What if you called 911 and no one answered? That will start to happen very soon in rural New Mexico.
Volunteer fire and EMS (Emergency Services) departments are the one place where political parties, religious differences, and racial and age biases all disappear. We are family, and we need and depend on each other for the good of our communities. Gov. Michelle Lujan Grisham signed H.B. 4, the “Civil Rights Act” into law this week. It has the potential to shut us down and close our doors. Qualified immunity is not just a bad cop issue; it is a huge issue in so many other areas. In the fire service, fire officers make huge decisions almost daily that affect human life, safety, and due process based on the deprivation of life and property, secured rights in the New Mexico Bill of Rights.
Our training helps, but the rapid, explosive, and unpredictable nature of fire and having only the information available at that time make these decisions difficult. On wildfires, firefighters often have to write off homes and other structures for the greater good at that time. Some homes are defendable, and some are not. Sometimes we may make the right decision and know it is the responsible thing to do, yet you may not feel that way if it is your home. Qualified immunity prevents frivolous, groundless, and costly lawsuits against public servants. If a public officer has truly committed a criminal act today, they still face prosecution, and the qualified immunity defense cannot be used.
New Mexico’s fire service is 88.6% volunteer. We get sued because we did not save their home, we were not there fast enough, we allegedly made the “wrong” decision (under the constitutional right of “safety”), we did not let that repeat convicted felon become a member, someone posted something online, etc. 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.
We have used the qualified immunity defense on numerous occasions. Without qualified immunity, we can see a huge exodus of our volunteer firefighters, especially our invaluable, most knowledgeable fire officers. Some say that under H.B. 4, a person can only sue the entity that a person works for and not the individual. However, suppose a judge or jury without adequate knowledge deems that a firefighter did not make the right decision despite their training, despite the explosiveness of the situation, and in spite of their very best intentions to consider life and structure safety. In that case, that firefighter will face civil suits as well.
We have consulted five attorneys regarding the result of losing qualified immunity for our volunteer firefighters. Two attorneys told us that the entity we represent could come back on the individual to recoup their losses. Who would risk all they have and all they have volunteered to be sued by someone who thinks they have been wronged and denied their rights or privileges? 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 extremely stressful lawsuits will take more time away from our paid employment and our family, even though we are volunteering night and day already. Some of our most valuable volunteer fire personnel spend 20-60 hours a week serving Mayhill VFD/EMS. Volunteer fire departments have the same responsibilities as paid departments along with our calls: NFIRS reports, NMEMSTARS reports, ISO evaluations, training, meetings, station maintenance (MVFD has four stations), vehicle maintenance, recruit training, policy creation, personnel files, inventory, budgets, purchase requisitions, and bids, etc.
Volunteer departments have a further task: that of recruiting personnel. It is a constant issue. We always need more. Lawsuits wear on personnel. Their effects are lingering. Everyone will be hesitant to respond to critical calls, wondering if this is a situation that might lead to a lawsuit. We will have a very difficult time finding anyone willing to become an officer and a harder time recruiting new personnel.
The same goes for our volunteer EMTs. 59.1% of all of the EMTs in New Mexico are volunteers. We are sued on occasion and are saved from sue-happy citizens by qualified immunity. We have alleged HIPAA violations. We have triage situations and have to make the best decisions we can as to who we can save and who we cannot. We also legally have to stay with a patient until we can hand them off to someone of equal or higher medical qualifications. Often, it makes us look uncaring when we are only doing our job. Believe us, we care.
Often, we are asked to “stage” before going into a scene because of the danger involved. This leads to a delay in medical attention and opens EMTs to lawsuits. Again, without qualified immunity, we think there will be a mass exodus of these volunteer EMTs who will fear and most likely face civil suits if QI is lost. None of us can afford the legal fees of a civil suit, even if we are found not guilty. None of us can afford to repay the entity we serve if they come after us personally for all or part of the damages they had to pay, as one attorney advised could happen.
