It has been reported that the Civil Rights Act will be voted upon by the full New Mexico House of representatives after it was voted out of the House Judiciary Committee on an 8 – 4 vote with a do pass recommendation.
https://www.abqjournal.com/2357524/notorious-child-abuse-case-cited-in-civil-rights-debate.html
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.
As originally proposed, the New Mexico Civil Rights Act would allow plaintiffs to file a lawsuit in state court against a public body or government employee to recover damages for violations of civil rights under the New Mexico State Constitution. Government employees of all types could be sued: police, fire fighters, teachers, social workers and health care providers who work for government entities and hospitals to mention a few. 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 causes of action or cover rights that don’t exist under federal law. The practical effect under the current law is that whenever wrongful death case is 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.
CREATING A NEW CAUSE OF ACTION
The proposed state Civil Rights Act will create a separate state cause of action and in turn a framework to recover damages 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 damages and costs associated with the injuries, such as medical bills for injuries, losses income or wages and property damage.
The primary purpose of the new Civil Rights Act is to prohibit 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 not be allowed as a defense that would cover virtually all government employees, not just law enforcement. Normally, affirmative defenses to a civil lawsuit are allowed. An affirmative defense is a fact or set of facts other than those alleged by a plaintiff if proven by the defendant that defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.
Qualified immunity is a type of legal immunity created 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.”
House Bill 4 has generated stiff opposition from government agencies. City, County law enforcement agencies and government employee unions objected to and were particularly critical of the provision that would eliminate “qualified immunity”.
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.
SUBSTITUTE BILL INTRODUCED AND VOTED OUT OF COMMITTEE
On Friday, February 5, a substitute Bill 4 was introduced that overhauls the original civil rights bill that would prohibit “qualified immunity” as a defense to legal claims filed against government agencies. The substitute bill caps damages at $2 million. The $2 Million cap is intended to eliminate concerns about potentially financial impacts on local governments.
In another major change to House Bill 4, legal claims brought under the proposed New Mexico Civil Rights Act could only be filed against a government agency, not an individual employee. The revised version also prohibits public employees from using the Civil Rights Act to bring claims against their public employer.
On February 8, Members of the House Judiciary Committee voted 8-4 to support a revamped bill that would allow New Mexicans to sue government agencies they believe have violated their civil rights.
ARGUMENTS MADE IN SUPPORT OF SUBSTITUTE CIVIL RIGHTS ACT
House Speaker Brian Egolf, one of the 2 sponsors of the bill had this to say about all the changes in the substitute bill:
“We’re working to strike a balance between the needs of New Mexicans to have access to justice in a state court with the concerns that had been raised by counties and cities and state agencies. … This is a series of compromises that we’re making because we want people to feel that their voice is being heard in a legislative process and that we’re being responsive as concerns are raised. …”
There’s already lots of statutes that give public employees an ability to bring a claim against their public employer. … [Government employees can also file claims under federal law] We’re going to leave those in place and clarify that the Civil Rights Act is not meant to supplant those.”
Maureen Sanders, a prominent and respected civil rights attorney had this to say:
[The opposition from government agencies] is that this will cost the state and local governments money and may even end up in bankruptcy [for] cities and villages and towns. … There’s just been no evidence of that. … What we have here is a lot of ‘sky is falling’ speculation provided by the local government entities and forgetting the importance of this legislation to the people within their jurisdictions.”
Brenda Boatman, community engagement director for Americans for Prosperity New Mexico, a conservative-leaning organization, said New Mexico needs a civil rights bill. She said people and organizations from across the political spectrum agree the criminal justice system needs improvements and added:
“When someone acting in an official government capacity, such as a police officer, violates a citizen’s constitutional rights, certain laws and immunities protect them from liability, regardless of the damage they’ve caused to regular New Mexicans. … This undermines individual rights, allows wrongdoers to escape accountability and leaves victims … with no way to address the injustice in court.”
Boatman said the bill would help right the wrongs of people whose constitutional rights have been violated.
“Have you ever heard the phrase, ‘Ignorance of the law is no excuse’? A citizen cannot walk into court and use the defense, ‘I didn’t know it was illegal. Why then should government actors be able to essentially use this defense, simply because our court hasn’t ruled on almost the exact same set of circumstances? This bill would put an end to that, allowing New Mexicans that have had their constitutional rights violated to at least have their day in court.”
