JOSE LUIS LOYA, Plaintiff, v. GLEN GUTIERREZ, Commissioned Officer of Santa Fe County, Defendant/Third-Party Plaintiff/Appellant-Petitioner, v. COUNTY OF SANTA FE, Third-Party Defendant/Appellee-Respondent.
NO. 34,447
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
May 11, 2015
Barbara J. Vigil, District Judge
ORIGINAL PROCEEDING ON CERTIORARI
Carl Bryant Rogers
Santa Fe, NM
Ray A. Padilla, P.C.
Ray A. Padilla
Albuquerque, NM
for Petitioner
Law Offices of Michael Dickman
Michael Dickman
Santa Fe, NM
for Respondent
Luis E. Robles
Frank T. Apodaca
Albuquerque, NM
for Amicus Curiae New Mexico Association of Counties
OPINION
BOSSON, Justice.
{1} Given New Mexico‘s highways that traverse both state and tribal lands, it is not uncommon that a tribal police officer patrolling those highways may be commissioned as a deputy county sheriff to arrest non-Indians and prosecute them in state court when they commit state traffic offenses on tribal land. In light of those recurring facts, we determine a county‘s legal obligation when a non-Indian, arrested by a tribal officer and prosecuted in state court for state traffic offenses, sues the arresting tribal officer for federal civil rights violations. More particularly, we decide when the county has an obligation under the New Mexico Tort Claims Act,
BACKGROUND
{2} On September 5, 2009, Officer Glen Gutierrez, on duty as a full-time salaried police officer of the Pueblo of Pojoaque and also commissioned as a Santa Fe County deputy sheriff, was patrolling a portion of U.S. Highway 84/285 located within the exterior boundary of the Pojoaque Pueblo. He was driving his tribally-marked and issued police vehicle and was dressed in his full tribal uniform displaying his tribal badge. He was also carrying a deputy‘s commission card issued to him by the Santa Fe County sheriff.
{3} Officer Gutierrez observed Jose Luis Loya making a dangerous lane change and engaged his emergency equipment to signal Loya to pull over. Once stopped, Officer Gutierrez asked Loya to step out of his vehicle and informed Loya that he was under arrest for reckless driving in violation of
{4} Loya felt aggrieved by what happened to him that night. Based on those events, Loya filed a civil complaint against Officer Gutierrez in the First Judicial District Court to recover damages for deprivation of his civil rights under
{5} The State of New Mexico has exclusive criminal jurisdiction over non-Indians for actions committed within the exterior boundaries of a tribe or pueblo pursuant to the Indian Pueblo Land Act Amendments of 2005. See
{6} According to the affidavit of Pueblo of Pojoaque Police Chief John Garcia, the limited jurisdiction of tribal police officers historically created a gap in effective law enforcement on state highways located within the exterior boundaries of a tribe or pueblo. The county sheriff did not have adequate staff to combat criminal activity by non-Indians on state highways traversing tribal lands. Likewise, the tribal officers lacked authority to prosecute non-Indian offenders. To overcome this limitation and encourage jurisdictions to work together, the Santa Fe County sheriff issued commissions to Pojoaque Pueblo police officers to act as county sheriff‘s deputies.
{7} In the course of that practice, on June 23, 2008, Santa Fe County Sheriff Greg Solano issued a commission to Officer Gutierrez appointing him as a Santa Fe County deputy sheriff for purposes of enforcing state traffic laws and criminal statutes against non-Indian offenders for offenses committed within the exterior boundaries of Pojoaque Pueblo. To qualify for the appointment, Sheriff Solano required Officer Gutierrez to provide documentation showing successful completion of state and/or federal law enforcement training and certification, a written copy of his background investigation, and his written application. Sheriff Solano also required Officer Gutierrez to take the oath mandated by the New Mexico Constitution to “support the Constitution of the United States, the Constitution and laws of the State of New Mexico, the laws of the County of Santa Fe and faithfully and impartially discharge the duties of said office to the best of [his] ability.” See
{8} As stated above, absent additional authority tribal police officers have no legal authority to charge non-Indian offenders for a violation of state law even if the violation is committed on tribal land. See Duro, 495 U.S. at 696-67. It is the commission as a county deputy sheriff that gives tribal police the authority to make such arrests while acting under state law. In this case, the very reason Officer Gutierrez, a tribal police officer, is subject to a Section 1983 claim for actions taken under color of state law, is because he was acting under his state authority as a deputy sheriff, not tribal authority, when he charged, detained, and prosecuted Loya under state law. See Williams, 1998-NMCA-090, 20-21.
