A Right Without a Remedy: The New Mexico Correctional Facility Tragedy

What is “qualified immunity”? Among many definitions, its most timely must be: the law which could provide legal protection for twenty-three New Mexico State prison workers accused of repeated abuse against six of their female colleagues. In a sweeping sexual harassment case which was brought to court over two years ago, the women accuse their male colleagues of “unthinkable [...] sexually-based [acts of] violence and harassment,” and cite, among a series of lurid offenses, “urinating and masturbating” in front of the women, calling them “obscene names” and shouting “physical threats” at them on a daily basis.

Qualified immunity attaches when a public official’s conduct does not violate “clearly established” statutory or constitutional rights of which a “reasonable person” would have known; meaning that, public workers are shielded from harassment, distraction, and liability of their actions, if the claims against them fail to delineate, in the eyes of the case reviewer, obvious violations of statutory or constitutional rights. However, as courts must resolve qualified immunity issues as early in a case as possible, generally before discovery, cases rarely reach a stage far enough into trial to set the precedent that would provide this required delineation.

Created back in the days of Earl Warren’s “Warren Court”, when major changes were being made in constitutional law on a fairly constant basis--a period in which certain actions were perfectly constitutional one year, but would suddenly become rights violations the next--police and government officials needed to be protected from the retroactive effect of their governance. Thus, qualified immunity was created in order to grant these officials leeway in their knowledge of active laws and presently recognized rights’ violations.

Nearly seventy years later,  the scope of qualified immunity’s protection has remained unchanged, but the test for whether the law is appropriate in a particular case is applied with vastly different motives: today, it serves mainly to protect police and other governmental officials from suffering the consequences of their conduct, which any rational person would think to be illegal, and which any government official should know to be so. Gross breaches of personal rights, like those against the women in the New Mexico correctional facility case, are often protected because the Supreme Court may have never decided on a case exactly like it before, and the minor differences between prevailing cases and settled law becomes a basis of favor for the defendant.

In the worst government departments, the lack of proper order becomes an actual basis for defense, while those departments that have vigorous oversight are exposing themselves to increased liability. In no other situation is ignorance of the law an excuse, so why does that seem to be the case here?