I note that New Mexico has abolished “qualified immunity” under state law. Police and other state officials are now liable for mistakes, errors and misconduct committed while on duty. It’s aroused a storm of criticism, not just from law enforcement, but also from other first responders, who believe they can no longer exercise professional judgment without running the risk of being sued by anyone who didn’t like the way they did that. For example, a representative of one New Mexico volunteer firefighting district writes:
What if you called 911 and no one answered? That will start to happen very soon in rural New Mexico.
Volunteer fire and EMS (Emergency Services) departments are the one place where political parties, religious differences, and racial and age biases all disappear. We are family, and we need and depend on each other for the good of our communities. Gov. Michelle Lujan Grisham signed H.B. 4, the “Civil Rights Act” into law this week. It has the potential to shut us down and close our doors. Qualified immunity is not just a bad cop issue; it is a huge issue in so many other areas. In the fire service, fire officers make huge decisions almost daily that affect human life, safety, and due process based on the deprivation of life and property, secured rights in the New Mexico Bill of Rights.
Our training helps, but the rapid, explosive, and unpredictable nature of fire and having only the information available at that time make these decisions difficult. On wildfires, firefighters often have to write off homes and other structures for the greater good at that time. Some homes are defendable, and some are not. Sometimes we may make the right decision and know it is the responsible thing to do, yet you may not feel that way if it is your home. Qualified immunity prevents frivolous, groundless, and costly lawsuits against public servants.
. . .
We have used the qualified immunity defense on numerous occasions. Without qualified immunity, we can see a huge exodus of our volunteer firefighters, especially our invaluable, most knowledgeable fire officers … We have consulted five attorneys regarding the result of losing qualified immunity for our volunteer firefighters. Two attorneys told us that the entity we represent could come back on the individual to recoup their losses. Who would risk all they have and all they have volunteered to be sued by someone who thinks they have been wronged and denied their rights or privileges?
. . .
The same goes for our volunteer EMTs. 59.1% of all of the EMTs in New Mexico are volunteers. We are sued on occasion and are saved from sue-happy citizens by qualified immunity. We have alleged HIPAA violations. We have triage situations and have to make the best decisions we can as to who we can save and who we cannot. We also legally have to stay with a patient until we can hand them off to someone of equal or higher medical qualifications. Often, it makes us look uncaring when we are only doing our job. Believe us, we care.
Often, we are asked to “stage” before going into a scene because of the danger involved. This leads to a delay in medical attention and opens EMTs to lawsuits. Again, without qualified immunity, we think there will be a mass exodus of these volunteer EMTs who will fear and most likely face civil suits if QI is lost. None of us can afford the legal fees of a civil suit, even if we are found not guilty. None of us can afford to repay the entity we serve if they come after us personally for all or part of the damages they had to pay, as one attorney advised could happen.
There’s more at the link.
On the other hand, there have undoubtedly been abuses perpetrated by individuals and agencies that have been successfully defended under the doctrine of qualified immunity. Examples are legion; see, for example, those linked in this article. Anyone in his right mind will support removing that protection from such egregious cases. However, if doing so will put at risk other officers and agencies who are acting in good faith, that’s a big problem.
There’s also the discrepancy between state and federal law. As New Republic points out:
Qualified immunity is a judicial doctrine that applies in federal courts when interpreting Section 1983, which is part of a federal law. State lawmakers … can no more tell federal judges how to interpret Section 1983 than they can tell the Vatican how to read the catechism.
Again, more at the link.
That discrepancy between state and federal law is likely to prove a major bone of contention. Individuals and agencies being sued under state law may well seek to have the case moved to a federal court on even the flimsiest of grounds. On the other hand, plaintiffs who believe they might “get a better deal” under state law may try to remove a case from federal court and transfer it to a state court system. I think lawyers are going to make a lot of money arguing over such nuances.
I certainly agree that qualified immunity laws need to be reformed, at both state and federal level. The existing laws seem to me to be too broad, and protect conduct that would otherwise be classed as unlawful, injudicious or even criminal. On the other hand, I agree that first responders – law enforcement, fire, EMS and others – do need some protection against frivolous lawsuits, or those brought by victims who disagree with the choices made by first responders in the heat of the moment.
I don’t think there’s any easy, universally applicable answer. Every case is different, and requires the best judgment of all concerned. A law is necessarily a “one-size-fits-all” approach – and we already know that doesn’t work. As the proverb reminds us, circumstances alter cases, and no law can take all the circumstances into account.