Editor’s Note: This is the third long-form explainer the Sun has published on the New Mexico Civil Rights Act. See links at the end of this story for previous articles on the majority and minority positions taken by the nine-member New Mexico Civil Rights Commission that voted 5 to 4 to recommend the legislation.
Until the passage of the New Mexico Civil Rights Act (House Bill 4) during this legislative session, citizens could not sue for damages for violations of their civil rights, except in some law-enforcement cases. The government entity whose employee or elected representative violated a person’s rights will, if the governor signs HB4, now pay the damages.
Since Governor Michelle Lujan Grisham spearheaded the formation of a nine-member Civil Rights Commission to study the need for such legislation shortly after George Floyd was killed by Minneapolis police in May 2020, it is likely she will sign the bill, which responds to a nationwide wave of citizens’ demands for civil rights reform.
HB4 passed along party lines in both the New Mexico House and Senate, with the Democrats in favor of and the Republicans against the bill. District 4 Senator George Muñoz was the only Democrat to vote against the bill, according to the Albuquerque Journal.
The bill’s ability to effect real change, however, will be determined by the voter. If voters recognize that the taxpayer will bear the cost of defending civil rights lawsuits, they will have an incentive to choose leaders who will hold government workers accountable and purge bad actors. Government will act more equitably, and the public purse will be preserved.
Proponents of the legislation’s enactment include Americans for Prosperity–New Mexico and the LIBRE Initiative–New Mexico, nonpartisan organizations that advocate for individual rights and limited government. Leaders of the two organizations sent a letter this week to the governor, urging her to sign the bill for the following reasons:
“When a law enforcement officer acting in an official capacity violates an individual’s constitutional rights, it’s important to ensure the victim has appropriate legal recourse. Under current law, however, government officials are immune from liability in such instances, even when their actions contradict either the law or official guidelines and code of conduct. This undermines both individual rights and attempts at accountability. It also leaves victims without any legal recourse when harmed by a government official acting in his or her official capacity.”
LOCAL REPUBLICAN OFFICIALS UNANIMOUSLY OPPOSED
Sierra County’s local and state elected officials, on the other hand, have all spoken out against the bill, generally offering reductive arguments that it is anti-law enforcement and will increase the insurance premiums and settlement costs of local and state government, ultimately at a cost to the taxpayer.
Representative Rebecca Dow (R-District 38) spoke on the House floor, just before voting nay on whether to concur with the Senate’s version of the bill, as amended. The Senate had passed the bill after midnight on March 17, and the House concurred the same day around 3 p.m.
“It just strikes me that we are excluding certain folks for being liable for civil rights violations while we continue to place a target on our law enforcement officers,” Dow said, referring to judges and legislators, as well as acequias and other government water organizations, exempted by the bill.
Senator Crystal Diamond (R-District 35) said on her official FaceBook page, minutes after the Senate floor vote: “Is your Senator one of the 26 that turned their back on law enforcement tonight?!”
“Perhaps one of our most divisive bills this session,” Diamond’s post continued, “HB4 passes the senate 26-15 at 12:20 am, behind locked doors without public participation. The bill removes qualified immunity for government employees, including police & fire fighters.
“This is an enormous legislative defeat,” Diamond concluded. “The disrespect this legislature has shown law enforcement is egregious & embarrassing. I have, and always will, back the blue.”
The Sierra County Commission unanimously passed a resolution opposing the bill on Feb. 16. The resolution states that, since the New Mexico Tort Claims Act waives sovereign immunity for the police in some cases, the Civil Rights Act is “unnecessary to address New Mexico constitutional deprivations by law enforcement officers.”
Neither the Civil Rights Act nor the Tort Claims Act allows individuals to claim punitive damages, only compensatory damages. The Civil Rights Act caps damages at $2 million and includes attorney and legal fees, the latter to be awarded at the judge’s discretion. The Tort Claims Act allows individuals to sue law enforcement officers for civil rights violations if they suffer primarily physical and property damages, capping recompense at $1,050,000. Attorney fees, if awarded to the plaintiff, are not included and must be paid in addition to the damages cap.
“Uninsured judgments that cannot be satisfied through existing resources will be paid by our citizens, through property taxes levied to meet the judgment,” the resolution states.
Sheriff Glenn Hamilton, who is a board member of the New Mexico Association of Counties, which also opposed the bill, said HB4 was promoted by “essentially the lawmakers who are lawyers in the state house, who are bringing such legislation forward to enrich themselves.”
