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.
- There has never been qualified immunity for lawsuits brought under New Mexico law against New Mexico law enforcement officers.
- You can clearly sue for violations of the State Constitution under the Tort Claims Act. It’s embodied in existing law.
- In some areas, including search and seizure and privacy, the New Mexico Constitution actually provides broader protections than the U.S. Constitution.
- 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.”
- 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.
This bill is absolutely frightening. Think for a moment who will want this job, what is going to happen to our existing police force. Without qualified immunity there will be no police force, and smart candidates will run the other direction.
Actually this a big money grab by a handful of plaintiff bar attorneys at the expense of NM Taxpayers that will do nothing to reduce Civil Right Abuse.
• HB 4 HJC Sub will do nothing to increase accountability for law enforcement officers who can already be sued for money damages under state law for violation of the state constitution and will do nothing to improve the quality of policing in New Mexico. Making cities and counties pay more money, much of it to plaintiff’s attorneys, years after an incident does nothing to fix bad behavior and will reduce the dollars available for training, recruitment, and retention.
• Transforming general liability and property claims into constitutional claims with increased money damages and attorney fees will consume dollars needed for essential governmental services. The Tort Claims Act balances the need to compensate individuals harmed by governmental mistakes and the need for government to continue to have the resources to provide essential services. Adding attorney fees and increasing the caps for ordinary auto and general liability claims will unnecessarily deplete funds needed to provide essential services. The HB4 HJC Sub would create a financial incentive for lawyers to litigate these claims in order to collect their fees at least tripling or quadrupling the cost to taxpayers.
• Providing for attorney fees will increase the number of cases filed and the cost of cases already brought under current law. State Court is not the same as federal court. Unlike federal court, state court rules do not include a tool to promote settlement early in the litigation process. Rule 68 of the Federal Rules of Civil Procedure authorizes a defendant to make a formal offer to take judgement against them and settle a case at any time in the litigation. If the plaintiff does not accept the offer and the jury award is less than the offer, the plaintiff’s lawyer cannot collect an attorney fee award for fees accrued from the date the offer was made. Federal law also provides that fees can be awarded to the “prevailing party” providing government with a tool to recover their fees incurred responding to frivolous claims.
• Passage of this legislation could make county jails and sheriffs uninsurable. Coverage for county detention facilities and law enforcement in the New Mexico County Insurance Authority pool is purchased from a reinsurer that will cease offering coverage to counties if the proposed law is enacted.
• Taxpayers don’t need another bill. When insurance coverage is inadequate, the shortfall must be covered by governmental budgets and/or assessment of property taxpayers.
• The purported “Cap” contained in HB4 HJC doesn’t accomplish its goal because it is per claim and per claimant and in addition to other remedies allowed by law. An individual could easily reach $2.70 million under this proposed language by bringing claims under this law and the New Mexico Tort Claims Act. If there are claims by multiple plaintiffs for the same occurrence the cap would be limitless. Adjustments to the cap are automatic and only go one way—increasing annually with the cost of living but not decreasing if the cost of living goes down. (pp 4-5)
• The defense of qualified immunity is not available under New Mexico law. Thus, the bill prohibits something that does not exist.