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  R. Jeffrey Lowe
One State’s Attempt to End Qualified Immunity By R. Jeffrey Lowe
In the wake of the George Floyd incident and the civil unrest that followed, the cries to end qualified immunity intensified and some in the nation called for Congress to pass legislation to prevent the use of qualified immunity. Over the last two years, legislation has been presented to Congress to prevent the use of the defense of qualified immunity in federal claims, but the proposed legislation has found no real traction. While there has not seemed to be an appetite in Congress to end the defense, the events related to tragic death of Tyre Nichols in Memphis are sure to reignite the debate regarding qualified immunity. Although the End Qualified Immunity Act has not gotten out of Committee in Congress, one state has taken the step to end the use of qualified immunity in state proceedings. In 2021, the New Mexico Legislature passed the New Mexico Civil Rights Act (the “Act”) which tracks in some relevant parts the language 42 U.S.C. Section 1983 and creates a private remedy for money damages for violations of the New Mexico bill of rights. N.M.S.A. section 41-4A-1 et seq.
The Act proclaims that a public body shall not subject any New Mexico resident or other person within the state to a deprivation of any rights, privileges or immunities secured by New Mexico’s bill of rights. Like Section 1983, the Act provides any person subjected to a deprivation of their rights under the New Mexico bill of rights the ability to bring an action to establish liability and recover actual damages or equitable relief in any New Mexico district court.
While opponents of qualified immunity decry that qualified immunity precludes holding individual officers responsible for the damages they cause, the New Mexico Act does not remedy that argument because it only allows the action to be brought against the public body, not the individual officers. That is a significant departure from Section 1983 which allows claims against individual officers, but also subjects those claims to qualified immunity. The Act also requires the public body to pay any judgment awarded in claims under the Act and requires the public body to pay all litigations costs and attorney fees for any defendant named in the suit.
Also, different from the federal counterpart is that the public body in claims under the Act are responsible for the actions of the state official acting under color of or within the course and scope of the authority of the public body, whereas in claims under Section 1983, there is no vicarious liability for the public body and public body liability must be based on a practice, policy or custom of the public body that is the motivating force for the alleged constitutional violation.
Civil Rights and Public Entity Law

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