{9} Upon being sued, Officer Gutierrez tendered two requests to Santa Fe County to provide him with a legal defense and indemnification, if necessary, in accord with the defense and indemnification provisions of the NMTCA,
{10} Both parties then filed motions for summary judgment, each basing its claim on an interpretation of the County‘s duties under the NMTCA. The district court ruled for the County, finding that Officer Gutierrez was not entitled to a defense under the NMTCA. The Court of Appeals affirmed. Loya v. Gutierrez, 2014-NMCA-028, 319 P.3d 656. We granted certiorari to resolve a significant issue of law that potentially affects law enforcement wherever state and tribal lands border each other throughout New Mexico. Loya v. Gutierrez, 2014-NMCERT-002.
DISCUSSION
The New Mexico Tort Claims Act
{11} The issue before us is whether the County is obligated to defend and potentially indemnify Officer Gutierrez when he was sued for actions taken to charge, arrest, and prosecute a non-Indian offender in state court for violating state law on Indian land. The parties agree that the NMTCA guides this determination. The defense and indemnification provisions of the NMTCA,
[A] governmental entity shall provide a defense, including costs and attorney[‘s] fees, for any public employee when liability is sought for:
(1) any tort alleged to have been committed by the public employee while acting within the scope of his duty; or
(2) any violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico when alleged to have been committed by the public employee while acting within the scope of his duty.
Whether Officer Gutierrez Is a Public Employee Under the NMTCA
{12}
{13} The question then is whether Officer Gutierrez was acting as a “public employee” for the County when he arrested Loya. The “public employee” definition in turn identifies eighteen categories of persons who are deemed to be “public employees,” two of which pertain to this case.
Whether a Tribal Police Officer Can Also Be a Public Employee Under the NMTCA Under Certain Circumstances
{14} The County makes a number of arguments as to why Officer Gutierrez cannot be a public employee under the NMTCA.1 We consider them in the order of their presentation.
{16} This is just such a case. Unlike Williams, Officer Gutierrez was enforcing state law, not tribal law, when he arrested Loya and charged him in state court for violating state law, thereby acting as a state officer and not a tribal officer. If Officer Gutierrez had issued a tribal ticket to Loya under Pueblo authority, he would have been acting on behalf of the Pueblo and the result would be the same as in Williams. The additional fact that Officer Gutierrez was acting on behalf of the County, not the Pueblo, creates an important distinction between the two cases, and thus provides the additional evidence missing from Williams. We conclude that the Court of Appeals’ analysis in Williams is consistent with our determination here that Officer Gutierrez is not excluded from the NMTCA definition of “public employee” on the mere basis that he is also employed as a tribal officer. We next address whether Officer Gutierrez falls within one of the two identified categories of “public employee” under the NMTCA.
{17} As set forth previously, one definition of a public employee under the NMTCA is a “law enforcement officer.”
[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.
Officer Gutierrez was not a “full-time salaried public employee” or even a “part-time salaried police officer” of the County or any other “governmental entity” recognized by the NMTCA. He was compensated by the Pueblo of Pojoaque and not by the County.
{18} This does not end the inquiry, however. In addition to the “law enforcement officer” category, the NMTCA defines a public employee as a “person[] acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation.”
Whether Officer Gutierrez Is a “Person Acting On Behalf Of Government Or In Service Of a Governmental Entity In Any Official Capacity, Whether With Or Without Compensation”
{19} To meet this category of “public employee,” Officer Gutierrez had to be acting on behalf of the County with or without compensation.
