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By: Wes Jackson
State and federal legislators are making a concerted push to end or curtail the defense of “qualified immunity,” which provides government employees a defense to civil rights claims in some circumstances. At the federal level, House Democrats have passed the “George Floyd Justice in Policing Act (H.R. 1280), which, if passed by the Senate and signed by the President, would remove qualified immunity as a defense for local law enforcement officials to claims for civil rights violations under 42 U.S.C. § 1983. On the state level, a handful of states have proposed or passed similar laws that would end or curtail analogous immunities to claims of civil rights violations arising under state law. Such states include Colorado and Connecticut.
New Mexico is now the latest state to take such action. A recent article from The Hill announces that “New Mexico ends qualified immunity.” The article reports that New Mexico’s governor signed a bill on Wednesday, April 7, 2021 “ending qualified immunity for all government workers, including police.” But what does it really mean to “end” qualified immunity? While the bill makes New Mexico the latest state to curtail government workers’ immunities to civil rights claims, a look at the text of the new bill reveals that “qualified immunity,” at least for purposes of federal civil rights claims, remains a viable defense in that state.
While “qualified immunity” is often used as an umbrella term for any immunities law enforcement or government employees may have to civil rights claims, it is important to keep in mind that qualified immunity under federal civil rights law is distinct from whatever statutory or common law defenses may be available to government workers under the various states’ laws. New Mexico’s bill nominally removes the defense of “qualified immunity” for government workers, but only for “any claim for damages or relief under the New Mexico Civil Rights Act . . . for causing the deprivation of any rights, privileges or immunities secured by the bill of rights of the constitution of New Mexico.” (New Mexico H.B. 4, § 4.) Thus, New Mexico only ended the defense of qualified immunity for claims that a government employee violated state constitutional rights—it does not remove the defense to claims for violations of civil rights secured under the United States’ Constitution and laws.
The practical effect of New Mexico’s bill may be to incentivize plaintiffs to only bring civil rights claims under state law in New Mexico state courts and to forego asserting claims for analogous violations of federal rights under 42 U.S.C. § 1983. The tradeoff for plaintiffs, though, is that their claims will be subject to more demanding procedural rules, including a one-year pre-suit notice requirement, and a $2 million damages cap. Plaintiffs in New Mexico who miss the one-year ante litem notice requirement, or who hope for a judgment that exceeds $2 million, will have to bring their claims under 42 U.S.C. § 1983, for which the defense of qualified immunity is alive and well.
While state legislators may enact limitations to “qualified immunity” or similar defenses for claims under state law, any changes to qualified immunity for federal civil rights claims will ultimately have to come from the United States Congress or Supreme Court. If you have any questions about qualified immunity, please contact attorney Wes Jackson at [email protected].