House Bill 4 (HB 4), the New Mexico Civil Rights Act, is currently before the State House. It will be going to the House Floor next week. HB 4 is pretty straightforward in its purposes:
1. To provide actual recourse and remedies in New Mexico state courts for violations of civil rights enumerated in the state’s constitution,
2. To provide for a larger limits on governmental liability for governmental entities in the State for violations of civil rights,
3. Most importantly, to end qualified immunity for governmental entities, their employees, agents and contractors.
These are simple rational and much needed reforms to New Mexico law. Simply put currently there is no possibility for filing a civil rights claims in New Mexico, the current $650,000 caps on liability for any state law claims are obscenely low for civil rights violations which often end in horrible life-long injuries or death. Qualified immunity is virtually a rubber-stamp for immediate dismissal of civil rights claims in federal court which is where victims of even the most heinous civil rights violations are forced. There is no recourse in New Mexico state courts.
Naturally, there is opposition from all the unusual suspects with all the usual non-sensical arguments.
Opposition to New Mexico Civil Rights Act
There was a good article encapsulating the arguments in the Silver City Daily Press that prompted this article. The article addresses the Grant County Commissioners, but it is reflective of the fully expect pushback from the State of New Mexico, its counties, municipalities, police and prisons. The arguments seem reasonable on their surface to those that are not aware of the actual costs to the State, counties and municipalities.
Collins & Collins, P.C. focuses much of its practice and attention on prisons and jails, with a heavy focus on the intentionally cruel, callous and inhumane treatment of the state’s inmates. Likewise, this will be the focus below.
Fabricated Risks to counties
The opponents of HB 4 speak out of both sides of their mouths. On the one hand, they say that HB 4 would not do anything to curb the issue of civil rights violations while putting governmental entities at unbearable financial risks. On the other, they say what they need is to figure out how to root out bad actors. HB 4 does exactly that. Prisons and jails (and police for that matter) know perfectly well who the bad actors are. They choose not to impose penalties or even job loss on those bad actors even in the most horrendous cases of civil rights violations. That is their choice. The victims of civil rights violations have no such choice and very seldom have access to the courts due to their preexisting lack of resources or the lack of resources created by the civil rights violations themselves such as the death of the primary wage earner in the home or permanent physical disability that prevents that person from ever working again. HB 4 addresses both these issues.
Fabricated Inability to Acquire Insurance Coverage
The principal bad actors and the governmental entities for whom they work make the same tired arguments as the medical negligence insurance industry makes for medical malpractice in New Mexico and nationwide. In the case of medical insurance, the insurance companies argue that they will not be able to provide insurance if medical negligence claims are filed. They do this while they earn record profits, and the number of medical negligence claims has dwindled.
The fact is that the governmental entities will be able to get insurance. They will just have to pay for it. Their premiums will be dictated by the number of successful civil rights claims against them. The problem is not insurance but the flat refusal of New Mexico prisons, jails and police to address and reduce the number of civil rights violations which in turn reduces the number of lawsuits. The problem can be solved by forcing accountability on the bad actors around the state. HB 4 does exactly that.
Fabricated Enemy Trial Lawyers
Another common strategy from the bad actor community is to create an enemy and then attack that fabricated enemy. The universal target is trial lawyers. Corporations, the insurance industry, pharmaceutical industry, chemical industry and so on lament the contrived threat of trial lawyers. This is remarkable because trial lawyers are typically very small if not solo law practices while the corporations are multi-billion dollar enterprises. Trial lawyers pursue claims against these giants at great financial risks. The trial lawyer must pay for all the costs of lawsuits which at a minimum runs into the thousands. In fact, thousands are often spent before even deciding to take a case due to the need for expert evaluations of the cases by doctors, professors, engineers, scientist and so on. More often than not, getting a case to trial costs tens of thousands and even millions. For corporations, this is a pittance. For the trial lawyers, it truly is a threat to their firm’s survival if they lose.
Worse still, these giant corporations run costs benefit analyses to determine whether it makes economic sense to protect consumers from harm or death. In fact, there are companies who have chosen to forego safety measures on consumer products, like vehicles, when the costs of the measures are literally nickels and dimes.
