On April 7, 2021, Governor Michelle Lujan Grisham signed the New Mexico Civil Rights Act into law, effectively ending the doctrine of qualified immunity for all state and local public officials there. The law had bipartisan support and the backing of several organizations, including the Innocence Project. This makes New Mexico the first U.S. jurisdiction to end qualified immunity for civil rights cases entirely—though Colorado ended the applicability of the doctrine to law enforcement in June of 2020, and Connecticut and New York City have also each passed recent legislation intended to limit its use by the police.
The New Mexico law creates a new type of state legal claim for people whose rights under the state constitution have been violated by either government workers or the government itself. The law limits the possible payout for these claims to no more than $2 million per occurrence, but it also allows courts to award additional attorney’s fees when they see fit. The most groundbreaking part of the new law, however, is that it specifically prevents any government worker who is sued in this way from avoiding the lawsuit by claiming qualified immunity.
Qualified immunity is a legal principle that protects officials employed by a government entity from being sued as individuals for violating the rights of members of the public. First formalized in the U.S. Supreme Court case Pierson v. Ray, qualified immunity makes government workers “immune” from any such lawsuits unless the actions they took violated a legal right that was objectively “clearly established” at the time. In practice, this standard prevents a large number of lawsuits against public officials that might otherwise be brought for things like excessive use of force or illegal searches by the police—because it is very difficult for a person to show that a right was “clearly established.”
The doctrine of qualified immunity was created by the courts, but legislation like the New Mexico law can easily change or eliminate it. A large proportion of the cases where qualified immunity is raised as a defense are filed under federal law. In 1961, the Supreme Court held that 42 USC § 1983 makes it expressly possible to file a lawsuit against people who work for state or local governments when they violated a person’s rights under the U.S. Constitution or other federal laws. Ten years later, the Court held in Bivens v. Six Unknown Federal Narcotics Agents that federal officials could also be sued for such violations.
These so-called § 1983 lawsuits and Bivens claims are often foreclosed by qualified immunity, but that could change if Congress chooses to enact laws like the New Mexico Civil Rights Act. In 2021 alone, there have been four resolutions presented to the House of Representatives and one presented to the Senate that would end or dramatically limit the doctrine. Of these, the George Floyd Justice in Policing Act of 2021 has already passed in the House and was received in the Senate on March 9, 2021.