New Mexico becomes second state to eliminate qualified immunity, establishes civil rights act

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EL PASO, Texas (KTSM) — The elimination of qualified immunity in New Mexico seeks to redefine equity while also promoting civil rights.

Opponents argue it discourages law enforcement from doing its job.

Last week, Gov. Michelle Lujan Grisham signed House Bill 4 (HB 4), which established the New Mexico Civil Rights Act that eliminated qualified immunity.

New Mexico is the second state to remove qualified immunity; Colorado was the first state to implement an end to the practice in June 2020.

Now, individuals may sue the state and its actors over misconduct because the bill gives the public a right to file suit if “rights, privileges, or immunities” are violated.

Qualified immunity is no longer a defense for a public body or anyone acting on a public body’s behalf, like officers working for a municipality. 

The bill also has a provision that entitles the plaintiff an award for attorney and litigation fees, should they prevail in the lawsuit. 

“It’s essentially saying ‘we’re going to hold everyone to a similar standard of the law. If you’re a law enforcement officer, you’re going to have to stick to the rules and laws of the state, and you don’t get that kind of blanket leeway,” said Richard Pineda, an associate professor in the Department of Communications at the University of Texas at El Paso. 

The New Mexico Civil Rights Act makes the state’s constitution and its protections enforceable by the public. It acts as a governmental incentive to expand training oversight, and accountability policies to mitigate abuse of authority. 

“I think that the state of New Mexico is concerned that with qualified immunity, there’s a chance that agents of the government — in particular police officers and law enforcement officials — will be overzealous in how they act and will act regardless of attempts to protect individuals’ rights,” says Pineda.

Proponents of eliminating qualified immunity say the policy was unfair to victims who experienced civil rights violations but were unable to pursue justice. Advocates say qualified immunity was also dangerous to law enforcement because it gave the impression that officers “get off easy” and conflates all law enforcement.

“Good officers are lumped together with bad actors,” says the National Police Accountability Project (NPAP).

“So long as qualified immunity remains in place, all civil rights lawsuits are treated as ‘frivolous’ without the opportunity for a jury to decide if the injured person’s rights were violated or the government actor abused their authority,” the NPAP says. 

Opponents say eliminating qualified immunity will discourage officers from doing their jobs fully out of fear of litigation. 

“It’s very alarming, we’re already hearing from HR directors around the state that they might have trouble filling police slots. Why would police take a chance at serving if they could be sued?” says Steve Pearce, Chairman of the Republican Party of New Mexico. 

Pearce notes anti-law enforcement sentiments have been perpetuated after the deaths of people like George Floyd, Breonna Taylor, and more. 

He says the left and the Black Lives Matter movement are to blame.

“The party that’s talking about dropping qualified immunity is also the same party that’s talking about defunding the police. It’s an organized effort to make it so that police can’t do their jobs,” says Pearce. 

Pineda says the issues of civil rights and qualified immunity have become politicized to the extent of extreme polarization that’s created an “us vs. them” mentality. 

“We saw this as the immediate reaction to Black Lives Matter. Immediately, people start talking about ‘blue lives matter,’ that police lives matter,” he says. “I think people are sort of missing the boat on what BLM stands for and what their concerns are, which is proportionately, across the country, violence against African Americans at the hands of police is recorded at a much higher rate.”

Ultimately, the issue is one of equity that is making people uncomfortable. 

By removing the shield of qualified immunity, law enforcement officers are subject to civilian legal standards that enables civilians to pursue litigation if a civil rights violation occurs that Pineda says is a good idea in theory.

The philosophy and the practice though, are two very different things.

Opponents like Pearce say there were existing mechanisms in place to protect the public if the police push the limits of the law.

Data reveals that law enforcement officers rarely face criminal charges or internal disciplinary measures after committing misconduct.

In 2020, the National Registry of Exonerations reported that almost 40 percent of exoneration cases in the U.S. have involved police misconduct since 1989. 

“They just want to be able to raise their kids, take them to school, go to church on Sundays,” says Pearce. “That’s what the average citizen wants but there’s these radical views that the police are out killing people across the country.”

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