We need a New Mexico Civil Rights Act because while we have many state constitutional rights, there is no reliable way to enforce them. So said the New Mexico Civil Rights Commission, and lawmakers are working on it.
Suppose someone is violating your right to freedom of expression or worship. You can sue to make them stop; However, unless they are forced to pay damages, the lawsuit can have little effect. and if there isn’t a lawyer fee scheme, you’d better hope that a well-funded nonprofit or dedicated lawyer will represent you.
Our inspection of public records and whistleblower statutes works as judges have to pay attorney fees if you win. A lawyer who believes your case is fair and winnable has some chance of getting paid. and the public body can do better and handle cases appropriately to avoid large payouts.
The United States passed a law (42 USC §1983) 140 years ago that allows lawsuits against violations of the federal constitution and reclaims for damages. In the late 20th century, when Congress added a provision on legal fees, this law became a powerful tool for correcting constitutional errors.
Unfortunately, federal courts have dealt with “qualified immunity,” which basically means that you not only have to prove that an officer violated your rights, but that they did so in a way that was previously recognized in another case . This can be useful in the first case, when wearing or burning a flag is a protected language. but the courts have gone crazy A policeman in a house shoots the family dog and instead hits a nearby child. The court dismissed the §1983 lawsuit because there had been no case where someone accidentally shot a child while attempting to shoot a dog. Given our protection from the Fourth Amendment, one would think §1983 would apply to police officers who steal $ 250,000 worth of rare coins during a search. Although the judge agreed that it was bad behavior, he couldn’t find a previous case where theft was found to be an unreasonable search and seizure.
“If the law says so, the law is a donkey,” in Mr. Bumble’s words. The commission agreed and recommended that qualified immunity defense not be allowed here, even though the vote was close. Cities, counties, and cop shops screamed. It seems fair that if officials are looking to slump the legal boom they should have a hunch that what they are doing violates constitutional rights. But the new law (or amendment) could address this head-on and not as drastically. The problem does not seem to be a valid objection to the entire law.
Other important considerations are whether or not to provide punitive damages (Commission voted ‘no’, 5-4); whether to cap damages (not commission, I wouldn’t, but a legislative committee added a cap of $ 2,000); and whether the individual guilty government employees should also pay (they are not yet).
My gut says officials who violate constitutional rights should pay when their behavior is really bad; But cooler heads indicate that hiring could become difficult when civil police officers and others worry that an honest mistake could cost them big bucks. It’s about having an impact on cities and counties and improving education and oversight, not just punishing one person. (The commission also recommended improving law enforcement college training and enforcement.)
The house signed on 39-29. I hope the Senate will too.
However, all sides caution that the public should not expect this to be a panacea that will bring about major law enforcement reform.
Still, it’s progress.
Peter Goodman, a Las Cruces resident, writes, takes pictures, and occasionally practices as a lawyer. His blog at http://soledadcanyon.blogspot.com/ has more information on this column.
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