Due to the recent Department of Justice report on the Albuquerque Police Department’s rather routine use of excessive, unnecessary and unconstitutional force, many otherwise reluctant victims of the APD may be coming forward.
One issue that will immediately arise or should arise is the statute of limitations and other deadlines on police misconduct claims in New Mexico.
Federal and State Claims Have Varying Deadlines
Claims for excessive force/police misconduct will be filed under both state and federal law. State law claims fall under the rules set forth in the New Mexico Tort Claims Act. Federal law claims will fall under the Civil Rights Act, §1983.
The deadlines are similar in many respects. There are some differences. However, these differences should not discourage victims from coming forward.
Tort Claims Notice Requirement on State Law ClaimsChief difference between state and federal claims is tort claims notice requirement.
The Tort Claims Notice requirement on claims against New Mexico governmental entities is the most important difference between the federal and state claim deadlines.
Under the New Mexico Tort Claims Act, there is very short Tort Claims Notice requirement on any personal injury or wrongful death claim against a New Mexico governmental entity.
In personal injury cases, the notice must be properly sent within 90 days of the alleged misconduct. On wrongful death claims, the deadline is extended to 6 months.
Missing the deadline will prevent the state law tort claims. It will not affect the federal civil rights claims.
There is no Tort Claims Notice Requirement on a federal civil rights case.
Statute of Limitations on Police Misconduct Claims
There is a 2-year statute of limitations on claims against the government. This applies to both federal and state governmental entities or actors.Statute of limitations is 2 years on both state and federal claims.
For background, §1983 does not set fort its own limitations period. Instead, the relevant state law deadlines are to be applied. In New Mexico, the statute of limitations on governmental claims is 2 years.
As such, this 2-year statute of limitations on police misconduct claims is the same for both state tort claims and federal civil rights claims. Missing the 2-year statute of limitations will bar the claim completely under state and federal law.
Exceptions to Deadlines
There are very few exceptions to the Tort Claims Notice Requirement or the statute of limitations in cases of police misconduct.Few exceptions to deadlines. DOJ Report does not change that.
It is no exception that the victim did not know that his or her rights had been violated until the Department of Justice Report came out. The deadlines begin to run from the time that the misconduct occurred, not from the date that the victim decides to pursue a claim.
This is unfortunate since many victims of APD misconduct may have been reluctant to come forward due to the perceived futility of making a claim. The DOJ report may serve as a kind of roadmap for these claims due to all of the very damaging findings regarding APD’s use of force policies and customs. However, if the statute of limitations has passed, the DOJ report will not help.
Do not delay if you have been a victim of excessive or unnecessary force by the Albuquerque Police. The deadlines are firm.
Federal civil rights claims carry far greater potential recoveries than state law claims so don’t give up just because you missed the tort claims notice requirement.
On the other hand, even though you may have missed the Tort Claims Notice requirement on state law claims, you should not be deterred from the federal civil rights claims.
In fact, the federal civil rights claims carry far greater potential financial awards due to the caps on damages under the New Mexico Tort Claims Act.
Having said that, the 2-year statute of limitations on claims against the government is very rigid with very few exceptions. This deadline comes very quickly.
Assuming you have missed both deadlines, and there are extraordinary circumstances that caused you to miss the deadline, you might want to run your case by a civil rights advocacy center to determine if your case meets any of the exceptions.