Peter Simonson calls House Bill 4 a “bill for the masses,” one that creates accountability for government agencies when it comes to protecting constitutional rights.

This story also appeared in Santa Fe New Mexican

“It’s intended to give us in New Mexico the opportunity to seek some sort of restitution for wrongs that we suffered at the hands of public officials or public employees,” said Simonson, executive director of the American Civil Liberties Union of New Mexico.

Local government and law enforcement officials across the state argue, however, the proposed Civil Rights Act — which would allow people claiming violations under the New Mexico Bill of Rights to bring lawsuits in state courts — could have a huge fiscal toll, even with the addition of a $2 million cap on any damages awarded to a plaintiff. They contend the measure’s removal of a legal doctrine called qualified immunity, often used to shield officers from personal liability for actions on the job, would not only escalate costs but also weaken agencies, hampering their ability to attract new recruits.

Santa Fe County Sheriff Adan Mendoza said he fears civil rights lawsuits would “put a lot of smaller departments and smaller counties in jeopardy.”

Mora County Sheriff Amos Espinoza said the bill’s impact could be “devastating” to his county and community, possibly leading to Chapter 11 bankruptcy.

A New Mexico State Police sergeant who heads the union representing the agency’s officers was far more harsh in his criticism last week, accusing Democratic state lawmakers who proposed HB 4 and other measures affecting police of “personally attacking law enforcement.”

Sgt. Jose Carrasco released a 15-minute video blasting HB 4 and its sponsors, as well as a bill introduced by Democratic Sen. Linda Lopez of Albuquerque, which proposes sweeping law enforcement reforms, including restrictions on officers’ use of physical force. Carrasco noted the death earlier this month of New Mexico State Police Officer Darian Jarrott, who was shot while making a traffic stop in Southern New Mexico, and the dangers officers face.

Mendoza also opposes Lopez’s Senate Bill 227, which he said goes “too far left” of the federal standards for use of force. “I think the way that it’s written, it values the life of somebody that’s probably refusing lawful commands and values their rights over that of the police officer,” Mendoza said.

“I think law enforcement officers would be less likely to be proactive and be more reactive, which means they’ll be responding to calls of service after the crime has been committed or after somebody has been injured,” he added.

While SB 227 has not yet faced a committee hearing, HB 4 has made its way to the House floor.

Debate on qualified immunity

Both measures largely stem from state leaders’ sharper focus last year on police brutality and racial justice following the controversial death in May of George Floyd, a Black man killed by a police officer in Minneapolis.

HB 4 came as a recommendation by the state’s new Civil Rights Commission, created by the Legislature in June to examine violations of state constitutional rights and the use of qualified immunity as a legal defense for law enforcement officers accused of crossing a line in a state that leads the nation in deadly police shootings.

Sixteen people were killed by law enforcement officers in New Mexico in 2020, and three people so far in 2021, according to the Washington Post.

State court records show there were eight lawsuits filed against law enforcement agencies in the state in 2020 — most claiming wrongful battery, assault or neglect — as well as 14 filed against the state Department of Corrections and 10 against local detention facilities.

Simonson said the removal of qualified immunity would significantly change the way civil cases against law enforcement proceed in court. “Many cases are kicked out of court strictly based on a ruling on qualified immunity, which oftentimes has little to do with the actual egregiousness of the wrong that you suffered,” he said.

But law enforcement officials who spoke about the measure were unanimous in their opposition to the removal of the doctrine, which they said would be troublesome for those in their profession.

Mendoza said the provision is unnecessary. “It’s called qualified immunity because you have to qualify for the immunity,” he said. “It’s not something where just being a law enforcement officer, you’re immune.”

San Miguel County Sheriff Chris Lopez said the loss of qualified immunity could deter potential recruits “for fear of losing their personal assets.”

Although, the bill in its current form would only allow claims to be brought against agencies, not individuals.

Santa Fe police Chief Andrew Padilla and Deputy Chief Ben Valdez did not respond to multiple requests for comment on the legislation.

