After a year in which police use of lethal force against Black people awakened large swaths of the American public to a discussion about systemic racism, lawmakers in New Mexico are looking to reform policing and better protect civil liberties.
The Memorial Day killing of George Floyd in Minneapolis sparked mass marches across the country, including in New Mexico, to protest the unequal and dangerous treatment Black people encounter in interactions with police.
New Mexico is no stranger to calls for greater scrutiny of law enforcement.
The U.S. Department of Justice forced the state’s largest law enforcement agency into a consent decree after concluding in 2014 the Albuquerque Police Department exhibited a troubling pattern of excessive force, including one of the highest rates in fatal shootings by its police officers. The killings haven’t been limited to APD, either. Between Floyd’s death this Memorial Day and the end of November, there were 11 fatal police-involved shootings across New Mexico, according to local news reports and a database of deadly police shootings maintained by the Washington Post.
Since 2015, when the Post began compiling data, New Mexico has recorded 115 law-enforcement shootings, New Mexico trails only Alaska for the highest rate of fatal police shootings in that time – 55 per one million residents.
Soon after Floyd’s death, the state Legislature passed House Bill 5 that created a temporary New Mexico Civil Rights Commission to investigate and recommend ways to hold public officials to greater account, with Gov. Michelle Lujan Grisham signing the legislation June 26.
Nearly four months later, on Oct. 23, the commission voted 6-3 to recommend lawmakers pass a Civil Rights Act, creating a way to sue public officials for violations of the New Mexico Constitution. Commissioners also decided 5-4 that qualified immunity should not be a defense allowed under the new law, but unanimously agreed that state employees should be shielded from personal financial liability.
Qualified immunity is a legal doctrine resulting from a series of U.S. Supreme Court decisions that shields public officials, like police officers, who violate a person’s constitutional rights, unless the action violates clearly established law. While the impetus of the doctrine is to protect government employees from frivolous lawsuits, critics say it also enables public officials to violate people’s rights because they know they won’t be held accountable for damages.
Holding public officials more accountable
Despite the New Mexico Constitution providing rights that extend beyond those enshrined in the U.S. Constitution, commissioners who supported the proposed Civil Rights Act said without a statute it New Mexicans aren’t able to sue a person who violated their civil rights. Opponents disagreed, saying the state’s tort claims act allows such lawsuits.
Commissioners also tangled with whether qualified immunity should be allowed as a defense by public officials in state court.
Qualified immunity is a hot button issue, as the commission’s vice chair, Mark Baker, noted during an Oct. 23 meeting.
At the federal level, in order to clear the hurdle of qualified immunity, plaintiffs must show that a previous court has already established the behavior of the public official violated the law. In practice, it means that for a civil rights case to be considered, a case of nearly identical circumstances needs to have already been decided in courts.
The U.S. Supreme Court’s increasing use of qualified immunity to find in favor of police officers, in particular, has drawn widespread criticism from judges, lawmakers, legal experts and commentators from across the ideological spectrum, including from both conservative and liberal Supreme Court justices themselves. A Reuters investigation last year found the “Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police.”
“Qualified immunity has been almost abused in its interpretation in my personal opinion,” retired New Mexico Supreme Court Justice and NM Civil Rights Commission Chair Richard Bosson said to the Courts, Corrections and Justice Committee via video conference on Dec. 1.
But Bosson’s fellow commissioner, Gerald Byers, wondered aloud at an October meeting of the commission if qualified immunity were removed “what does the world do when there isn’t anyone to work in law enforcement?”
Some particularly vivid examples of the high bar plaintiffs must overcome provided by Commission Vice Chair Mark Baker included one 2019 decision by the 11th Circuit Court of Appeals “where an officer shot a child lying on the ground because he was trying to shoot the family dog, and the court found that the case had to be dismissed because there wasn’t another case where an officer accidentally shot a child, while trying to shoot a dog.”
A New Mexico case that was tossed out involved a student from Albuquerque’s Cleveland Middle School who was arrested in 2011 after burping in gym class. In 2017, Baker said, U.S. Supreme Court Justice Neil Gorsuch, then a 10th Circuit Judge, called out in his dissent that “officers should know that mere disturbances in a classroom shouldn’t trigger the arrest of a child, but the court found that the law was not sufficiently clearly established to overcome qualified immunity.”
A June survey by Pew Research Center conducted the same week lawmakers were passing HB 5 suggests that two-thirds of the American public believe individuals need to have the power to sue in cases of police misconduct and excessive force, a stark rise since four years ago, according to the polling.
“Policing isn’t for African Americans and minorities,” said LaQuonte Barry, an Albuquerque organizer with Black New Mexico Movement, which was established in May to respond to excessive force by police that disproportionately affects black and Latinos in the state.
Recent changes in the Legislature give Barry hope. “We have [Senator-elect Harold Pope Jr.] now in the Senate, so that that’s great because you have a black man, someone that knows our community, that they will be able to speak up,” Barry said, referring to the election of the state’s first black state senator.
Proposed New Mexico Civil Rights Act
The Civil Rights Act proposed by the commission would allow people to sue in district court for violations of civil rights afforded them under the New Mexico state constitution. Qualified immunity would not be an allowable defense under the Civil Rights Act, but any damages awarded to plaintiffs would be paid by the government institution rather than the public official. In other words, employers of police officers would pay damages rather than the police officer themself.
