Considering HB 4, New Mexico’s Civil Rights Act

HB 4 the New Mexico Civil Rights Act, is an ambitious piece of legislation introduced by Speaker Brian Egolf in the 2021 legislative session.

The legislation itself is moving through the process AND has been amended, but we are going to discuss it in general terms here. We ALL want improved public safety AND for civil rights to be protected, but it doesn’t appear that HB 4 does much to improve the situation in New Mexico. The legislation will also be expensive for taxpayers with costs expected to start at $20 million annually.

Ultimately, increasing the ability to litigate against law enforcement is not going to improve policing in New Mexico. This is especially true in rural New Mexico, where local, especially rural, governments cannot afford to pay, recruit and train qualified officers.

1. There has never been qualified immunity for lawsuits brought under New Mexico law against New Mexico law enforcement officers.
2. You can clearly sue for violations of the State Constitution under the Tort Claims Act. It’s embodied in existing law.
3. In some areas, including search and seizure and privacy, the New Mexico Constitution actually provides broader protections than the U.S. Constitution.
4. The probable reason defendants are arguing that there is immunity for some State constitutional claims is because the State Constitution contains vague references to “life and liberty” which some courts, understandably, have determined to be too vague to find a waiver of SOVEREIGN immunity under the Tort Claims Act. This is not “QUALIFIED IMMUNITY.”
5. Fundamentally, the reason we are so up in arms about so-called constitutional violations by government is because we have allowed government to have an ever expansive role in our lives. Obviously, the more power and intrusive the government is, the more likely it is we will find a constitutional violation in some area. Limit government’s reach, on the other hand, and the violations would also dissipate.