Chants of “I Can’t Breathe” have echoed in streets in Albuquerque and across the country all summer after the killing of George Floyd in May at the hands of Minneapolis police.
Floyd’s death has led to hundreds of demonstrations across the country, including in Albuquerque and Santa Fe, competing with the COVID-19 pandemic for headlines and news coverage.
While it doesn’t have the cadence for a chant, ending the legal doctrine of qualified immunity has become a cornerstone of the Black Lives Matter movement and many progressive Democrats this summer.
The defense for public officials and employees of qualified immunity was created by the U.S. Supreme Court over the course of many decisions.
It is now seen as a barrier to holding police officers accountable when they use excessive force.
Even with qualified immunity used as a defense, civil rights and wrongful death lawsuits in police use-of-force cases in New Mexico courts have cost state and local governments millions of dollars over the last 20 years.
Now the state Legislature is considering a state civil rights law that would specifically prohibit the defense of qualified immunity.
The New Mexico Legislature considered taking up the issue during the special session in June but decided instead to create a State Civil Rights Commission to study the issue.
“The risk in putting it off is that the public passion for change dies down,” said Sen. Jerry Ortiz y Pino, D-Albuquerque.
Rep. Bill Rehm, R-Albuquerque, said a cooling off period might be a good idea.
“Without qualified immunity you expose all sorts of government employees to these lawsuits,” said Rehm, a retired Bernalillo County Sheriff’s Department captain. “Teachers, social workers or any public employee loses that defense in court. It isn’t just about police.”
Legislators are aware that a state civil rights law abolishing qualified immunity would cover all government employees, not just law enforcement.
“It’s complicated,” Rep. Antonio “Moe” Maestas, D-Albuquerque, said. “There are portions of other statutes that may have to be amended to bring them into line with what’s proposed.”
Maestas said that is why the recommendations of the commission are important in guiding how the Legislature acts.
The commission is required to make a report to the Legislature in mid-November.
Colorado legislators passed a police reform law that included eliminating the defense of qualified immunity in state civil rights lawsuits following Floyd’s death and making police officers personally liable for up to $25,000 in a judgment.
California already has a civil rights act and excludes qualified immunity as a defense for government employees named in lawsuits. Massachusetts is looking at amending its civil rights law to prohibit the defense of qualified immunity after the state’s highest court allowed the defense because it was not prohibited by statute.
New Mexico does not have a civil rights law allowing public officials to be sued for violating someone’s rights under the state Constitution.
The Legislature and Gov. Michelle Lujan Grisham agreed during June’s special legislative session to appoint the commission to study the issue and make recommendations to be considered during the 60-day session starting next January.
Ortiz y Pino, who co-sponsored the legislation, said the six members appointed by the Legislature should be named this month.
Lujan Grisham will name three of the nine commission members.
“They should give us a report before the start of the next session so we can act on it,” Ortiz y Pino said.
He said the commission will have to look at issues like liability insurance for state and local governments and whether individuals sued under the act would be responsible for a portion of any damages.
Rehm said, “We have no idea how much this is going to cost state and local governments.”
Lujan Grisham and the Legislature did take other steps in response to Floyd’s killing – requiring all law enforcement officers to wear lapel cameras and requiring the Law Enforcement Academy Board to revoke the certification of any police officer guilty of unlawful use of force or threatening force, or an officer who fails to intervene to stop the use of unlawful force.
‘Issue of police culture’
Legislators said they expect public employee unions and local governments to weigh in on the issue.
State Fraternal Order of Police President Bob Martinez said law enforcement agencies wanted a seat at the table, and the commission must include at least one member experienced in law enforcement.
“We have concerns that need to be heard,” Martinez said. “No one in law enforcement condones what was done to George Floyd.”
He said that “no one is opposed to holding police officers and public employees accountable, but police officers are highly regulated already. If you remove qualified immunity you are taking away one of the few protections they have. You may have people thinking twice before joining the police profession.”
Albuquerque attorney Luis Robles, who has defended police officers and local governments for 30 years, said, “If the state chooses to go this route, it will cost money.”
Robles said removing qualified immunity as a defense gives plaintiffs a much “friendlier” standard.
Albuquerque civil rights attorney Phil Davis, who has faced off with Robles in court, said, “It also brings us to the issue of police culture, which not only protects good cops but also protects bad cops.
“If there is a change, the good cops wouldn’t have to tolerate the bad cops.”
Steven Allen, director of Public Policy for the American Civil Liberties Union of New Mexico, said, “A state civil rights act is not a utopian solution, but it is a huge step in the right direction.”
Second of a two-part series