Four of the nine New Mexico Civil Rights Commissioners voted against the majority’s recommendation a new law be passed that will make it easier to sue government employees for violating citizens’ civil rights. The commission’s report is now being reviewed by New Mexico Legislature committees.
The minority report, authored by the four commissioners, was recently released on the New Mexico Civil Rights Commission website, where it is attached as the last exhibit among several in the majority’s report.
The hard-to-find minority report claims the commission’s hearings and information-gathering process suppressed opposing viewpoints. The majority’s proposed legislation, which grants a “private right of action” enabling civil rights suits, was a “predetermined” result, the minority report states.
The minority commissioners are:
State Senator Steve Neville, representing since 2005 a district in the northwestern part of the state, which includes Aztec and Farmington;
Doña Ana Sheriff Kim Stewart, elected November 2018 and took office January 2019;
Doña Ana County District Attorney Gerald Byers, elected November 2020;
Former Chief of Belen Police Victor Rodriguez, who left office and filed a lawsuit claiming Belen’s mayor had retaliated against him after he reported excessive use of force by officers. (The case was settled in April 2020 with the chief’s having been paid $187,000.)
The minority report claims the majority wrongly broadened the commission’s purview to include all government employees, stating: “The Commission was purportedly created to address law enforcement misconduct and accountability in the wake of a national outcry regarding excessive force incidents.” It also claims the “majority’s proposed bill . . . instead, with regard to law enforcement claims, simply serves to benefit lawyers and make it easier for them to collect fees.”
House Bill 5, which created the Civil Rights Commission last February, does not support the minority’s claim. The bill empowered the commission to examine whether a “new cause of action” is necessary to enable citizens to sue any government employee for civil rights violations, most of whom are protected by the state’s sovereign immunity law. The majority report further explains it would be unfair to focus solely on law enforcement in developing a civil rights law.
The minority report argues a new cause of action against law enforcement is not needed because the New Mexico Tort Claims Act already excludes officers from claiming sovereign immunity. It points out that the legislature strengthened the Tort Claims Act during the 2020 legislative session by, first, expanding the definition of law enforcement officer to include anyone “with the power to maintain order.” Second, law enforcement officers may now be sued for “deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico.”
The majority report criticizes the Tort Claims Act as a patchwork that “limits constitutional claims against law enforcement officers to those involving personal (physical) injury, bodily injury, wrongful death and property damage, does not allow for attorney fees, and imposes outdated caps on damages.”
Without providing for attorney fees, the majority report states, most people will not be able to afford—and attorneys will not take—such suits.
Limits on damages and attorneys’ fees are necessary to protect the public purse, the minority report argues. “The New Mexico Tort Claims Act strikes a balance between the ‘inherently unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity’ and the specter of governmental bankruptcy that could result from uncapped liability.”
The Tort Claims Act caps property-damage claims at $200,000 and medical expenses—past and future—at $300,000. Other claims, such as for wrongful death, are capped at $400,000.
The minority commissioners state they would have entertained increasing the caps, but amending the Tort Claims Act was never presented as an option. They do not support the majority’s proposal that the new law include “compensatory damages.”
“Pain, suffering, emotional distress and similar components of compensatory damages are impossible to quantify,” the minority report states, adding that “juries can and do award large amounts.”
In response, the majority report observes punitive damages, meant to punish the wrongdoer, were excluded from the proposed law to limit increases in award amounts and government insurance costs.
The minority report warns the “majority’s recommendation will dramatically expand public liability in almost every other area of government conduct.” If the law passes, “county commissioners, city councilors, school teachers” and other government employees can be sued. Removing their immunity is “straying far afield from the public reckoning over police brutality that prompted the creation of this Commission.”
While the majority report claims it is impossible to know if government insurance policies will increase to unaffordable levels, the minority report states the testimony by insurance providers made it clear costs will go up.
If the new law is passed, it “will further dry up the insurance market, reducing the amount of money readily available to pay claims, requiring local governments to self-insure unsustainable amounts of risk.”
Increased insurance fees and court costs create
s a “real risk of closure of small, rural police departments” and “privatization of some or all county jail operations, reversing positive trends in recent years away from privatization and reducing quality of care,” states the minority report.
Finally, the minority report concludes the new law “will not increase individual law enforcement officer accountability, since taxpayers rather than officers will foot the bill.”
The majority report’s recommended law does not remove “indemnification,” meaning governments pay for employees’ legal defense. Indemnification is needed to ensure people will enter public service, the majority report states.
To fix the “root cause of many claims against government,” the minority report states government should direct more “resources to treat substance abuse and mental health disorders in non-penal settings.”
State resources should also be directed to “law enforcement and detention officer recruitment, retention and training and other critical services,” and not “to claims and attorney’s fees.”