In the aftermath of last year’s killing of George Floyd and the domestic unrest we witnessed in many parts of the country, Governor Michele Lujan Grisham convened a special session of the New Mexico Legislature to consider certain proposals relating to public safety reform. As a former Cabinet Secretary for the New Mexico Department of Public Safety as well as a retired New Mexico State Police Officer, I supported the proposals requiring uniformed police officers to wear body cameras, banning police use of chokehold restraints, and making police disciplinary history a matter of public record through the Law Enforcement Academy. Each of those proposals related directly and unmistakably to meaningful police reform and will improve the relationship between the police and the public going forward.
That special session, however, conceived something else under the label of “police reform” that is anything but. A new panel blandly titled the “New Mexico Civil Rights Commission” proposed the creation of “the Civil Rights Act”, that would; (1) expose New Mexico’s public servants of every kind to being sued, not just police officers, but firefighters, educators, bus drivers, social workers, MVD clerks, jail personnel, administrative board members, building officials, and election staffers, just to name a few; (2) swamp our state courts that can’t keep up with the overwhelming caseloads they already have; (3) destabilize our state, county, and municipal budgets when government agencies inevitably lose access to the protection of insurance companies, after they have collected hefty premiums from public funds, that will move on to states they see as having fewer risks; and (4) require an immediate and substantial tax increase so that our state, county, and local governments can pay the attorney’s fees for both sides as well as whatever compensation is paid to the person bringing the claim, whether the case is really meritorious or not.
This proposal, now moving through the Legislature as House Bill 4, has virtually nothing to do with police reform. After all, it authorizes lawsuits against every type of government official, not just the small percentage who happen to be police officers. This bill also will have no deterrent effect – even on police officers – for it relieves them of the responsibility to pay anything at all, even in those rare instances of intentional misconduct. Instead, the bill would require the employing agency – and ultimately the taxpayer – to pay the judgment. This bill is an example of a solution in search of a problem because state law already allows persons injured by law enforcement officers to file suit in state court and win judgments that can exceed $1 million. This is not to say that individuals who suffer unlawful civil rights violations should not be compensated. They should, and that compensation should be made as swiftly as possible, and the responsible individual and agency leadership should have to immediately examine their processes to prevent recurrence and answer to their constituents who will have to bear the cost. The litigation process, mostly driven by insurance executives and attorneys billing at hourly rates, does essentially nothing to timely address wrongs and serve to change the systemic problems that are the root cause.
Perhaps the most destabilizing dimension of HB 4 is its requirement that the state or local government pay the attorney’s fees for the party bringing the suit. For generations, the party suing a law enforcement officer under state law had to share some percentage of the proceeds of a successful lawsuit with his or her attorney. If this bill passes, however, a person could sue for a technical violation of his state constitutional rights, win a judgment of a few hundred or few thousand dollars, and stand by as his lawyer charges the state $100,000 in legal expenses. HB 4 is the proverbial Trojan horse, for it seeks to smuggle into New Mexico law an open invitation to lawyers everywhere to troll for clients with any beef against any government actor – again, not just law enforcement officers – and then hop aboard the gravy train.
Current litigation practices against government agencies and or their employees are not pleasurable experiences for any named party. HB 4 is a hundred times worse, for its threat of astronomic attorney’s fee awards, not to mention the bills racked up by the lawyers defending the government agency and its employee(s), will no doubt extort government agencies into settling even weak claims. The risk of the smallest verdict will simply be too high and the trial lawyer feeding frenzy will be all too predictable.
For forty years, qualified immunity has been a defense that from time to time has been invoked by state and local government officials who have been sued. And for each of those forty years, judges have rejected the defense every bit as often as they have upheld it. Indeed, even with the availability of qualified immunity as a possible defense, government agencies around New Mexico pay millions of dollars every year to persons whose constitutional rights the agencies’ employees have violated. Thus, qualified immunity is not nearly the hurdle that those who support House Bill 4 are portraying it to be.
This bill is a wolf in sheep’s clothing. It will have zero impact on police reform, it will incentivize the filing of lawsuits that are anything but meritorious, it will cause a concussion to our state and local government finances, and it will raise our taxes. Masquerading as another effort at “police reform,” this bill in its current form is something else altogether: an economic stimulus package for trial lawyers and the causes they support.
I want to end on a note of optimism: there are four ways this bill can still be fixed. First, if its original purpose was truly police reform, then its scope should be restricted to law enforcement officers. Next, to ensure that this bill doesn’t trigger an endless avalanche of lawsuits that will break the banks and budgets of state and local government, then find a way to harness the amount of attorney’s fees to the actual amount of money awarded to the person whose rights were allegedly violated. I suggest no more than one-third of the amount ultimately recovered. That way, the injured person will recover the full amount awarded and the lawyer will receive an additional one-third as his or her fee. But if we leave the mandatory attorney’s fee provision as it is – with no relationship whatsoever to the amount ultimately recovered – then our state courts will be littered with lawsuits of questionable merit filed by lawyers whose personal financial interest is obvious. Additionally, this bill should require the person seeking compensation to do what state law already requires, which is to put the applicable government agency on notice of the potential claim within 90 days of the alleged rights violation, not 3 years. Under the 90-day rule, the government agency can promptly settle the claim and take appropriate action(s) towards preventing similar events from reoccurring and or prepare to defend itself and its employee against it. Finally, our Legislators should have the decency in requiring that all parties attempt a fair resolution before any suit can be filed. Each of these proposals will improve HB 4 in important ways.
Cabinet Secretary, New Mexico Department of Public Safety, 2016-18
New Mexico State Police Officer, 1994-2016