January 21, 2021

New Mexico Civil Rights bill could end qualified immunity as a civil defense


Speaker of the House Brian Egolf will introduce a bill that would amend the New Mexico Civil Rights Act. The bill would have two components.

One is to allow citizens the ability to sue for compensatory damages and attorney fees against the state when their rights have been violated. Currently, while a citizen can sue if they experience a violation of their rights, they cannot receive a damage award. According to Barron Jones, senior policy strategist with the American Civil Liberties Union of New Mexico, this creates an unjust system.

“We have a state constitution that grants protections but it’s not enforceable. It’s just a piece of parchment paper without mechanisms for folks to seek action,” Jones said.

The bill is the result of a November report created by the New Mexico Civil Rights Commission Report. The state Legislature created the commission during the June special session to address holding public officials accountable when they engage in misconduct.

Egolf, a Democrat from Santa Fe, said via email that this bill is about justice.

“The New Mexico Civil Rights Act is important to the people of New Mexico because if their state constitutional rights are violated due to government wrongdoing, they can’t have the day in Court they deserve. Our state constitution provides more protections than the federal constitution, but without a New Mexico Civil Rights Act, there is no way to enforce the constitution and protect our rights. This is about justice and about making the freedoms and rights in the New Mexico Constitution real for every New Mexican,” he wrote.

The other part of the bill is expected to include a provision that would prohibit the use of qualified immunity as a defense in a court case. Qualified immunity has become a point of contention as the defense makes suing police officers for civil rights violations difficult.

An Albuquerque-based attorney, Laura Schauer Ives, told NM Political Report that the concept is a “purely judge-made principle which protects public officials from a lawsuit even when they’ve violated the state constitution.”

She said the concept started with civil cases but has begun to bleed over into criminal cases.

Qualified immunity prevents a lawsuit because a preceding court case against a public official must be virtually identical to the one under consideration in order for a suit to be brought.

The concept came out of the Civil Rights era in the 1960s and the original intent was to protect police officers so they could make split-second decisions, she said.

But, she said qualified immunity has problematized police training.

“If officials received training on what is constitutional, they would be better trained and then there would be fewer violations,” she said.

There is some concern that eliminated qualified immunity as a defense in civil cases could bankrupt smaller municipalities and counties, Jones said.

“It should be more troubling that they have so many cases they could be bankrupt and they should take a look at their policies and procedures to make sure that doesn’t happen,” Jones said.