Civil Rights Commission minority report claims proposed new law doesn’t fix police misconduct or enhance accountability

by Kathleen Sloan | December 11, 2020
5 min read
The commission's report is now under review by committees of the New Mexico Legislature.

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 creates 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.”

Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at or 575-297-4146.
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Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies 

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.


This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.


Civil Rights Commission recommends new state law stripping public employees of immunity against lawsuits
by Kathleen Sloan | November 19, 2020

Sierra County Commission claims public coffers can’t afford this reform.

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