Government Liability for Rights Violations

(Updated April 9.) New Mexico this week enacted a bill regarding liability of public bodies for rights violations by the bodies or their officers. Despite the headline and lead sentence of this WSJ article, there are important features of this bill that make it very different from the repeal of qualified immunity that is being pressed by the anti-law-enforcement crowd around the country.

The bill is titled the New Mexico Civil Rights Act, which seems like an excessively general title. It is actually a remedies act.

With regards to rights violations, the Governor had this to say in her press release:

“In response to some of the commentary surrounding this measure, I will say: This is not an anti-police bill. This bill does not endanger any first responder or public servant – so long as they conduct themselves professionally within the bounds of our constitution and with a deep and active respect for the sacred rights it guarantees all of us as New Mexicans.”

That is either dishonest or clueless. The bounds of the constitution are not bright lines.

Picture a football game being played in the snow. The receiver has caught the ball, and his job is to carry it as far as he can, evading the tacklers as best he can without going out of bounds. But where are the sidelines? They are covered in snow. After the play is over it may be possible to rake off the snow and see if his tracks are out of bounds. The folks with the techno-magic in the booth can draw virtual lines and see it in real time. But the receiver cannot and does not know.

The receiver could be certain he does not go out of bounds by staying far away from the sideline, but then the tacklers would have less ground to cover, and he would make much less yardage.

Crime is not a game. More crime means more people killed, more people robbed, and more people raped. If our police officers play it safe to avoid the boundary, they will make less yardage against criminals and there will be more crime and more victims. That is why the Supreme Court came up with qualified immunity, and that is why it serves an important function to this day.

But fortunately, as I said at the beginning, this bill is not the simplistic repeal of qualified immunity that the cop-haters are calling for.

The first important difference from the usual anti-police bill is that this law is not limited to police. It applies to all violations by a public body. Everything from schools to tax districts to building inspectors is covered. I’ll bet the folks at Mountain States Legal Foundation are licking their chops. If litigation under this bill becomes an excessive burden and expense, as I expect it will for reasons discussed below, those other bodies will come screaming to the legislature for relief and likely get it. The 47th state in per capita income can’t afford to create a lawyer’s bonanza against itself.

Second, and perhaps most importantly, this bill does not authorize suits against individual officers. Section 3C provides, “Claims brought pursuant to the New Mexico Civil Rights Act shall be brought exclusively against a public body.” Section 8 provides that the judgment will be paid by the public body. It also provides for unqualified indemnification for the people acting on behalf of the public body, i.e., the ones whose actions are challenged. That initially seems redundant, since under 3C they can’t be named as defendants in the first place, but I expect that lawyers will sue the cops anyway, so this backup is good to have.

The greatest danger to police officers from the anti-immunity drive is the threat of personal civil liability hanging over their heads, with potential damage awards that amount to the total destruction of their personal finances. Anti-immunity advocates brush this off with the observation that the employers generally indemnify officers. Sure. Would you jump out of an airplane with the assurance that your type of parachute “generally” works?

The greatest danger to the law-abiding public from immunity repeal is that officers will become reluctant to take the actions needed to control crime, as noted above. That danger is present in a law imposing liability on the agency, since pressure will inevitably flow down to the officers, but it is attenuated.

Third, Section 4 purports to abolish the defense of qualified immunity, but does it really? It does so only for actions under this act, which must be solely against the public body. So what has really been abolished here? Unless New Mexico law is very different from federal, the public bodies never had qualified immunity in the first place. It looks to me like what New Mexico has actually abolished is the rule of Monell v. New York City Dept. of Soc. Services (1978) that in civil rights actions, unlike most civil actions, employers are not automatically liable for the actions of their employees within the scope of employment. In Section 10, all other immunities are preserved. (Of course, the legislators took care to specify that their immunity remains fully intact.)

If officers cannot be sued under the new act and whatever immunities existed under others laws still exist, what are they not immune from that they were immune from before?

Another notable feature is a cap on damages of $2 million, indexed for inflation. A runaway jury cannot award the entire state treasury to one plaintiff.

An ill-advised provision provides for attorneys’ fee awards for prevailing plaintiffs–regardless of how close the case is on the facts or how novel the theory of liability–and no countervailing provision for the defendant regardless of how baseless the suit may be. In my view, attorneys’ fee provisions should be symmetrical, and they should only provide awards for parties who prevail on clearly proven facts applied to established law. This provision will foster excessive litigation, I predict, leading to urgent calls from government entities to amend the law.

On the whole, this bill isn’t that bad, compared to other proposals floating around.

One more question. If New Mexico now provides a full compensation mechanism for search-and-seizure violations, what is the continued reason for excluding evidence from criminal trials on that ground? No good ones that I can see.

The bill is HB 4.