Two years ago, when New Mexico enacted its Civil Rights Act, the governor and others asserted that our state had abolished qualified immunity. The concept of qualified immunity has come under considerable fire in recent years because it prevents individual government employees, including law enforcement officers, from being sued by those who claim they violated their rights.
Other states have also claimed to have ended qualified immunity, at least for police, in an effort to make law enforcement personnel civilly liable for violations of people’s rights. The moves to end qualified immunity often cite a provision in federal law, Section 1983, that allows people to sue government officials at all levels for violating their “clearly established” rights under the U.S. Constitution. For example, an illegal search and seizure would be a violation of a person’s 4th Amendment rights.
What about behavior that doesn’t violate constitutional rights?
This leaves a lot of bad – and even illegal – behavior that police can engage in and evade civil liability from the victim. Courts across the country have ruled against a plaintiff’s right to sue individual officers if their behavior wasn’t specifically a violation of a “clearly established” constitutional right.
For example, an appeals court ruled that a person couldn’t sue a police officer who allegedly stole a rare coin collection while they were conducting a valid search because the officer didn’t violate their constitutional rights. A federal court ruled that a woman couldn’t sue police for damaging her home with bullets and tear gas after she gave them permission to look for a suspect they believed was hiding there.
Real reform requires congressional action
Various state laws, including New Mexico’s, may have some effect in curbing police brutality and other violations of people’s constitutional rights – if only because many people, including law enforcement professionals, may not fully understand them. The most effective solution is for Congress to pass such a law. However, that seems unlikely to happen soon given the partisan divisions in both houses.
In the meantime, anyone who believes that their rights have been violated by law enforcement officers – or any government employees – should seek experienced legal guidance. This is your best way to determine what your options are and choose the best path forward.