The title might seem to suggest a conspiracy theory is coming. It’s not, although active imaginations could come up many plausible conspiracies at the border. This article is not that. Instead, this article is about legal claims/lawsuits for civil conspiracy against those perpetrating the human rights abuses at the border.
Immunity of Government Actors to Civil Conspiracy Claims
It might be best to first address who cannot be sued for civil conspiracy. The New Mexico Tort Claims Act and the Federal Tort Claims Act provide very broad immunity for the actions of governmental agencies and employees. Both the New Mexico Tort Claims Act and the Federal Tort Claims Act provide for waivers of sovereign immunity in some situations.
A waiver of immunity allows lawsuits to be filed against the governmental entity and/or employee(s). These include medical malpractice claims, which is the focus of the prison litigation of Collins & Collins, P.C. The waivers of immunity also extend to civil rights claims including violation of cruel and unusual punishment, and due process violations under the 4th, 8th and 14th Amendments of the U.S. Constitution. It its worth noting that medical malpractice in prisons will often overlap with cruel and unusual punishment, and due process violations.
Having said all that, civil conspiracy is not among the waivers of immunity. The good news, if there is any good news that can be drawn from what’s happening at the border, is that private entities and their employees do not have immunity against civil conspiracy claims. In New Mexico, a finding of civil conspiracy results in joint and several liability for the parties to the conspiracy. So although the U.S., New Mexico and county governments cannot be sued for civil conspiracy, the private actors/private contractors can be. In turn, the private actors/contractors are fully responsible under joint and several liability for all harm resulting from the conspiracy, including the harm perpetrated by governmental parties to the conspiracy.
Joint and Several Liability for Civil Conspiracy
In cases where civil conspiracy claims are filed against a private contractor and a governmental entity, the private contractor will invariably argue that because conspiracy requires the coordinated actions of at least two parties, the private party is off the hook. In doing so, the private entity would be confusing the elements of civil conspiracy with the liability for civil conspiracy. The private entity would be correct if there was only one party engaged in the unlawful behavior since conspiracy requires at least two actors. The private entity would be wrong in thinking that because the other bad actor in the conspiracy somehow escapes liability that it too should escape liability.
This is neither true under civil conspiracy nor under criminal conspiracy. By way of example, lets say some Americans conspired with some Russians to sway an election through illegal foreign contributions to or for the benefit of a campaign. This would constitute a criminal conspiracy to violate campaign finance laws. Now let’s say the Russians cannot be prosecuted because they were out of reach of American legal authorities. Can the American co-conspirators be prosecuted for the conspiracy even though the Russians cannot Of course they can.
This happens all the time in criminal prosecutions such as drug trafficking, murder, bank robbery and countless other criminal conspiracies. Just because one of the conspirators escapes liability does not mean any of the others will. If only one gets caught, then that one is responsible for the entire criminal conspiracy and any harm that results, even if it was not part of the plan. For instance, in the bank robbery example, if someone is killed, then the guy who rented the van with knowledge that it would be used in the bank robbery is fully responsible for the murder as well as the robbery. That is true even if the co-conspirator who is caught played only a minor role in the larger scheme.
Civil Conspiracy Between Government and Private Prison Contractors
Civil conspiracy works the same way in the case of a conspiracy between a governmental entity or its agents, and private contractors such as private prison contractors. Just because the government entity and its agents are immune from civil conspiracy claims in a lawsuit does not mean the private contractors escape liability. And yes, as with the criminal conspiracy outlined above, the private prison contractor(s) is liable for all harm done as a result of the conspiracy.
Thus, any lawsuit for the atrocities at the border including gross, deliberate and cruel medical negligence should include civil conspiracy claims thereon against the private contractors. There is no need to even name the government entity involved. The lawsuit must simply allege a conspiracy between two or more parties to commit the wrongdoing. In other words, a civil conspiracy claim for medical negligence may be brought against the private actor by alleging a conspiracy with the government actor without the necessity of suing the government actor for the civil conspiracy.
Punchline = Sue the Private Contractors for Atrocities Against Immigrant Detainees
The purpose of this article has been to inform immigrant detainees and their loved ones of possible avenues to address the horrendously inhumane treatment that they have received and continue to receive in detention. The reason this is necessary in New Mexico is because the State of New Mexico and a number of its counties have in their wisdom decided to get in on the action and the money surrounding the exploitation of immigrants for monetary gain.
Both the State of New Mexico, through the New Mexico Corrections Department (NMCD) and a few New Mexico counties are now involved in the conspiracy to commit human and civil rights violations against immigrants through the deliberate denial of necessary and adequate medical care. With whom do they conspire? It’s the list of usual suspects in the private corrections arena from private prison operational contractors to private prison medical providers.
Immigrants will not be able to sue the State and counties for civil conspiracy due to the lack of waivers of immunity for civil conspiracy. However, they will be able to sue the private contractors for the conspiracies and be fully compensated for the harm they suffer by the private contractors.
Deadlines can be short in these cases so it is important to contact an attorney right away. Collins & Collins, P.C. can be reached at 505.242.5958.