History Of Law Enforcement Commissions
{20} We start with the authority of a sheriff to commission a deputy. A sheriff‘s ability to commission deputies is rooted in ancient English common law under which a sheriff has inherent authority to vest his undersheriff with authority to perform every ministerial act the principal sheriff may perform. State ex rel. Geyer v. Griffin, 76 N.E.2d 294, 298 (Ohio Ct. App. 1947) (per curium).
[The deputy] acts for the sheriff in his name and stead. . . . In the absence of any statutory restriction, the sheriff has full power to appoint . . . an undersheriff, and as many general or special deputies as the public service may require, who may discharge all the ordinary ministerial duties of the office, such as the return and service of process and the like. All acts of the undersheriff or of the deputies are done in the name of the sheriff, who is responsible for them.
Id. In modern jurisprudence, the common-law office of deputy sheriff remains much the same and is the presumed rule unless a change is effected by the Constitution or state statute. Id.
{21} In New Mexico, the power of a county sheriff to commission someone as a deputy to “preserve the public peace and to prevent and quell public disturbances,” N.M. Att‘y Gen. Op. 57-83 (1957), was codified as early as 1856 by the Legislative Assembly of the Territory of New Mexico. That statute states:
Section 1. That the sheriffs in all the counties of this Territory shall have power to appoint deputies . . . .
Sec. 2. Each deputy . . . shall take an oath to discharge faithfully the duties of his office, and the sheriffs shall be respons[i]ble for the acts of their deputies as such.
Sec. 3. The said deputies are hereby authorized to discharge all the duties which belong to the office of sheriff, that may be placed under their charge by their principals, with the same effect as though they were executed by the respective sheriffs.
1855-56 N.M. Laws, ch. 2, §§ 1-3. Under that statute, the sheriff in every territorial county had the power to appoint deputies as long as they took an oath to “discharge faithfully the duties of his office” prior to entering upon the duties thereof. Id. § 2. In line with common-law principles, the statute mandated that “the sheriffs shall be respons[i]ble for the acts of their deputies.” Id. In 1905, the Legislature added eligibility requirements for deputy sheriffs.
Extension Of Commissions To Tribal Officers
{23} During the 1950s, the New Mexico Attorney General issued several legal opinions advising that full-time police officers employed by New Mexico tribes and pueblos could be commissioned as special deputies as long as they met statutory qualifications under
Commissioning Tribal Officers By Contractual Agreement And Not Just By Appointment
{24} In addition to the authority of the county sheriff to appoint tribal police officers to act as special deputies, the Legislature authorized additional law enforcement agencies during the 1970s to issue commissions through formal agreements with tribal entities. The Mutual Aid Act,
{25} The other type of statutory agreement, referred to as a “cross-commission agreement,” is authorized under
{26} The 1979 amendment also added several conditions to be included in a cross-commission agreement, including a training requirement for all commission applicants, proof that the tribe or pueblo entering into the agreement has adequate public liability and property damage insurance for vehicles
{27} Thus, the Mutual Aid Act and the statute authorizing cross-commission
agreements are not, and never have been, the exclusive source of authority for commissioning a tribal police officer to act under state law as a deputy sheriff. Sheriffs retain that traditional authority, going back to the common law and early territorial days, to appoint deputies, including tribal police officers, to assist the sheriff in the enforcement of New Mexico criminal and traffic law. These appointments may occur, pursuant to the sheriff‘s historic authority under
{28} Accordingly, Santa Fe County Sheriff Solano had the authority under state law to commission Officer Gutierrez, notwithstanding the lack of any formal agreement between the County and the Pueblo of Pojoaque. At the time of the Loya arrest, Officer Gutierrez was duly acting as an unpaid sheriff‘s deputy, a volunteer, no different from any volunteer deputy commissioned over the past century.
The Effect Of the Sheriff‘s Unanswered Letter To the Pueblo
{29} The County argues, however, that in this particular instance Sheriff Solano issued the commission subject to the provisions set forth in the January 24, 2005, letter from Sheriff Solano to Pueblo of Pojoaque Tribal Police Chief John Garcia. According to the County, that letter memorialized the scope of authority conferred upon Officer Gutierrez, provided rules for commissioned deputies to follow when acting on behalf of the County, and delineated financial responsibilities between the County and the Pueblo. In particular the letter stated that the Pueblo of Pojoaque shall be liable if a commissioned officer “is sued for actions taken while effecting an arrest or pursuing a suspect.” The County argues that the letter created an agreement between the County and the Pueblo of Pojoaque and that Officer Gutierrez is commissioned pursuant to the conditions set forth in that agreement, including the Pueblo‘s assumption of liability.
