In a first-of-its-kind reform, New Mexico enacted the nation’s broadest civil rights statute in 2021. 1
Based on recommendations made by the New Mexico Civil Rights Commission and inspired by our model legislation, the New Mexico Civil Rights Act created a wholly new cause of action. Unlike other recent reforms, which are limited to law enforcement, the New Mexico Civil Rights Act applies to almost all state and local agencies that violate the New Mexico Bill of Rights. There is also no risk of personal liability for government employees: Individuals may only sue the public body, not the public employees themselves, who are fully indemnified.
The New Mexico Bill of Rights includes many rights enshrined in the United States Constitution, including protections against unreasonable searches and seizures, free speech, and guarantees of due process/equal protection. 2
But the New Mexico Bill of Rights also protects rights not explicitly guaranteed by the U.S. Constitution, including freedom of elections and criminal victims’ rights as well as bans on sex discrimination and imprisonment for debt. 3
The New Mexico Tort Claims Act
Under New Mexico state law, liability against government entities is governed by the New Mexico Tort Claims Act (“NMTCA”). 4
It generally “recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity.” 5
Curiously, however, it operates by broadly granting immunity to state actors and then carving out exceptions to that general rule. 6
Only the exception described below provides any potential relief for constitutional violations.
The Law Enforcement Officer Exception
One significant exception to the broad grant of immunity provided by the NMTCA is the Law Enforcement Officer exception. 7
It broadly waives immunity for “personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights . . . failure to comply with duties established pursuant to statute or law or any other deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.” 8
In other words, the NMTCA generally permits liability against law enforcement officers under traditional theories of tort liability and creates a private cause of action where the law enforcement officer violates either the United States Constitution or the New Mexico Constitution.
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