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Civil Rights and Public Entity Law
rights. Given that claims under the Act can only be brought in New Mexico state court, there also exists an argument that parallel actions could be brought in state and federal court for the same incident.
The Act only permits prospective application and does not apply to claims occurring prior to July 1, 2021. The Act also imposed a one-year written notice requirement for claims against law enforcement officers under the Act, unless the claim is one for wrongful death with has an 18-month notice requirement. However, the Act also exempted claims from the written notice requirement if the governmental entity had actual notice of the occurrence. Claims under the Act are subject to a three-year statute of limitations, unless state law provides a longer statute of limitations.
The Act also permits the recovery of a reasonable attorney fees and costs for a prevailing plaintiff similar to the ability to recover attorney fees and costs pursuant to 42 U.S.C. section 1988. The recovery under the Act, however, includes the recovery of attorney fees and costs in its damages cap, which as of the time of enactment, was $2,000,000.00 per claimant. The damages cap, however, is subject to an annual cost of living adjustment. The cost of living adjustment will never allow the cap to drop below $2,000,000.00.
The Act shows that state legislatures may be more willing to remove the protections provided by qualified immunity than Congress which may subject governmental entities and their employees to liability that does not exist in the federal system. The question remains, however, whether other states will follow New Mexico’s lead and create a private right of action for violation of state constitutions to avoid the use of qualified immunity for constitutional claims and thereby provide another avenue for plaintiffs allegedly aggrieved by governmental action to recover for damages without the potential use of qualified immunity. Governmental entities, and the attorneys representing them, will be well-served to monitor state legislatures to ensure attempts to circumvent the protections provided by qualified immunity are properly opposed and limited.
R. Jeffrey Lowe is a partner with Kightlinger & Gray, LLP in New Albany, Indiana. Contact him at:

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