‘Who would risk all they have for a volunteer position?’
New Mexico’s firefighters lost qualified immunity: Is your state next?
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By Gail Cramer
New Mexico firefighters and EMTs lost qualified immunity on July 1, 2021, with the passage of House Bill 4: The New Mexico Civil Rights Act (NMCRA). It is ripping the heart out of rural New Mexico and volunteer fire and EMS departments, not to mention career fire departments, school personnel, board and commission members, law enforcement, and thousands more who are affiliated with government entities. While many in these positions are leaving, authorities and lawmakers are placing blame on the pandemic, avoiding the real issue of the loss of qualified immunity.
“This is huge for volunteers”
Pearson v. Callahan 555 U.S. 223 states: “Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”
Further, “Qualified immunity grants not only immunity from damages but also immunity from suit …[b]ecause exposure to civil rights suits may result in distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Starko, Inc. v. Gallegos, 2006-NMCA-85, ¶ 12, 140 P.3d 1085, quoting Burke v. Town of Walpole, 405 F.3d 66, 76 (1st Cir. 2005).
While this is important to everyone affected, this is especially huge for the volunteers of state and local agencies across the state.
Because of the NMCRA, I “retired” from the volunteer positions I held for more than 15 years: assistant chief of administration and finance, grant writer and manager, EMT-FR, structural firefighter, wildland firefighter, incident commander, water tender operator, communications officer and PERA officer. I personally spent 20-40 hours a week in my work for our volunteer fire department.
My husband also left the fire service with 38 years of structural and wildland firefighting and EMT-B experience, first as a career firefighter/EMT and then as a volunteer. Our VFD lost his vast experience that he passed onto hundreds of firefighters in his capacity as training officer and captain.
Before making these heart-wrenching decisions, we sought the advice of many attorneys. I also was on the New Mexico Game and Fish Commission, so we had access to attorneys across the state.
Seventeen attorneys, some in our family, weighed in on the consequences of NMCRA. Three stated that nothing will change. Then why was it written, passed and signed into law? The others had different perspectives. Many advised us to walk away. Many would not go that far but admitted the law would be defined in court, and there are many unknowns.
“Who would risk it all?”
New Mexico’s fire service is 88.6% volunteer. Fire departments are sued because we did not save their home, we were not there fast enough, we set up traffic control in the wrong spot, we allegedly made the “wrong” decision, we did not let a repeat convicted felon become a member, someone posted something online, etc. Further, consider that 14% of all firefighter lawsuits fall under civil rights violations; most are alleged denial of due process based on the deprivation of life or property.
Generally, officers are most affected by lawsuits, and with the loss of qualified immunity, New Mexico has lost and will lose more of our most knowledgeable, invaluable fire officers, particularly volunteers.
Who would risk all they have for a volunteer position? Even if a volunteer firefighter or fire department is found not negligent or not guilty, we will have to spend hours upon hours in depositions, in a court judged by our peers, and in the production of evidence. Dealing with these stressful lawsuits will take more time away from our paid employment and family.
“Who do you think will have to pay?”
Let me clarify a few issues. The NMCRA states, “Claims brought pursuant to the New Mexico Civil Rights Act shall be brought exclusively against a public body.” Sounds safe at first glance; however, it also states, “Any public body named in an action filed pursuant to the New Mexico Civil Rights Act shall be held liable for conduct of individuals acting on behalf of, under color of or within the course and scope of the authority of the public body.” The Act does not say “scope of duty,” it says “scope of authority.”
Some of the attorneys speculated that if we violate a person’s civil rights, that is not in our scope of authority, and the entity will most likely not defend us. The NMCRA also caps the claims at $2 million. One county told me that they would be bankrupt after fewer than two of these claims. Who do you think will have to pay if there is no money left?
Here are few of my notes from meetings with attorneys:
- There are so many unknowns, and until case law creates precedence, we are vulnerable to many lawsuits and their unknown results. We were told there will be more lawsuits and litigation, increasing dramatically by 50% to some say over 200%.
- The Act states that the remedies listed are not exclusive – again, so many unknowns.
- The Act narrows what can be sued for to the New Mexico Bill of Rights. This is cloudy as well. For example, New Mexico’s Bill of Rights states that we have the inalienable right to seek and obtain happiness. Like one attorney stated, what does that mean? If what we do takes away a person’s happiness, does that open us up for a lawsuit?
- We asked if a suit of this nature invites civil suits, and they said “yes and no.” Yes, because it will show others that they can sue as well, and no, because the attorneys think the statute of limitations to file will run out before the first suit is settled. However, most said it could happen in cases that resulted in less time-consuming out-of-court settlements that so many entities resort to in order to save money. Settlements often indicate guilt, setting the stage for a civil suit.
- We were also concerned about the fact that volunteers are not employees – how that would affect us? The attorneys said it will be up to the courts and if the entity we represent sticks with us.
“It is extremely expensive”
In order to retain our firefighters and EMTs, our VFD looked into purchasing individual liability insurance that covered civil rights lawsuits and civil suits. We asked the New Mexico interim fire marshal if we would even be allowed to use state fire funds for this, and he was looking into it but never gave us an answer. It has been 11 months. This much we know: It is extremely expensive. Without qualified immunity, we got quotes between $1,000 to $5,000 per individual per year. To protect our volunteers at that time, even if we only insured our officers and most active firefighters, it would cost from $25,000 to $125,000 a year. We would then have to purchase separate insurance for our 12 EMTs at that time at the same rate, costing another $12,000 to $60,000 a year.
“Is your state next?”
The interesting twist in all of this is that those of us who fought to retain qualified immunity and to educate others about the consequences of losing it, have now become the enemy to the government entities that are paying much more in liability insurance and are faced with more lawsuits. They do not want folks to know the liability they are risking themselves. They still want people to volunteer and work for them. I mean, who would volunteer or sign on to a career where you put yourself at risk daily and still have to worry about losing everything you have to a frivolous civil lawsuit? The big losers in all of this are the citizens of the state of New Mexico.
Is your state next?
About the author
Gail Cramer served for 15 years as assistant chief of administration and finance, grant writer and manager, EMT-FR, structural and wildland firefighter for a volunteer fire department in New Mexico.
More about qualified immunity
Qualified immunity: How it impacts firefighters and fire departments
Qualified immunity protection varies from state to state. Do you know yours?