Government agencies have significant protections against lawsuits by individuals for mistreatment, even if they intentionally violated the law.
They are given a pass mostly under the legal concept of “qualified immunity,” which provides they are protected unless a court “clearly established” in a previous case that the actions were unconstitutional.
That might change.
It’s because the New Mexico House of Representatives recently voted 39-29 to let individuals sue government agencies for violating their rights.
The bill is the tip of the spear in a developing movement to call officials to account for their actions, according to the Institute for Justice.
“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Institute for Justice Attorney Keith Neely, who testified on behalf of the New Mexico plan.
“For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. We urge the Senate to seize this historic opportunity to end this injustice. Any police reform bill is only meaningful if it includes reform to qualified immunity,” he said.
The bill comes from recommendations by the New Mexico Civil Rights Commission that followed IJ’s model legislation closely.
The plan, HB4, “would create a new way to hold government agencies accountable in state court. If local or state government employees violate constitutional rights while working within the scope of employment, victims can sue their government employer for damages.”
Under the proposed law, individuals still would not have personal liability.
“Under qualified immunity, government officials can only be held liable for violating someone’s rights if a court has previously ruled that it was ‘clearly established’ those precise actions were unconstitutional,” IJ said. “If no such decision exists — or it exists, but just in another jurisdiction — the officials are immune by default, even if they intentionally violated the law. Created by the Supreme Court in 1982, qualified immunity appears nowhere in the Constitution or in Section 1983, the federal statute that authorizes civil rights lawsuits against government agents.”
But opposition to the practice has been building since the death of George Floyd last year.
Over the summer, Colorado became the first state to pass a law blocking qualified immunity from being used as a defense in court. However, unlike the Colorado bill, New Mexico’s legislation would apply to all government employees, not just law enforcement officers, IJ said.
Groups supporting the new direction include IJ, the ACLU, the Innocence Project, the National Police Accountability Project and Americans for Prosperity.
IJ President Scott Bullock said, “The principle at stake is simple: If citizens must obey the law, then government officials must obey the Constitution.
“The Constitution’s promises of freedom and individual rights are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”
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