{30} We find the County‘s position unpersuasive. The record is devoid of any evidence that Pojoaque Police Chief Garcia, the Pueblo Governor, or the Pueblo Council ever acknowledged the existence of that letter, much less agreed to its terms. Officer Gutierrez claimed that he was unaware of the letter at the time he took the oath of office as a commissioned deputy sheriff. The district court below issued no contrary findings. Nothing in the record indicates any efforts by Sheriff Solano to follow through with these purported (and unilateral) conditions. There is no indication of any discussions verifying that the Pueblo had accepted liability for its officers. Accordingly, we need not decide the letter‘s legal efficacy without any evidence of its acceptance. And we certainly could not decide the letter‘s legal efficacy without hearing from the Pueblo. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (“It is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” (internal quotation marks and citations omitted)); Am. Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1379 (8th Cir. 1985) (“[N]othing short of an express and unequivocal waiver can defeat the sovereign immunity of an Indian nation.“).
{31} As discussed earlier, the Legislature has provided for agreements between Native-American tribes and the State, but this
{32} Accepting that Officer Gutierrez was commissioned as a volunteer sheriff‘s deputy and not pursuant to any formal agreement executed under New Mexico statute, we return to our initial, “working” determination that Officer Gutierrez seemed to be acting as a “public employee” under the NMTCA when he arrested and prosecuted Loya. See
{33} As an aside, it is of no import that the County did not compensate Officer Gutierrez for his service. The language in
As a Tribal Police Officer, Officer Gutierrez Is Not Limited To the “Law Enforcement Officer” Subcategory Of “Public Employee”
{34} The County further argues that even if a tribal police officer may technically fit within the definition of a “public employee” as a person “acting on behalf . . . of government[] . . . in any official capacity,” the operative category in this inquiry is nonetheless limited to “law enforcement officer.” See
{35} Presumably, allowing the County sheriff to commission tribal police officers as deputies has enhanced the law enforcement presence and effectiveness within the County, resulting in improved public safety at little cost to the County. See Affidavit of
{36} The County argues that the more specific public employee definition—law enforcement officer—should prevail over more general provisions touching on the same subject. The County‘s argument proceeds as follows: Officer Gutierrez was acting in a law enforcement officer capacity when he stopped and arrested Loya, the term “law enforcement officer” is a more specific subcategory of “public employee” than “persons acting on behalf of,” so “law enforcement officer” should be the operative category.
{37} The proposition that specific prevails over general stems from a case where the notice requirements stated within a statute conflicted with the notice requirements set forth in a rule. Prod. Credit Ass‘n v. Williamson, 1988-NMSC-041, 107 N.M. 212, 755 P.2d 56. This Court held that the statute addressed the specific type of proceeding at issue in the case and was therefore controlling over the rule which addressed general notice requirements, hence creating the specific over general rule of statutory interpretation. Id. ¶ 5.
{38} Here, we are not dealing with different parts of a statute or a conflict between a statute and a rule; we are looking at one definition. The definition of “public employee” includes 18 different categories. See
The Duty To Provide a Defense In a Section 1983 Action Is Not Subject To the State‘s Assertion Of Sovereign Immunity
{39} The County next argues that even if Officer Gutierrez is a “public employee” under the NMTCA, there is no duty to provide a legal defense here because both the County and Officer Gutierrez are immune from liability. Under the NMTCA, the State‘s general policy is that “governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act.”
