The New Mexico House of Representatives this week approved a bill that would allow people to sue government agencies for violations of rights protected by the state constitution. The bill, which is based on recommendations from a state Civil Rights Commission that the legislature and Gov. Michelle Lujan Grisham established after George Floyd’s death last May, still needs approval by the state Senate. If it passes and Grisham signs it, New Mexico would be the third state to authorize new civil remedies for police abuse without the barrier of “qualified immunity” since Floyd was killed by Minneapolis police.
Qualified immunity, a restriction imposed by the Supreme Court, bars federal civil rights lawsuits unless they allege misconduct that violated “clearly established” law. In practice, that requirement is so formidable that it’s unclear whether former Minneapolis police officer Derek Chauvin, who faces murder and manslaughter charges for killing Floyd by kneeling on his neck for more than eight minutes, could be held accountable under 42 USC 1983, which allows people to sue government officials for constitutional violations.
Defenders of qualified immunity warn that restricting or abolishing it would have a chilling effect on policing, forcing officers to constantly worry about being sued for doing their jobs. The New Mexico Civil Rights Act, like the laws that Colorado and Connecticut passed last year, addresses that concern by requiring government agencies (i.e., insurers and taxpayers), rather than individual defendants, to pay legal costs and damages. Notwithstanding that concession, every single Republican in the state House, joined by five Democrats, voted against the bill.
The bill will next be considered by the Senate Judiciary Committee. Its chairman, Sen. Joseph Cervantes (D–Las Cruces), said the legislation will receive “a great deal of scrutiny,” although he also said he was pleased by amendments aimed at allaying the concerns of local governments. Democrats outnumber Republicans by 27 to 15 in the Senate, so passage seems like a real possibility if the partisan split on the bill is similar to the vote in the House. Both chambers would have to approve the same version of the bill and send it to Grisham for her signature by March 20.
Colorado’s law requires indemnification of a police officer who is sued unless “the peace officer’s employer determines that the officer did not act on a good faith and reasonable belief that the action was lawful.” Connecticut requires municipalities to cover all defendant expenses unless an officer’s misconduct was “deliberate, willful or committed with reckless indifference.” The New Mexico bill goes even further, ruling out individual liability in any circumstances.
Even without such legal requirements, police officers almost never have to pay a dime for their misconduct, since their employers routinely indemnify them. This issue is therefore mostly a red herring in the debate about qualified immunity. The fact that Republicans uniformly opposed the New Mexico bill even with a guarantee against personal liability further demonstrates that opposition to reform is actually based on other, less popular concerns.
The New Mexico Civil Rights Act, like 42 USC 1983 but unlike the Colorado and Connecticut laws, covers all government officials, not just police officers. It authorizes damages of no more than $2 million for “deprivation of any rights, privileges or immunities pursuant to the bill of rights of the constitution of New Mexico.” It requires a losing defendant to cover the plaintiff’s legal costs, and it specifies that “the defense of qualified immunity” does not apply, meaning that plaintiffs will get a chance to prove their claims even if they cannot locate precedents with nearly identical facts.
“The bill has drawn fierce opposition from city and county governments that argue they already face costly legal exposure for wrongdoing by law enforcement and correctional officers,” the Albuquerque Journal reports. “The New Mexico Association of Counties warned about the possibility of counties losing some of their insurance coverage, leaving less money to pay out claims.”
That concern also seems to be overblown. According to a January 5 report from the University of Connecticut’s Insurance Law Center, insurers are not worried about the impact of that state’s law. The authors found “no evidence” that Connecticut’s new cause of action will “substantially increase the cost of municipal liability insurance.”
That finding cuts both ways, of course. Contrary to the concerns raised in New Mexico, it suggests that allowing people to sue abusive police officers under state law without having to overcome qualified immunity won’t have much of an impact on local budgets. But contrary to the hopes of the doctrine’s critics, it also suggests that eliminating the defense won’t give local governments much of a financial incentive to prevent police misconduct.
That hardly means there is no benefit from abolishing qualified immunity. First and foremost, more victims of police abuse, ranging from shockingly reckless behavior to deliberate misconduct, could obtain compensation for their injuries. And even if the cost of those payouts does not figure prominently in the decisions of police departments and local governments, the negative publicity generated by such cases would provide an incentive for better training and supervision. UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, also argues that more cases and more trials could “influence officer behavior” by disclosing information about policies and practices that is “sometimes unknown to the government entities whose employees are implicated in the suit.”
Scrapping qualified immunity also would help clarify important constitutional questions that currently go unresolved as courts block lawsuits without deciding whether the actions they allege were illegal. The Supreme Court has allowed that shortcut since 2009, when it said judges need not assess a plaintiff’s constitutional claims if they conclude that the rights police allegedly violated were not clearly established at the time.
“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” says Institute for Justice Attorney Keith Neely, who submitted testimony in support of the New Mexico bill. “For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. We urge the Senate to seize this historic opportunity to end this injustice. Any police reform bill is only meaningful if it includes reform to qualified immunity.”