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. At least the substitute bill caps it at $2 Million, but that is twice the New Mexico Tort Claims Act. 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 $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:
https://www.abqjournal.com/2354365/taxpayer-impact-of-civil-rights-bill-sparks-debate.html
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.”
AJ Forte also had this to say about the substitute bill:
“There’s no reform on this bill. … There’s nothing on the front end to stop violations from happening in the first place.”
The links to news source quotes are here:
https://www.abqjournal.com/2354365/taxpayer-impact-of-civil-rights-bill-sparks-debate.html
COMMENTARY AND ANALYSIS
The comments from Maureen Sanders and Brenda Boatman are coming from two opposite ends of the political spectrum. Attorney Maureen Sanders is a highly respected trial attorney and a progressive and Brenda Boatman is from the respected conservative Americans for Prosperity New Mexico, but both having their eyes on “deep pockets” of the taxpayer. What they want to do is simply make it easier to collect large judgments and attorney fees from government and taxpayer without really holding the government employee responsible for unconstitutional conduct and damages.
The comments from attorney Maureen Sanders are worth repeating:
[The opposition from government agencies] is that this will cost the state and local governments money and may even end up in bankruptcy [for] cities and villages and towns. … There’s just been no evidence of that. … . … What we have here is a lot of ‘sky is falling’ speculation provided by the local government entities”
To repeat:
“… no evidence … that this will cost the state and local governments money and may even end up in bankruptcy … What we have here is a lot of ‘sky is falling’ speculation”.
Really? Really?? The truth is that there is more than enough evidence of excessive judgments against government entities for police misconduct and shootings that have cost millions over the years.
Albuquerque police have shot more than 50 people since 2010, at least 31 of them fatally. Over a period of 10 years, the city of Albuquerque paid out $64 Million in 19 cases for excessive use of force and violations of civil rights. It’s those cases that in part that resulted in the Department of Justice investigating and found in 2014 that APD had a “culture of aggression.” Lawsuits stemming from police shootings have cost taxpayers more than $25 million in recent years.
The comments of Brenda Boatman are also worth repeating:
“When someone acting in an official government capacity, such as a police officer, violates a citizen’s constitutional rights, certain laws and immunities protect them from liability, regardless of the damage they’ve caused to regular New Mexicans. … This undermines individual rights, allows wrongdoers to escape accountability and leaves victims … with no way to address the injustice in court.”
Boatman’s arguments are as equally bogus as that of Maureen Sanders. The truth is that “victims” do have a way to address injustice in both state court and federal court and they do so with tremendous success. Boatman, like Sanders, is more interested in abolishing a defense in order to make it easier to recover in state court.
COSTLY PAYOUTS
The City of Albuquerque, Bernalillo County and the State have paid out large judgments costing millions, especially for police use of deadly force. Just 4 cases have cost $21 Million in out of court settlements for law enforcement use of deadly force cases. Another case involving the death of a child and the State’s Children Youth and Families Department has cost the state at least $1million. Those cases reflect the current system does in fact work, those who get injured do get their day in court and they get compensated. Following is the listing of 5 such cases:
1. On January 27, 2014, it was reported that a $10.5 million dollar judgment that was appeal by the City of Albuquerque was settled by the city for $7.5 million for the police shooting and killing. In 2010 US Army Veteran Kenneth Ellis, ll was shot and killed by an Albuquerque police officer when he had a gun pressed against his temple. Ellis was a veteran of the Iraq War who was suffering from post-traumatic stress disorder (PTSD).
https://www.koat.com/article/report-city-agrees-to-settlement-in-ellis-case/5053797
2. On July 15, 2015, the city has agreed to pay $5 million to the family of James Boyd, a homeless camper who was shot and killed by Albuquerque police in the Sandia Foothills on March 16, 2014. Boyd was armed with a knife in each hand, a 15-hour standoff occurred and 2 SWAT Officers shot him dead after flash bangs were detonated and the K-9 Unit was dispatched. The shooting made national headlines with police lapel camera footage capturing the incident.
