mistaken identity.
A full 5 days after Estrada turned herself in and was booked, and as she sat in jail, another suspect was apprehended who told the APD detective they had identified and arrested the wrong person. Estrada was released on her own recognizance after spending 5 days in jail and with the charges dismissed. It turns out that the investigating officer relied on false information to identify the teenager and failed to follow up investigation the identity.
On December 3, 2020. The American Civil Liberties Union of New Mexico (ACLU) filed a lawsuit on Estrada’s behalf seeking unspecified monetary damages against the City of Albuquerque. The lawsuit alleges that APD Detective Carter’s actions amounted to a false arrest and deprivation of state constitutional rights. It is highly likely that the city will settle Estrada case for a significant amount given the cities policy to settle cases that are viewed as clear cut and the city attorneys office reluctance to defend cases of police misconduct.
EXPECTED OPPOSTION MATERIALIZES
As expected, the New Mexico Civil Rights Act was met with strong objections of city, county and school agencies with all expressing fears about the cost of new legal claims. Opponents of the bill worry state and local governments won’t be able to afford the costs of lawsuits filed under the act. New Mexico counties warned that they will lose insurance coverage if the Civil Rights Act is past and said it would increase the risk of taxpayers having to cover the tab for hefty legal claims.
Opponents also argue that money would be better spent on police training to prevent misconduct in the first place. Police chiefs and representatives of cities, counties and schools across the state said the proposal would raise insurance costs and do nothing to improve police training. Legislative analysts estimated the proposal will likely cost the state government and the Association of Counties about $20 million a year.
Roswell Mayor Dennis Kintigh testified against the legislation. Mayor Kintigh is a former FBI agent and police chief. According to Kintigh, local governments will face the choice of raising taxes or cutting services to accommodate increased insurance costs and legal claims. He also said qualified immunity is a common-sense standard and said in part:
“It provides reasonable protection for those who have acted reasonably in difficult situations … On the street, you have to make decisions in a split second. You don’t have the luxury of 20/20 hindsight.”
Farmington Police Chief Steve Hebbe said the proposal “does not do anything to achieve true police reform.”
COUNTY AND MUNICIPALITY OPPOSITION
Representatives from the Association of Counties and the New Mexico Municipal League told the house committee the proposed Civil Rights Act would allow suits without a cap on damages and provide for the recovery of attorney fees. City and county representatives said they can already be held accountable in state court for law enforcement misconduct. Both the county and city associations said the Civil Rights Act is not needed in that plaintiffs can file under the state tort claims act for violations of the state constitution, though damages are capped at a little over $1 million.
THE ASSOCIATION OF COUNTIES OPPOSITION
The state Association of Counties helps insure 29 of the 33 county governments in New Mexico. The Association estimates the cost of litigating and setting civil rights claims would jump a whopping 66%, upwards of $13 million a year.
Grace Philips, General Counsel for the New Mexico Association of Counties (NMAC), said New Mexico counties are already being warned by their insurance providers that they will lose their “law enforcement insurance” coverage if the bill is passed and signed into law. The insurance is an extra set of insurance called reinsurance and is essentially insurance for an insurer.
Philips told the house committee that the loss of extra insurance coverage for the counties of Bernalillo, Santa Fe and Doña Ana counties, would mean they would have just $2 million to respond to law enforcement and detention claims, down from the $10 million coverage the counties now have. According to Phillips:
“You can already sue law enforcement. .., All [the legislation] does is make those cases more expensive and more profitable for attorneys who would be allowed to collect their fees on top of whatever the lawyer got for their client. … It reduces monies available to compensate people who are harmed. … and when counties don’t have insurance coverage to pay claims, the money to pay claims comes directly from the county budget. … Legal judgments could also be assessed on property taxes.”
The link to news source for quotes is here:
THE NEW MEXICO MUNICIPAL LEAGUE OPPOSITION
AJ Forte, executive director of the Municipal League and a former risk management director for the state, told the house committee the civil rights claims could be enormous. Forte noted New Mexico’s largest ever jury award was awarded in a wrongful death case involving the FedEx shipping company with a judgment totaling $165 million. According to Forte:
“If a jury decides that a constitutional violation is worth, say, $165 million, as they did in the FedEx case … we’ll no longer be talking about cost to insure; there just won’t be any money left. There is no liability fund in the state that has such a balance.”
The link to news source for quotes is here:
HOUSE SPEAKER BRIAN EGOLF RESPONDS
On November 13, 2020, 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.”
Before the 2021 legislative session even began, House Speaker Brian Egolf said he supported the proposed Civil Rights Act said he intended 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 told the committee, a house committee he appointed, that he disputed that it would increase costs. According to Egolf, government agencies already face greater exposure in federal court than would be allowed under the proposed state Civil Rights Act. Egolf said he expects lawmakers to consider amendments to address some of the financial concerns, including the possibility of a cap on damages to protect small local governments.
