Rayos v. State ex rel. Dep't of Corrections , 6 N.M. 759 ( 2014 )

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 17:16:16 2014.10.29
Certiorari Granted, October 10, 2014, No. 34,855
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2014-NMCA-103
Filing Date: July 15, 2014
Docket No. 32,911
CAROL RAYOS, a natural parent
and next friend of C.H., a minor,
Plaintiff-Appellant,
v.
STATE OF NEW MEXICO ex rel. NEW
MEXICO DEPARTMENT OF CORRECTIONS,
ADULT PROBATION AND PAROLE DIVISION,
RILEY LOOMIS, JOHN DOES NOS. I and II, and
ELIZABETH QUEENER, individually and in their
official capacities as employees of the New Mexico
Department of Corrections, Adult Probation and
Parole Division,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Sarah M. Singleton, District Judge
English Law Firm
Nancy G. English
Tucumcari, NM
Philip B. Davis
Albuquerque, NM
Martinez, Hart & Thompson, P.C.
F. Michael Hart
Albuquerque, NM
Lorenz Law
Alice T. Lorenz
Albuquerque, NM
1
for Appellant
Jarmie & Associates
Mark D. Standridge
Las Cruces, NM
Jarmie & Associates
Mark D. Jarmie
Matthew D. Bullock
Albuquerque, NM
for Appellees
OPINION
VANZI, Judge.
{1} Plaintiff appeals the district court’s grant of summary judgment in favor of Defendants,
the New Mexico Department of Corrections, Adult Probation and Parole Division (APPD);
probation and parole officers, Riley Loomis and John Does I and II; and probation and parole
officer and supervisor, Elizabeth Queener (collectively, APPD Defendants). The sole issue
presented is whether APPD officers are now considered “law enforcement officers” as that
term is defined in the New Mexico Tort Claims Act (the TCA), NMSA 1978, §§ 41-4-1 to -30
(1976, as amended through 2013), for purposes of the TCA’s waiver of immunity for certain
conduct of law enforcement officers. In its order granting APPD Defendants’ motion, the
district court stated that it was bound by this Court’s holding in Vigil v. Martinez, 1992-
NMCA-033, ¶ 20, 113 N.M. 714, 832 P.2d 405, that probation and parole officers and their
supervisors are not “law enforcement officers” for the purposes of the TCA and dismissed
APPD Defendants from the case. Because there is no sufficient legal or factual basis to depart
from our holding in Vigil, we affirm.
BACKGROUND
{2} Plaintiff is the natural parent and next friend of C.H., her minor daughter. Kenneth
Mills is a convicted sex offender with a sixteen-year history of violent crimes. Mills was under
the supervision of APPD Defendants from 2004 through 2008, during which time he violated
the terms of his probation numerous times by committing new crimes and violating the Sex
Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995,
as amended through 2013), allegedly with little to no consequence. In August 2008, Mills
kidnapped C.H. in the middle of the night and repeatedly raped her, leaving C.H. to suffer
permanent physical and emotional harm.
{3} What Mills did to C.H. should never have happened. In violation of his conditions of
probation, Mills was able to be near Plaintiff’s home where he had access to C.H. and where
he had the opportunity to kidnap and repeatedly rape her. Plaintiff sued APPD Defendants
2
individually and in their official capacities, alleging that, during the four years leading up to
the kidnapping and assault, APPD Defendants failed “to properly monitor and supervise Mills,
. . . enforce the conditions of his probation, . . . report his probation violations to the [c]ourt,
. . . place him on strict probation, . . . place him on GPS or electronic monitoring, . . . maintain
personal contact with him, . . . seek and obtain the revocation of his probation, . . . [and] arrest
him or cause him to be arrested,” and that they “knowingly recommend[ed] Mills for an early
unsatisfactory discharge, despite and even because of Mills’ history of serious probation
violations and his violent criminal history.” Plaintiff also alleged that APPD was liable for the
negligence of its employees under the doctrine of respondeat superior. In addition, Plaintiff
sued the Curry County Board of County Commissioners, the sheriff of Curry County, and other
employees of Curry County, individually and in their official capacities, for failing to comply
with their duties to investigate, track, report, and register Mills pursuant to SORNA.