Currently, “there’s not a statute to enforce the rights that are provided for in the constitution,” said commission member Zackeree Kelin, a lawyer with the Albuquerque-based Davis Kelin Law Firm who has specialized in civil rights and personal injury law.
Andrew Schultz, a lawyer with the Albuquerque-based Rodey Law Firm, said the state’s constitution provides “all shield and no sword,” referring to a title of an article on state constitutional litigation he co-authored in 2018. Schultz and fellow co-author of the report, retired Court of Appeals Judge Linda Vanzi, contributed their civil rights expertise in New Mexico during the commission’s Sept. 3 meeting.
The commission’s report points out the “bizarre” dichotomy this creates: if you were to slip and fall on government property, you can sue for your injuries under the New Mexico Tort Claims Act. If you’re denied state constitutional rights, such as the right to bear arms or exercise freedom of speech, you can’t recover damages.
“There’s been limited development of New Mexico constitutional law, in part because there isn’t a private right of action for citizens to enforce it,” Kelin said.
A similar shortcoming existed at the federal level but was remedied after the civil war with Section 1983, a federal statute that allows individuals to sue public officials for deprivation of rights.
Legal experts on the commission point to the case of Stephen Slevin as evidence that damages are a successful deterrent and tool for reform.
In 2013, a federal jury awarded Slevin $22 million in damages against Doña Ana County. Slevin had been held in solitary confinement for the better part of two years (22 months) without being charged – a violation of his constitutional rights. The detention followed a 2005 arrest on suspicion of driving under the influence. The verdict led New Mexico Counties to establish an accreditation program for county jails in collaboration with the New Mexico Municipal League. The program’s purpose is to establish professional standards and evaluate compliance with those standards, according to a document published by the NMML.
The commission report pointed to the Slevin case to support that “compensating victims and instituting reform go hand-in-hand.” However, it recommended that damages be limited to an amount equal to the harm suffered by an individual.
Opposition voices on the commission primarily focused on concerns about costs and liability – will cities and counties be able to get insurance and will competent peace officers be deterred from working in New Mexico? – and the effectiveness of the courts for enacting reform.
A minority report, penned by commissioners Kim Stewart, Victor Rodriguez, state GOP Sen. Steve Neville and Gerald Byers, the new district attorney for the Third Judicial District, contended a new state law is “unnecessary” and that it would “enrich lawyers while not benefiting victims.”
Dissenters point to the New Mexico Tort Claims Act as an existing path for individual remedy.
“The misleading headline that no remedy in state court exists if law enforcement violates a person’s state constitutional right was disingenuous as such remedy exists with New Mexico Tort Claims Act,” Rodriguez said in a presentation during the committee meeting in December.
But Schultz, who’s studied and written about the enforceability of the state constitution, sees limits to the Tort Claims Act.
“…the entire Tort Claims Act lays out all the different torts that you can sue the state of New Mexico and other governmental entities for,” Schultz said. “You get to sue when you trip over the sidewalk; you get to sue when the highway isn’t right, you get to sue. All these different exceptions are laid out. And they put a cap on damages.”
“And if you have a claim against the state of New Mexico, and it doesn’t fall within one of those exceptions, you don’t get to sue,” Schultz said.
Majority members of the commission point out that to amend the state Tort Claims Act would still take an act of the Legislature.
“Before you today you have veteran law enforcement professionals telling you that bad government actors deserve accountability, but a new cause of action that causes additional civil liability for public employers isn’t the answer,” Rodriguez said to members of the Courts, Corrections and Justice Committee.
Dissenters suggested not enough attention was paid to reforms to discipline and licensing powers of the Law Enforcement Academy or collective bargaining agreements.
The New Mexico Association of Chiefs of Police likewise challenged claims that the Civil Rights Act would help reform police.
“When we’re talking about police reform there’s no magic bullet or somebody else would have figured it out,” said NMACP President and Farmington Police Chief Steve Hebbe in an interview. “It is the basics – you hire good people, you have good policies, you train those people to those policies, and then you hold them accountable, and the better we do with that, the better policing gets. The worse we do at it, the worse policing gets, and right now the state is not doing a very good job of it, and they’re not investing the resources to do a better job of it.”
Hebbe points to the state Law Enforcement Academy as a better target for reform and echoes lawmakers and advocates in suggesting that training and certification responsibilities – both overseen by the LEA – be separated. The academy, which serves as the primary training center for peace officers in the state, is saddled with a backlog of cases to review for decertification, a bottleneck in the process of getting bad cops off the streets.
Hebbe also offers a prudent approach to a qualified immunity statute: Watch what happens in states, like Colorado, that have recently passed civil rights acts that don’t allow qualified immunity as a defense. He suggests keeping an eye on Colorado, which passed a similar law in June.
“If we study them for the next couple of years we can see did it work, or did it cause problems? Did cops leave the profession?” Hebbe said.“…I know it isn’t sexy…but every time we present that to the public that we’re going to do this one thing and it is going to reform police, and then it doesn’t work, everybody’s more stunned, everybody’s more outraged, everybody’s more angry.”