“I am not concerned about House Bill 4 as an elected official,” Hamilton said in an interview with the Sun, “because we don’t have these systemic civil rights violations you see in other parts of the country. We vet and train our employees on the Constitution and Bill of Rights.”
OPPONENTS CLAIM BILL WON’T SOLVE POLICE MISCONDUCT PROBLEM
Asked by the Sun if the new law would make other law enforcement agencies vet and train employees more carefully, Hamilton said “To an extent. It may change the actual selection process. We will definitely see changes in retention and recruiting, but most agencies are already doing this.”
Hamilton fears law enforcement agencies will be “hampered and hesitant to react,” due to the law. He cited the Albuquerque Police Department as an example.
“Crime has skyrocketed there,” Hamilton said. “Officers are afraid to do anything. That’s what bills like HB4 will create.”
What Hamilton failed to acknowledge is that APD’s court-imposed agreement to effect reform has largely failed.
For the last six years the APD has been monitored by the U.S. Department of Justice, which brought a lawsuit against the department for violations of the Fourth Amendment prohibiting unreasonable search and seizures. The City of Albuquerque signed a six-year agreement to implement use-of-force policies, training programs and accountability systems, according to a summary of U.S. v. City of Albuquerque, written by the University of Michigan Law School’s Civil Rights Litigation Clearing House. The agreement, which allows either party to withdraw and the matter to possibly be settled in court, expires this year.
The Court Appointed Special Advocate is James D. Ginger of Public Management Resources, Inc. Ginger issued a report in July 2020 that stated the goal of the agreement was to have the APD create a compliance and oversight division based on assiduous data collection that would be used to assess “field operations.”
After six years, compliance has “serious shortfalls, all relating to leadership,” Ginger’s report stated. The structures for data collection and training are in place, but “recommendations are filed away versus actualized.”
“We have no doubt,” Ginger’s report elaborated, “that many of the instances of non-compliance we see currently in the field are a matter of ‘will not’ instead of ‘cannot.’”
With the exception of crimes against property, which have decreased, crime in Albuquerque has risen, according to a February 2021 Albuquerque Journal article. Crimes against persons and crimes against society increased between 2018 and 2020. Crimes against people include aggravated assault, simple assault, shootings and stabbings, sex offenses. Crimes against society include drug offenses, illegal selling or possession or use of weapons and animal cruelty.
Of particular note is the 61 percent jump from 2019 to 2020 in weapons offenses, which were up 19 percent the year before. Drug offenses dropped 9 percent from 2019 to 2020, but rose 11 percent the year before. Sex offenses were down 19 percent from 2019 to 2020 and down 7 percent the year before.
The rise in crime rates after six years of effort to reform how APD trains, monitors and assesses officers in the field works against HB4 opponents’ argument that taxpayer money should be going to improving training at the Law Enforcement Academy, not to paying individuals’ damages and legal fees.
Four members of the Civil Rights Commission filed a minority report favoring Law Enforcement Academy training improvements which, in combination with clearing the backlog of officer certification hearings, would address, they claimed, the root cause of bad policing. The minority report authors were Senator Steven P. Neville (R-District 2), Doña Ana Sheriff Kim Stewart, former Belen Chief of Police Victor Rodriguez and Doña Ana County District Attorney Gerald Byers. The New Mexico Association of Counties supported the minority position that improving the LEA was preferable to passing civil rights legislation.
COST TO TAXPAYERS
In a March 18 interview with the Sun, Grace Philips, general counsel of New Mexico Association of Counties, said: “If litigation were the answer [to civil rights violations by government workers], we would be fixed.”
The Association presented to the Civil Rights Commission data about litigation costs paid in civil rights cases by the pooled insurance fund supported by 31 of the state’s 33 counties.
From 2012 to 2016, 1,342 civil rights cases were filedagainst New Mexico counties. The data does not distinguish between federal and state cases. Law enforcement officers were named as defendants in 21 percent to 32 percent of the cases over the five-year period.
The total cost to pay off settlements and judgments in all these cases was nearly $48.2 million. The Association estimated winning plaintiffs paid their attorneys one third of the settlement monies, or $15.9 million, keeping $32.3 million for themselves. An additional $1.25 million was paid directly to plaintiff attorneys.
Sheriff Hamilton explained that Association of Counties insurance must have “rider policies” to cover certain extraordinary situations, such as a detention facility’s failing to provide adequate medical attention to prisoners. Passage of HB4 will probably drive up rider costs, he said, resulting in “premiums we can’t afford or can’t get at all.”