{4} The district court allowed limited discovery and briefing on the defendants’ claims for
immunity under the TCA and deferred the other case deadlines. APPD Defendants
subsequently filed a motion for summary judgment, asserting that because they are not “law
enforcement officers” under the TCA, they are immune from suit. The district court granted
that motion and entered final judgment dismissing with prejudice all of Plaintiff’s claims
against APPD Defendants. Plaintiff timely appealed.
DISCUSSION
Standard of Review
{5} Statutory interpretation is a question of law that we review de novo. Am. Fed’n of State,
Cnty. & Mun. Emps., Council 18 v. City of Albuquerque, 2013-NMCA-012, ¶ 6, 293 P.3d 943,
cert. quashed, 2013-NMCERT-008, 309 P.3d 101. “In construing a statute, our charge is to
determine and give effect to the Legislature’s intent.” Marbob Energy Corp. v. N.M. Oil
Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. We also review de
novo the grant of summary judgment. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148
N.M. 713, 242 P.3d 280. Summary judgment is appropriate where “there is no genuine issue
as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.”
Rule 1-056(C) NMRA; Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396,
970 P.2d 582.
The TCA’s Waiver of Immunity for Law Enforcement Officers
{6} Our Legislature enacted the TCA in order to provide a mechanism to “compensate
those injured by the negligence of public employees and to impose duties of reasonable care[,]”
while at the same time limiting “governmental liability so that government should not have the
duty to do everything that might be done.” Cobos v. Doña Ana Cnty. Hous. Auth., 1998-
NMSC-049, ¶ 6, 126 N.M. 418, 970 P.2d 1143 (internal quotation marks and citation omitted).
The TCA achieves this purpose by providing immunity from tort liability for governmental
entities and public employees acting within the scope of their duties, except as that immunity
is waived, as relevant here, by Sections 41-4-5 to -12. See § 41-4-4(A); Armijo v. Dep’t of
3
Health & Env’t, 1989-NMCA-043, ¶ 4, 108 N.M. 616, 775 P.2d 1333.
{7} This case focuses on Section 41-4-12 of the TCA, which waives immunity for specified
intentional torts, violation of property rights, or deprivation of constitutional rights “caused by
law enforcement officers while acting within the scope of their duties.” We have previously
held that this waiver applies where a “law enforcement officer’s negligence . . . cause[s] a third
party to commit one of the specified intentional torts.” Lessen v. City of Albuquerque, 2008-
NMCA-085, ¶ 39, 144 N.M. 314, 187 P.3d 179. The parties do not argue, and we need not
reach, the question of whether APPD Defendants were acting within the scope of their duties
or whether the crimes Mills committed meet the definition of any of the specified intentional
torts because we hold that, under Vigil, APPD Defendants are not “law enforcement officers”
within the meaning of the TCA.
{8} The crux of the issue is the definition of the term “law enforcement officer.” The TCA
defines a “law enforcement officer” as
a full-time salaried public employee of a governmental entity, or a certified
part-time salaried police officer employed by a governmental entity, whose
principal duties under law are to hold in custody any person accused of a
criminal offense, to maintain public order or to make arrests for crimes[.]
Section 41-4-3(D). “Our courts have construed this definition strictly.” Loya v. Gutierrez,
2014-NMCA-028, ¶ 11, 319 P.3d 656, cert. granted, 2014-NMCERT-002, 322 P.3d 1063.
Significantly, the statutory provision directs us to determine a public employee’s “principal
duties under law.” Section 41-4-3(D) (emphasis added). However, not all duties of public
employees are enumerated in a statute or regulation. Accordingly, our cases have also
considered such sources as departmental job descriptions and affidavits in determining the
duties of public employees. See Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t,
1996-NMSC-021, ¶¶ 9-10, 121 N.M. 646, 916 P.2d 1313 (considering statutes enumerating
duties of municipal police officers, county sheriffs, and law enforcement officers); Anchondo
v. Corr. Dep’t, 1983-NMSC-051, ¶¶ 4-8, 100 N.M. 108, 666 P.2d 1255 (looking to the
principal duties of the secretary of corrections and the warden of a county detention center as
described by statute to conclude they were not law enforcement officers under the TCA);
Baptiste v. City of Las Cruces, 1993-NMCA-017, ¶¶ 2, 4, 115 N.M. 178, 848 P.2d 1105
(holding that the written job description alone was insufficient to establish that an animal
control officer is a law enforcement officer under the TCA); Vigil, 1992-NMCA-033, ¶¶ 11-15
(considering the Probation and Parole Act, written job description, and employee’s affidavit
in the context of the definition of “law enforcement officer”).