According to Egolf, the public should not lose sight of the opportunity to better hold public officials accountable for civil rights violations. Egolf said expects lawmakers to consider amendments to address some of the financial concerns, including the possibility of a cap on damages to protect small local governments. Egolf also described the insurance concerns as being blown way out of proportion and put it this way:
“Opponents of the bill are driving a message of dollars and cents … because they can’t talk about the real people who are involved in these cases. … I think this is going to provide a lot of New Mexicans with greater access to justice. … The dollars-and-cents issue will be sorted out. … If people aren’t out violating the constitutional rights of New Mexicans, there really isn’t anything to be concerned about.”
The link to news source for quotes is here:
House Speaker Brian Egolf has pushed back before 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.”
BRIAN EGOLF, ATTORNEY AT LAW
New Mexico Speaker of the House Brian Egolf is the first named principal attorney in the law firm of Egolf, Ferlic, Martinez and Harwood, PC. The law firm is a highly respected Santa Fe group of trial attorneys known for their assertiveness. The firm specializes in part in ligation in the areas of civil rights, personal injury and wrongful death. According to its web page, the Egolf law firm:
“proudly advocates for citizens whose civil rights have been abused and violated by government agencies and others who fail to understand the strength and purpose of the Constitution of the United States and the Constitution of New Mexico. Standing up for citizens against illegal and improper government action is a hallmark of the Firm’s mission statement, and our lawyers are aggressive in defending the rights of the underdog.”
The link to the Egolf law firm web page is here:
COMMENTARY AND ANALYSIS
On November 12th, when the New Mexico Civil Rights Commission voted to recommend the enactment of a “New Mexico Civil Rights Act”, former Supreme Court Chief Justice Richard Bosson said about enactment: “If there’s going to be a cost, that should fall, in our opinion, on the Legislature”. Bosson’s comment was nothing more than a reflection of a person use to making rulings usually for the benefit of just one party. Justice Bosom with his remark was not at all sensitive to the responsibility of the legislature and county and municipal governments 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 and getting rid of the qualified immunity defense. To put it mildly, plaintiff’s lawyers simply do not like the “qualified immunity defense” created by the Federal Courts because it makes it much more difficult to recover damages in civil rights cases filed against law enforcement. It is not as much about “holding government employees accountable for misconduct” as it is making it a lot easier to prove a case and recover a larger judgment against a “deep pocket” such as government agencies.
APPEARANCES ARE EVERYTHING IN THE COURT OF PUBLIC PERCEPTION
What cannot be dismissed lightly and that should not be ignored, is that New Mexico Speaker of the House Brian Egolf is a New Mexico plaintiff’s trial attorney and a very successful and prominent one. He and his firm over the years has represented many a client plaintiff adverse to government entities in a courtroom. Lest anyone forget, attorney at law Brian Egolf sued the state of New Mexico just a few years ago over the medical marijuana residency requirements. Egolf voted on amendments to the medical marijuana law then turned around and sued the state over the changes in the law. Egolf’s actions as an attorney then as now with the Civil Rights acts raises more than a few questions of “conflict of interest” and the “appearance of impropriety” in the courtroom of public perception.
It’s absolute arrogance when New Mexico House Speaker Egolf says “Opponents of the bill are driving a message of dollars and cents … because they can’t talk about the real people who are involved in these cases.” Egolf chooses to ignore that real people will be on the receiving end as defendants of frivolous law suits that can destroy the career of a police officer, firefighter, teacher and other government worker.
The two high profile cases where “victims” of police misconduct case testified in the house committee reflect that the current legal system works. The family of a mentally ill Elisha Lucero, 28, who was shot and killed by BCSO officers settled their lawsuit with Bernalillo County for $4 million dollars. The American Civil Liberties Union of New Mexico (ACLU) filed a lawsuit in the Estelle Estrada mistaken identify case seeking unspecified monetary damages against the City of Albuquerque alleging that the APD Detective’s actions amounted to a false arrest and deprivation of state constitutional rights. It is highly likely that case will be settled before it ever gets to courtroom jury.
What Speaker Egolf said “Getting rid of qualified immunity doesn’t throw the doors open to anyone who wants to get a big check from the government” is true, except of course when an injured party retains the services of an aggressive plaintiff’s attorneys like the Egolf law firm. When New Mexico House Speaker Egolf says “I think this is going to provide a lot of New Mexicans with greater access to justice”, it is more likely than not he recognizes that it will include many of the present and future clients of the Egolf law firm.
There is no doubt that Speaker of the House Brian Egolf, like many of his fellow unpaid New Mexico lawmakers, needs to make a living and be gainfully employed. That’s normal for our citizen Legislature and is not a problem in and of itself. What is questionable is a Speaker of the House, or any other high-ranking legislator in leadership positions, to advocate for dramatic changes in the law that ultimately enriches themselves or their clients. Egolf sponsoring the Civil Rights Act was a mistake.
A SOLUTION LOOKING FOR A PROBLEM THAT DOES NOT EXIST
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 is already getting a handle on the problem. 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. Albuquerque 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).
Other groups of public employees that will likely be affected by the enactment of the legislation 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.
The enactment of the Civil Rights Act is a solution looking for a problem to solve.
Links to two previous and related blog articles are here: