In the wake of the May 25, 2020 killing of African American George Floyd by a Minneapolis police officer who knelt on Floyd’s neck to subdue him, a Black Lives Matter Movement is sweeping states across the country calling for police reform at all levels. New Mexico is no exception.
The 2020 New Mexico legislature is well beyond the half way point of its 60 day session. There are numerous police reform bills making their way through the legislature. One of the more contentious is the Civil Rights Bill. This blog article is a republication of a New Mexico In Depth story followed by this blogs additional commentary and analysis relating to the Civil Rights Act.
NEW MEXICO IN DEPTH
The below story was originally published by New Mexico In Depth on March 2 and was written by Ted Alcon. Ted Alcorn is a writer whose work has appeared in The New York Times, The Atlantic, and The Lancet. He lives in New York City and was raised in New Mexico. For New Mexico In Depth, he’s written about the Hepatitis C epidemic in New Mexico prisons; criminal justice and policing; public health and economic mobility.
The link to the story is at the end.
HEADLINE: Police reform bills sweep the virtual statehouse, but outcome uncertain
By: Ted Alcorn, New Mexico In Depth
“A year of tumult over race and policing is coming to a head in New Mexico’s busy legislative session.
With just weeks to go before it ends on March 20, lawmakers have introduced dozens of bills aimed at reforming law enforcement and several have progressed through committees. As a share of total introduced legislation, bills related to policing doubled this year over previous sessions, according to data from Legislative Council Service.
But it’s uncertain whether the state, which has one of the highest rates of fatal police shootings in the country, will take significant action. [https://nmindepth.com/2021/01/17/albuquerques-vision-for-non-police-first-responders-comes-down-to-earth/]
Save a requirement passed in last July’s special session that law enforcement statewide wear body cameras, the Legislature hasn’t enacted any major legislation related to policing in years.
According to Rep. Antonio Maestas, D-Albuquerque, the quantity of proposals this year reflects the urgency of the moment. “The national outcry regarding police accountability forced our hand.”
Law enforcement see it differently. Shaun Willoughby, President of the Albuquerque Police Officers’ Association, said the proposals display a fundamental ignorance about policing and shouldn’t be passed over the objections of law enforcement. “Reform is something you do with your officers, not to your officers.”
The path the bills take in the remaining weeks will test lawmakers’ perceptions of the level of continuing public upset about policing. It’s difficult to gauge sentiment during a virtual session, with the Roundhouse emptied of its typical throngs of onlookers. Virtual meetings have opened the hearings to people across the state to voice comments from home, but also insulated lawmakers from their constituents.
Although last year’s mass protests have dwindled, for now, the family members of people who died at the hands of police or while detained or incarcerated have continued to show up at committee meetings, grappling with their grief in front of lawmakers and keeping the stories of their loved ones alive. Elaine Maestas has faithfully phoned in to hearing after hearing to tell the story of her sister Elisha Lucero, who was in the throes of a mental health crisis when she was shot and killed by Bernalillo County Sheriff’s deputies in July 2019.
Maestas implored one group of legislators, “You have the power to say to New Mexicans that we hear you, and are doing something about it.”
This year’s bills range in focus, from better ensuring that public servants who violate people’s civil rights are held to account, to investigating law enforcement shootings with independence and transparency, to setting a higher bar for when officers are permitted to use force.
PAYING THE PRICE FOR CIVIL RIGHTS VIOLATIONS
The bill with the most momentum appeared to be the Civil Rights Act, which is meant to effectively end “qualified immunity,” a judicial doctrine that has helped shield police and other public officials from accountability for federal civil rights violations for decades.
[ https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform ]
Addressing qualified immunity through state law is complicated, and demands some historical context.