{9} The immunity waiver for “law enforcement officers” requires that “the defendants’
principal duties, those duties to which they devote a majority of their time, be of a law
enforcement nature.” Weinstein, 1996-NMSC-021, ¶¶ 8, 12. Thus, we must determine the
duties upon which the employee spends the majority of his or her time (principal duties) and
consider the character of those principal duties “against the admittedly amorphous standard of
the duties and activities traditionally performed by law enforcement officers.” Coyazo v. State,
4
1995-NMCA-056, ¶ 13, 120 N.M. 47, 897 P.2d 234; see Weinstein, 1996-NMSC-021, ¶¶ 8,
12. There is no “exhaustive list of activities that fit within the law enforcement mold.” Coyazo,
1995-NMCA-056, ¶ 18. Rather, our determination is “informed by a practical, functional
approach as to what law enforcement entails today.” Id. Public employees whose principal
duties under law fall within any of the categories enumerated in Section 41-4-3(D) are “law
enforcement officers” for the purposes of the TCA. Limacher v. Spivey, 2008-NMCA-163, ¶
9, 145 N.M. 344, 198 P.3d 370.
APPD Defendants Are Not Law Enforcement Officers
{10} In this case, the district court stated that it was bound by this Court’s decision in Vigil
and held that the Defendant probation and parole officers and their supervisor were not law
enforcement offices for whom immunity had been waived under the TCA.1 See 1992-NMCA-
033, ¶ 20. APPD Defendants rely on Vigil as well. We review Vigil in some detail. In that case,
while he was on supervised probation, a probationer brutally murdered someone by slitting his
throat. Id. ¶¶ 1-2. The personal representative of the victim’s estate sued the probationer’s
probation officer, her supervisor, and the state director of probation, alleging gross negligence
and callous indifference to the supervision of the probationer. Id. The district court granted the
defendants’ motion to dismiss, which in relevant part asserted that the defendants were immune
from suit pursuant to the TCA. Id. ¶ 1. This Court affirmed, reviewing the motion as one for
summary judgment because the defendants had attached and relied largely on an uncontested
affidavit from one of the defendants regarding his principal duties and responsibilities and a
written job description setting forth the duties of a probation and parole officer and supervisor.
Id. ¶¶ 14-15. The principal duties of probation and parole officers and their supervisors are not
specifically enumerated by statute, so the Vigil Court turned to the Probation and Parole Act
(the Act) in order to ascertain the chief function of probation and parole officers. Id. ¶ 18. In
relevant part, the Act provides that persons convicted of crimes “ ‘shall be dealt with in the
community by a uniformly organized system of constructive rehabilitation under probation
supervision instead of in an institution, or under parole supervision when a period of
institutional treatment is deemed essential in the light of the needs of public safety and their
own welfare.’ ” Id. (emphasis added) (quoting NMSA 1978, § 31-21-4 (1963)). Thus, this
Court determined the chief function of probation and parole officers under the Act is
rehabilitation. Vigil, 1992-NMCA-033, ¶ 18. In addition, Vigil considered the state’s job
description for probation and parole officers and their supervisors and the employee affidavit
and analyzed those duties in light of the law concerning the traditional functions of law
enforcement officers. Id. ¶¶ 12-20. Based on its review of the law and proffered evidence, this
Court decided that (1) “making arrests for crime,” (2) “holding in custody persons accused of
criminal offenses,” and (3) “maintaining public order” do not constitute duties to which
probation and parole officers are to devote a majority of their time. Id. ¶¶ 16, 20.
1
We note that the parties do not distinguish between the duties of probation and parole
officers and probation and parole supervisors. Vigil also appears to make no distinction,
although its holding encompasses both. Accordingly, we view the principal duties of probation
and parole offices and supervisors synonymously for purposes of our analysis in this Opinion.
