The three of us approach public policy from very different perspectives, including some issues related to criminal justice reform. But in the case of police officers charged with violating the constitutional rights of people in the communities they are sworn to protect, we speak with one voice: Qualified immunity needs to end.
The New Mexico Civil Rights Act would accomplish that goal. Now that the Legislature has passed it, we urge Gov. Michelle Lujan Grisham to sign it into law.
The bill would give people whose civil rights are violated the right to have their day in court.
It would eliminate the get-out-of-jail-free card for bad cops by prohibiting qualified immunity. Currently, unless there is a past example of another cop in the same jurisdiction who broke the law in exactly the same way, the case gets thrown out of court.
Qualified immunity allows cop and other government employees to do things that would land a regular person in jail and get away with it.
Until this overly broad legal protection is eliminated, truly comprehensive reform that transforms police culture and removes structural barriers to good policing by increasing accountability and transparency cannot be fully achieved.
We owe it to all those who have been the victims of police misconduct to make good on the promise of equal justice for all. We also owe it to the vast majority of dedicated law enforcement officers who serve their communities well and keep us safe while being buffeted by a broken system.
Injustices related to qualified immunity abound. In 2019, qualified immunity was granted to prison officials who kept a naked inmate locked in a sewage-flooded cell for several days. Qualified immunity was granted to police officers who picked up a mentally ill man at dusk, drove him to the county line, then dropped him off along the side of the highway. The man later died after being struck by a motorist.
The New Mexico Civil Rights Act would simply open an avenue to allow justice for victims.
The original idea behind qualified immunity was based on good intentions. Judges and others were worried that police officers might be placed in legal jeopardy for life-and-death calls made in the heat of the moment. But it has evolved into a shield for all, acting in good faith or not, providing near-complete immunity for any police action, however unjustified.
That is not the way our system of justice is designed to work. But it’s important to remember that this is not the creation of some new right. It is the defense of an old one.
Ending qualified immunity for police officers would remove limits to due process that people enjoy in nearly every other circumstance — except when their rights are violated by the police or another government agency.
People should not be denied their due process rights based on unreasonable actions by the government. Aside from the direct impact on those whose rights are violated, the broader impact is an erosion of trust between law enforcement and the communities they are sworn to protect and serve. A deterioration of that relationship can only lead to more confrontation and more tragedy.
Opponents have raised objections based on the potential costs. If citizens are free to sue the police, some fear, they could bankrupt local governments. The fear is unfounded. While the officers themselves would be indemnified, local jurisdictions can obtain, or currently have, insurance, and monetary caps limit the size of awards. Meanwhile, cities and counties would be incentivized to improve training and discipline, to avoid incidents that lead to lawsuits and violations of citizens’ civil rights.
In any case, the costs of police misconduct are already being paid — by the victims of that misconduct. And municipalities are paying millions of dollars to settle cases of abuse by bad cops. Ending qualified immunity would empower the legal system to more equitably distribute those costs where they belong.
Colorado enacted a similar measure last year, what one expert said was, for the moment, the “gold-standard reform.” New Mexico can now seize this moment, align itself with the gold standard and ensure its residents have access to every protection afforded by the Constitution.