A proposed civil rights law moving through the New Mexico Legislature sounds, on the surface, like a fine idea. After all, why should people whose constitutional rights are infringed upon by government not be allowed to pursue their claims in court? Why shouldn’t “rogue” police officers be held to account for their actions?
Put aside for a moment that these constitutional civil claims can be pursued now in federal court. And they often are successful, with significant compensation to plaintiffs. And as part of that process, agencies that employ police officers and other public employees are, in fact, often held accountable.
What a closer look at this legislation shows is an expansion of what constitutes a civil rights claim that would be brought in state rather than federal court, where plaintiffs face a more rigorous system. The legislation would abolish qualified immunity in the state cases as a defense for government employees — meaning plaintiffs would not have to show egregious conduct by teachers, social workers, police officers and others. Instead of plaintiffs having to show government employees violated clearly established constitutional rights about which a reasonable person would know, one could argue the case essentially becomes a question of negligence.
The legislation wouldn’t make police officers and others personally liable. It’s their employers who are on the hook for damages — as they are now.
Lawyers big winners
And while it wouldn’t allow for punitive damages, the legislation would allow plaintiff lawyers in a wide range of cases to escape the state Tort Claims Act — which essentially caps damages at $1.05 million. It would also allow prevailing party attorney fees — a point of leverage for plaintiffs and a legal equivalent of an ATM for lawyers. So it’s possible a plaintiff wins a judgment of $1, but his or her attorney collects six figures. That provision, of course, also drives up the settlement value of a case. One effect here is that risk managers from school districts to cities would be more likely to calculate potential costs of litigation along with lawyer fees and simply write a check. Thus, settlement values increase.
The net result would be to open the floodgates of litigation against cities, state agencies, schools and other government actors in state courts ill-equipped to handle them. And that means opening up the taxpayer checkbook.
Concerns that have been raised by cities, counties and schools went nowhere in the initial committee hearing in the Democratic-controlled House of Representatives, which moved it along on a party-line vote.
But House Speaker Brian Egolf, co-sponsor of the bill, has said he expects lawmakers to consider amendments to address some of the financial concerns.
Taxpayers at risk
As the proposal now stands, here are examples of how it might change things:
Take the case in which a Sandoval County sheriff’s deputy was leaving a home after a call and accidentally backed over a woman neighbor, who died. Under current law, that’s a negligence case. The county settled within the Tort Claims cap limits, which includes plaintiff’s attorney fees. Under the proposed new law? It is a Civil Rights deprivation claim that resulted in death with the limit being whatever a jury might decide it is — plus attorney fees.
Government entities will pay more for insurance to cover claims and more to lawyers to defend them. In fact, county officials last week told lawmakers they would actually lose some of their insurance coverage if this proposal becomes law. And a large judgment that can’t be paid would go on property tax rolls.
One of the cases cited during the committee hearing in support of the Civil Rights proposal was the fatal Elisha Lucero shooting by Bernalillo County sheriff’s deputies — the 4-foot-11 woman was shot 21 times by deputies who responded to what essentially was a mental health call.
“For me, it’s unbelievable that police are entrusted to make life-and-death decisions, yet they’re held to some of the lowest standards when it comes to accountability,” Lucero’s sister told lawmakers. But it’s worth noting that the family sued in federal court and that Bernalillo County settled the case by agreeing to pay $4 million to the deceased woman’s estate.
That’s not a rare result. In another fatal shooting by deputies of a man fleeing in a stolen truck, the county recently ponied up a total of $3.3 million to settle claims.
So it’s not correct to say qualified immunity in federal lawsuits prevents plaintiffs from pursuing and prevailing on meritorious claims. In many ways, this is a solution in search of a problem — in addition to being a boon to the plaintiffs’ bar.
In adopting the New Mexico Tort Claims Act, lawmakers long ago struck an important balance between the rights of plaintiffs who have been affected by public employees or entities and the economic interests of the state. The Civil Rights Act as now proposed does an unnecessary and serious disservice to that balancing, to the detriment of New Mexico taxpayers.