5
{11} In the more than twenty years since Vigil was decided, the New Mexico Legislature has
not amended the statute to include probation and parole officers within the definition of law
enforcement officers. Moreover, every subsequent state and federal decision—both published
and unpublished—on the “law enforcement officer” waiver has followed Vigil, albeit with little
meaningful analysis or none at all. See, e.g., Limacher, 2008-NMCA-163, ¶ 17; Coyazo, 1995-
NMCA-056, ¶ 17; Trask v. Franco, 446 F.3d 1036, 1048 (10th Cir. 2006); Ricks v. N.M. Adult
Prob. & Parole Dep’t, No. CV-11-608, slip op. at 32-33 (D.N.M. Aug. 9, 2012); Wells v. N.M.
Adult Prob. & Parole, No. CV-09-150, slip op. at 3 (D.N.M. Feb. 5, 2010); Kenney v. New
Mexico, No. CV-07-0422, slip op. at 8 (D.N.M. Oct. 2, 2007). Against this backdrop, there
simply has been no change in the law to warrant a departure from Vigil. See Trujillo v. City of
Albuquerque, 1998-NMSC-031, ¶ 34, 125 N.M. 721, 965 P.2d 305 (noting, in relevant part,
that before overturning precedent, we must consider “whether the principles of law have
developed to such an extent as to leave the old rule no more than a remnant of abandoned
doctrine” and “whether the facts have changed in the interval from the old rule to
reconsideration so as to have robbed the old rule of justification” (internal quotation marks and
citation omitted)). Thus, our sole task here is to determine whether the facts have so changed
that the principal duties of probation and parole officers now fall within one of the three
relevant categories of principal duties of law enforcement officers enumerated in Section 41-4-
3(D) of the TCA.
{12} As to the first category, “making arrests for crime,” Plaintiff points to no change in the
law and admits that probation and parole officers do not devote the majority of their time to
making arrests. See Vigil, 1992-NMCA-033, ¶ 19. Consequently, there is no basis for
concluding that making arrests for crimes is the principal duty of probation and parole officers.
See Dunn v. State ex rel. Taxation & Revenue Dep’t, 1993-NMCA-059, ¶ 11, 116 N.M. 1, 859
P.2d 469 (holding that the director of the New Mexico Motor Vehicle Department, who has
statutory authority to make arrests, was not a law enforcement officer because “the vast
majority of [his] time and effort are involved in administrative matters” (internal quotation
marks omitted)).
{13} As to the second category, Plaintiff contends that “hold[ing] persons accused of crimes
in custody” is a principal duty of probation and parole officers because these officers can “limit
where and with whom probationers and parolees can live, work, socialize[,] and travel, have
the authority to search their persons and premises, and do, in fact, take physical custody of
probationers and parolees who are suspected of committing new crimes or otherwise violating
their parole or probation.” We rejected a similar argument in Vigil and pointed out that
probation and parole officers supervise probationers and parolees and that they “do not hold
their clients in custody within the traditional meaning of the term as applied to law
enforcement officers.” 1992-NMCA-033, ¶ 17. We also noted that holding persons in custody
is a minor incident of probation and parole officers’ jobs and that probationers and parolees
are not persons “accused” of crimes because they have already been convicted. Id.
{14} Plaintiff asserts that Vigil’s interpretation of the words “custody” and “accused” is
unduly narrow. However, we see no legal basis for reinterpreting those terms more broadly.
Indeed, we have limited the definition of law enforcement officers in this category to detention
6
center employees whose principal duties under law are to hold in custody persons accused of
a crime while awaiting trial. See, e.g., Davis v. Bd. of Cnty. Comm’rs of Doña Ana Cnty., 1999-
NMCA-110, ¶¶ 35, 39, 127 N.M. 785, 987 P.2d 1172 (holding that the director, captain, and
assistant director of a detention center are “law enforcement officers”); Abalos v. Bernalillo
Cnty. Dist. Atty’s Office, 1987-NMCA-026, ¶¶ 26-29, 105 N.M. 554, 734 P.2d 794 (same).
And, while Plaintiff cites some evidence that probation and parole officers are authorized and
sometimes required to arrest and hold in physical custody probationers and parolees under their
supervision who are “accused” of committing new crimes, that evidence does not establish that
these are duties to which probation and parole officers now dedicate a majority of their time,
as required for the “principal duty” determination.
