New Mexico, Colorado pass new laws to hold officers accountable for using excessive force
These states passed laws that give people who were subjected to excessive use of force an avenue to sue in state court and bypass federal immunity doctrines.
“If more states were to follow New Mexico and Colorado’s lead, good police officers could regain the trust and confidence that law enforcement so desperately needs,” said an editorial was written by USA Today’s editorial board.
The Supreme Court developed qualified immunity as part of its interpretation of the Civil Rights Act of 1871 (also known as the Ku Klux Klan Act) and its codified cause of action at Section 1983.
The statute provides a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by a person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.”
Police officers who are charged with egregious use of force ending in the death of a person, will commonly not be held for a criminal prosecution, the editorial said.
A police officer in California allegedly stole $225,000 while executing a search warrant. Federal judges granted the officer qualified immunity, by ruling it wasn’t “clearly established” that the theft violates the Constitution.
Both Colorado and New Mexico passed new legislation to ban the use of qualified immunity in state courts. New Mexico allows all public officials to be sued under state law.
Colorado and New York make individual officers personally liable, mandating they pay for at least part of civil rights violations. Colorado makes officers pay either $25,000 or 5% of any damages. This is a departure from police departments generally paying damage awards.
Recently, lawmakers in at least 25 states have introduced legislation to circumvent major constraints to police accountability in liability litigations, reported USA Today on Aug. 6, 2021. Many of these attempts have failed.
California’s civil rights law faced fierce opposition from California law enforcement groups. The proposals passed the state Senate in May with its important improvements intact.
“Without protections, law enforcement officers could hesitate to make tough and often life or death decisions to avoid potential litigation,” according to an opposing view by Jason Johnson, president of the Law Enforcement Legal Defense Fund.
When government agencies are mandated to pay damages for their officer’s conduct, the cost is passed on to the taxpayer. All police officers are subject to disciplinary action for illegal and unethical behavior while on duty.
Law enforcement groups insist that laws like that of New York, Colorado, and New Mexico will cause officers to quit and discourage others from seeking law enforcement careers.
“When police are out of line with the law, their training or the applicable policy, they should face appropriate remedial action,” wrote Johnson. “But ending qualified immunity for police won’t recruit another good cop, fire a bad one, boost morale or improve training. But it could well cost lives and livelihoods.”