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New Mexico Abolishes Qualified Immunity

by Michael Fortino, Ph.D.

Although many states across the nation continue to harbor and protect their employees from liability lawsuits—even in cases where the civil servant proved negligent or acted with reckless disregard—some, more progressive states, have taken the lead on litigation reform. New Mexico recently joined the ranks of those states willing to lift the protections of Qualified Immunity (“QI”) and provide a pathway for individuals to successfully file lawsuits against government actors and government agents.

On April 27, 2021, New Mexico Governor Michelle Lujan Grisham signed House Bill #4, otherwise known as the New Mexico Civil Rights Act, which effectively removed the defense of QI when an officer or employee of the state violates a person’s civil rights.

“Qualified Immunity” originated as a federal concept that grew to become a mainstream defense through landmark case law surrounding the application of 28 U.S.C. § 1983. Section 1983 permits an individual to file a civil lawsuit against federal agents, assigns, or employees of the federal government who violate the civil rights of an individual while acting in their official capacity.

Prior to § 1983, QI was originally borne out of the necessity to protect military officers or their respective branch of service from random lawsuits brought against them by a serviceman or women injured during boot camp or basic training, or for that matter, during battle or as a consequence of the “fog of war.” Because military officers and infantry trainers could not foresee the multitude of circumstances that might result in injury through training or battle, QI was established to eliminate lawsuit abuse unless a victim could show a blatant disregard for life and limb or the willful and intentional infliction of harm.

Unfortunately, courts extended QI to other government agencies, including prison systems, where there often exists negligence, abuse, or deliberate indifference, resulting in injury to a prisoner. Many abused or injured or neglected prisoners find that they have no recourse as a result of QI.

Under the expansion of QI, even legislators, judges, and prosecutors remain immune from lawsuits arising from actions taken as part of their official duties. In recent years, QI has played a controversial role as it provides immunity to federal, state, and local law enforcement officers or police involved in acts of unjustified violence. The protections of QI assure that these officers, despite blatant civil rights violations, are shielded from civil liability.

New Mexico’s new law addresses this deficiency by enacting the state’s own version of § 1983, creating a private cause of action for any individual whose rights under the state constitution are violated by a state agent. Importantly, the new law provides that “no public body or person acting on behalf of ... shall enjoy the defense of qualified immunity.”

“When you’ve got someone who has a valid claim against a police officer, but there’s no existing precedent where that exact something has already happened,” said Clark Neily, Vice President for Criminal Justice Reform at the Cato Institute, “then the New Mexico law will give them an alternative avenue to pursue that claim in a court system that is not going to throw the case out simply because there doesn’t happen to be a pre-existing case on point.”

There are some clarifications and caveats to the law that should be noted. Although the new law is more expansive than similar bills passed elsewhere in that it expands liability to include all state agents and not just law enforcement, Section 10 of the law clarifies that the law does not eliminate legislative or judicial immunity.

Section 5 of the law allows plaintiffs to collect “reasonable attorney fees and costs” when they win, but Section 6 sets the cap on damages at $2 million. However, this cap is higher than is allowed for other violations covered by the New Mexico Tort Claims Act.

The law represents a major step forward for efforts to compensate victims for the official misconduct of state actors, but it fails to attach any personal liability to agents for their abuses. Thus, if a plaintiff prevails, it is the taxpayers and the companies that insure the state agency on the hook and required to pay for the damages, not the individual state actor who engaged in the misconduct. This, of course, is a compromise between proponents of reform who say that only personal liability will incentivize ethical behavior. Detractors of the legislation suggest that eliminating QI will result in making an individual liable and will make it significantly more difficult to find applicants willing to work in dangerous jobs like law enforcement.

“[It] will certainly enable victims of civil rights violations to hold police accountable in circumstances where they would not otherwise have been able to before the law was passed,” remarked Neily.

Law enforcement unions have lobbied hard against changes to QI, and federal efforts to eliminate QI by new legislation have stalled under threat of filibuster, despite the fact that most Americans support this reform. In a similar vein, the bill passed the New Mexico State House of Representatives all the while being opposed by every single Republican and five Democrats in the body.

Despite the bill’s flaws, the abolition of QI in New Mexico is a step that will benefit the state’s residents and likely be repeated elsewhere. 



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