Did New Mexico End Qualified Immunity?

Albuquerque Civil Rights Attorney Holds Police Accountable for Wrongful Conduct

Video Transcript:

Shannon Kennedy: 

Well, the impact will be that it will no longer be justice delayed, justice denied.

Tom Mustin: 

What is qualified immunity when it comes to police brutality? We're gonna talk to attorney Shannon Kennedy about that on today's Ask the Lawyer. Shannon, thanks for joining us.

Shannon Kennedy: 

You're welcome. It's nice to be here.

Tom Mustin: 

Great to have you. So there was a significant and historic change in civil rights laws in New Mexico last year, but we're gonna talk about today, but let's start off by having you explain to us what is qualified immunity as it pertains to police brutality.

Shannon Kennedy: 

Qualified immunity is a judicially created doctrine, in other words, it's a body of law created by legal opinions written by judges to find immunity to protect individual law enforcement officers from lawsuits, specifically when there's an allegation that a law enforcement officer has violated someone's federal constitutional rights. Most often, the Fourth Amendment of the United States Constitution, which is that part of the Constitution that keeps citizens safe from unreasonable searches and seizures, and the whole notion of a seizure relates to the body or property, but when people think of police shootings or wrongful death cases, like what happened to George Floyd, those are Section 1983 violations of the Fourth Amendment of the United States Constitution. And in defense of those lawsuits, individual officers, lawyers have raised the doctrine of qualified immunity, which said that if the constitutional right hadn't been clearly established at the time of the violation or death, then the officer could not be held legally responsible for the injuries suffered by the person who is the victim of excessive force or an unlawful use of deadly force.

Tom Mustin: 

Okay, so Shannon, the New Mexico Civil Rights Act was signed in the law in 2021. How does that affect qualified immunity?

Shannon Kennedy: 

Well, now in the state of New Mexico, there is a New Mexico Civil Rights Act, which does not apply qualified immunity. So the legislature in the State of New Mexico affirmatively said that if you're sued for violations of our state constitution, then the people defending the law enforcement officers or the peace officers who have violated someone's state constitutional rights cannot raise qualified immunity as a defense. Now, that does not touch qualified immunity in federal court, so what it does is it creates a law where people can sue in their state district courts for violations of the New Mexico State Constitution which happens to have article 2, Section 10, which prohibits unreasonable seizures under the state constitution. So in that way, the New Mexico state legislature did away with qualified immunity as a defense for violations of its own constitution.

Tom Mustin: 

Okay, so have other states done this or are they expected to follow suit as well?

Shannon Kennedy: 

One would expect other states such as Colorado, I believe is a state which has followed suit. The thing about the state of New Mexico and the New Mexico constitution, it's like states such as Alaska, where there have been courts in the State interpreting the state constitution to have more rights than the federal constitution, so the state constitution actually affords more liberties than the federal constitution in a state like New Mexico.

Tom Mustin: 

Okay, can you give us an example of how qualified immunity worked prior to this new law and how it could be expected to change when the new law is implemented.

Shannon Kennedy: 

An example of how qualified immunity was working was, let's say that someone is killed by a police officer and the family sues on behalf of the estate of the decedent, and let's say this is a police shooting case, and let's say that there's an allegation that the decedent was wielding a knife, not that there was an immediate threat to deadly force, but that the knife was being... Waved around and that the officer believed, even if he mistakenly believed that there was someone in the house, let's say there wasn't someone in the house, but the officer could say, Listen I had a fear that at some point, this person was going to harm another, so I used deadly force. The person defending the police officer could immediately, once that case have been filed in federal court, file a motion for qualified immunity stopping all discovery, which means the family could not depose the officer, could not subpoena the officer, trial was delayed for on, at times up to six years until the appellate courts could sort out whether there was a clearly established right violated when this person was killed by a police officer, now in state court in New Mexico, there's no built-in delay because there's no qualified immunity defense raised, there cannot be a delay for upwards to six to seven years while the appellate courts have to sort out whether a constitutional right is clearly established.

Tom Mustin: 

Okay, so besides representing your specific clients, so people who's civil rights have been violated, what do you think the impact of this law will be on the general public in these types of cases?

Shannon Kennedy: 

Well, the impact will be that it will no longer be justice delayed justice denied. Now, people whose family members who suffer a wrongful death or excessive force or an illegal entry to a home can file in state court under the state constitution and get a trial by a jury of our peers within a year or two. I mean, there is a backlog because of COVID, but nonetheless, you don't have this enormous delay, also you're gonna see more and more jury trials in the state courts determining what is a constitutional violation, so instead of matters being settled, things will be going to trial more often the right... It breathes new life into the right to trial by jury.

Tom Mustin: 

But there is a flip side. Some people say that this law affects the police officers and it may affect their ability to recruit and maintain a strong police force. What do you say to that?

Shannon Kennedy: 

No, it will actually increase police departments efficacy, because the bad police officers will be more readily weeded out, so I've often represented police officers myself who are driven out of police departments when they are bad apples that are allowed to stay. So now with this new law, we can more readily and immediately identify those officers or those people who should not be police officers, so that those who are officers who are both upholding the constitution and protecting and serving citizens actually can have healthy police departments. So I would say that the supposition that police departments will not attract qualified police officers because of the Civil Rights Act is completely false.

Tom Mustin: 

Well, a great discussion. A lot of really good information. Shannon, thank you so much for joining us.

Shannon Kennedy: 

You're welcome.

Tom Mustin: 

And that's gonna do it for this episode of Ask the lawyer. My guest has been Shannon Kennedy. If you wanna ask Shannon the question about your situation, call the number on your screen. Thanks for watching, I'm Tom Mustin, for Ask the Lawyers.

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