{15} This leaves the “maintaining public order” category, as to which Plaintiff makes several
arguments. First, in an apparent effort to circumvent Vigil’s conclusion that the principal duty
of probation and parole officers is rehabilitation, not maintaining public order, see 1992-
NMCA-033, ¶ 18, Plaintiff contends that rehabilitation should be considered a traditional law
enforcement duty because it is, in fact, a means of preventing crime, preserving public safety,
and maintaining public order. Vigil addressed this point, explaining that, “[i]nsofar as probation
and parole officers maintain public order by trying to rehabilitate their clients, they are not
maintaining public order in the same sense [as] police officers, sheriff’s deputies, and other
traditional law enforcement officers” and that, “[a]lthough one would hope that the efforts of
probation and parole officers would improve public order by helping probationers and parolees
to become good citizens, the same could be said of the efforts of those employed in education
and social services.” Id.
{16} Plaintiff argues that it does not matter how probation and parole officers pursue crime
prevention and maintaining public order because, like police officers, their primary mission
is protecting public safety and the TCA’s purpose is to impose liability on public employees
whenever public safety is implicated. We are not persuaded by Plaintiff’s argument. Since
Vigil, we have consistently reaffirmed that, to fall within the “maintain[ing] public order”
category, a public employee’s principal duties must be duties traditionally performed by law
enforcement officers that directly impact public order. See Dunn v. McFeeley, 1999-NMCA-
084, ¶ 25, 127 N.M. 513, 984 P.2d 760 (“In interpreting the [TCA] our appellate courts have
repeatedly found that a connection to law enforcement activity, even being a member of a law-
enforcement team, is insufficient by itself to make one a law enforcement officer; the person’s
duties must directly impact public order.” (emphasis added)); Limacher, 2008-NMCA-163,
¶ 23 (reiterating that “for an employee to fall within the exception for maintaining public order,
that person’s duties must be traditional law enforcement duties that directly impact public
order” (emphasis added)); Baptiste, 1993-NMCA-017, ¶ 9 (“[I]nsofar as a duty of [a public
employee] involves maintaining public order, is the duty one traditionally performed by law
enforcement officers? If the duty [of a public employee] is not a traditional duty of law
enforcement officers, it does not come within the meaning of ‘maintaining public order’ in the
statutory definition of ‘law enforcement officer.’ ”).
{17} Thus, we can only conclude that rehabilitation falls within the category of “maintaining
public order” if it is now a duty traditionally performed by law enforcement that directly
7
impacts public order. See Limacher, 2008-NMCA-163, ¶ 23. And we have no basis for doing
so. While Plaintiff asserts that police officers, sheriff’s deputies, jailers, and other public
employees recognized as “law enforcement officers” under the TCA engage in rehabilitative
tasks, such as counseling, she proffers no evidence on the point, and the argument fails. See
Muse v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (“[A]rguments of counsel
are not evidence.”).
{18} Plaintiff next contends that probation and parole officers are peace officers with certain
powers and that they engage in activities similar to those of traditional law enforcement
officers. In support of this argument, she cites a statute that gives corrections officers,
including probation and parole officers, certain powers of peace officers and other statutes that
grant certain powers and impose certain duties on peace officers. See NMSA 1978, § 33-1-
10(A), (C) (1987) (giving corrections employees, including probation and parole officers
performing certain duties, powers of peace officers); NMSA 1978, § 30-1-12(C) (1963)
(defining “peace officer” for purposes of the Criminal Code); NMSA 1978, § 29-1-1 (1979)
(requiring peace officers to investigate any violations of criminal law of which they are aware);
NMSA 1978, § 30-7-2(A)(3) (2001) (exempting certified peace officers from the crime of
unlawful carrying of a firearm). Vigil specifically considered and rejected the contention that
Section 33-1-10, which gives probation and parole officers certain powers of peace officers,
establishes that a probation and parole officer is a “law enforcement officer.” 1992-NMCA-
033, ¶¶ 13, 17-19. That statute has not since been amended, and the other statutes cited by
Plaintiff provide no basis for a conclusion different from that reached in Vigil.
