New Mexico Eliminates Qualified Immunity for Public Officials, Including Police

April 8, 2021 Updated: April 8, 2021

New Mexico has eliminated a legal defense known as qualified immunity, making it easier to sue government employees, including police officers, under a new law signed by Gov. Michelle Lujan Grisham on April 7.

The law, dubbed the New Mexico Civil Rights Act, also allows individuals to sue for compensation if a state or local government employee violates the person’s “rights, privileges, or immunities” within the scope of their employment.

“New Mexicans are guaranteed certain rights by our state constitution,” Grisham, a Democrat, said in a statement. “Those rights are sacred, and the constitutional document providing for them is the basis of all we are privileged to do as public servants of the people of this great state.

“Indeed, good public servants work tirelessly every single day to protect those rights, to ensure them, to safeguard New Mexicans. But when violations do occur, we as Americans know too well that the victims are disproportionately people of color, and that there are too often roadblocks to fighting for those inalienable rights in a court of law.”

Civil rights activists, legal scholars, and lawmakers have called on the U.S. Supreme Court to revisit the doctrine, which they argue prevents officials such as police officers from facing consequences for misconduct or abuse of power if their actions violate the U.S. Constitution but don’t contravene a “clearly established” rule.

The qualified immunity doctrine insulates government officials from civil liability for conduct required by the job. It comes from the Supreme Court’s interpretation of 42 U.S.C. Section 1983, commonly known as Section 1983, which provides a basis for people to sue state officials who violate a person’s constitutional rights.

The Supreme Court has said that it isn’t enough to show that the rights are violated. Victims must also show that the action was “clearly established,” and if they fail, the official could be granted qualified immunity. The “clearly established” rule, which is seen to be problematic by critics of the doctrine, requires the party suing the official to show that the facts in their case were sufficiently similar to the facts in prior court cases.

Proponents say the doctrine is important to allow government officials, such as police officers, to carry out their jobs with protection from undue interference and threats of liability. They also say it prevents frivolous or retaliatory lawsuits against officers.

Qualified immunity reentered the public consciousness amid protests last summer against police violence following George Floyd’s death in Minneapolis. The debate of whether the doctrine should still be upheld as sacrosanct has reached a crescendo in recent months, with lawmakers taking action to abolish the concept completely.

New Mexico follows a line of other states that have abolished or limited the operation of the qualified immunity defense. Democrat-led Colorado was the first state to pass a law that bypasses the operation of the defense by allowing individuals to bring civil actions police officers who violate the state’s laws. The New York City Council last month also passed a similar law.

The Supreme Court has so far refused to take up any cases that present the justices with opportunities to revisit the issue. The court last month turned away the chance to review the Supreme Court-made doctrine in a case where a Cleveland man sued two police officers who assaulted him while trying to enter his home in 2016. The officers, who wore plain clothes at the time, had mistaken the home as a vacant home in a high-crime neighborhood.

The justices didn’t give any reasoning for their decision.

Justices Clarence Thomas and Sonia Sotomayor had previously expressed interest in revisiting the doctrine, after they criticized its operation.

Meanwhile, former President Donald Trump’s administration, which was open to police reform, had criticized calls to eliminate qualified immunity. Trump’s last attorney general, William Barr, said that in situations in which an officer knowingly and willfully violates a well-established right, then it may be appropriate to hold the officer civilly liable. But he said qualified immunity is necessary to ensure police officers can do their job without fear.

Grisham on April 7 stressed that her state’s law is “not an anti-police bill.” She underscored that the law “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.”

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