It’s Time to Enact a New Mexico Civil Rights Act

By KAY MATTHEWS

In February 8 Antonio “Ike” DeVargas and Susie Schmitt testified before the New Mexico House Judiciary Committee on House Bill 4, the New Mexico Civil Rights Act, as the parents of two Santa Fe County Adult Detention Facility detainees who died at Christus St. Vincent’s Hospital after being denied adequate health care at the jail in November of 2019. DeVargas’s daughter Carmela DeVargas, was being held on a parole violation, and Schmitt’s son Rex Cochran, Jr., the same. Carmela died of infectious menigoencephalitis, epidural abscess, and sepsis caused by MRSA. Rex died of organ failure due to sepsis. Both parents believe their children would not have died if they had received treatment at the detention facility in a timely fashion.

Dozens of others testified before this hearing on the New Mexico Civil Rights Act that would permit “an individual to bring a claim against a public body or person acting on behalf of or under the authority of a public body for a violation of the individual’s rights, privileges, or immunities,” or essentially, revoke the defense of qualified immunity, which, because of the arduous process to prove that rights have been violated, has abrogated these rights for too many years.

According to longtime civil rights attorney Richard Rosenstock, who represents DeVargas, qualified immunity is a judicially created defense for individual government employees that was created by the U.S. Supreme Court around 1967. It requires “a plaintiff to prove not only that his or her rights were violated but that the right at issue was so clearly established that any reasonably competent official would have known that.” Rosenstock explains that the meaning of “clearly established” has become too difficult because the Supreme Court and federal appeals courts have interpreted it to mean that the plaintiff must show prior Supreme Court or Court of Appeals cases that should have put the official on notice that their conduct was unconstitutional or so similar to their case that they can’t get past that defense.  The absurdity of the defense is that it is highly unlikely, to say the least, that any governmental defendant has read any of the cases that are supposed to put them on “notice.” The New Mexico Civil Rights Act allows people to have a meaningful chance to have their day in state court.

The Civil Rights Act would also allows the court to award reasonable litigation expenses and attorneys fees to any person who prevails in the civil rights action. The act does not, however, allow for punitive damages.

After the bill passed the State Government, Elections, and Indian Affairs Committee, a new iteration of the bill substituted language that changed several components:

• Claims brought pursuant to the New Mexico Civil Rights Act shall be brought exclusively against a public body, which would be held liable for individuals under the authority of that body. Many see this compromise as a failure to identify individuals who are guilty of civil rights violations and should be removed from the system.

• Damages would be capped at $2 million, including costs and attorney fees, to assuage concerns brought by state and local government entities that damages could bankrupt them. Interest rates and cost of living increases are factored in.

A slew of social justice and advocacy groups testified in favor of the bill, affirming that the act will finally bring to account public agencies and those representing those agencies who violate people’s civil rights. Groups included YUCCA (youth group organizing for climate justice), ACLU, Equality New Mexico (LGBTQ), AFSCME Union, NAACP, League of Women Voters, The Innocence Project, Bold Futures, Institute for Justice (a libertarian law firm), Americans for Prosperity, New Mexico Moms Demand Action (gun violence), Coalition of Sexual Assault Programs, National Police Accountability Project, Sierra Club Rio Grande Chapter, and APD Forward (advocates for reform within the Albuquerque Police Department). Former New Mexico Supreme Court Justice Richard Bossom, who served on the Civil Rights Committee that held public hearings to develop the bill, also testified in its favor.

Interestingly, representatives of several acequias, soil and water conservation districts, and land grants suggested that the bill should be amended to protect these kinds of small political subdivisions of the state from lawsuits that might cause them to lose their lands or impact their volunteers. House Speaker Brian Egolf responded to these concerns (he, Georgene Lewis, and Joseph Cervantes are sponsors of the bill) by claiming these are rather “far fetched fears” and clarifying that under the law land is not subject to seizure.

Most of the arguments raised by people representing law enforcement, and a number of cops themselves, insisted that the focus of this act is retribution against them (Judiciary Chair Gail Chasey rebuked one policeman for stating, “They want to get even with law enforcement”) and that the focus should be on police training and reform, not punishment.

Representatives of municipal and county governments, including Santa Fe County and Sandoval County, all tried to make the case that the act will open a floodgate of lawsuits and raise their insurance rates.

In his response to the public comment, Egolf stated that his overall impression of the testimony was the failure of those who expressed their opposition failed to also express any concern for the victims of abuse that so many of those advocating for the act raised in their testimony. In particular, the aunt of Omaree Varela, who was killed by his parents and failed in so many ways by the government agencies assigned to protect him, made a tearful plea for the passage of this act to bring those agencies to account. After a four hour hearing the Judiciary Committee voted 8 to 4 to pass. It now goes before the full House.

DeVargas and Schmitt have also started a petition to impanel a citizens’ Grand Jury to investigate misfeasance, malfeasance, and other crimes that may have been committed at the Santa Fe County Adult Detention Facility. They estimate that several thousand signatures are required. Thus far, over 700 people have signed. You can go here to sign the petition.

3 comments

  1. I heartily support HB4; we need this bill.
    Yet I was disheartened at the way Speaker Egolf casually brushed aside the concerns of small political subdivisions. I do not believe the concerns are “far-fetched”.
    Wouldn’t suing an acequia, for example, be a possible first move toward getting water rights pried away from local people and transferred to new developments? Maybe that’s paranoid of me, but greedy-grabbers are pretty devious sometimes.
    It would not be too hard for the bill’s sponsors to amend HB4 along the lines suggested by Enrique Romero, an attorney with New Mexico Acequia Association. He pointed out that the legislature has already, in other laws, recognized the difference between different “levels” (sizes) of the state’s political divisions (Tier 1, Tier 2, etc.). I’d like to see such distinctions made in an amended HB4, with protections from lawsuits granted to such small political subdivisions of the state.

  2. I agree with ‘conrdogcatman.’ While Speaker Egolf is rights that the proposed law would not force the loss of land grant land directly, and land grants would or acequias not be forced to sell property to settle a claim, the cost of fighting an even frivolous claim in a lengthy court battle could easily place these small political subdivisions in that precise situation, where selling their assets is unavoidable. I also fear that this could be a way to subvert traditional water rights management, providing a new tool for a developer to claim a water right that they are not entitled to or would not win under current law. From what I heard, land grants ad acequias were not testifying against the law, but urged sponsors to consider the potential unintended consequences of the bill and were met with dismissive assertions that their concerns were “sky is falling” scenarios.

  3. Thank you both for writing. While I’m not convinced the bill necessarily puts acequias or land grants at risk, it’s worth contacting house representatives with your concerns; the bill will be heard before the full house.

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