{19} Significantly, rehabilitation remains the principal duty of probation and parole officers
under law. Plaintiff does not argue otherwise, nor could she. The Legislature has not amended
the provision of the Act upon which Vigil relied, stating that probationers and parolees “shall
be dealt with in the community by a uniformly organized system of constructive rehabilitation”
under probation or parole supervision. Section 31-21-4. And our Supreme Court, although it
has done so in different contexts, has continued to recognize rehabilitation as the primary goal
of probation and parole. See, e.g., State v. Lopez, 2007-NMSC-011, ¶ 8, 141 N.M. 293, 154
P.3d 668 (“The Legislature has granted district courts the power to revoke probation when a
probation condition is violated because rehabilitation, which is the primary goal, is not being
achieved.”); State v. Rivera, 2004-NMSC-001, ¶ 24, 134 N.M. 768, 82 P.3d 939 (“The primary
goal of probation, which is defendant rehabilitation, may be defeated by delaying the
commencement of a defendant’s probationary sentence pending appeal.”).
{20} We are also not persuaded by Plaintiff’s argument that probation and parole officers
have other duties, such as monitoring, investigating, detaining, searching, and holding in
custody offenders not abiding by the conditions of their parole or probation, arresting violators,
and restraining and holding in custody persons who attempt to interfere, all of which constitute
traditional law enforcement activities. She cites evidence of an overlap in the training of
sheriff’s deputies and probation officers, including making arrests and use of weapons, force,
and defensive tactics; certain physical requirements for probation and parole officers, including
the ability to use restraints, mace, and custody control techniques; that probation and parole
officers carry less-than-deadly weapons; and that probation and parole officers are now
8
authorized to carry firearms but were not so authorized when Vigil was decided. She also offers
evidence that New Mexico Corrections Department policies and procedures deal extensively
with the arrest power of probation and parole officers and their collaboration with other peace
and law enforcement officers to make arrests, that probation and parole officers self-identify
as peace officers, that they can or must arrest or cause to be arrested probationers or parolees
suspected of engaging in criminal activity, and that they are sometimes responsible for holding
those persons in custody.
{21} At most, this information suggests that probation and parole officers have certain
responsibilities and engage in certain activities that may fall within the category of
“maintaining public order.” See Vigil, 1992-NMCA-033, ¶ 18. But the only thing Plaintiff cites
as having actually changed since Vigil is that probation and parole officers are now
authorized—although not required—to carry firearms in the field, and this does not establish
that the principal duty of probation and parole officers has changed from rehabilitation, or that
these officers now dedicate a majority of their time to performing traditional law enforcement
duties that directly impact public order. See Limacher, 2008-NMCA-163, ¶ 12 (observing that
our case law “clearly distinguish[es] powers from the duty to use them”).
{22} We also reject Plaintiff’s assertion that probation and parole officers, who specifically
supervise dangerous, repeat sex offenders are law enforcement officers because their “activities
would appear to be entirely driven by the goal of maintaining public safety and order, and [are]
indistinguishable from traditional law enforcement activities.” Here, Plaintiff cites the post-
Vigil enactment of SORNA, which is based, in part, on the Legislature’s finding that “sex
offenders pose a significant risk of recidivism[.]” Section 29-11A-2(A)(1). SORNA “assist[s]
law enforcement agencies’ efforts to protect their communities” by creating registration
requirements and public access to information regarding certain registered sex offenders.
Section 29-11A-2(B). But nothing in SORNA mentions probation and parole officers; indeed,
SORNA “places the responsibility of gathering information and enforcing the registration
requirements on county sheriffs.” State v. Burke, 2008-NMSC-052, ¶ 1, 144 N.M. 772, 192
P.3d 767; see § 29-11A-2(B)(1), (2). Nor does Plaintiff cite any APPD policy or procedure,
or anything else, that imposes SORNA duties on probation and parole officers.