{40} The NMTCA asserts sovereign immunity from liability for any tort except as waived by Sections 41-4-5 to -12. See
{41} The terms “waiver” and “sovereign immunity” do not appear anywhere in the text of Section 41-4-4(B), the provision that sets forth the County‘s duty to provide a legal defense. In order to accept the County‘s argument that the defense obligation is dependent upon a statutory waiver of sovereign immunity, we would have to read words into Section 41-4-4(B), limiting the County‘s defense obligation to actions brought under one of the torts for which sovereign immunity has been waived. But Section 41-4-4(B) does not say that; it imposes no such limitation. The statute reads, “a governmental entity [the County] shall provide a defense . . . when liability is sought for” (1) “any tort” or (2) “any violation of . . . any rights, privileges or immunities secured by the constitution and laws of the United States [civil rights claims]. . . .” Id. Textually then,
{42} In addition to being at odds with the statute‘s text, the County‘s position would seem to contradict settled insurance law and the expectations that normally arise with respect to an insurer‘s duty to defend. It is the norm that an insurer, though denying coverage and liability, must nonetheless defend its insured unless and until it receives a judicial ruling in its favor relieving it of any further obligations. See Miller v. Triad Adoption & Counseling Servs., Inc., 2003-NMCA-055, ¶ 9, 133 N.M. 544, 65 P.3d 1099 (“If the allegations of the complaint or the alleged facts tend to show that an occurrence comes within the coverage of the policy, the insurer has a duty to defend regardless of the ultimate liability of the insured.“); see also Lujan v. Gonzales, 1972-NMCA-098, ¶ 22, 84 N.M. 229, 501 P.2d 673 (an insurer‘s “good faith belief that there was no coverage . . . is not a defense to the breach of the duty to defend“).
{43} Here, contrastingly, the County, while denying any liability to Loya for Officer Gutierrez‘s actions, wants to be relieved of any duty to defend Officer Gutierrez even before it obtains a ruling in its favor. The County, unlike a normal insurer, would leave Officer Gutierrez, in the position of an insured, to fight off liability on his own at his own expense. This would appear to fly in the face of Section 41-4-4(B) which equates the duties of the County with the duties of an insurer. See
{44} Focusing on the specific rights and obligations set forth in the NMTCA, Section 41-4-4(A) asserts sovereign immunity from liability except as waived; however, the assertion is only for immunity from tort liability, not civil rights liability. See
{45} The NMTCA does not grant immunity from liability for federal civil rights actions, nor could it do so under the Supremacy Clause of the United States Constitution. See
{46} It follows, therefore, that the listed waivers, including Section 41-4-12, are only relevant when liability is sought for the torts listed therein.3 But here, the suit Loya brought against Officer Gutierrez alleges violations of federally protected constitutional rights under Section 1983, and does not allege tort liability. Loya, 2014-NMCA-028, ¶ 8. Accordingly, the waiver exceptions under Section 41-4-4(A) would seem to have no bearing on the County‘s obligation to provide a defense when liability is sought against its employee for violation of federal constitutional rights.
{47} The same is true for the County‘s duty to indemnify Officer Gutierrez in the event of a judgment against him. The County must pay that judgment under the clear language of the NMTCA. See
{48} History supports our conclusion. The NMTCA, as originally enacted, only required a governmental entity to provide a defense when liability was alleged for torts committed by the employee. See 1976 N.M. Laws, ch. 58, § 3(C). Under the original statute, it is possible that the obligation of the governmental entity to provide a defense was dependent upon express waiver of liability because the statute only required the entity to provide a defense for tort actions. If the statute today read as it did in 1976, it might have been necessary for Officer Gutierrez to fit within one of the waiver exceptions in order to be provided with a defense. See id. (“When liability is alleged against any public employee for any torts alleged to have been committed within the scope of his duty, whether or not alleged to have been committed maliciously, fraudulently or without justifiable cause, the governmental entity shall provide a defense.“)
{49} In 1977, however, the Legislature amended the statute and added a subsection to the defense provision to require a governmental entity to provide a defense when liability is sought for any violation of constitutional rights as well as for commission of the specific torts for which liability was waived in the Act. See 1977 N.M. Laws, ch. 386, § 3(C) (“When liability is alleged against any public employee for any torts alleged to have been committed within the scope of his duty, or for a violation of property rights or any rights, privileges or immunities secured by the constitution . . . the governmental entity shall provide a defense and pay any settlement or judgment.“). Thus, the amendment expanded the duty to defend.
