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Omaree case cited in debate over rights act

Omaree Varela peeks out the front door as police officers leave the residence after responding to a 911 call in 2013, about six months before he died. (Source: APD)

Copyright © 2021 Albuquerque Journal

SANTA FE – The abuse of 9-year-old Omaree Varela – kicked to death by his mother in 2013 – shocked New Mexico and triggered calls to better protect children from violence at home.

Almost eight years later, Omaree’s death is surfacing in a new debate – over whether New Mexico law adequately allows plaintiffs to hold the government accountable for civil rights violations.

Supporters of a proposed state Civil Rights Act are citing a civil lawsuit filed on behalf of Omaree’s estate as evidence of shortcomings in the state court system. The litigation accused two social workers and the state Children, Youth and Families Department of violating Omaree’s rights by placing him in a dangerous home.

But a federal judge dismissed the suit in 2016, citing qualified immunity, a legal doctrine that helps protect government employees from some legal claims. It hinges on whether the public official knew or should have known that their conduct would violate the plaintiff’s clearly established rights.

Sylvia Marquez, aunt of Omaree Varela, talks at the Angel Tree Lighting on Civic Plaza in 2016. She is among those pushing for a new Civil Rights Act, which might have applied to a lawsuit on behalf of her nephew’s estate. (Greg Sorber/Albuquerque Journal)

The legal system “protected those that didn’t do their job,” said Sylvia Marquez, an aunt who cared for Omaree before he was returned to his mom. “Did we receive justice at all? No.”

The ultimate outcome of the litigation is secret.

After the federal court dismissal, the Omaree case continued in state court, where attorneys for CYFD argued the claims were barred by the Tort Claims Act, the state law that sets out circumstances under which the government can be sued for negligence and forced to pay damages.

The back-and-forth resulted in a confidential settlement. While the terms aren’t public, state tort law limits damages to a little over $1 million and doesn’t provide for attorney fees.

Opponents of the proposed civil rights legislation, in any case, say paying out claims isn’t the best way to help protect the public. They’re urging lawmakers to focus their attention on preventive measures – better training, expanded behavioral health services or decertification for bad police officers – rather than financial penalties that will cost taxpayers after the fact.

“There’s no reform in this bill,” AJ Forte of the New Mexico Municipal League told lawmakers Monday. “There’s nothing on the front end to help keep violations from happening in the first place.”

J.D. Bullington, a lobbyist for the Greater Albuquerque Chamber of Commerce, said the proposal threatens to “shift money from core public services to lawsuit payouts instead.”

Getting compensation

The proposed Civil Rights Act would make it easier to recover compensation from government agencies for civil rights violations. Qualified immunity would be barred as a defense against claims filed under the act.

The legislation, House Bill 4, includes a $2 million cap on damages for each claim. The recovery limit would climb in future years based on inflation.

Plaintiffs could recover attorney fees, but they would be included under the cap.

Local governments are vigorously fighting the proposal. They say the Tort Claims Act already strikes an appropriate balance for the recovery of damages.

The legislation, they contend, would raise insurance costs and lead to expensive litigation.

“Attorney fees drive up the cost of litigation and do nothing for the victims,” Sandoval County Attorney Robin Hammer said. “New Mexico taxpayers shouldn’t be punished to pay the plaintiff’s bar.”

The dollars-and-cents debate is clashing in legislative hearings, with emotional testimony offered by supporters of the bill – who cite child abuse and deadly police shootings as evidence to support the measure.

Marquez, Omaree’s aunt, has testified through tears about the night she lost custody of him before his death.

“The system did fail my nephew in many ways,” she told lawmakers Monday, “and our family feels like we didn’t receive justice.”

House Bill 4 passed the House Judiciary Committee 8-4 Monday during a four-hour hearing, and it now goes to the full chamber for consideration. If passed by the House, it will also have to make it through the Senate and any Senate committee it is assigned to before the end of the session March 20.

Some of the most powerful members of the Legislature are backing the proposal.

Its sponsors are House Speaker Brian Egolf, D-Santa Fe; Rep. Georgene Louis, an Albuquerque Democrat and chairwoman of the House State Government, Elections and Indian Affairs Committee; and Sen. Joseph Cervantes, a Las Cruces Democrat and chairman of the Senate Judiciary Committee.

All three are lawyers.

Power of defense

The civil lawsuit filed on behalf of Omaree Varela’s estate and his sister illustrates the power of qualified immunity as a defense.

In a 125-page opinion, U.S. District Judge James Browning said the lawsuit “plausibly alleges” that two social workers abdicated their professional judgment when they transferred Omaree to one home and then back to his mother’s household “without making any inquiry into their caretaking abilities or following the New Mexico Children’s Code.”

But the defendants were entitled to qualified immunity on all federal claims, Browning said, because their actions didn’t violate clearly established law.

“Even if (the two social workers) abdicated their professional judgment, created a danger, and violated the children’s right to court access, however, they are entitled to qualified immunity on all federal claims,” Browning wrote.

The suit was largely dismissed, with one tort claim sent back to state court.

In state court, attorneys for CYFD argued that the case didn’t fall under any of the categories allowed under the state Tort Claims Act. The case was settled before trial.

Parts of the court file are now sealed, and how much was paid out isn’t clear.

F. Michael Hart, a child-welfare attorney who represented Omaree’s estate, said the bar for succeeding on federal claims is “extraordinarily high.”

The state Tort Claims Act, meanwhile, isn’t a solution, he said, for children harmed by state officials.

“The act allows lawsuits against law enforcement officers and public doctors,” Hart said, “but it doesn’t allow lawsuits against schoolteachers, social workers or other state employees generally.

“That’s one of the reasons the Tort Claims Act is not a remedy for children who are harmed in New Mexico by the misconduct of state actors.”

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