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Concerns raised about costs of New Mexico Civil Rights Act

SANTA FE – A proposed New Mexico Civil Rights Act that would allow legal claims to be filed in state court over alleged infringements on free speech, freedom of religion and other constitutional rights is getting mixed reviews.

The proposal was recommended by the state’s nine-member Civil Rights Commission, which is made up of attorneys, judges and law enforcement officials. The group heard expert testimony on legal and law enforcement issues during a series of meetings that began with the commission’s creation over the summer.

The civil rights measure had its first vetting before a legislative panel earlier this week at which dissenting commission members testified that the proposal would increase local governments’ insurance costs and lead to law enforcement officers leaving New Mexico.

“The creation of a new state law is unnecessary,” said former Belen Police Chief Victor Rodriguez, who said the Civil Rights Act would ultimately enrich lawyers, but not fundamentally help victims.

But lawmakers, including House Speaker Brian Egolf, pushed back. The Santa Fe Democrat argued that holding government accountable in cases of flagrant employee misconduct or wrongdoing should trump cost concerns. He also pointed out that plaintiffs would still have to prove their cases before state judges.

The proposed law is expected to generate a contentious debate during the 60-day legislative session that begins in January.

Under a draft of the proposed Civil Rights Act, individual law enforcement officers and other types of public officials would not be personally liable to pay any court-ordered damages. Instead, such damages would be paid by the public agency or body that employs the defendant, as is currently the practice under state law.

The New Mexico Association of Counties and some lawmakers have concerns about that provision leading to more expensive insurance policies.

“The last thing we want to do here is pass an act that makes the cities and counties uninsurable,” said Sen. Joseph Cervantes, D-Las Cruces.

Former Supreme Court Chief Justice Richard Bosson, who chaired the Civil Rights Commission, suggested the Legislature create a fund to help offset any increased costs for smaller cities and counties.

A provision to bar the use of qualified immunity as a legal defense also could emerge as a point of controversy.

Qualified immunity shields police officers and other government officials from lawsuits, except in cases in which a plaintiff can prove that officials violated their established rights. That high legal threshold leads to many cases being dismissed.

Debate over qualified immunity and other police use-of-force issues intensified this summer after a series of incidents in New Mexico and around the nation, including the death of George Floyd while he was in the custody of Minneapolis police officers.

In a report, a majority of commission members wrote that a New Mexico law providing victims of official misconduct a remedy under the state constitution is long overdue.

The four dissenting commission members have said the group’s work was rushed and that different alternatives were given short shrift. In addition to Rodriguez, those members included Doña Ana County Sheriff Kim Stewart, Republican state Sen. Steve Neville of Aztec and incoming Doña Ana County District Attorney Gerald Byers.

“There’s nothing wrong with the concept of trying to protect everybody’s civil rights — that’s certainly nothing anybody disagrees about,” Neville said. “The issue is how we make sure we protect our institutions like small towns and small counties around the state that could be devastated by a bad lawsuit.”