The New Mexico Civil Rights Act Does More Than End Qualified Immunity

On Apr. 7, New Mexico Governor Michelle Grisham signed the New Mexico Civil Rights Act, formally HB4, into law. In doing so, New Mexico became the second state in the country to end the practice of qualified immunity. The new law is broad in scope, making it easier for citizens to obtain a remedy if their civil rights are violated by any government agency or employee, including but not limited to a law enforcement officer. As a result, it could have significant ramifications for justice movements in many different areas.

The act comes out of a recommendation from an independent commission.

The New Mexico Civil Rights Act comes at the recommendation of the New Mexico Civil Rights Commission. The state legislature created the commission during an emergency session in 2020. Its stated goals were to review the policy of qualified immunity and develop policy proposals to create a meaningful cause of action for a civil rights deprivation. The commission was also tasked with examining the costs of implementing such changes.

In its report, the commission said that the creation of a New Mexico Civil Rights Act was “long overdue.” It pointed to the federal government’s Section 1983 laws as an example, saying that no comparable law for New Mexico existed. This lack of protections, it says, creates a “bizarre circumstance.”

“Someone who slips and falls on government property can recover for their injuries, but a person who is denied any number of their fundamental rights under the state Constitution—including state rights to free speech, freedom of religion, freedom of elections, and the right to bear arms—cannot,” the report said. “It is time to hold public officials accountable for violating those rights through a state analogue to Section 1983.”

The law does more than end qualified immunity.

Ending qualified immunity was one of the main recommendations from the commission and key elements of the new law. But it was not the only component. The New Mexico Civil Rights Act also provides a framework for how residents can sue the government.

First, it establishes that residents can sue to seek relief in any New Mexico district court. It also stipulates that plaintiffs must bring these claims against the agency and not an individual. The goal of this provision is to make agencies responsible for the conduct of their employees.

The law also addresses the cost of legal fees for plaintiffs. It does not mandate that the agency in question pay the plaintiff’s attorney fees. However, it does grant courts the discretion to order the agency to do so. This potentially removes a financial hurdle that could prevent some people from seeking a remedy through the courts.

Finally, the act does place limits on these lawsuits. It limits liability for each action to $2 million, with annual adjustments made to reflect the increased cost of living. The law also establishes a three-year statute of limitations on claims brought under the act.

Opponents of the bill cited the potential cost of lawsuits as a reason for objection.

One of the objectors to the bill was State Senator Steve Neville (R-2). Sen. Neville was one of four dissenting members of the New Mexico Civil Rights Commission. He expressed concern over the financial effect the bill could have on local governments. “The issue is how we make sure we protect our institutions like small towns and small counties around the state that could be devastated by a bad lawsuit,” he said.

In its report, the commission took these concerns into account but ultimately rejected them. It states that “protecting the rights of New Mexicans involves values fundamentally different from other budget questions the Legislature faces.”

The report also suggests that not having a remedy for rights violations forces citizens to pay for the violation they suffered. “The Legislature therefore has to consider whether it wants to continue saving money by forcing those harmed by government misconduct to bear the cost for the state or responsible local government,” it said.

The New Mexico Civil Rights Act applies to far more than just police.

Most of the conversation around qualified immunity has centered around police misconduct. But as a principle, qualified immunity can apply broadly to government officials performing discretionary functions. On the one hand, New York City’s ordinance is limited to “unreasonable searches and seizures,” including use of excessive force. Similarly, Colorado’s law is specific to law enforcement.

But that’s not the case in New Mexico. The law states that the changes apply to any “public body.” It specifically mentions “political subdivisions, special tax districts, school districts and institutions of higher education.”

Police misconduct might be the most visible form of civil rights violations. But police departments aren’t the only government agencies that have deprived people of their rights. School boards, sanitation departments, water departments and other civil agencies aren’t immune from discriminatory conduct either. The New Mexico Civil Rights Act gives people a way to seek relief for such injustices.

Environmental justice is one area that may benefit from HB4. Residents in New Mexico face several environmental threats. According to the EPA, water demand has outpaced supply for more than a decade. There are also issues with hazardous and nuclear waste disposal. Like many states, theses risks disproportionately affect people of color and indigenous communities in New Mexico. Under the act, these communities have a better opportunity to seek relief in the form of a lawsuit.

Justice reform measures like this one have an impact on civil rights as a whole.

The obvious takeaway from the New Mexico Civil Rights Act is the end to qualified immunity. Stopping this practice has been a constant refrain of activists around the country. But this law does much more than that. It reaffirms that the people of New Mexico have certain rights that the government and its officials can’t violate. It provides a clear path for people to seek remedy if a government official violates these rights.

However, what separates the New Mexico Civil Rights Act from other efforts to end qualified immunity is its scope. The law takes into account that police aren’t the only officials that can and do deprive people of their civil rights. It recognizes that injustice comes in many forms, from many sources. The law is not simply an end to qualified immunity. As its name suggests, it is an assertion of the broader civil rights of the people of New Mexico.