On Monday, the U.S. Supreme Court ruled in favor of qualified immunity in two separate, but similar, federal cases that involved police officers who, the plaintiffs alleged, used excessive force in the two separate incidents.
But, those rulings will not impact the New Mexico Civil Rights Act, which prohibits the use of qualified immunity as a legal defense in state civil cases, said Leon Howard, legal director with the American Civil Liberties Union of New Mexico. Howard said that states are allowed to provide more protection for the individuals who live in the state than the federal constitution does but not less.
“When the Supreme Court rules on a constitutional issue, they’re interpreting the federal constitution and the body of law that makes up interpretation of the federal constitution,” Howard said. The Supreme Court does not get involved in a case unless there is a federal question, Howard said.
A plaintiff in New Mexico can still sue a government entity for constitutional violation in federal court, Howard said. But in federal court, the government entity can still rely on the qualified immunity defense. Qualified immunity is a judicial rule established decades ago that has become an obstacle almost impossible to surpass in court.
Related: What ‘qualified immunity’ means for New Mexico
The government entity in a case would have to argue that the New Mexico Civil Rights Act, passed in the 2021 Legislature and signed shortly thereafter by the governor, was violating its federal constitutional rights, Howard said.
Gov. Michelle Lujan Grisham signed the New Mexico Civil Rights Act, which ends qualified immunity as a legal defense, into law on Wednesday. Advocates have said the law will bring greater equity to New Mexico as it also enables individuals whose state constitutional rights have been violated to bring a civil suit seeking financial remedy. The new law caps the remedy at $2 million and no case can be brought over an incident that occurred before the start date – July 1, 2021 – of the new law. Recoverability of attorney’s fees is possible but subject to the court’s discretion. The original bill, HB 4, came out of recommendations made in a report written by the New Mexico Civil Rights Commission in late 2020.
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.
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.