We need a New Mexico Civil Rights Act because although we have many state constitutional rights, there’s no reliable way to enforce them. So said the New Mexico Civil Rights Commission, and the Legislature is working on it.
Say someone violates your right to free speech or worship. You can sue to make them stop; but if they aren’t forced to pay damages, suing may have little impact; and if there’s no attorney-fees provision, you’d better hope a well-funded nonprofit or an especially committed lawyer offers to represent you.
Our Inspection of Public Records and Whistleblower statutes work because judges must award attorney fees if you win. A lawyer who believes your case is righteous and winnable has some chance of getting paid; and the public entity may behave better and settle cases reasonably, to avoid big payouts.
The U.S. enacted a law (42 U.S.C. §1983) 140 years ago that allows suit on federal constitutional violations and recovery of damages. In the late 20th Century, when Congress added an attorney fees provision, that statute became a powerful tool to right constitutional wrongs.
Unfortunately federal courts tacked on “qualified immunity,” which basically means you not only have to prove an official violated your rights, but that s/he did so in a way that another case previously acknowledged. That might be reasonable in the first case on whether wearing or burning a flag is protected speech; but courts have gone crazy. A cop in a home shoots at the family dog and hits a nearby child instead. Court dismissed the §1983 action because there hadn’t been a case of someone accidentally shooting a child while trying to shoot a dog. Given our Fourth Amendment protections, you’d think §1983 would apply to cops stealing $250K in rare coins during a search; but while the judge agreed it was bad conduct, he couldn’t find a previous case holding that stealing was an unreasonable search and seizure.
“If the law says that, the law is an ass,” in Mr. Bumble’s words. The Commission agreed, and recommended we not allow the qualified immunity defense here, although the vote was close. Cities, counties, and cop-shops screamed. It seems fair that if you’re going to lower the legal boom, officials should have a clue that what they’re doing violates constitutional rights; but the new law (or an amendment) could address that directly, and not so drastically. The issue doesn’t seem a valid objection to the entire law.
Other important considerations are whether or not to allow punitive damages (Commission voted “No,” 5-4); whether to cap compensatory damages (Commission didn’t, I wouldn’t, but a legislative committee added a $2,000 cap); and whether the individual government employees at fault should pay too (they won’t, so far).
My gut says officials who violate constitutional rights should pay, if their conduct is really bad; but cooler heads point out that hiring could get tough, if middle-class cops and others started worrying that an honest mistake could cost ‘em big bucks. The point is to have an impact on cities and counties, and improve training and supervision, not just to punish one person. (The Commission also recommended improving the Law Enforcement Academy’s training and enforcement.)
The House has signed on, 39-29. I hope the Senate will, too.
But all sides warn that the public shouldn’t expect this to be a panacea, effecting some sweeping reform of law enforcement.
Still, it’s progress.
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[The above column appeared this morning, Sunday, 21 February 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG’s website. A related radio commentary will air during the week on KRWG (90.7) and KTAL-LP. (101.5 – http://www.lccommunityradio.org/), and is available on demand on KRWG’s site.]
[ The Civil Rights Commission Report is available at on this state website, and is readable and not overlong. There are also Public Comments, which are illuminating in tat they illustrate that the basic need for the civil rights act is something folks of all political persuasions agree on. It’s one of the rare points of agreement between the Koch-ish Americans for Prosperity, say, and myself. I liked a couple of comments from noted defense attorney Gary Mitchell:
I do support a civil cause of action for violations of civil rights which does away with the doctrine of qualified immunity and allows attorney fees and costs to the prevailing party. The greatest denigration of the Federal Civil Rights Act is the doctrine of qualified immunity. New Mexico without doing away with it will face the same fate. Furthermore, why should be at this time, in this day and age continue to tolerate violations of the civil and constitutional rights of human beings. We can talk all way about police reform but I assure you if police had to pay for violations of civil rights reform would be quick and thorough.
Question 2:Do you believe allowing people to bring lawsuits to recover for violations of the New Mexico Constitution would improve how Government agencies and officials operate and/or the policies and procedures they create?
You bet it would and in a heartbeat. Ask yourself why we should continue to tolerate discrimination anywhere at anytime.
Question 3:If you are familiar with the doctrineof qualified immunity, do you believe qualified immunity should be a defense to a lawsuit for violations of the New Mexico Constitution?
Absolutely not. Qualified immunity in its simplest sense implies that police officers and government officials are so ignorant, so poorly educated, so steeped in improper conduct and methods we must give them an excuse-yet my preschool grandchildren know when they are doing something wrong to someone and when they are not treated someone equally. Surely we could and should expect greater knowledge than a four year has from police and government officials.
Question 4: Should government actors found liable for civil rights violations be indemnified in such actions by either their government employer or its insurers?
Yes, most certainly because that will make certain employers do their due diligence in hiring and having performance standards. ]
And prominent defense attorney Michael Stout’s comment on qualified immunity is short, sweet, and accurate:
Question 3:If you are familiar with the doctrine of qualified immunity, do you believe qualified immunity should be a defense to a lawsuit for violations of the New Mexico Constitution?
No. As I understand it, the initial concept of qualified immunity in federal law was well-intended to protect against abuses, but the exception has swallowed the rule resulting in the abuses of government actors escaping accountability .Government actors must be presumed to know the constitution; if an actor violates constitutional protections s/he should be held accountable ]
[NOTE: Last Sunday’s column discussed the widespread hope that the New Meixco Legislature would \rescind the old statute (unenforceable under Roe v. Wade) criminalizing abortion. Both houses having voted top do so, and the Governor favorable to the move, it seems to be happening. ]
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