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Mar. 17—A hotly debated proposal that would open the door to civil rights lawsuits against government agencies in state court and remove "qualified immunity" as a legal defense in such cases passed the New Mexico Senate early Wednesday.
The proposed New Mexico Civil Rights Act comes after nearly a year of civil unrest in the aftermath of several deadly incidents of police brutality that rocked the nation and led to calls for reform.
"I think all of us watched in horror eight minutes and 46 seconds of a police officer's knee on George Floyd's neck as he told the officer that he couldn't breathe and other officers stood and watched," said Sen. Joseph Cervantes, D-Las Cruces, referring to an unarmed Black man who died in police custody in Minneapolis last year.
"The horror of that video caused us as a country to once again reexamine and reevaluate our civil rights and our justice system, and our interaction between our society and the protection of those rights in government," added Cervantes, the Senate sponsor of the bill.
The 26-15 vote, which took place just after midnight, was largely along party lines. Sen. George Muñoz, a more moderate Democrat from Gallup, sided with Republicans in opposing the proposal, which narrowly passed the state House of Representatives last month. The House must approve an amended version of the bill before it heads to the governor's desk.
The contentious proposal would eliminate a doctrine known as qualified immunity as a legal defense to civil rights complaints filed against government agencies in state District Court. The doctrine shields government workers, including police, from personal liability under federal law when workers violate people's constitutional rights.
Currently, lawsuits alleging violations of U.S. constitutional rights are filed in federal court. House Bill 4 would create a path to filing similar claims in a state court under the New Mexico Bill of Rights.
An amended version of the bill caps damages at $2 million per claimant for each "occurrence."
Republican members of the Senate decried the measure, describing it as anti-law enforcement and saying it would lead to increased costs for government agencies that would ultimately be passed on to taxpayers.
"This bill doesn't do anything to address the problem of public employees who violate individuals' rights," said Sen. Craig Brandt, R-Rio Rancho. "It's just a slap in the face to all the officers in our state. All we've done in this bill is create a lawyer enrichment bill."
While New Mexico State Police officers have been a constant presence in the Roundhouse since the start of the 60-day legislative session in January, they rarely listen to floor debate. But at least three officers stood watch in the gallery as lawmakers took up the matter.
Cervantes asked lawmakers to "reject some of the rhetoric" heard in the chamber, calling it a tactic to divide them.
"It's only diversionary to try and suggest this is us versus the police," he said.
Republicans said government concerns about higher insurance rates and increased exposure to liability were real.
"We've been here a long time with cities and counties calling in saying, 'Please don't do this to us. Please don't do this to us.' Because if we do this to them, we're doing it to the people of New Mexico," said Sen. Bill Sharer, R-Farmington.
"We don't want to deprive somebody of their civil rights, but we also don't want to make the taxpayers of whatever jurisdiction just pour money into this endless pit of lawsuits," he added.
Sen. Stuart Ingle, R-Portales, said New Mexico would be dropping off a "precipice" with the civil rights bill.
"We have the most liberal liability laws of any place except Washington, D.C., and the stuff we didn't have has now been added through this," he said. "It's going to open up areas for liability that we have never seen before. And our counties and our cities, our highway departments, every state agency we have, I think, is going to be subject to things that they have never even thought about."
At the start of Tuesday's late-night hearing, the Senate approved a number of changes to the bill, including eliminating mandatory attorney fees, a big concern for local governments. The proposal would allow a prevailing party to receive attorney fees but only at the discretion of a judge.
Other changes would require notice of a potential claim involving law enforcement to a government agency within a year and exclude incidents that happened before July 2021.
"The provision that strikes mandatory fees, I think, is a huge concession to the local governments who have raised various concerns on this bill," said Sen. Jacob Candelaria, D-Albuquerque.
Cervantes said the changes reflect "the ongoing efforts of the [sponsors] to try and be reasonable in response to concerns brought by city and county governments."
City and county government officials across the state have voiced the loudest opposition to the bill, saying it could lead to higher insurance rates and costly settlements for wrongdoing among employees, as well as force agencies to divert resources from essential services to lawsuits.
They also contend the bill does nothing to address the type of misconduct it seeks to prevent.
"Giving us a punitive measure on the back end, the financial guillotine on the back end, is not going to solve the problem," AJ Forte, executive director of the New Mexico Municipal League, told lawmakers last month.
The bill is being sponsored by three attorneys: House Speaker Brian Egolf, D-Santa Fe, Rep. Georgene Louis, D-Albuquerque, and Cervantes.
"Let me take a moment ... to let this body know that I have practiced law for 30 years, and I've never brought a civil rights claim under Section 1983 [which allows for lawsuits against government over civil rights violations] against a law enforcement officer," Cervantes said at the start of the hearing. "This is not my practice or area of law, and I have no conflict of interest or financial motive in bringing this legislation."
The measure triggered an ethics complaint against Egolf alleging he stands to benefit financially from the measure if it becomes law. Egolf has called the complaint baseless. The State Ethics Commission has indicated two of three charges in the complaint would likely be dismissed but that a third is still under review.
The law would apply to a large number of public bodies, from municipalities to school districts. Acequia associations and soil and water conservation districts would be among the few organizations that would be exempt.
Follow Daniel J. Chacón on Twitter @danieljchacon.
Follow Daniel J. Chacón on Twitter @danieljchacon.