The same is true with prison medical providers. These are multi-billion dollar companies. As with all companies, they run costs benefit analysis to determine for instance if it makes sense to give an inmate proper antibiotics to treat a minor infection or to provide proper treatment for diabetes, heart disease and Hepatitis C. The list goes on and each time, at least as it concerns medical, the cost benefit analysis lands on the side of neglect. And alas, those poor mistreated multi-billion dollar corporations might be held to account by a lowly trial lawyer. What an outrage that must be?
Qualified Immunity is a License to Kill
Qualified immunity is so hard to overcome in federal courts that lawyers are very reluctant to file there at all. This means that the bad actors above escape any responsibility in most civil rights cases even the most outrageous and deadly. Qualified immunity excuses horrifying civil rights violations. Collins & Collins, P.C. sees this daily coming from New Mexico prisons and jails. For instance, many of the firm’s lawsuits involve easily treatable slow-moving infections that are callously, cruelly and deliberately ignored. These minor infections fester and fester eventually moving into the bones as osteomyelitis. Many of the firm’s cases involved situations where the infection moves into the spine, others into the heart and brain. All involve permanent and severe physical disabilities. Too many result in the death of the inmate.
What’s the point of this discussion? The fact is that despite the clearly outrageous deliberately cruel medical neglect of inmates by contractors receiving hundreds of millions of dollars in taxpayer funding, few if any of these would survive qualified immunity in federal court. There is no possibility of filing a civil rights claim in state court as the law currently stands in New Mexico. Instead, the cases must be filed as simple medical negligence cases in state court with obscenely low limits of liability for New Mexico Corrections and their medical contractors. Currently, as the law stands, the maximum possible recovery for injuries and death with these claims is $650,000. Some might say this seems reasonable, but this is cap on damages is total cap for NMCD and its medical contractors. Keep this in mind as you contemplate what that cost benefit analysis must look like.
Taxpayers Pay the Costs Multiples Times Over
The usual bad actors argue that they will be forced to pay the costs. How this is an argument in their favor is beyond me. Responsibility and accountability are preached far and wide when it suits their purposes. In fact, the entire criminal justice system, including prisons and jails is premised on responsibility and accountability for individuals. However, when it comes to governmental entities and their contractors, they will have none of it.
Focusing again on medical neglect or what could more appropriately be called medical torture in the state’s prisons and jails, the costs are not only passed on to taxpayers despite massive prior contractual funding, the costs are exponentially higher due to the failure of these entities to root out the so-called bad apples. Again, these are institutional choices by the prisons and jails. For instance, NMCD hires a small group of medical contractors on a rotating basis. One contractor loses the contract, NMCD then hires a contractor that had lost the contract in the past. This is cyclical almost like a batter’s box with the same batters stepping to the plate each contracting cycle.
The contractors are paid hundreds of millions of dollars for the contracts over 3-year terms. Yet they pass the costs of actual medical care back to the taxpayers who have already paid once. For instance, as the law and practice stand at this time, prison and jail medical contractors pay $0.00 for inmate hospital stays of 24 hours or longer. The clients of Collins & Collins, P.C. spend weeks or months in hospitals due to the afore-mentioned easily preventable infections. Who pays for these hospitalizations? Medicaid pays what the hospitals are not forced to write off. Thus, the state’s taxpayers all pay for Medicaid while those same counties and municipalities that complain of the costs of civil rights lawsuits eat the write offs of their hospital bills.
Support Passage of the New Mexico Civil Rights Act
The costs of civil rights violations/medical torture in New Mexico prisons and jails are astronomical. As set forth above, the medical costs alone in terms of prison medical contractors and the hospital bills that they pass on to Medicaid alone run into the hundreds of millions. This does not even begin to calculate the ongoing costs to the State, counties and municipalities as a result of permanently disabled former inmates who are then become permanent wards of the state on Medicaid, Medicare, disability and so on. Nor does it calculate the human costs to the inmates, their families and loved ones which society too often completely ignore.
Nothing changes and this is by design with NMCD. NMCD will never change without at a minimum the passage of HB 4. Much more is needed but that is a start.
Please contact your legislators at voice support for HB 4. It can be a simple as sending an email with the subject line “I support HB 4”. You can find your legislators by your home address here.