The U.S. Constitution grants every American rights, but to secure them, in 1871 Congress passed a federal law allowing people deprived of those rights to sue for monetary damages. Beginning in the 1960s, however, when people began using the statute to sue for violations of their civil rights, the Supreme Court protected from lawsuits any public officials who mistakenly believed that their actions had been permitted. The court eventually carved out an even larger exception for any misconduct that hadn’t already been established as unconstitutional by previous litigation. Injured parties now face an exceptionally high bar to bringing a civil lawsuit against a public official that deprived them of their rights, and this discourages lawyers from even contemplating bringing such cases.
Last summer following the death of George Floyd, a Black man who suffocated under the knee of white police officer Derek Chauvin, advocates around the country focused on eliminating this procedural roadblock. Although Chauvin will face criminal charges, qualified immunity makes it less likely the Floyd family can successfully sue the officer or the city of Minneapolis for compensation.
From opposite ends of the political spectrum, Supreme Court justices Clarence Thomas and Sonia Sotomayor have both criticized qualified immunity, but the court recently declined opportunities to reexamine the doctrine.
Two sets of federal lawmakers recently introduced bills to prohibit qualified immunity as a legal defense, but their fate is uncertain.
[https://www.cnn.com/2021/02/24/politics/police-reform-george-floyd-house-democrats/index.html]
Now, New Mexico and other states are considering whether to allow such lawsuits in state courts.
In New Mexico last summer, the Legislature empaneled a Civil Rights Commission, which thoroughly studied the issue and published a report in November recommending the state enact a Civil Rights Act.
The act would create an avenue for aggrieved people to sue, by making cities and counties newly liable for civil rights abuses committed by their police and other public employees, and explicitly prohibiting qualified immunity as a defense. (Plaintiffs would still have to prove the misconduct was unconstitutional, so it wouldn’t expose the government to a barrage of negligence lawsuits, as some opponents have claimed). New Mexico would be among the first states to do this, but similar bills are under consideration in a dozen states, from New Hampshire to Washington state.
The New Mexico bill was shaped and shepherded, in part, by an assortment of strange bedfellows, including libertarian organizations such as the Washington, D.C.-based Cato Institute and Institute for Justice, and progressive criminal justice reformers such as the American Civil Liberties Union and the Innocence Project. (Some of these organizations had worked together in New Mexico in 2015 to prohibit civil asset forfeiture, what they saw as another kind of government overreach.)
Despite the national zeitgeist for police reform, and mass protests throughout New Mexico in 2020, the effort has faced opposition at every step.
Four commission members who dissented from its conclusions—including two law enforcement officers and a prosecutor—issued a minority report calling instead for changes in law enforcement training and certification. A retired judge filed an ethics complaint against the bill’s sponsor Speaker Brian Egolf, D-Santa Fe, accusing him of advancing the legislation to expand his personal civil rights law practice, claims that he dismissed as frivolous and unsubstantiated. On February 17 when the bill reached the House floor for a vote, it passed over the nays of every Republican lawmaker (and a handful of rural Democrats).
The New Mexico Municipal League and New Mexico Association of Counties are among the bill’s most prominent opponents. On their urging, the sponsors amended the bill with a $2 million cap on damages, but local governments maintain that it would still expose them to costly litigation, imperil their insurance coverage, and threaten their solvency.
Proponents counter that the bill’s financial impact is a feature, not a bug; policymakers will only curb civil rights violations when they have a strong financial incentive to do so. “You’d think telling the government that torturing people would be enough to stop it,” said Matthew Coyte, a local attorney who successfully sued the state to stop its unconstitutional use of solitary confinement. “If you don’t have a lawsuit, a problem never gets fixed.”
Joanna Schwartz, a law school professor at UCLA and one of the country’s foremost experts on qualified immunity, said the claim that the bill would bankrupt local governments was being offered without empirical support. “In my research and experience, I don’t see evidence that this is the case,” she said.
Colorado, which passed a similar civil rights bill last June, only just saw its first lawsuit filed under the new statute—by a woman who police mistook for a car thief and removed from her vehicle, along with her six- and 12-year-old daughters, at gunpoint. “Fears of cases flooding the courthouse are not coming true,” Schwartz added.
