Page 28 - FDCC_InsightsSpecialIssue23

Civil Rights and Public Entity Law
Another significant difference in the Act and the federal counterpart and the case law interpreting it, is the Act’s treatment of the defense of qualified immunity. In the Act, the New Mexico Legislature prevented the use of qualified immunity for any claim under the Act. Therefore, the Act did what Congress has been unable to do for the last two years, specifically end the use of qualified immunity in claims based on constitutional violations.
The Act also declared the State of New Mexico shall not have sovereign immunity for itself or any public body within the state for claims under the Act and precludes the State or its actors from asserting the defense of sovereign immunity in such claims. Therefore, the Act not only precludes the assertion of qualified immunity, it precludes the State from asserting a defense that is traditionally used in claims for damages against the State in federal court pursuant to Section 1983 for a violation of the United States Constitution. One federal district court in New Mexico has found that despite the abrogation of sovereign immunity in state court proceedings under the Act, the federal court could not exercise jurisdiction over the plaintiff’s state law claims brought pursuant to the Act in federal court. Despite prohibiting the use of qualified immunity and sovereign immunity, the Act does not preclude the use of judicial immunity, legislative immunity or any other constitutional, statutory or common law immunity.
Significantly, the Act also states the remedies provided in the Act are not exclusive and are in addition to any other remedies prescribed by law or available pursuant to common law. Thus, the Act creates an argument that a plaintiff may maintain a claim against the public body for both a violation of the Act and federal constitutional
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FDCC ANNUAL FIVES 2023