{23} We are aware that recent amendments to certain statutes impose more stringent
requirements for the length and terms and conditions of probation and parole specifically for
sex offenders and that, as a result, probation and parole officers are tasked with supervising sex
offenders for longer periods of time and with additional oversight requirements as compared
to other offenders. Compare NMSA 1978, § 31-21-10(D) (2009), with NMSA 1978, § 31-21-
10.1 (2007), and NMSA 1978, § 31-20-5.2 (2003).2 However, nothing in the summary
2
For instance, rather than the two-year period of supervised parole that persons
generally convicted of first, second, or third degree felonies must serve, § 31-21-10(D), sex
offenders must serve a minimum of five years, and up to the duration of the sex offender’s life,
§ 31-21-10.1(A). Similarly, sex offenders must serve a minimum of five years and a maximum
of twenty years of probation. Section 31-20-5.2. The parole board is also tasked with additional
oversight requirements for sex offenders. See § 31-21-10.1(B)-(F). And the board must
9
judgment record distinguishes between the principal duties of probation and parole officers
who supervise sex offenders and those who supervise other kinds of offenders.
{24} Finally, much of Plaintiff’s argument rests on her assertion that Vigil was wrongly
decided because it was based on an overly narrow interpretation of the TCA’s waiver of
immunity for “law enforcement officers” and an incomplete record. We think otherwise. The
case law is clear that the law enforcement waiver is strictly construed. Loya, 2014-NMCA-028,
¶ 11. Moreover, Vigil was decided on summary judgment, based on evidence the defendants
“submitted to the district court three-and-a-half months before the hearing on the motion,” and
although the plaintiff had ample time to contest that evidence or provide additional evidence,
she did not do so. 1992-NMCA-033, ¶ 14.
{25} We recognize that the duties of law enforcement officers are subject to change in a
changing world and that the analysis of the term “law enforcement officer” under the TCA
must account for such changes. See Coyazo, 1995-NMCA-056, ¶ 18. It may well be that
changing circumstances, such as prison overcrowding and increased use of probation and
parole as alternatives to incarceration,3 the changing demographic of the probation and parole
population,4 and our Legislature’s finding that sex offenders have high rates of recidivism have
or will have a significant impact on the principal duties of probation and parole officers. As
things stand today, however, we have no basis in law or fact sufficient to depart from Vigil.
{26} The events in this case are tragic, and Mills’ alleged conduct was a terrible crime.
“require electronic real-time monitoring of every sex offender released on parole for the entire
time the sex offender is on parole[,]” which must “give continuous information on the sex
offender’s whereabouts and enable law enforcement and the corrections department to
determine the real-time position of a sex offender to a high level of accuracy.” Section 31-21-
10.1(E).
3
Prison “overcrowding has caused a greater reliance on the use of probation as an
alternative to imprisonment.” Shawn E. Small and Sam Torres, Arming Probation Officers:
Enhancing Public Confidence and Officer Safety, 65 Fed. Prob. 24, at 25 (2001). According
to the Bureau of Justice Statistics, just over three million adults were under state or federal
probation at the end of 1995, representing an almost 300 percent increase over the prior ten
years. Joan Petersilia, Probation in the United States Part I, Perspectives, at 30 (1998). By the
end of 2008, that number had grown to almost 4.3 million. See Lauren E. Glaze and Thomas
P. Bonczar, Bureau of Justice Statistics Bulletin: Probation and Parole in the United States,
2008, at 1 (December 2009).
4
“Since the 1980s, the demographic make-up of the probation population has changed
markedly[,]” and “more individuals are being placed on probation for a wider range of criminal
offenses.” Small and Torres, supra, at 25. Consequently, “probation officers are increasingly
supervising offenders who are more violent and dangerous.” Id. For instance, in 2008, over
half of the probation population had been convicted for felonies, as opposed to misdemeanors.
See Glaze and Bonczar, supra, at 31.
10
Although this Court is sympathetic to Plaintiff’s plight, based on this record and in light of our
holding in Vigil, we must hold that the district court did not err when it ruled that APPD
Defendants are not law enforcement officers under Section 41-4-3(D) and that, therefore, the
waiver of immunity in Section 41-4-12 does not apply to them.
CONCLUSION
{27} We affirm the judgment of the district court.
{28} IT IS SO ORDERED.
_____________________________________
LINDA M. VANZI, Judge
WE CONCUR:
_____________________________________
RODERICK T. KENNEDY, Chief Judge
_____________________________________
JONATHAN B. SUTIN, Judge
11