The Legislature is now in reach of passing the measure. It advanced out of the Senate Health and Public Affairs Committee and faces just one more hearing in the Senate Judiciary Committee, whose chair Sen. Joe Cervantes, a Democrat from Las Cruces, is a sponsor, before advancing to a vote on the Senate floor.
ALTERNATIVELY, STRENGTHEN INTERNAL ACCOUNTABILITY
As if to demonstrate they weren’t averse to all police reforms, municipalities have instead rallied for legislation that would shake up the New Mexico Law Enforcement Academy Board. Currently, the board sets statewide standards for training and reviews allegations of officer misconduct. But a recent KOB-4 investigation found it had a two- to three-year backlog of cases, and the chair of the board itself, Attorney General Hector Balderas, described the process as “an absolute train wreck.” Two bills would put authority to decertify officers in new hands.
Republican Sen. Stuart Ingle, a 35-year veteran of the Legislature who has scarcely sponsored any police-related bills in recent memory, introduced SB 375 to the Senate Judiciary Committee. In addition to establishing a new independent certification board, it would require that officers be trained in crisis intervention and de-escalation techniques. Ingle then handed the floor to A.J. Forte, executive director of the New Mexico Municipal League, who spoke in favor. “Make the changes on the front-end to give them the tools they need for a holistic approach,” Forte urged.
Rep. Maestas sponsored another bill, aimed at reforming the Law Enforcement Academy Board, HB 286. It would transfer responsibility for suspending and revoking officers’ licenses to the state’s Regulation and Licensing Department.
The one thing everyone agrees on, Maestas said, is that the board doesn’t have the independence or the resources to run misconduct investigations. “It shouldn’t have this dual role.” Despite seeming consensus that the board needs reform, these two bills have had just one committee hearing a piece heading into the final weeks of the session.
In the most severe cases of police conduct, when an officer kills someone, it is exceedingly rare they are prosecuted, both nationwide and in New Mexico. Of over 100 such deaths in New Mexico since 2015, the Legislative Finance Committee could identify only one completed prosecution — that of officers charges in the killing of James Boyd, which ended in a mistrial — although a Las Cruces police officer was also recently indicted for allegedly choking a man to death. This session, a pair of lawmakers introduced legislation to create more independence in the investigation and prosecution of police use of deadly force, and more transparency in the process.
SB 274, introduced by Sen. Antoinette Sedillo López, D-Albuquerque (and its companion bill in the House, HB254, introduced by Rep. Patricia Roybal Caballero, D-Albuquerque), would require law enforcement to report use-of-force incidents that involve death or grave bodily harm to a statewide database; make the State Police the default agency for investigating these incidents (except for a shooting by State Police, when another department would do so); and give the state attorney general concurrent authority to prosecute the case, and mandate publicly issued quarterly updates on its status. But the Legislative Finance Committee identified major technical issues with the legislation and it has only passed out of one committee in each chamber.
[ https://www.nmlegis.gov/Sessions/21%20Regular/firs/SB0274.PDF ]
RAISING THE THRESHOLD WHEN FORCE IS PERMISSIBLE: A HEAVIER LIFT
In contrast to efforts to strengthen accountability for misconduct, another bill would attempt to prevent harm from occurring in the first place by putting certain law enforcement practices off-limits, and making use of physical force a last resort. The bill, SB 227, was one of the ACLU’s top priorities, but was sharply criticized by law enforcement groups. Having only been reviewed by one Senate committee by the end of February, its prospects for passage were less clear.
[ https://www.nmlegis.gov/Sessions/21%20Regular/firs/SB0274.PDF ]
Introduced by Sen. Linda Lopez, who represents a heavily Hispanic district in Albuquerque’s South Valley and is part of the Democrats’ leadership team, the bill would make a raft of changes to law enforcement policies across the state. Most significantly, it would limit law enforcement from using force beyond the Supreme Court’s standard of when it is “objectively reasonable,” to just those circumstances when it is proportionate and necessary to prevent imminent harm and only after de-escalation practices have been exhausted.
