Omaree Varela peeks out the front door as police officers leave the residence after responding to an emergency call in 2013, about six months before his death. (Source: APD)
SANTA FE – The abuse of 9-year-old Omaree Varela, who was kicked to death by his mother in 2013, shocked New Mexico and sparked calls to better protect children from violence at home.
Almost eight years later, Omaree’s death emerges in a new debate – about whether New Mexico law adequately allows plaintiffs to hold the government accountable for civil rights violations.
Proponents of a proposed state civil rights law are citing a civil lawsuit filed on behalf of Omaree’s estate as evidence of flaws in the state’s judicial system. The lawsuit accused two social workers and the State Department for Children, Youth and Families of violating Omaree’s rights by taking him to a dangerous home.
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However, a federal judge dismissed the lawsuit in 2016, citing qualified immunity, a legal doctrine that helps protect government employees from some legal claims. It depends on whether the officer knew or should have known that his behavior would violate the plaintiff’s clearly established rights.
The legal system “protected those who didn’t get their jobs done,” said Sylvia Marquez, an aunt who looked after Omaree before going back to his mother. “Did we get justice at all? No.”
The final outcome of the litigation is secret.
Following the dismissal of the federal court, the Omaree case moved to a state court where attorneys for the CYFD argued that the claims were precluded by the Tort Act, the state law that sets out the circumstances in which the government may be sued for negligence Payment of damages may be compelled.
The back and forth resulted in a confidential agreement. Although the terms are not public, state tort law limits damage to just over $ 1 million and does not include legal fees.
In any event, opponents of the proposed civil rights legislation say that paying claims is not the best way to protect the public. They urge lawmakers to turn their attention to preventive measures – better education, expanded behavioral health services, or decertification for bad police officers – rather than financial penalties that will cost taxpayers an afterthought.
“There is no reform in this law,” AJ Forte of the New Mexico Municipal League told lawmakers Monday. “There is nothing at the front end that could help prevent violations from occurring at all.”
JD Bullington, a lobbyist for the Greater Albuquerque Chamber of Commerce, said the proposal threatens “to shift money from core public services to litigation disbursement instead”.
Four hours of debate, testimony
The proposed civil rights law would make it easier to obtain compensation for civil rights violations from government agencies. Qualified immunity would be excluded as a defense against claims under the law.
Legislation, House Bill 4, puts a $ 2 million limit on damages for each claim. The recovery limit would rise in the coming years due to inflation.
Plaintiffs could reclaim legal fees, but they would fall below the cap.
Local governments are fighting violently against the proposal. They say the tort law already strikes a fair balance for recovering damage.
The legislation would increase insurance costs and lead to expensive litigation.
“Legal fees add to legal costs and do nothing for the victims,” said Robin Hammer, a lawyer for Sandoval County. “New Mexico Taxpayers Should Not Be Fined For Paying Plaintiff’s Cash.”
The dollar-and-cent debate collides in legislative hearings with emotional testimony from supporters of the law citing child abuse and fatal police shootings as evidence of the measure.
Marquez, Omaree’s aunt, testified in tears about the night she lost custody of him before he died.
“The system has failed my nephew in many ways,” she told lawmakers on Monday, “and our family feels that we have not received any justice.”
House Bill 4 passed the House Judiciary Committee 8-4 on Monday during a four-hearing hearing and sent it to the entire Chamber for the next consideration. If it were passed by the House of Representatives, it would also have to make it through the Senate and any Senate committee it is assigned to before the March 20 session ends.
Some of the most powerful members of the legislature support the proposal.
The sponsors are the Speaker of the House, Brian Egolf, D-Santa Fe; Rep. Georgene Louis, a Democrat from Albuquerque and chair of the House of Representatives Committee on Government, Elections and Indian Affairs; and Senator Joseph Cervantes, a Democrat from Las Cruces and chairman of the Senate Judiciary Committee.
All three are lawyers.
Qualified immunity
The civil lawsuit filed on behalf of Omaree Varela’s estate and sister demonstrates the power of qualified immunity as a defense.
In a 125-page statement, US District Judge James Browning said the lawsuit “plausibly alleged” that two social workers abandoned professional judgment when they moved Omaree into a house and then back to his mother’s household, “without investigation about their caring skills. ” or according to the New Mexico Children’s Code. “
However, the defendants are entitled to qualified immunity in relation to all federal claims, Browning said, because their actions did not violate clearly established laws.
“Even if (the two social workers) have waived their professional judgment, posed a hazard, and violated children’s rights of access, they are entitled to qualified immunity from all federal claims,” Browning wrote.
The lawsuit was largely dismissed and one tort was sent back to the state court.
Before the state court, attorneys for the CYFD argued that the case did not fall under any of the categories allowed under the State Tort Claims Act. The case was settled prior to trial.
Portions of the court record are now sealed and it is not clear how much was paid out.
F. Michael Hart, a child welfare attorney who represented Omaree’s estate, said the bar for success with federal claims was “extremely high”.
The state tort law is not a solution for children injured by state officials.
“The law allows lawsuits against law enforcement officers and public doctors,” Hart said, “but it doesn’t allow lawsuits against school teachers, social workers or other government employees in general.”
“This is one of the reasons the tort law is not a remedy for children harmed in New Mexico by the misconduct of state agents.”
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