New Mexico Ends Qualified Immunity for State Actors

"Qualified immunity"—a defense created by the Supreme Court of the United States decades ago for state actors alleged to have violated a person's constitutional rights under 42 U.S.C. 1983—has been on the tip of many tongues recently, especially in the context of in the wake of George Floyd's death at the hands of a police officer. Qualified immunity is seen by many (myself included) to be a significant obstacle to police reform, because its increasingly broad interpretation by courts has prevented many victims of police misconduct (or other governmental misconduct, for that matter) from receiving compensation, even in many instances where a court concedes that constitutional rights were indeed violated. As such, it goes a long way in negating a major incentive—potential civil liability—for agencies and municipalities to ensure their officers are acting within the law.

New Mexico has now created a state law that provides a cause of action for someone whose rights have been violated by law enforcement or other state actors, and expressly eliminates qualified immunity as a potential defense (see the announcement of New Mexico Governor Michelle Lujan Grisham here: https://www.governor.state.nm.us/2021/04/07/gov-lujan-grisham-ratifies-civil-rights-act/; the text of the bill can be found here: https://www.nmlegis.gov/Sessions/21%20Regular/final/HB0004.pdf).

This is great news for anyone who believes that law enforcement should be accountable for its misconduct, when it occurs. New Mexico has also gone about this the right way: it shifts liability from individual officers onto the employing municipality or agency. This is called respondeat superior liability, and is exactly the same mechanism by which private employers are commonly liable for their employees' torts when those torts are committed within the scope of their employees' work. This is significant because in claims brought in federal court under Section 1983, the Supreme Court has expressly prohibited respondeat superior liability, and made it extremely difficult for victims of civil rights violations to hold an employing municipality or agency liable. However, such liability should have positive effects. First, it addresses concerns that eliminating qualified immunity would cause individual officers to "hold back" and play it too safe in the execution of their duties, for fear of being personally liable for mistakes they might make. Second, it provides real incentive to municipalities to strengthen their hiring, training, and supervision so as to ensure their officers are maintaining a proper balance between respecting the constitutional rights of all people and "getting the bad guys at all costs."

Texas has no such state remedy for civil rights violations; people in this state must still rely solely on Section 1983, with all of its limitations. The Texas Legislature is currently considering a bill somewhat similar to New Mexico's, but the elimination of qualified immunity is opposed by Republicans. For more information, see this article by the Texas Tribune: https://www.texastribune.org/2021/03/25/texas-george-floyd-act-police-protections/.