The Albuquerque Police Department adopted such a standard last year as a part of their federal consent agreement, so the bill would extend statewide an approach that the largest police force has already accepted.
But Willoughby said it had been “a disaster” there, and criticized the legislators for failing to reach out to police in developing the proposal. “Policing policy is not supposed to be legislated by people who are not police officers.”
SB 227 would also oblige law enforcement to intervene if they are present when others use excessive force, establish a statewide database of incidents in which police seriously harm or kill someone, and require agencies around the state to ban no-knock warrants and chokeholds. The initial version of the bill also barred police use of tear gas, rubber bullets, and canines — less lethal means of applying force that have been misused in recent high-profile cases but some of which are associated with lower rates of injury to suspects.
[https://www.ojp.gov/pdffiles1/nij/grants/231176.pdf ]
The ACLU said that the bill reflected public sentiment, citing a poll it commissioned in December 2020 that found 72% of registered voters supportive of a law “to place clear limits on when force can be used and require that police try to use alternatives before resorting to force.”
[ https://www.ojp.gov/pdffiles1/nij/grants/231176.pdf ]
But there was intensifying grassroots opposition. On February 4, just two days after the bill was introduced, New Mexico State Police officer Darion Jarrott was shot and killed by a man he had pulled over, the first fatal shooting of an officer in the department in 30 years. Still visibly emotional about the loss, the president of the New Mexico State Police Association Jose Carrasco posted a heartfelt video to Facebook entitled “Vote NO on SB 227” in which he criticized the bill for depriving officers of less lethal options for detaining suspects.
https://www.facebook.com/watch/?v=127148679278835
An anonymous online petition against both SB 227 and the Civil Right Act quickly attracted more than 8,800 signers.
[https://www.change.org/p/michelle-lujan-grisham-stop-senate-bill-227-and-hb-4-nm]
Citing subsequent conversations with police officers, Lopez introduced a revised bill that dropped the limitations on tear gas, rubber bullets, and canines. She said she expected further amendments but wasn’t deterred. “If it doesn’t pass, quite honest, we’ll bring it back again.”
Advocates remained optimistic. On her way to testify in support of Lopez’s bill, Maestas wrote in a text message: “It is not easy to keep speaking, but until things change, it is necessary.”
The link to the full “New Mexico In Depth” article with photos is here:
DINELLI COMMENTARY AND ANALYSIS
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), Albuquerque is struggling to get 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).
COSTLY PAYOUTS NOT EXAGGEREATED
The financial impact on government agencies is in no way being exaggerated by the Municipal League nor the Association County Governments.
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 appealed by the City of Albuquerque was settled by the city for $7.5 million for the police shooting and killing of Kenneth Ellis, II. In 2010 US Army Veteran Kenneth Ellis, II, was shot and killed by an Albuquerque police officer. Ellis had a gun pressed against his temple when he was shot in the neck. Mr. Ellis had been stopped at a convenience store on a false suspicion of committing a crime. Ellis was a veteran of the Iraq War who was suffering from post-traumatic stress disorder (PTSD). The Court found the City clearly liable ruling Mr. Ellis was only a danger to himself. Notwithstanding, then Lieutenant Harold Medina, who is now the APD Interim Chief, authorized the use of deadly force. Medina was never disciplined for his failed leadership in the case.
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. The two SWAT officers were charged criminally, with one officer retiring. A jury could not reach a verdict on the murder charges and the charges were dismissed.
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. Hawkes was shot in the back as she fled. 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. Lucero was shot 27 times.
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 whether 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
NO INDIVIDUAL ACCOUNTABLITY PROVISION IN NM CIVIL RIGHTS ACT
Absent from the Civil Rights Act passed by the House and now being considered by the Senate 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 at the expense of other essential services such as education and social services. 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 easier and the award of attorney’s fees from a deeper pocket without having to prove a case in court before a judge or jury.
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 mandate 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.