It’s been two and a half weeks since George Floyd’s death in Minneapolis and protests and demonstrations calling for police accountability have continued to increase. Calls to action include a push to defund police forces, demilitarization of police and a reform of use of force standards.
Now, many federal lawmakers are introducing and co-sponsoring bills aimed at changing standard practices and in some cases how police are held accountable in civil suits. Both of New Mexico’s U.S. Senators Tom Udall and Martin Heinrich co-sponsored legislation, sponsored by Democratic Sen. Cory Booker of New Jersey, that would change how citizens can sue police for constitutional violations as well as police use of force standards.
New Mexico has its own history of police reforms and calls for better practices — the Albuquerque Police Department is still in the middle of an attempt by the U.S. Department of Justice, to reform some unconstitutional policing practices. But attempts at holding officers accountable through civil suits in New Mexico often fall flat because of a federal judicial doctrine that ultimately protects officers from being sued: qualified immunity.
Heinrich said qualified immunity makes it nearly impossible for plaintiffs to move forward with civil rights claims in federal court.
“Through the lens of Albuquerque, I think setting the new standard of qualified immunity is a standard of reasonable action,” Heinrich said. “The current standard has an almost ubiquitous bias against civil rights claims. I mean, the bias is almost overwhelmingly to dismiss all of them except in some very specific circumstances.”
Or as Albuquerque-based civil rights attorney Laura Schauer Ives put it, “Qualified immunity is a permission slip to officers and law enforcement to violate the constitution.”
A two pronged approach
Qualified immunity is not written into state or federal statutes, but instead is federal doctrine established in the late 1960s with the intention of protecting law enforcement officers from being sued for making decisions that may unintentionally violate someone’s constitutional rights.
But Schauer Ives said in recent years, the issue of qualified immunity has become “a morass” and creates a major roadblock for plaintiffs trying to hold police accountable. In federal civil rights cases, Schauer Ives said, there is a “two pronged” approach to determine whether a law enforcement officer violated someone’s rights. The first, she said, is whether an officer violated someone’s rights and the second is whether the officer was “on notice” that a particular action is a violation of the Constitution. And the second prong, Schauer Ives said, is usually what puts an end to federal lawsuits.
“What puts an officer on notice that the conduct has violated the Constitution has become more and more difficult,” She said. “It used to be that a general case or a case from another jurisdiction would put the officer on notice, but in recent years, the factual comparisons between the case you have before the court and the case that you’re pointing to have to be very, very, very similar. If there’s a different weapon involved, for example, that can give the federal court an out and they can say, ‘Well, this case involved a taser, not a pepper ball gun.’”
She said once a court determines an officer was not put on notice that a given action is a civil rights violation, the question of constitutionality is rendered moot and thus does not lay the groundwork for future case law.
“They continue to not establish the law and it continues to leave civil rights litigants vulnerable,” Schauer Ives said.
New Mexico state laws, she said, are too narrow to successfully sue police for constitutional violations. The state’s Tort Claims Act, for example, has restrictions for things like wrongful death claims. Therefore, plaintiffs are essentially forced to take the issue to federal court.
Suits filed under the federal law are often simply referred to as 1983 suits after its section of federal statute, 42 U.S.C. § 1983. And Schauer Ives said a state version of the federal statute could provide another avenue for plaintiffs.
“If we want to prioritize our communities over the police state, we absolutely should have a state 1983 that allows for suit under the New Mexico constitution for damages,” she said. “[Plaintiffs] should be able to bring their civil rights cases in front of New Mexico [state court] judges who are elected officials from our community.”
Creating a state version of the federal law seems unlikely for the upcoming special session, but one state lawmaker is working to address qualified immunity on a local level.
New Mexico state Rep. Antonio “Moe” Maestas is a long-time proponent of criminal justice reform and has co-chaired several interim committees tasked with reexamining the state’s criminal code. Now he plans on introducing a qualified immunity bill during the upcoming special session after Gov. Michelle Lujan Grisham announced this week that she is asking legislators to tackle police reform along with remote voting issues.
“I don’t know if any of my other colleagues are having a similar bill drafted,” Maestas told NM Political Report on Thursday. “But I’m trying to get one drafted by the end of the week, and then see if the governor is willing to put it on the call for next week.”
Maestas said he is working with legislative bill drafters on the exact language of his proposal, but that this type of reform was a long time coming.
“[Qualified immunity] was a standard that was adopted, and people’s brains over time…you just become used to it,” Maestas said. “But the [George] Floyd death allowed us to take a step back and ask ourselves, ‘Why is this? Why is this here?’”
Maestas said he would also like to introduce a bill aimed at changing a state law that provides certain rights to law enforcement officers who are under investigation by their superiors. Maestas said he recently discovered the law, that has not been changed since it was adopted in the early 1990s, when he was reviewing language in the Albuquerque Police Department’s union contract.
“I realized that some of these protections in the union contract actually track language in state law,” he said.
That law, the Peace Officer’s Employer-Employee Relations Act, includes provisions like, “an officer shall not be subjected to offensive language or illegal coercion by his interrogator in the course of an interrogation session.”
But Maestas said neither of his proposals should be viewed as anti-police legislation. Instead, he said, they are attempts at holding police accountable for their actions.
“Cops, like any other government employee, any other taxpayer-funded employee, need to be held accountable and to have these legal barriers to accountability should concern everyone,” Maestas said.
On the federal level, most of New Mexico’s congressional delegation have signed on to a variety of reform bills — some focused on institutional racism and police brutality and others focused on police accountability. U.S. Rep. Debra Haaland, for example, is one of hundreds of co-sponsors of the House Democrat’s Justice in Policing Act of 2020. Haaland also introduced her own bill that would encourage “local demilitarization” of police departments by incentivizing the return of equipment received from federal agencies. U.S. Rep. Ben Ray Lujan signed on to a Democratic sponsored resolution, “Condemning all acts of police brutality, racial profiling, and the use of excessive and militarized force throughout the country.”
But the question remains: Will President Donald Trump sign police reforms into law?
Heinrich said the upcoming presidential election could push Trump to approve reforms, but that ultimately this kind of reform will require help from everyone.
“The President has an election in a few months, so we might have a very different situation in a few months where we have a partner in the White House as opposed to an obstacle to overcome,” Heinrich said. “But I think it’s important for everyone to realize that this is going to require a lot of heavy lifting at the local level, at the federal level and everywhere in between and a lot of difficult conversations for all of us, if we want this to be the kind of sustained effort that makes meaningful change.”
Heinrich said he questioned whether or not Senate Majority Leader Mitch McConnell, R-Kentucky, sincerely wants to address police reforms.
“[McConnell] has proven very adept over the years at letting the air out of the balloon long enough to get past a crisis and then forgetting about the deeper systemic issues,” Heinrich said. “And my hope is that this time will be different. I think we’re going to be reliant on all those people who have been peacefully demonstrating in the streets to continue that call to action, and to make sure that this is not a flash in the pan.”