By a vote of 39-29, the New Mexico House of Representatives approved a landmark bill on Tuesday that would let individuals sue government agencies for violating their rights. Critically, the proposed New Mexico Civil Rights Act (HB 4) would eliminate “qualified immunity” as a legal defense.
Under qualified immunity, government officials can only be held liable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the officials are immune by default, even if they intentionally violated the law. Created by the Supreme Court in 1982, qualified immunity appears nowhere in the Constitution or in Section 1983, the federal statute that authorizes civil rights lawsuits against government agents.
“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Institute for Justice Attorney Keith Neely, who submitted testimony in favor of the bill. “For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. We urge the Senate to seize this historic opportunity to end this injustice. Any police reform bill is only meaningful if it includes reform to qualified immunity.”
Based on recommendations from the New Mexico Civil Rights Commission, and hewing closely to IJ’s model legislation, HB 4 would create a new way to hold government agencies accountable in state court. If local or state government employees violate constitutional rights while working within the scope of employment, victims can sue their government employer for damages. The bill does not create personal liability for government employees, and instead requires agencies to fully cover all legal costs for their employees. HB 4 also caps claims at $2 million (including attorney’s fees).
Long an obscure legal rule, qualified immunity now faces widespread opposition in the wake of the killing of George Floyd by Minneapolis police officers. Over the summer, Colorado became the first state to pass a law blocking qualified immunity from being used as a defense in court. However, unlike the Colorado bill, New Mexico’s reform would apply to all government employees, not just law enforcement officers.
HB 4 has already earned the support of a broad, bipartisan coalition that includes the Institute for Justice, the ACLU, Americans for Prosperity, the Innocence Project, and the National Police Accountability Project. The coalition recently issued a letter urging the legislature to take this “unique opportunity to lead the country in civil rights reform.”
“The principle at stake is simple: If citizens must obey the law, then government officials must obey the Constitution,” noted IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”