Cato Institute: New Mexico Enacts Landmark Qualified Immunity Reform Legislation for All Public Officials

The Cato Institute writes about a new allowed cause of action for violation of a person’s rights in New Mexico Enacts Landmark Qualified Immunity Reform Legislation for All Public Officials.

Today [April 7, 2021], New Mexico Governor Michelle Lujan Grisham signed into law House Bill 4, otherwise known as the New Mexico Civil Rights Act. This landmark piece of legislation creates a state‐​law cause of action against any public official who violates someone’s rights under the New Mexico State Constitution, and it specifically provides that qualified immunity is not available as a defense. The statute is therefore quite similar to both Colorado’s Law Enforcement Integrity and Accountability Act, enacted in June 2020, and the civil‐​rights legislation approved by the New York City Council last month, both of which also created causes of action that do not allow qualified immunity. But whereas the Colorado and NYC bills were both limited to police officers, the New Mexico Civil Rights Act applies more broadly to all public officials.

Although many have summarized the effect of HB 4 as “ending” or “eliminating” qualified immunity in New Mexico, that is not exactly correct. In a formal sense, “qualified immunity” is a federal doctrine available in federal lawsuits brought under Section 1983, and states obviously can’t change federal law. But what they can do is create “state analogues” to Section 1983, which is exactly what HB 4 does. Whereas Section 1983 allows individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, HB 4 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court. And because this new cause of action is a matter of state law, the legislature is free to clarify that qualified immunity won’t apply to these state‐​law claims.

The operative language of the New Mexico Civil Rights Act is simple and straightforward. Section 3 of the law provides that:

A person who claims to have suffered a deprivation of any rights, privileges or immunities pursuant to the constitution of New Mexico due to acts or omissions of a public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body may maintain an action to establish liability and recover actual damages and equitable or injunctive relief in any New Mexico district court.

“Public body” in turn is defined broadly as “a state or local government, an advisory board, a commission, an agency or an entity created by the constitution of New Mexico or any branch of government that receives public funding, including political subdivisions, special tax districts, school districts and institutions of higher education.” In other words, any government entity, or person acting on behalf of such an entity, is liable if they violate someone’s rights under the state constitution, and “no public body or person acting on behalf of … shall enjoy the defense of qualified immunity.” (Note, however, that Section 10 of the statute clarifies that HB 4 does not eliminate legislative or judicial immunity, which are separate doctrines from qualified immunity).

The New Mexico Constitution, like most state constitutions, has a bill of rights that largely mirrors the federal Constitution, which means that HB 4 will allow citizens to get redress for the same sort of injuries they could pursue in a federal lawsuit. Section 5 of the statute also allows courts to award “reasonable attorney fees and costs” to prevailing plaintiffs. Section 6 does set a damages cap of $2,000,000, but that cap is actually much higher than any of the damages caps otherwise set by the New Mexico Tort Claims Act. On the whole, this means the new cause of action under HB 4 should provide a robust and meaningful remedy for citizens whose constitutional rights are violated by government agents.

Besides the difference in scope (i.e., police officers vs. all public officials), the one other notable difference between the New Mexico, Colorado, and NYC laws concerns the question of individual liability and indemnification. The Colorado statute presumptively provides that police officers sued under the new law will be indemnified, but if the officer’s employer determines that “the officer did not act upon a good faith and reasonable belief that the action was lawful,” then the officer could be required to personally contribute a small portion of the judgment. The NYC bill creates liability for both the individual who caused the violation and their employer. Section 8 of New Mexico’s HB 4, however, for complete and automatic indemnification, which means the individual defendant can never be personally liable for the injury they cause.

In this particular respect, I think Colorado and NYC actually struck the better balance of competing concerns. Even though indemnification is and will continue to be the norm in civil rights suits, it’s better to ensure that individual government agents — especially police officers — have some skin in the game when it comes to the risk of personal liability. After all, civil rights laws are intended to have both a remedial and a deterrent effect. But removing any possibility at all for personal liability — even modest contributions, like Colorado allowed for — may somewhat undermine the individualized accountability that laws like HB 4 are intended to provide.

Nevertheless, HB 4 gets the most fundamental policy judgment exactly right: a citizen whose rights are violated will get a complete remedy, and qualified immunity will not stand in the way. New Mexico has therefore made history as the first state to enact legislative qualified immunity reform for all public officials. As both Congress and other states around the country continue to debate policing reform in general and qualified immunity in particular, the enactment of the New Mexico Civil Rights Law is a welcome beacon of hope.