Source: France, CODE PENAL / commentaires imagés de Joseph Hémard (Paris : Editions Littéraires de France, 192u?), Creative Commons Attribution 2.0 Generic license.

The ongoing criminal trial against Derek Chauvin is a rarity; police officers are almost never even disciplined for their wrongdoings, much less criminally charged.

Prosecutors and cops don't like to investigate and charge other prosecutors and cops. Because of this, civil litigation often ends up being the only chance for victims of police brutality and their loved ones to have their day in court.

Unfortunately, qualified immunity stops most civil rights lawsuits in their tracks.

But that will no longer be the case in New Mexico, which this week became the second state to ban qualified immunity! This is a HUGE deal, especially considering that, in New Mexico, "officers have killed more people by population than in any other state three of the past four years." The Albuquerque Police Department, in particular, is known for its violence, killing 11 people in 2018 and 2019.

For decades, the doctrine of qualified immunity has stood as a barrier to justice in yet untold numbers civil rights cases. Qualified immunity was created by judges to protect government actors who have done bad things — and has been very good at doing just that.

In the wake of George Floyd and Breonna Taylor's murders, a special session of the New Mexico legislature was called last summer to address issues of police brutality. The New Mexico Civil Rights Act (also called House Bill 4), signed Wednesday by Governor Michelle Lujan Grisham, is the end result of some of that work.
We've told you about qualified immunity before ... and, spoiler alert, it's still bullshit. Qualified immunity is a fascist doctrine created by courts to make it harder for people to sue when their rights have been violated.
Before a civil rights case can proceed at all, courts are required to determine if qualified immunity applies. To decide whether qualified immunity applies to a given case, the judge has to answer two questions: Was a constitutional right violated? Was that right "clearly established" at the time of the events in question?

The second question is what dooms most cases before they begin. Unless a case with the exact same facts has already said "YES THIS IS A CONSTITUTIONAL VIOLATION," the vast majority of cases are quickly dismissed.

In a decision granting qualified immunity last August, Judge Carlton Reeves recounted some decisions where courts granted qualified immunity:

Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog; prison guards who forced a prisoner to sleep in cells "covered in feces" for days; police officers who stole over $225,000 worth of property; a deputy who body-slammed a woman after she simply "ignored [the deputy's] command and walked away"; an officer who seriously burned a woman after detonating a "flashbang" device in the bedroom where she was sleeping; an officer who deployed a dog against a suspect who "claim[ed] that he surrendered by raising his hands in the air"; and an officer who shot an unarmed woman eight times after she threw a knife and glass at a police dog that was attacking her brother.
Yikes.
In the last few years, with the increased focus on police brutality, qualified immunity has started to get a lot more attention. Last year, with SB 217, Colorado became the first state to officially get rid of qualified immunity for cops. Connecticut and New York City have also strictly limited the defense of qualified immunity in civil rights cases. And with HB 4 signed into law, New Mexico has joined them, with one of the most progressive qualified immunity laws in the country.

The New Mexico law is a little different from the bans on qualified immunity in other places. It applies to all government officials accused of violating someone's rights, where the Colorado and NYC laws are limited to police officers. Damages will be awarded against the relevant local government authority, not the individual actors (which is how these things go in 99.99 percent of cases anyway) and are limited to $2 million (which is actually a lot higher than the other caps on damages under New Mexico law).

Qualified immunity is one of those issues that can end up creating strange bedfellows — and that's a good thing, because it can help get major reform like this passed. In New Mexico, a coalition including the ACLU, Koch-founded Americans for Prosperity, Planned Parenthood, the Innocence Project, the Institute for Justice, the National Police Accountability Project, Ben & Jerry from the ice cream, and the libertarian Cato Institute.

Many congrats to everyone who helped make this law a reality. Like ACLU of New Mexico Executive Director Peter Simonson said,

"Before today, New Mexicans had no means of accessing the lofty freedoms contained in our state Bill of Rights. Put simply, our rights were guarantees on paper, but not in fact. The passage of HB 4 ends that sad irony, literally breathing life into our cherished liberties. It's a truly monumental victory for fairness, justice, and equality."
Hopefully, Colorado, NYC, and New Mexico are only the beginning. Last month, the House of Representatives passed the Justice in Policing Act, which would end qualified immunity for cops, for the second time — and although passing it in the Senate is still an uphill battle, it's not out of the realm of possibility. Around two-thirds of Americans support ending qualified immunity, it's endorsed by the Biden administration, and some Republican Senators have indicated they might be open to it.

Let's do this thing. Our people deserve justice.

[ HB 4 ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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