The Rio Arriba County Sheriff’s Office, Taos County Sheriff’s Office and Albuquerque Police Department also did not comment.

State police Chief Robert Thornton said his agency already is dedicated to holding officers accountable for their conduct. He said it regularly reviews what he called stringent policies “to ensure we are following commonly accepted best practices as they relate to the safety of the public and our officers.”

A difficult balance

Opposition to HB 4 arose almost immediately after an initial draft was introduced, largely over the potential costs.

A day after it passed its first committee hearing in late January, Santa Fe County officials raised concerns at a public meeting about the threat of rising insurance rates and the lack of a limit to how much money a jury could award a plaintiff in compensatory damages.

Santa Fe County Commissioner Hank Hughes called it a “very poorly written bill for what it’s trying to accomplish.”

Grace Philips, an attorney with the New Mexico Association of Counties, said there is a gap between “what people hope and dream this bill will do and what it actually does.” She noted lawsuits already can be brought against government agencies through the state’s Tort Claims Act. “What this law does do, is it makes claims more expensive than principally because it adds attorney’s fees to what can already be recovered,” Philips said.

Simonson and other advocates said there is little evidence to show HB 4 would be as financially damaging as some local government officials fear. “This is about protecting all New Mexicans,” civil rights attorney Maureen Sanders said. “The fiscal impact will be zero if there are no constitutional violations.”

House Speaker Brian Egolf, D-Santa Fe, and other sponsors revised the bill in response to some of the criticisms, incorporating the $2 million cap in damages, removing an option for individual government workers or officials to be sued and putting a three-year statute of limitations on claims.

Egolf said lawmakers were “working to strike a balance between the needs of New Mexicans to have access to justice in a state court with the concerns that had been raised by counties and cities and state agencies.”

But the changes might not be enough to assuage those concerns.

Lopez, the San Miguel County sheriff, said there needs to be “a lot more review” and discussion on the bill, and law enforcement should be included in the conversation.

“Any time that you look at creating new laws, I think you really have to fully understand what you’re trying to accomplish or fix,” Lopez said. “I think you have to be cognizant of the effects that any proposed legislation might create in an ability for us to adequately perform our duties and services to the community, especially what’s expected of us.”

Alternative solutions?

Many critics said lawmakers looking to increase law enforcement accountability should instead focus on efforts to improve police training and enforce rules on officer misconduct.

Philips said the solution is “meaningful state-of-the-art training through the Law Enforcement Academy.”

Mendoza, a member of the New Mexico Law Enforcement Academy Board, said the panel is “backlogged” and “not very effective” because it doesn’t have enough staff to process complaints against officers.

“I think some of the resources, money and legislation can go towards training and giving the Law Enforcement Academy Board the teeth they need to enforce that misconduct is properly reported in a timely manner,” the sheriff said.

Santa Fe County Commissioner Anna Hamilton said she fears HB 4 could actually impede efforts to improve law enforcement training by increasing costs to agencies.

Law enforcement officials also suggested lawmakers focus more heavily on providing resources for mental health and drug abuse programs to aid people who are often most vulnerable to violent encounters with police.

“A lot of the people we deal with, it’s usually drug related or mental health related, and there’s nothing for these people to bank on,” Espinoza said.

Egolf countered that the state has been “funding increased training and support for law enforcement for years,” but still faces issues.

“We have encouraged local jurisdictions to leverage federal grants … for enhanced law enforcement training,” he said. “They’re not always utilized, which is a frustration for me and others in the Legislature that we provide funding for training and equipment, and it goes unused and unrequested.

“But the fact is that House Bill 4 is about much, much more than law enforcement,” he said.

Simonson also emphasized the bill aims to address issues that extend far beyond police violence. “At the end of the day, the Bill of Rights spans a wide swath of various kinds of rights, from freedom of the press, freedom of religion, to due process rights,” he said. “It would give New Mexicans the opportunity to ensure that those rights are protected under the state constitution.”