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Proposed NM Civil Rights Act could be costly, legislators told

Copyright © 2020 Albuquerque Journal

SANTA FE – Law enforcement and local government officials expressed misgivings about a proposed New Mexico Civil Rights Act that would allow legal claims to be filed in state court over alleged infringements on free speech, freedom of religion and other constitutional rights.

The proposed law, which was recommended by a majority of members on a nine-member Civil Rights Commission created this summer, got its first vetting Tuesday before a legislative panel.

Several commission members who dissented from the majority predicted the law would increase local governments’ insurance costs and lead to law enforcement officers leaving New Mexico.

“The creation of a new state law is unnecessary,” said former Belen Police Chief Victor Rodriguez, who said the Civil Rights Act would ultimately enrich lawyers, but not fundamentally help victims.

But some lawmakers who took part in the interim Courts, Corrections and Justice Committee meeting pushed back against such claims.

House Speaker Brian Egolf, D-Santa Fe, said holding government accountable in cases of flagrant employee misconduct or wrongdoing should trump cost concerns.

He also pointed out that plaintiffs would still have to prove their cases before state judges under the proposed Civil Rights Act, which would not allow the legal doctrine of qualified immunity to be used as a defense in such cases.

“Getting rid of qualified immunity doesn’t throw the doors open to anyone who wants to get a big check from the government,” Egolf said.

Lawmakers did not vote Tuesday on whether to endorse the proposed law, which is expected to be debated during the coming 60-day legislative session.

But the committee hearing gave a possible preview of what’s likely to be a contentious debate on the issue.

Under a draft of the proposed Civil Rights Act, individual law enforcement officers and other types of public officials would not be personally liable to pay any court-ordered damages.

Instead, such damages would be paid by the public agency or body that employs the defendant, as is currently the practice under state law.

That provision has generated concern from the New Mexico Association of Counties about more expensive insurance policies, a concern several lawmakers said they share.

“The last thing we want to do here is pass an act that makes the cities and counties uninsurable,” said Sen. Joseph Cervantes, D-Las Cruces.

He also questioned whether it might be better to amend the state’s Tort Claims Act, under which some government misconduct lawsuits can be filed, instead of enacting a new Civil Rights Act.

Former Supreme Court Chief Justice Richard Bosson, who was chairman of the nine-member Civil Rights Commission, suggested the Legislature could create a fund to help offset any cost increase for smaller New Mexico cities and counties.

“If there’s going to be a cost, that should fall, in our opinion, on the Legislature,” said Bosson, who was among those who voted to recommend approval of the Civil Rights Act.

The Civil Rights Commission was created under a bill passed by lawmakers during a June special session and was signed into law by Gov. Michelle Lujan Grisham. The nine-member commission includes attorneys, judges and law enforcement officials, and heard expert testimony on legal and law enforcement issues over the past several months.

Ultimately, four members dissented from the majority, saying in a recent news release that the commission’s work was rushed and that different alternatives were given short shrift.

In addition to Rodriguez, those members included Doña Ana County Sheriff Kim Stewart, state Sen. Steve Neville, R-Aztec, and incoming Doña Ana County District Attorney Gerald Byers.

Meanwhile, the provision in the proposed Civil Rights Act to bar the use of qualified immunity as a legal defense could also emerge as a point of controversy.

Qualified immunity is a legal principle that shields government officials – including police officers – from lawsuits, except in cases in which a plaintiff can prove that officials violated their “clearly established” rights, a high legal threshold that leads to many cases being dismissed.

Debate over qualified immunity and other police use-of-force issues intensified this summer after a series of incidents in New Mexico and around the nation, including the death of George Floyd, a Black man, while he was in the custody of Minneapolis police officers.

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