What is New Mexico House Bill (HB) 4?

House Bill 4 (HB 4) creates the “New Mexico Civil Rights Act.” The Act gives a person who claims deprivation of “rights, privileges or immunities” secured by the New Mexico Constitution the right to bring a lawsuit in state district court and recover actual damages and injunctive relief. In addition to actual damages, the Act provides that a person who prevails in a lawsuit brought under the Act is entitled to an award of reasonable attorney fees and litigation expenses. The Act prohibits a public body, or those acting on the public body’s behalf who are sued under the Act from using “qualified immunity” as a defense.

You can view the full text of HB 4 here.

Frequently Asked Questions

For a PDF of this FAQ, click here.

What does the New Mexico Civil Rights Act provide that is not provided by the New Mexico Constitution?

1. The New Mexico Constitution provides New Mexicans with personal rights and privileges, but right now there is no direct way to enforce it. The Civil Rights Act would finally allow our Constitution and its protections to be enforced in every community, regardless of class, background, or zip code.
2. Moreover, the New Mexico Civil Rights Act would act as an incentive for government entities to embrace the training, oversight and accountability policies that are necessary to protect our communities and prevent the abuse of authority.

1. Qualified immunity is a judicial doctrine developed by the Supreme Court in the late 1960s, which shields state actors from liability for their misconduct, even when they break the law. Our primary federal civil rights statute—generally called “Section 1983” after its place in the U.S. code—says that any state actor who violates someone’s constitutional rights “shall be liable” to the party injured. But under the doctrine of qualified immunity, the Court has held that such defendants can’t be sued unless they violated “clearly established law.” In other words, it is entirely possible—and quite common—for courts to hold that government agents did violate someone’s rights, but that the illegality of their conduct wasn’t sufficiently obvious for them to be held liable to the victim of their misconduct.
2. Qualified immunity only matters when a public official has, in fact, violated someone’s federally protected rights. If a police officer hasn’t committed any constitutional violation in the first place, then they don’t need qualified immunity, because they haven’t broken the law at all. Thus, the doctrine only comes into play when a constitutional right has been violated but a court determines this right was not “clearly established” (which often requires a prior case with functionally identical facts).

Doesn’t qualified Immunity simply protect officers from being sued for doing their jobs in good faith?

1. Qualified immunity does not protect the officers who acted in good faith or because they made a split-second decision; the Fourth Amendment protection provides that protection. Under qualified immunity, the injured person often never has an opportunity to prove that their rights were violated and that the employee was not acting in good faith.
2. In practice, qualified immunity is used to shield defendants who commit even egregious misconduct. A review of case law demonstrates that the main practical effects of qualified immunity are to deny justice to victims whose rights are violated and to undermine accountability for public officials—especially in law enforcement.
3. Qualified immunity doesn’t even really protect the employee from exposure to lawsuits. To get qualified immunity, the employee is first sued and then raises qualified immunity as a defense and the issue has to be litigated in briefing, argument, and often appeals. So, qualified immunity doesn’t necessarily protect the employee from suit but simultaneously cuts off the rights of the person who was hurt.
4. Police officers already have ample legal protections because courts recognize that they work under dangerous, uncertain, and evolving conditions. The Fourth Amendment—which governs most on-the-street, police-citizen interactions—prohibits “unreasonable searches and seizures.” This “reasonableness” standard therefore already accounts for the kind of practical deference that police need to do their job effectively. Qualified immunity only comes into play when an officer has acted objectively unreasonably under all the circumstances. If we were to eliminate the doctrine tomorrow, reasonable officers would still be protected from “20/20 hindsight,” because that protection doesn’t come from qualified immunity in the first place.
5. Qualified immunity only matters when a public official has violated someone’s constitutional rights. Police officers who are “legitimately performing their duties” — i.e., acting lawfully — do not need qualified immunity because, by definition, they’re not violating anyone’s rights in the first place.

1. To begin with, qualified immunity is unfair to victims whose civil rights have been violated under the New Mexico Constitution.
2. Beyond this, qualified immunity hurts the law enforcement community nearly as much as it does victims of police misconduct because the public views law enforcement as getting off easy, training opportunities are lost, and good officers are lumped together with bad actors.
3. Moreover, qualified immunity often protects a government actor just because what they did has never been done before. If we don’t review “new” bad conduct to decide if it violates rights, bad conduct is never addressed or punished.
   • One of the best examples of this legal “stagnation” is the sluggishness with which federal courts have come to recognize the First Amendment right to record police officers in public. Although the Supreme Court has yet to weigh in on this subject, every circuit court to address this issue on the merits has found that there is, in fact, such a right. But in the Third and Fourth Circuits, this right has long gone unprotected, precisely because these courts granted qualified immunity to officers who arrested people for exercising this right, without ruling on the merits question. And the Third Circuit even granted qualified immunity to officers in a second right-to-record case, on the grounds that, naturally, the right-to-record had yet to be clearly established in that circuit, so “it was not unreasonable for the officers to regard their conduct as lawful.”
4. There are innumerable cases in New Mexico and across the country that exemplify why removing qualified immunity is so crucial to genuine police accountability. A recent example in New Mexico is the case of Robert Lankford:
   • In October 2019, Robert Lankford used an extra set of shackles to hang himself in his holding cell after being arrested for an outstanding warrant. An internal affairs investigation found Albuquerque PD Officer Jonathan Franco violated department policy by failing to check on Lankford, failing to render any aid, and submitting a false police report. Four years prior, a federal judge found that Franco violated a man’s constitutional rights by knocking him unconscious during arrest but granted Franco qualified immunity; a suit against the city settled for $42,500. The initial discipline was termination, but eventually Franco was instead suspended without pay for 360 hours. Had qualified immunity not been granted to Franco in the first case, APD would have had to take steps to properly train or dismiss Officer Franco, and Robert Lankford might still be alive today.

Will government employees have to pay out of pocket for settlement agreements or judgments reached under the New Mexico Civil Rights Act?