No excuse for Gov. Martinez's ignorance of the law
There is an old adage that “ignorance of the law is no defense in the commission of a crime.”
Ignorance of the law is also no excuse when it comes to attorneys, prosecutors and governors.
Governor Susana Martinez is seeking legislation during the upcoming 2018 legislative session that would grant legal immunity to New Mexico law enforcement officers for actions in the line of duty.
The governor’s proposal would make law enforcement officers immune from lawsuits related to their use of force, “so long as they are acting reasonably while discharging their duties”.
Martinez is a former Dona Anna District Attorney and she argues the legislation would provide a shield to law enforcement officers in a state that has one of the nation’s highest violent crime rates.
“I don’t believe that police officers should be under this constant threat of lawsuits that will often cause them to pause. … If they’re following their training, there should be something that protects them,” Martinez said.
UNINFORMED, MISGUIDED OR IGNORANT
As a New Mexico licensed attorney and a former district attorney, Martinez should know better.
The governor should know the law before she continues her efforts to increase immunity for law enforcement personnel.
Martinez's proposal is uninformed, or at the very least misguided, and at worst ignorant. Her proposal is contrary to well established statutory law as well as New Mexico case law.
Whenever a police officer uses deadly force, it must be justified under statutory law as well as under standard operating procedures and training, with no room for exceptions.
There is no such thing as a “friendly fire” killing or shooting in law enforcement as there is in military combat.
If legal immunity is given as Martinez proposes, an innocent bystander who is hurt, seriously injured or killed would have no legal recourse if the police officer’s actions are in the line of duty and in accordance with the officers training.
Just one example where someone would have no recourse under the governor’s proposal would be an innocent bystander who is seriously injured or killed by a police officer who is returning fire and misses his intended target.
Whenever there is a use of excessive force or deadly force by a cop, the use of force must be investigated and determined if it was justified.
Just because a police officer is acting in his capacity as a law enforcement officer when he discharges his firearm and injures or kills someone does not completely negate criminal or civil liability of the shooter nor of the shooter’s employer for negligent training and supervision.
CITY HAS PAID MILLIONS FOR POLICE MISCONDUCT CASES
No one is above the law, no one is given a license to break the law and violate constitutional rights, including law enforcement.
There have been many recent instances in Albuquerque where people have been killed where police officers were “following their training” to use Martinez's words.
Former APD Police officer Keith Sandy and APD officer Dominique Perez were charged and tried for the murder of homeless camper James Boyd.
The Sandy and Perez defense attorneys argued and defended that they were following their training as law enforcement officers when they shot and killed Boyd.
Ultimately, the murder charges against Sandy and Perez were dismissed after a jury deadlocked on a conviction.
The City of Albuquerque paid the James Boyd family $5 million for the wrongful death civil action.
Another case example is where former undercover narcotics APD Detective Jacob Grant was shot seven times point blank in a parked car by his APD Lt. Greg Brachle during a botched drug deal.
Grant was extremely lucky to survive the shooting and underwent extensive surgery for his wounds, was hospitalized for months and eventually had to retire from APD because of his permanent physical disabilities related to his injuries from the shooting by one of his own supervisors.
Ultimately, it was the citizens of Albuquerque that were held financially responsible for the tragic shooting of Jacob Grant that was at the very least negligent.
Grant was paid $6.5 million plus all his medical expenses being paid to settle the civil claim.
From 2010 to 2016, the city paid tens of millions of dollars to settle law enforcement civil rights violation cases, deadly force cases and excessive use of force cases by APD officers.
Since 2010, APD officers have shot over 41 people in police misconduct cases and excessive use of force cases.
In April, 2014, the United States Department of Justice found a culture of aggression within APD that resulted in a Federal Court Approved Settlement Agreement and the appointment of Federal Monitor to oversee and audit the implementation of close to 300 agreed to mandated reforms.
The DOJ consent decree mandates that APD excessive use of force and deadly force cases must be investigated.
NEW MEXICO TORT CLAIMS ACT PROVISIONS
Under the New Mexico Tort Claims Act, there already is immunity given law enforcement personnel.
Further, under the New Mexico Tort Claims Act, a government agency employing the law enforcement officer sued civilly has the legal obligation to defend the officer as well as pay for any damages awarded for the officers negligent or unjustified conduct.
Following are the specific provisions of the New Mexico Tort Claims Act that Martinez needs to read and understand:
“41-4-4. Granting immunity from tort liability; authorizing exceptions.
A. A governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by [other provisions of statutory law or other provisions of the Tort Claims] Act] … Waiver of this immunity shall be limited to and governed by the provisions of [applicable sections of the Tort claims act. …]
B. Unless an insurance carrier provides a defense, a governmental entity shall provide a defense, including costs and attorney fees, for any public employee when liability is sought for:
(1) any tort alleged to have been committed by the public employee while acting within the scope of his duty; or
(2) any violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico when alleged to have been committed by the public employee while acting within the scope of his duty.
C. A governmental entity shall pay any award for punitive or exemplary damages awarded against a public employee under the substantive law of a jurisdiction other than New Mexico, including other states, territories and possessions and the United States of America, if the public employee was acting within the scope of his duty.
D. A governmental entity shall pay any settlement or any final judgment entered against a public employee for:
(1) any tort that was committed by the public employee while acting within the scope of his duty; or
(2) a violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico that occurred while the public employee was acting within the scope of his duty.
E. A governmental entity shall have the right to recover from a public employee the amount expended by the public entity to provide a defense and pay a settlement agreed to by the public employee or to pay a final judgment if it is shown that, while acting within the scope of his duty, the public employee acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death or property damage resulting in the settlement or final judgment. … .”
Even though the City of Albuquerque has paid out $63.3 million to settle law enforcement civil rights violation cases, deadly force cases and excessive use of force cases from 2010 to 2016, there has been absolutely no effort by the City to recover the amount of settlements from the law enforcement personnel where the cases were defended, settled and paid on their behalf presumably because there was no fraudulent actions or intentional malice.
The New Mexico Tort Claims Act does not provide for immunity when it comes to personal injury as follows:
41-4-12. Liability; law enforcement officers.
The immunity granted … to [law enforcement and the tort Claims Act] does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.
If Martinez does not know better nor the law, her law license needs to be suspended and she needs to return to law school for a refresher course in constitutional law, constitutional law enforcement practices and civil rights before she returns to the practice of law.
The New Mexico legislature needs to reject the governor’s proposal to increased immunity for law enforcement during the upcoming 2018 session.