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NM civil rights bill moves to state Senate

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State Rep. Georgene Louis of Bernalillo County, one of the sponsors of the New Mexico Civil Rights Act, appears via video to legislators and staff at the state House on Tuesday in Santa Fe. (AP Photo)

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A state bill that has been opposed by several county boards of commissioners, including Chaves County, has passed the New Mexico House of Representatives and is awaiting consideration of the Senate.

House Bill 4, the New Mexico Civil Rights Act, passed 39 to 29 on Tuesday afternoon after about three hours of discussion.

Area Republican Reps. Candy Spence Ezzell, District 58; Greg Nibert, District 59; and James Townsend, District 54; voted against it, as did Rep. Phelps Anderson, District 66, who is registered as “Decline to State.”

On Feb. 4, the Chaves County Board of Commissioners passed a resolution opposing the bill, an action the New Mexico Counties Association encouraged all counties to take and that several others besides Chaves have. A representative with the group said that people can already sue police and some other public employees for violations of the state rights, which she said the bill supporters are not making clear to the public.

The bill has been revised since first introduced on Jan. 19, with the House Judiciary Committee substitute version passing the House. Among the changes was instituting a cap of $2 million in actual damages per claim, as well as attorney fees, whereas the original had no cap for damages.

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An amendment introduced by one of the bill’s sponsors also was adopted Tuesday to clarify that the bill would affect only the “qualified immunity” defense for state and local public bodies, not other types of legal immunity defenses. Another amendment was defeated that would have barred lawyers serving in the New Mexico Legislature when the act was passed from representing a client who brings a claim of action under the new law for three years.

Proponents say the act — which came out of the recommendations of the New Mexico Civil Rights Commission formed by a law passed by an April 2020 special session of the New Mexico Legislature — is needed to provide a way for New Mexico residents to sue state and local governmental bodies for monetary damages for violations of their state constitutional rights. They said often money is the only way to make the injured whole and that being forced to pay damages will cause agencies to do more training or otherwise address problems.

According to proponents, current law allows state and local governments to claim “qualified immunity” from damages, although courts might still issue injunctions or declaratory judgments against governments or award monetary damages when the government bodies sued are law enforcement agencies.

“The need for this historic legislation is not about the dollars and cents,” said Rep. Georgene Louis, D-Bernalillo, a bill sponsor and a lawyer. “It is about those New Mexicans who have had their rights or their loved ones’ rights taken away, with no avenue of accountability or justice available to them.”

She said opponents have raised several “red herrings,” including wrongly saying that individual police officers, teachers or other public employees could be sued or held responsible for damages.

Opponents have said the act is not necessary because monetary claims can be made under the New Mexico Tort Claims Act. They also have said the bill would not redress the root causes of most of the issues, which they say can be attributed to mental health and substance abuse issues by people who interact with police, lack of training for public employees including police officers, and state laws that allow law enforcement officers or other public employees to remain certified and eligible for rehire even after they have been found responsible for wrongdoing.

Instead of helping, they claim, the act would result in significant financial costs to governmental entities, cause them to lose their ability to be insured or raise insurance costs, and require the people they serve to pay more taxes or experience fewer or reduced services.

Grace Philips, general counsel with New Mexico Counties, said the revisions to the proposed act do not change the group’s opposition for numerous reasons.

While she recognizes that the bill’s authors are considering more than law enforcement and detention officers, she said she thinks most New Mexico residents are concerned about law enforcement misconduct.

Philips said state law has been expanded several times in recent years and refers to a section of state law indicating that “immunity does not apply” for a range of criminal actions, violation of rights, deprivation of property, failure to act, evidence destruction or tampering, and several other actions when committed by a law enforcement officer or a public employee “vested by law with the power to maintain order.”

More than $71 million in federal and state civil rights cases against local governments were awarded from 2012-2016, according to New Mexico Counties.

“It won’t add a new claim against law enforcement. It will make existing claims more expensive, principally because it will add attorney fees as a separate element of recovery,” Philips said.

She said that a cap on each claim is “effectively no cap at all” because multiple people could bring claims or multiple agencies could be sued over the same incident.

The addition of attorney fees, which are not allowed under the New Mexico Tort Claims Act, will make settlements without litigation less likely and could entice out-of-state interests to bring claims, she said.

“An attorney who knows that they are going to be paid at the end is not motivated to be efficient or wrap up the litigation or to get things done,” Philips said, adding that lawyers in federal constitutional claim actions are often awarded much more for fees than what their clients receive.

She also said that current law requires people to prove that policies existed that violated rights or that government employees acted with deliberate indifference to harm, but that the proposed act would allow claims for omissions or mistakes, including car accidents.

“We want to be part of the solution,” Philips said. “We think we have good ideas for how to make a positive difference, and, in fact as an organization, we have been investing in such things as behavioral health training and mental health and crisis intervention training. We think there are productive things that can be done to make communities safer and healthier and improve the way that law enforcement interacts with the community. This law is going to do none of that.”

Senior Writer Lisa Dunlap can be reached at 575-622-7710, ext. 351, or at reporter02@rdrnews.com.