The New Mexico Legislature is debating a civil rights bill that would expand the remedies available to people whose rights are violated by police officers. Police unions, sheriffs and local governments are signaling opposition. But as a former police officer who now studies policing and crime, I think that opposition is misguided.
House Bill 4 has two components. First, it would give persons whose civil rights are violated the right to receive monetary damages. Currently, plaintiffs in excessive force claims can’t be compensated if they prevail. This makes the protections of the state constitution little more than paper barriers to misconduct.
The bill would also prohibit the use of “qualified immunity” as a defense by police. Qualified immunity permits officers to avoid liability if they can show their conduct wasn’t a clear, knowing constitutional violation — not just illegal conduct, but “clearly established” as illegal under closely similar factual scenarios.
The impulse behind qualified immunity is a good one. Courts were rightly concerned that officers would be held liable for split-second decisions taken in good faith. But a searing report from the New Mexico Civil Rights Commission recently described the “harsh impact the doctrine has on an injured person’s right to even try to pursue relief in court.” Rather than a protection for officers who acted in good faith, qualified immunity has metastasized into near-complete immunity for any police wrongdoing.
This protection has rendered hollow Section 1983, the federal statute that permits people to sue for civil rights violations — as a former cop, take it from me that the threat of federal lawsuits rarely stops police misconduct. This is why the New Mexico Legislature needs to establish a state cause of action. But law enforcement officials, police unions and local government representatives argue the bill would subject officers and agencies to crippling damage awards.
These worries seem overblown. There’s little evidence that Section 1983 has meaningfully limited law enforcement discretion. In fact, most observers — including such ideological opposites as Supreme Court Justices Clarence Thomas and Sonia Sotomayor — have argued that Section 1983, as currently interpreted, stifles many meritorious claims of excessive force. Law enforcement officers are given substantial leeway to respond to emergencies without courts applying 20/20 hindsight. New Mexico judges won’t let a new civil cause of action become a cash cow for plaintiffs.
I believe law enforcement should welcome greater accountability. One of the most pressing challenges facing police today is the increasing divide between officers and the communities they serve. There is blame to go around on both sides of this divide. But the mere fact this divide exists (and is growing) is a huge blow to the effectiveness of law enforcement.
Any experienced cop will confirm that one of the most effective tools in fighting crime is collaboration with neighbors. Police rely on community members to serve as witnesses, call in tips and give beat officers the lay of the land. If the public won’t play this role because it mistrusts police, that compromises law enforcement effectiveness and, ultimately, public safety.
Moreover, few things are as frustrating to the good cop as the bad cop — the cop who abuses his trust by using unnecessary force, provoking unnecessary confrontations and treating members of the public with disrespect. Making it clear to the community that there will be real consequences for police misbehavior is an important step in rebuilding trust. And it also honors the service of officers who fulfill their duties with professionalism and respect.
To most cops, policing is a calling — to put your life at risk from a sense of service and public spiritedness. But policing is also a profession, and professionals set high standards for themselves and hold each other accountable. Good cops have nothing to fear from accountability — and even much to gain from measures that help root out the misconduct that makes their jobs harder.