The recent Department of Justice report on the Albuquerque Police Department’s pattern of excessive and unjustified force has raised many issues. One issue that has been ongoing for quite some time and will likely gain steam due to the findings in the report is the financial exposure of the City of Albuquerque for these long-standing practices of excessive and/or unjustified force.There Will Be Both State and Federal Claims Against APD
There are both state law and federal law claims against the City of Albuquerque, Albuquerque Police and the individual officers. Although the possible claims under the federal law under the Civil Rights Act §1983 are significantly broader and potentially much more costly to the city than those under the New Mexico Tort Claims Act, our focus here is on state law claims under the New Mexico Tort Claims Act.
New Mexico Tort Claims Act
Municipalities such as the City of Albuquerque generally have immunity against lawsuits. This means that the City cannot be sued unless immunity has been waived. This is referred to as qualified immunity. However, there are numerous statutory waivers to the immunity. Included among these are the types of claims likely to arise out the use of excessive force by the Albuquerque Police.
Waiver of Immunity for Injuries Caused by Law Enforcement
The Tort Claims Act expressively excludes from immunity police misconduct leading to personal injury or wrongful death. The New Mexico statute, NMSA §41-4-12, states:No Immunity for Police Misconduct Leading to Personal Injury or Death
“The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 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.”
Notably, the waiver of immunity covers personal injury, bodily injury and wrongful death. The waiver also covers both assault and battery associated with the use of force by officers and the claims of excessive and unjustified force under the Civil Rights Act, §1983.
Deadlines on Tort Claims Against the City of Albuquerque (and other Governmental Entities)
We have written about the deadlines associated with claims against the government in a number of contexts. It should be noted that tort claims (personal injury and wrongful death) under state law against the City of Albuquerque follow the same rules as any other claims against the government.
Tort Claims Notice Deadline
The first deadline in these claims is the Tort Claims Notice deadline. The Tort Claims Notice requirement requires that a notice of claim be sent to the appropriate governmental entity or official. This notice, at the risk of redundancy, serves as a notice to the governmental entity that the plaintiff may be filing a claim.
This is a very short deadline running in as little as 90 days. In personal injury claims, the deadline on personal injury claims is 90 days from the date of the incident. For wrongful death claims, the deadline is extended to 6 months.Err on the Safe Side and Send the Tort Claims Notice
It is important to send this notice even if you believe you might have a claim. This means sending it even if you are not sure if you have a claim. If you fail to send it, your claim is barred. It is much better to err on the side of caution.
The Tort Claims Notice may be sent directly by you. You do not need an attorney. To send a notice on your own, you can find instructions at the New Mexico General Services website: Tort Claims Notice Instructions from the State of New Mexico General Services Department. It is important to follow the directions to insure proper notice is given.
Statute of Limitations
The statute of limitations is a little more straightforward than the tort claims notice. The statute of limitations in claims against the government, including the City of Albuquerque, is only 2 years. This is shorter than the 3 years in most personal injury or wrongful death claims.
In addition, though this is venturing beyond the scope of this article, the statute of limitations on federal claims under §1983 filed against New Mexico governmental entities (including APD) is also only 2 years. The 2-year limitation is followed because §1983 did not establish its own statutes of limitations. As a result, the statute of limitations on §1983 claims follows state law and in the case of New Mexico, the deadline is 2 years.
Like the tort claims notice, failure to file a lawsuit within the 2-year period will bar the claim completely.
Caps on Damages (Financial Liability) Under State Law
This is where the New Mexico Tort Claims Act and federal civil rights claims part company, in a very big way. Under New Mexico state law, there are very significant caps on liability. There are no such caps under federal law.State Law Claims Have Caps on Liability. Federal Claims Do Not!
Under the New Mexico Tort Claims Act, the City of Albuquerque’s liability is capped at $400,000 for personal injury or death. An additional $300,000 may be awarded for past and future medical expenses related to the injuries.
In addition to these rather meager caps on liability, the New Mexico Tort Claims Act specifically excludes an award of punitive damages against a governmental entity. The APD shooting cases have a potential significant punitive damages element. Punitive damages will likely be awarded, just not against the City of Albuquerque under the Tort Claims Act. Potential punitive damages will be addressed in a later article.
This discussion is limited to claims under the New Mexico Tort Claims Act. There are a number of pending claims against the City of Albuquerque for past shootings. There will undoubtedly be more due to both the recent shootings, as well as the damning report from the Department of Justice.
There is certainly financial exposure for the City of Albuquerque and the Albuquerque Police under the Tort Claims Act. However, due to the caps on damages, the exposure here is limited. The real financial liability will come under the Civil Rights Act, §1983, which has no such caps.