We talked amongst ourselves at our general Zoom meeting last week. Most indicated they would definitely consider leaving the fire and EMS service if H.B. 4 became law. Well, it did. Currently, Mayhill VFD/EMS is one of the largest fire departments (45 members) and EMS departments (12 EMTs) in the Sacramento Mountains. While most volunteer EMTs have quit during the pandemic, Mayhill EMS responds to our district and 5 others. What a shame to tear apart a strong, vital service to rural New Mexico due to H.B. 4. New Mexico, in general, will be much less safe and even more underserved since H.B. 4 is now law.
In order to retain our firefighters and EMTs, Mayhill VFD is currently looking into purchasing individual liability insurance that covers our firefighters and EMTs in numerous areas, including civil rights lawsuits and civil suits. We asked the New Mexico Interim Fire Marshall (the one who never came to the table for the fire departments of New Mexico). The Marshall responded, “not in my job description or job duties,” as we sat stunned. If we would even be allowed to use state fire funds for this, and he is looking into it and has not gotten us an answer, even after three weeks.
This much we know: it will be extremely expensive. Without qualified immunity, we are getting quotes between $1000 to $5000 an individual per year. Look at Mayhill VFD’s numbers. To protect our volunteers, even if we only insured our officers and most active firefighters, it will cost from $25,000 to $125,000 a year. We will then have to purchase separate insurance for our EMTs at the same rate, costing Mayhill VFD another $12,000 to $60,000 a year. To put this into perspective, Mayhill VFD serves a fire district of 150 sq. miles.
We have four aging stations (built 1971-1982) in need of constant maintenance. We have a fleet of three wildland trucks (cost of $130,000 to $200,000 each), four structure trucks (cost of $200,000 to $400,000 each), one medical rescue (cost to Otero County of more than $100,000), four command/troop carrier vehicles (cost of $1500-$3,000 each; bought used from GSA), all needing constant costly repair and maintenance.
Mayhill EMS receives between $5,000-$6,000 a year from the New Mexico EMS Bureau to run our EMS services. The insurance on our 12-lead monitor and keeping our medical unit stocked takes more than this amount yearly. To replace our gurney in today’s market would cost $33,000. Our heart monitor is almost the same amount. To supply our EMTs with jump bags to respond quickly to a scene before the unit gets there costs about $1500 each. AEDs are $1500 each, with one on every fire unit as well. And then we still need to pay for the ever-valuable training and sometimes travel for each of our 12 EMTs.
So, where does Mayhill VFD get this money? Some come from our ever-dwindling ¼% funds ($27,000-$30,000 a year); we write grant after grant. And then our members hold fundraisers. On the fire side of this, Mayhill VFD received $172,433 this year. Out of that, we pay utilities on the four stations; buy structural, wildland, and hazmat PPE, firefighting equipment, repair trucks, purchase new trucks, pay insurance, replace septic systems, and much more. If one looks at our allocation, buying a fire unit of any kind takes good, sound financial management and planning. Volunteer fire departments write grants, save and save, and then more often than not, take out loans. Yes, your local volunteer departments are in debt already. Let’s start taking out more from our budgets, as in our case, $37,000-$185,000 for individual liability insurance, if we are allowed.
The passage of this bill further cements the lack of respect that the New Mexico Legislature has shown to volunteer firefighters. Currently, if a volunteer firefighter serves his or her community night and day in a high-risk environment for 10-24 years, he or she receives $125 a month in retirement. Legislators receive almost $11,000 a year with only ten years of partial service.
Like some legislators, Mayhill VFD has volunteer firefighters and EMTs with doctoral and master’s degrees. We have career firefighters and retired career firefighters who go on to volunteer for 10-25 years. We have professional nurses in our EMS corps. We are dedicated citizens who genuinely serve our communities. Now, we are laid bare with no legal protection.
Thus, to deny volunteer firefighters qualified immunity while retaining immunity for the legislators, the judges, and the select others is another show of disrespect the New Mexico Legislature has for volunteer firefighters and EMTs and all who serve in the other public service professions. If it is such a great idea, why did the legislators retain their immunity?
What is good for the goose should be good for the gander. It is saying to us, “You be good, but I don’t have to be.” Are we not guaranteed equal protection under the law? The New Mexico Civil Rights Act can have far-reaching negative results for all of New Mexico. Governor Lujan Grisham: you now need to recall this law.
