State-level police reforms around the country may point the way for local lawmakers

NM behind in tear gas regulation and data collection but ahead on qualified immunity

By: - October 1, 2021 6:28 am

Police in Albuquerque in mid-September, 2021. (Photo by Marisa Demarco / Source NM)

Forty states have laws and requirements around how police use tear gas and other chemical agents and projectiles known as less-lethal munitions. New Mexico is not one of them, according to the National Conference of State Legislatures database of policing legislation.

Protesters against police violence and racist policing are familiar with those weapons if they were at some of the protests in 2020, breathing in tear gas lobbed by the Albuquerque Police Department during a respiratory illness pandemic — despite public health experts and doctors urging police to suspend the practice because it can exacerbate COVID symptoms and even help spread the virus. 

Words on paper

As New Mexico lawmakers reviewed recent police reforms from other states since May of 2020, they got an important reminder about the need to end excessive or misuse of force by police.

On Monday, Sept. 27, Amber Widgery, program principal of the criminal justice program at the NCSL, summarized hundreds of laws passed at various state legislatures related to how police use force during a meeting of the Courts, Corrections and Justice Committee.

Elaine Maestas, a police accountability strategist for the American Civil Liberties Union of New Mexico, told lawmakers that even if they come up with the best policies, without accountability for police officers, those policies are “really just words on paper.”

We have led either first or second for people killed at the hands of police over the past few years. We give law enforcement the authority to take a life with no balance and no accountability.

– Elaine Maestas, police accountability strategist for ACLU-NM

She said New Mexicans have witnessed the result of these imbalances, from police violence that resulted in needless deaths and great bodily harm to the state’s residents and the lack of consequences that follow.

Since 2015, New Mexico has had the second-highest rate of deadly police shootings, The Guardian reported

Bernalillo County Sheriff’s deputies shot Maestas’ sister, Elisha Lucero, 21 times in July 2019, killing her right outside her home.

“We need to pass a robust statewide law that prevents these incidents from happening in the first place, setting a solid foundation for success for our law enforcers,” Maestas said. “We must set the standard for use of force, de-escalation and duty to intervene, train them to those standards, and hold them accountable for not following those standards. Each of these steps are truly needed.”

Less-lethal munitions

As far as New Mexico catching up to most of the rest of the country when it comes to less-lethal options, “So that might be something for us to look at,” said Rep. Gail Chasey, an Albuquerque Democrat who co-chairs the committee.

Other states require police to give protesters repeated notice and time to disperse in the event police deem a gathering to be unlawful, before they start shooting at them with less-lethal munitions, Widgery said. No outright bans of less-lethal munitions came up in discussion.

At least seven states require officers to provide medical assistance or aid after force has been used, including Colorado, Illinois, Maryland, New York, Nevada, Virginia and Washington, she said.

Keeping track

There are at least 21 states that collect data on police use of force, Widgery said. New Mexico is not one of them, according to the NCSL database.

Since May 2020, in general many states have expanded data collection on use of force and empowered attorneys general or other state actors to investigate when police use force on people, Widgery said.

Most state laws follow California’s, which requires police agencies to submit data each year to its state Department of Justice. Those state-level DOJs then summarize and publish the info in an online portal, Widgery said, which makes it available to members of the public who can access the internet. Nearly half the states require at least a portion of use of force data to be publicly available, she said. 

A handful of states also require officers to report to their supervisors when other officers use force, Widgery said. For example, Kentucky added a failure to intervene to its definition of professional nonfeasance for police officers, she said. And Nebraska required each police agency to require its officers to intervene if they see another officer using excessive force.

Widgery said five states created public-facing databases containing use of force data: Arizona, Colorado, Connecticut, Montana and Washington.

At least six states have created public databases for sharing information about when and why police are disciplined or lose their law enforcement licenses: Colorado, Illinois, Massachusetts, Nebraska, Oregon and Washington.

Chasey said she is interested in the best examples of how states are collecting this data around the country. She pointed to a bill she co-sponsored to collect data on the environment, and said something similar could be done for police use of force. That law now requires the creation of a a map-based, searchable website that will centralize and house the state’s environmental data.

NM Civil Rights

In 2021, New Mexico lawmakers passed the Civil Rights Act, which enables people to take police officers and other public officials to state court when their constitutional rights have been violated  and prohibits those defendants from claiming qualified immunity, a judicially created legal doctrine that shields state actors from liability in such cases.

“New Mexico’s Civil Rights Act that was enacted is likely the most comprehensive recent law that we’ve seen from states creating civil cause of action for violation of an individual’s rights,” Widgery said.

A handful of other states created similar causes of action though theirs are specific to police officers, while New Mexico’s is more broad to include all state actors, she said. Some states are considering a similar law to New Mexico’s. Others are going in the other direction and have actually expanded immunity for police officers.

Maestas from the ACLU told the lawmakers that she was not able to have a viewing of her sister at her celebration of life because of the excessive force to which she was subjected by police.

“No one should go through what me and my family have gone through and what all the other grieving families are going through,” she said. But it doesn’t have to be this way, she added. “We have the opportunity to turn the tide and go from being known for leading in the nation for these deaths to leading in the nation for passing robust life-saving reform.”

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.