The bill caps damages and attorney and legal fees at $2 million per claimant, per occurrence. “If there are five claimants for one incident,” Hamilton said, “that would cost a total of $10 million that may or may not be covered by insurance. That would unequivocally bankrupt” Sierra County.
Speaker of the House Brian Egolf (D-District 47), co-sponsor of HB4, said arguments about skyrocketing insurance rates were a “parade of red herrings that are completely nonsensical” during a hearing of HB4 before the House State Government, Elections and Indian Affairs Committee on Jan. 25. He pointed out that Bernalillo County, for example, is currently facing punitive and compensatory damages in federal court for law enforcement civil rights violations, “and they have insurance, despite facing unlimited damages.”
It should be noted that Egolf’s sponsorship of the bill has been referred by a fellow Democrat to the New Mexico State Ethics Commission as a possible violation of the state Government Conduct Act. An attorney whose Santa Fe law firm handles civil rights litigation, Egolf has been accused by retired Judge Sandra Price of trying to enrich himself by supporting this legislation.
Removing the judicial construct of “qualified immunity” that has protected government officials and staff in federal court will likely move federal cases to state district courts, Egolf said, “but with less exposure” for damages, which are for punitive and compensatory damages and are not capped in federal court.
The Civil Rights Commission, in its final report, stated 1,201 federal civil rights cases were filed against New Mexico government workers from 2012 to 2016. In 95 percent of those cases, law enforcement officers were named as the violators.
The Civil Rights Commission provided statistics showing that the bill’s elimination of qualified immunity should not greatly increase the number of cases filed in state courts. Only about 5 percent of the New Mexico civil rights cases currently filed in federal court were dismissed because immunity was granted to a government worker.
The majority members of Civil Rights Commission drew two conclusions about increased cost to government entities. “The costs are difficult to quantify. . . .” their final report stated. “And the majority is concerned that the inability to answer this question concretely in advance invites speculative doomsday scenarios that never will come to pass.”
Second, the cost factor “would act as an incentive for government entities to impose training, oversight and accountability policies that are necessary to prevent government misconduct,” the commission’s final report states. “By implementing aggressive loss prevention programs, the state and local governments can avoid constitutional violations in the first place.”
Civil Rights Commission Vice Chair Mark Baker drafted the final Civil Rights Commission report and House Bill 4. Bake is an attorney with Albuquerque law firm of Peifer, Hanson, Mullins and Baker. He was responsible for prosecuting criminal civil rights cases in New Mexico as assistant U.S. attorney for the District of New Mexico prior to joining the firm.
Baker did not respond to the Sun’s request for comment on the bill’s passage.
SPECIFICS OF THE NEW MEXICO CIVIL RIGHTS ACT
HB4 allows individuals to bring suit in any New Mexico district court against government entities for elected officials’ and government employees’ acts or failures to act that result in New Mexico constitutional rights violations.
Claims can only be brought against a “public body” (i.e., government entity).The public body must “indemnify” or pay for the government worker’s defense.
The bill prohibits the use of “qualified immunity” as a defense. The bill also creates an action that strips “sovereign immunity” from government officials, who were previously given such immunity under the New Mexico Tort Claims Act. Any person acting on behalf of or under the authority of a public body may now be named in civil rights actions brought by individuals.
Plaintiffs may ask for compensatory damages and attorney and legal fees up to $2 million per claimant, per occurrence. The cap will rise each year in keeping with increases in the consumer price index and be rounded to the nearest $10,000 multiple.
The Civil Rights Act allows claimants to also file Tort Claims Act cases. During discussion on the House floor on March 17, Representative Georgene Louis (D-District 26), co-sponsor of HB4, clarified that, yes, “you can file both, but recovery is one or the other. It is not in the bill, but covered under the Doctrine of Selection of Remedies.”
Louis also clarified that one of the Senate amendments to HB4 made attorneys’ fees awards discretionary and that the plaintiff must petition the judge to award them. The judge could award the amount requested or a lesser amount.
HB4 imposes a three-year statute of limitations, and the occurrences in question must have taken place after July 1, 2021.
Each claimant must give the public body prior notice that provides the time, place and circumstances of the civil rights violation and the damages incurred within one year of the occurrence. Otherwise the case will not be admitted into court.
If a claimant is incapacitated or has died, a personal representative has 18 months after the occurrence to give prior notice to the public body.
Each public must keep a record of all final judgments and settlements it has paid for New Mexico Civil Rights Act claims and attach a copy of the complaint to each record.