A proposed civil rights bill moving through New Mexico law sounds like a good idea on the surface. Why should people whose constitutional rights are violated by the government not be allowed to bring their claims to court? Why shouldn’t “rogue” police officers be held accountable for their actions?
Put aside for a moment that these constitutional civil suits are now open to federal court proceedings. And they are often successful, with substantial compensation for the plaintiffs. And as part of this process, agencies that employ police officers and other public employees are often held accountable.
A closer look at this legislation reveals an expansion of the civil rights claim, which is brought before a federal court rather than a federal court, where plaintiffs face a stricter system. The legislation would abolish qualified immunity in state cases as a defense for government employees – meaning plaintiffs would not have to display outrageous behavior from teachers, social workers, police officers, and others. Rather than requiring plaintiffs to demonstrate that government officials have violated clearly established constitutional rights that a sane person would know about, one could argue that the case becomes essentially a matter of negligence.
The legislation would not make police officers or anyone else personally liable. It is their employers who are demanding compensation – just as they are now.
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Lawyers big winners
And while that does not allow for punitive damages, the legislation would allow plaintiffs’ attorneys in a variety of cases to evade state tort law, which essentially limits damage to $ 1.05 million. It would also allow for current attorney fees for parties – a leverage for plaintiffs and a legal ATM equivalent for attorneys. So it’s possible for a plaintiff to win a $ 1 verdict, but his attorney could rack up six-figure amounts. Of course, this provision also increases the settlement value of a case. One effect of this is that urban school district risk managers are more likely to calculate potential litigation costs along with legal fees and simply write a check. Thus the billing values increase.
The net result would be to open the floodgates for litigation against cities, government agencies, schools, and other government actors in government courts who are unable to deal with them. And that means opening the taxpayer’s checkbook.
Concerns voiced by cities, counties and schools were neglected at the first hearing of the committee in the democratically controlled House of Representatives, which pushed for a party line vote.
However, House Speaker Brian Egolf, co-sponsor of the law, said he expected lawmakers to consider changes to address some of the financial concerns.
Taxpayers at risk
As of the current state of the proposal, here are examples of how things could change:
Take the case where the deputy of a Sandoval County sheriff left a house after a phone call and accidentally assisted a deceased neighbor. According to current law, it is a case of negligence. The county has settled within the tort caps, including the plaintiff’s legal fees. Under the proposed new law? It is a civil rights disfranchisement claim that resulted in death, the limit being any jury – plus legal fees.
Government agencies pay more for insurance to cover claims and more for lawyers to defend them. In fact, district officials told lawmakers last week that they would actually lose some of their insurance coverage if this proposal became law. And a great judgment that cannot be paid would be included in property tax.
One of the cases cited during the hearing of the Civil Rights Proposal Committee hearing was the fatal shooting of Elisha Lucero by Bernalillo County Sheriff’s MPs. The 4-foot-11 woman was shot 21 times by MPs responding to an essentially mental health phone call.
“To me, it’s incredible that the police are in charge of life and death decisions, but they are subject to some of the lowest standards of accountability,” Lucero’s sister told lawmakers. However, it’s worth noting that the family has been sued in federal court and that Bernalillo County settled the case by agreeing to pay $ 4 million to the deceased woman’s estate.
This is not an uncommon result. The county recently paid a total of $ 3.3 million to settle claims in another fatal shootout by an MP who escaped in a stolen truck.
It is therefore incorrect to say that qualified immunity in federal lawsuits prevents plaintiffs from pursuing and enforcing meritorious claims. In many ways, this is a solution to the search for a problem – in addition to a boon to the plaintiffs’ bar.
Long ago with the passage of the New Mexico Tort Claims Act, lawmakers struck an important balance between the rights of plaintiffs affected by public employees or corporations and the economic interests of the state. The now proposed civil rights law puts an unnecessary and grave disadvantage to this compensation, to the detriment of New Mexico taxpayers.
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