3. The January 18, 2017, a $5 Million settlement was made with the family of Mary Hawkes, a 19-year-old woman who was shot and killed by police during a foot chase in 2014. The settlement resolves the lawsuit filed by her family against both the city and then APD officer Jeremy Dear who at the time did not have his body camera on.
https://www.abqjournal.com/1120552/hawkes-family-settles-lawsuit-fatal-apd-shooting.html
4. On March 7, 2020, it was reported that the Bernalillo County Sheriff’s Office agreed to pay the family of Elisha Lucero, 28, $4 Million to settle the case. Lucero was shot in front of her family’s south valley home after a family member called 911 in July of 2019. Lucero’s family said she struggled with mental illness, the sheriff says Lucero charged at deputies with a knife. The BCSO officers were not wearing body cameras.
https://www.kob.com/albuquerque-news/family-of-elisha-lucero-settles-case-with-bcso-for-4m-/5667056/
5. In 2013, 9-year-old Omaree Varela was kicked to death by his mother. Litigation was filed which accused two social workers and the state “Children, Youth and Families Department of violating Omaree’s rights by placing him in a dangerous home. A federal judge dismissed the lawsuit in 2016 citing qualified immunity for the government employees which hinged on weather the social workers knew or should have known that their conduct would violate the child’s clearly established rights. Notwithstanding the federal court dismissal, the case continued in State Court and the case was settled in a confidential settlement with the terms of the settlement not disclosed. It’s likely the case was settled for at least $1 million under the New Mexico Tort claims act.
https://www.abqjournal.com/2357524/notorious-child-abuse-case-cited-in-civil-rights-debate.html
Upwards of $90 million in settlement payouts is a lot of “money green” blue sky that is falling that in all likely hood would have gone a long, long ways to provide essential services or social services.
NO INDIVIDUAL ACCOUNTABLITY PROVISIONS
Absent from the originally proposed civil rights act and the substitute bill is any provision that would actually hold a government employee truly liable and accountable for damages they have caused another. All the act does is create a cause of action, prohibits qualified immunity and mandates government to pay. There is no personal liability nor other types of penalties to hold the individual employee accountable for wrongful conduct and violations of civil rights and constitutional rights.
Absent from the legislation is any preventative measures directed at the government employee or services such as training, expanded behavioral health services and decertification’s and terminations of the employee. All that the legislation provides for is to pay out claims with no provisions that would prevent violations from happening in the first place.
Then there is the matter as to what extent do you want to hold a government employee personally liable for violations of constitutional rights? Do you make that person individually, jointly or severally liable to pay damages awarded? Should government pensions be forfeited? There are options many would likely feel go too far and are just punishment and not restitution while others would say it is justified if a person is dead because of the negligent conduct of the government employee.
Other types of penalties could easily be included such as mandatory termination from government employment, suspension of professional licenses such as licenses to practice law, medical licenses, teacher licenses, law enforcement licenses and certifications and trade licenses all issued and regulated by the state under existing law. As it stands now under the proposed civil rights act, government will still bear the responsibility to defend and pay the judgments and settlements, and in turn its the taxpayer who is paying. If accountability is truly what the Civil Rights Act is intended for, and what plaintiff trial attorneys want, it sure does look like the real goal is to make recover a lot easily from a deeper pocket without having to prove a case in court before a judge and jury.
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.
Another key provision is that the new act would allow the recovery of attorney’s fees and costs, which no doubt goes along way to explain the support of plaintiff’s lawyers.
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 a 10-year period 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, firefighters , social workers and health care providers. 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. The New Mexico Tort claims act does indeed strike an appropriate balance for the recovery of damages.
It appears with the enactment of the substitute Civil Rights Act, damage to a plaintiff, the liability of government and the taxpayer wind up in the exact same place as to who pays for the damages. The only benefit of such legislation is to make recovery in state court a lot easier than in federal court making the job of plaintiff’s attorney a lot easier, allowing attorney fees and costs and to avoid having cases dismissed over a court doctrine that is well settled law.
The enactment of the Civil Rights Act is a solution looking for a problem to solve and looking for even deeper pockets to find the money to pay the judgments.
Links to 3 related blog articles are here:
Proposed State Civil Right Act Is Solution Looking For A Problem; Will Be Costly