Written by Gianna Gizzi.

Image by Maanas Oruganti.

“Do not judge a book by its cover” or legislation by its bill name.[1] Why? Because New Mexico’s House Bill 4 lacks linguistic luster, but beyond its name, the Bill’s text has widespread implications in the realm of police misconduct. House Bill 4, more fondly referred to as the New Mexico Civil Rights Act, was signed into law on April 7, 2021.  Among other measures, this law bans qualified immunity, making New Mexico the second state in the country to end the controversial judicial doctrine.

For anyone who has ever gone up against police departments or their officers in a civil suit, New Mexico’s recently passed law is cause for celebration, and I’ll explain why. But first, it is important to understand some of the historical context surrounding qualified immunity.

Qualified immunity is a judicial doctrine that was conceived in 1961. It started in Mississippi with a group of priests who were protesting racial segregation when they were arrested and jailed for breach of peace.  A local judge sentenced the priests to four months in jail, but the criminal charges were later dismissed on appeal.  Subsequently, the priests sued those police officers under Section 1983 of the Ku Klux Klan Act.  After losing their civil lawsuit in the district court, the priests appealed the lower court’s decision, which brought their case to a federal circuit court. Among other findings, that federal circuit court ruled that the police were not immune from the civil lawsuit, which prompted the police officers to appeal that decision, placing it in the lap of the Supreme Court. And it is here, in the Supreme Court, where qualified immunity first breathed life in the case of Pierson v. Ray. This decision laid the groundwork for the present interpretation of qualified immunity.  Since 1967, what started out as relatively narrow exception to civil liability, soon morphed into a massive, impenetrable shield for law enforcement to step behind to avoid accountability, even for the most egregious acts.

In the past decade, qualified immunity has deviated further from its intended function, no longer serving the purposes that its proponents claim it does.  For example, some supporters have reasoned that police officers should not go bankrupt from a civil judgment entered against them, based on a “reasonable mistake” of what constitutes violating a person’s civil rights. There are two problems with this approach—first, most courts interpret what is a “reasonable mistake” very generously.  And second, even when an individual successfully obtains a judgment against police officers (which is rare), the officers are almost never financially responsible for that judgment.[2] Instead, the municipality they are employed by pays the judgment. As a result, the police officers do not feel the “burn” of their misconduct, and thus are not financially or professionally incentivized to act safer and more responsibly in the future.

Wash. Rinse. Repeat.

The legal system, as is, enables law enforcement to continuously mistreat the communities they police; and one of the primary schemes that allows for this is qualified immunity.  New Mexico, joining Colorado, has taken a substantial step forward in holding law enforcement responsible for their conduct when they violate a person’s constitutional rights. House Bill 4 is much more than what New Mexico’s legislative process labeled it initially.  The statute effectively dismantles law enforcement’s ability to dodge liability for brutalizing civilians.

Hopefully, more states will soon follow with their own versions of House Bill 4.

[1] Generally, bills are named with the legislative body they originated in and the sequence they are introduced in, in a given session. (e.g., H.B. 40” is a bill that originated in the House and was the fortieth bill to be introduced in that session).

[2] This is because of indemnification laws. Further discussion of indemnification for police is reserved for another post.