{51} All of this makes sound policy sense. If a police officer or other public employee can be sued under federal law for violation of federally-secured constitutional rights while acting within the scope of his or her duty, sound public policy supports a county not abandoning its officer, but coming to the officer‘s assistance with a legal defense and indemnification if necessary. Therefore, showing waiver of tort liability is not required before a governmental entity is obligated to provide its employee with a defense in a Section 1983 action where there are no tort claims asserted.
Officer Gutierrez Was Not Acting As an Independent Contractor
{52} Because we determine that Officer Gutierrez otherwise meets the “public employee” definition, we now address the County‘s final argument that he is excluded as an independent contractor. See
{53} We start by questioning, without deciding, whether a sheriff‘s deputy could ever “act” as an “independent contractor.” The common law rule, undisturbed by New Mexico statute, has long established that a deputy acts on behalf of his sheriff. We are unaware of any situation in which a sheriff has lawfully commissioned an individual to serve as a deputy without also controlling, or reserving control over, the manner and means by which that deputy exercises the authority conferred upon him by the sheriff. A functional law enforcement system requires accountability and uniformity among the officers. If a sheriff no longer had the duty to oversee the actions of sworn deputies, chaos or at least a lack of critical accountability would ensue. Rightfully so, the public would question such a rogue system of law enforcement. We have grave doubts whether our Legislature would tolerate such a system.
{54} That said, the County offers Segura v. Colombe to support its position that a sheriff‘s deputy can act as an independent contractor. 895 F. Supp. 2d 1141 (D.N.M. 2012). In that case, the federal district court determined that the County did not exercise sufficient control over the deputy‘s activities to render the relationship one of employer and employee and thus found that the officer was acting as an independent contractor. Id. at 1148-49.
{55} In reaching its determination, the Segura court applied the test announced by this Court in Celaya, 2004-NMSC-005, ¶ 15. Segura, 895 F. Supp. 2d at 1149. In Celaya, this Court held that a strict application of the right-to-control test may lead to inconsistencies when analyzing whether an individual is an independent contractor for purposes of the NMTCA. We instead adopted the multi-factor analysis in Restatement (Second) of Agency, § 220(2)(a)-(j) (1958), which includes:
1) the type of occupation and whether it is usually performed without supervision; 2) the skill required for the occupation; 3) whether the employer supplies the instrumentalities or tools for the person doing the work; 4) the length of time the person is employed; 5) the method of payment, whether by time or job; 6) whether the work is part of the regular business of the employer; 7) whether the parties intended to create an employment relationship; and 8) whether the principal is engaged in business.
Celaya, 2004-NMSC-005, ¶ 15. The facts in Celaya involved a volunteer chaplain for the sheriff‘s department who was in an accident while driving a department vehicle. In that case, the right-to-control analysis alone could not resolve the issue of whether a volunteer chaplain was an independent contractor under the NMTCA. Thus, it was necessary to go beyond right to control to determine the relationship between the chaplain and the sheriff‘s department.
{56} No such further inquiry is necessary here. In the case of a sworn sheriff‘s deputy engaged in enforcing state law on behalf of the county, there is a clear right to control—indeed an obligation to control—the actions of a deputy. When that right to control is so fundamentally a part of the relationship, we find it unnecessary to analyze the relationship under the additional factors announced in Celaya.
{57} We note from our reading of Segura that, unlike the present case, the parties there presented very little evidentiary support for the proposition that the deputy was not an independent contractor. Beyond that difference, however, we find the federal court‘s reasoning unpersuasive for the reasons stated as a matter of sound legal policy.
CONCLUSION
{58} We hold that the County must provide Officer Gutierrez with a legal defense, including costs and attorney‘s fees in conformity with the NMTCA. We therefore reverse the entry of summary judgment in favor of the County and remand to the district court for further proceedings consistent with this ruling.
{59} IT IS SO ORDERED.
RICHARD C. BOSSON, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
ABIGAIL P. ARAGÓN, Judge
Sitting by Designation
Notes
personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, . . . or deprivation of any rights privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.