New law removes provisions that shield government agencies from financial liability related to misconduct
By Morgan Lee
Associated Press
SANTA FE, N.M. (AP) — Efforts among a handful of states to hold police accountable for brutality and misconduct expanded Thursday as New Mexico opens the door to civil rights lawsuits against government agencies in state court.
The New Mexico Civil Rights Act removes immunity provisions that shield government agencies from financial liability related to misconduct, though individual officials won’t pay for damages.
As the law takes effect, local police agencies are bracing for an onslaught of lawsuits that can carry liability awards of up to $2 million per event. At least one county sheriff’s department has been declined private insurance coverage — highlighting concerns about potential payouts.
The legislation, drafted amid nationwide protests over police brutality and institutional racism, reaches beyond law enforcement practices and applies to potential misconduct at nearly every state and local government agency, including school districts.
Attorneys also hope to harness the law to address cruel conditions in prisons or abuses in foster homes for children. They note that New Mexico’s Bill of Rights goes beyond federal guarantees to prohibit discrimination on the basis of sex.
“New Mexico has had a Bill of Rights in its Constitution. We’ve never had a effective way to enforce those rights, or protect those rights,” said Maureen Sanders, a civil rights attorney who provides voluntary legal advice to the American Civil Liberties Union. “This will ... give you an appropriate way to bring claims when foster kids are injured by the Children, Youth and Families Department, or an individual’s 1st Amendment rights are violated by a county commissioner.”
The legislation, signed by Democratic Gov. Michelle Lujan Grisham in April, was backed by an unusual coalition of progressive civil rights advocates and politically conservative proponents of greater accountability in government. The conservative-backed nonprofit group Americans for Prosperity, supported by billionaire Charles Koch, was one prominent supporter.
The U.S. Supreme Court recently declined to take up several challenges to the legal doctrine known as qualified immunity, which shields officials from lawsuits for money as a result of things they do in the course of their job.
Several states are no longer waiting to hold police or law enforcement agencies financially responsible for wrongdoing.
Colorado last year became the first state to place limits on the use of qualified immunity as a defense in law enforcement cases, and Connecticut has established an avenue for people to seek financial damages in wrongdoing by police.
In New Mexico, Farmington Police Chief Steve Hebbe oversees a force of 125 sworn officers and worries that the new civil rights law will highlight mistakes and not solutions.
He said his department already has two lieutenants assigned full-time to the review the use of force by officers, and that consultations with national experts are coming soon.
“We anticipate we’re going to be sued more as policing agencies,” Hebbe said. “The goal of it was to hold departments accountable, I get that. It’s tough to plan, then. What does this all look like ( in the future)? I can’t tell you that I know that yet.”
Republican state legislators unanimously opposed the immunity reforms in a display of solidarity with police and amid concerns that civil rights lawsuits might undermine local government finances — including law enforcement budgets — and be counterproductive.
Democratic House Speaker Brian Egolf championed the abolition of immunity — and came under criticism as an attorney whose legal practice profits in part from civil rights litigation. He said the new state law goes beyond policing or political leanings and can be used to call out government infringement on the right to bear arms or freedom of religious worship.
Human rights advocates foresee advances for vulnerable populations — including prison inmates who don’t easily garner sympathy.
Steven Robert Allen, an advocate for improving prison conditions as director of the New Mexico Prison & Jail Project, said that the state’s constitutional prohibition against cruel and unusual punishment has been “nice on paper, but meaningless” until now.
Allen expects complaints against lockups that faced insurmountable odds in federal court can now move forward.
The financial implications for taxpayers is unclear, as private insurance providers and mutual insurance pools for local governments recalibrate costs.
New Mexico’s risk-management division that provides a legal defense to state personnel and agencies estimates a 35% increase in the number of annual civil rights lawsuits. It says settlements and jury awards are likely to nearly double to $6.6 million annually.
At the Bernalillo County Sheriff’s Office, an agency of 330 people headquartered in Albuquerque, lapel cameras were adopted less than a year ago — a mandatory provision of reforms in 2020 by state lawmakers.
Sheriff’s Office Captain Nicholas Huffmyer said the state’s new Civil Rights Act won’t change his agency’s field protocols for the use of force that hinge on the imminent threat of harm, the presence of a weapon and resistance to arrest.
“You cannot use financial liability as a fulcrum to adjust how you deal with use of force,” said Huffmyer, who oversees internal affairs. “We have other constitutional requirements.”
