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.

FEE: Police Accountability Begins With Ending Qualified Immunity

Ben Harris at the Foundation for Economic Education writes that Police Accountability Begins With Ending Qualified Immunity

Following the death of George Floyd, peaceful—and less than peaceful—protests have broken out across the country against what is perceived as an abusive police system that often absolves officers of wrongdoing, sometimes in the most egregious cases. To address unjust policing and restore public trust will require big changes in state and federal policy, as well as in police practice.

Unfortunately, the Supreme Court has just passed on an opportunity to effect such change. Several petitions requesting the Court to re-examine a legal doctrine known as qualified immunity were recently denied, leaving little hope that the Court will take the lead on needed reform. Only Justice Clarence Thomas voiced dissent.

Qualified immunity grants police officers and other government officials immunity against civil lawsuits in the exercise of their responsibilities, subject to key limitations. Among the limitations outlined originally by Congress, a police officer loses immunity when he or she, “subjects… any citizen of the United States or other person within… to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”

Over the years, the Court has functionally neutered Congress’s original objective of holding public officials accountable for the violation of civil rights. As the case law has developed, the police and other officials receive immunity unless the facts indicate a constitutional right has been violated and the right was “clearly established” at the time of the misconduct.

The term “clearly established” is the minnow that has swallowed the whale.

To determine whether the right was clearly established, it must either be established by statute or case law. But which case law? The Supreme Court can “clearly establish” something as a right, but it rarely does so. Appeals courts have held they can clearly establish a right, but the Supreme Court has cast this assertion into doubt. So the lower courts are left with a Catch-22. They cannot enforce a right without it being established, but the only way to establish the right is to enforce it.

This has led to some of the most egregious case law in recent history. For example, the Cato Institute cites a Ninth Circuit case that alleged the police stole $250,000 in cash from homeowners. “The three‐​judge panel held that while theft may be “morally wrong,” the officers could not be sued because the Ninth Circuit had never specifically considered the issue, and therefore the right not to have police steal your property while executing a search warrant was not “‘clearly established’ in that jurisdiction.” Additionally, the Supreme Court has aggressively policed qualified immunity, supporting officers and dismissing petitions of citizens that would establish those rights.

We do not tolerate such behavior among private citizens; even less should we tolerate it among public servants, who, if anything, should be held to higher standards, not lower. Yet, the current state of the law holds officers to standards lower than is reasonable even for basic citizenship, let alone for their profession, and to avoid facing personal liability for their actions. While doctors and other health care professionals, lawyers, and even general laborers are held to standards of reasonableness appropriate to their work environment, often a more exacting standard, law enforcement is given a bar so low that nearly all conduct clears it.

When the Court created qualified immunity, its concern was that public officials would be deterred from executing their important responsibilities if mired in lawsuits. The Court’s concern is not completely unfounded. Law enforcement is a dangerous job and imposing the cost of a potential civil suit could discourage people from becoming police. However, these concerns are mitigated when provided additional context.

First, policing is not as relatively dangerous among professions as is commonly held. Bureau of Labor Statistics data indicate that log workers, fishery workers, aircraft engineers, roofers, garbage collectors, and many others all have more dangerous jobs than the police.

Second, the risks and costs of civil lawsuits can be managed through insurance markets, just as it is for other professions. Such insurance markets could also be a further check on police abuse. As Clark Neily of the Cato Institute has written:

Like police, doctors have a difficult and stressful job that sometimes involves making life‐​or‐​death decisions under conditions of uncertainty. But unlike police, doctors don’t expect the rest of us to pay for their mistakes. Instead, doctors carry professional liability insurance, which pays to defend them against malpractice claims and protects them from financial ruin by paying out damage awards to successful plaintiffs.

Insurance companies are exceptionally good at identifying risk. Think about car insurance. The more accidents or speeding tickets a driver has had, the higher their premiums will be. The same is true for teenagers, who tend to get in more wrecks than adults and therefore represent a greater risk to the insurance company.

Instead of spreading those risks among all of their policyholders, insurance companies charge risky drivers more while giving a break to their safest drivers, who pay less.

…insurance companies have powerful incentives to identify the greatest risks — whether drivers, doctors or cops — and charge them accordingly. If cops had to carry insurance, the worst offenders would quickly be identified and charged higher rates. If they failed to clean up their act, they would eventually become uninsurable and thus unemployable.

Currently, qualified immunity pushes the cost of police misbehavior onto victims and the public, but because those costs are diffused among many and the benefits concentrated among a few, it is difficult to muster the political momentum necessary to turn it around. Politics remains a barrier to reform.

Additionally, reducing police accountability in the short term is not only unjust, it also undermines the objectives of those who tolerate high leeway for the police. When members of society do not trust that law enforcement will be held accountable for its failings, mostly at the expense of a few, then it impacts the ability of law enforcement to protect people. When law enforcement is truly needed, such as to control rioting and violence, trust that any aggressive interventions are fair and reasonable will have already been compromised, which in turn leads to less trust and more potential rioting, which leads to more heavy-handed police interventions and so forth.

Abolishing qualified immunity raises the costs of misbehavior. And as the cost of abuse increases so will the reputation of law enforcement as an institution that serves all, as bad actors are priced out of the occupation.

But now the cycle is spinning in the opposite direction, largely due to qualified immunity. And it will continue to spin out of control until steps are taken to restore accountability for, and thus trust in, law enforcement.

Access to justice is a sign of an inclusive civilized society, and righting harms through civil law plays an important part in curbing injustice and providing redress to the injured. The Supreme Court has created a system that undermines Congress’s original intent to hold law enforcement accountable and denies civil law remedies to those who have been wronged.

Fortunately, Rep. Justin Amash has introduced a bill to end qualified immunity. Since the Court has proven derelict in its responsibility to defend the constitutional rights of Americans, it is now up to Congress to decide whether they will fulfill that duty.