N.M. Stat. § 41-4-3 (2026)

As used in the Tort Claims Act:

   A. "board" means the risk management advisory board;

  B. "governmental entity" means the state or any local public body as defined in
Subsections C and H of this section;

    C. "local public body" means all political subdivisions of the state and their agencies,
instrumentalities and institutions and all water and natural gas associations organized
pursuant to Chapter 3, Article 28 NMSA 1978;

   D. "law enforcement officer" means 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, or
members of the national guard when called to active duty by the governor;

   E. "maintenance" does not include:
         (1)   conduct involved in the issuance of a permit, driver's license or other
official authorization to use the roads or highways of the state in a particular manner; or

       (2)    an activity or event relating to a public building or public housing project
that was not foreseeable;

    F. "public employee" means an officer, employee or servant of a governmental
entity, excluding independent contractors except for individuals defined in Paragraphs
(7), (8), (10), (14) and (17) of this subsection, or of a corporation organized pursuant to
the Educational Assistance Act [Chapter 21, Article 21A NMSA 1978], the Small
Business Investment Act [Chapter 58, Article 29 NMSA 1978] or the Mortgage Finance
Authority Act [Chapter 58, Article 18 NMSA 1978] or a licensed health care provider,
who has no medical liability insurance, providing voluntary services as defined in
Paragraph (16) of this subsection and including:

        (1)   elected or appointed officials;

        (2)   law enforcement officers;

         (3)   persons acting on behalf or in service of a governmental entity in any
official capacity, whether with or without compensation;

      (4)   licensed foster parents providing care for children in the custody of the
human services department [health care authority department], corrections department
or department of health, but not including foster parents certified by a licensed child
placement agency;

       (5) members of state or local selection panels established pursuant to the
Adult Community Corrections Act [Chapter 33, Article 9 NMSA 1978];

       (6)  members of state or local selection panels established pursuant to the
Juvenile Community Corrections Act [Chapter 33, Article 9A NMSA 1978];

       (7)    licensed medical, psychological or dental arts practitioners providing
services to the corrections department pursuant to contract;

        (8)   members of the board of directors of the New Mexico medical insurance
pool;

       (9)   individuals who are members of medical review boards, committees or
panels established by the educational retirement board or the retirement board of the
public employees retirement association;

       (10) licensed medical, psychological or dental arts practitioners providing
services to the children, youth and families department pursuant to contract;
       (11) members of the board of directors of the New Mexico educational
assistance foundation;

      (12) members of the board of directors of the New Mexico student loan
guarantee corporation;

       (13)   members of the New Mexico mortgage finance authority;

      (14) volunteers, employees and board members of court-appointed special
advocate programs;

      (15) members of the board of directors of the small business investment
corporation;

       (16) health care providers licensed in New Mexico who render voluntary health
care services without compensation in accordance with rules promulgated by the
secretary of health. The rules shall include requirements for the types of locations at
which the services are rendered, the allowed scope of practice and measures to ensure
quality of care;

      (17) an individual while participating in the state's adaptive driving program and
only while using a special-use state vehicle for evaluation and training purposes in that
program;

      (18) the staff and members of the board of directors of the New Mexico health
insurance exchange established pursuant to the New Mexico Health Insurance
Exchange Act [59A-23F-1 to 59A-23F-8 NMSA 1978]; and

       (19)   members of the insurance nominating committee;

   G. "scope of duty" means performing any duties that a public employee is
requested, required or authorized to perform by the governmental entity, regardless of
the time and place of performance; and

   H. "state" or "state agency" means the state of New Mexico or any of its branches,
agencies, departments, boards, instrumentalities or institutions.

History: 1953 Comp., § 5-14-3, enacted by Laws 1976, ch. 58, § 3; 1977, ch. 386, § 2;
1983, ch. 123, § 2; 1983, ch. 242, § 1; 1985, ch. 76, § 1; 1988, ch. 31, § 1; 1991, ch. 29,
§ 1; 1991, ch. 205, § 1; 1993, ch. 195, § 1; 1993, ch. 203, § 1; 1994, ch. 123, § 1; 1995,
ch. 173, § 2; 2003, ch. 399, § 3; 2007, ch. 104, § 1; 2009, ch. 8, § 2; 2009, ch. 129, § 2;
2009, ch. 249, § 2; 2013, ch. 54, § 11; 2015, ch. 11, § 2.

                                     ANNOTATIONS
Bracketed material. — The bracketed material was inserted by the compiler and is not
part of the law. Laws 2023, ch. 205, § 16 provided that references to the human
services department shall be deemed to be references to the health care authority
department.

Compiler’s notes. — The following sections make specific entities subject to the Tort
Claims Act: 6-21-4 NMSA 1978 (New Mexico finance authority); 21-28-7 NMSA 1978
(research park corporations); 24-10B-4 NMSA 1978 (emergency medical volunteers);
24-10B-8 NMSA 1978 (licensed emergency medical personnel); 33-3-28 NMSA 1978
(jailers); 59A-54-4 NMSA 1978 (New Mexico comprehensive health insurance pool); 76-
21-22 NMSA 1978 (agricultural commodity commission); 77-2A-9 NMSA 1978 (New
Mexico beef council).

Cross references. — For the risk management advisory board, see 15-7-4 NMSA
1978.

The 2015 amendment, effective June 19, 2015, added "members of the insurance
nominating committee" to the definitions section of the Tort Claims Act; and added
Paragraph (19) of Subsection F.

The 2013 amendment, effective March 28, 2013, defined "public employee" to include
staff and members of the board of directors of the New Mexico health exchange; and
added Paragraph (18) of Subsection F.

Severability. — Laws 2013, ch. 54, § 16 provided that if any part or application of Laws
2013, ch. 54, §§ 1 through 15 are held invalid, the remainder or its application to other
situations or persons shall not be affected.

The 2009 amendment, effective June 19, 2009, in Subsection D, after "governmental
entity", added "or a certified part-time salaried police officer employed by a
governmental entity".

The 2007 amendment, effective July 1, 2007, provided tort immunity to a licensed
health care provider who has no medical liability insurance and who provides voluntary
services without compensation in accordance with rules of the secretary of health.

The 2003 amendment, effective April 8, 2003, inserted "the Small Business Investment
Act" following "Educational Assistance Act" near the end of Subsection F; substituted
"medical" for "comprehensive health" following "of the New Mexico" near the end of
Paragraph F(8); and added Paragraph F(15).

The 1995 amendment, effective June 16, 1995, substituted "and (14)" for "(14) and
(15)" in the introductory paragraph, deleted former Paragraph (15) of Subsection F
relating to nonprofit corporations that provide developmental disabilities services
pursuant to contract, and deleted "and, as provided in the Tort Claims Act, includes
developmental disabilities service providers" following "institutions" at the end of
Subsection H.

The 1994 amendment, effective March 8, 1994, substituted "foreseeable" for
"forseeable" in Paragraph E(2), deleted "and" following "(8)," and added ", (14) and
(15)" in Subsection F, substituted "educational retirement board" for "board of the
educational retirement association" in Paragraph F(9), deleted "and" following the
semicolon in Paragraph F(12), added Paragraphs (F)(14) and (F)(15), and added "and,
as provided in the Tort Claims Act, includes developmental disabilities service
providers" in Subsection H.

The 1993 amendment, effective June 18, 1993, substituted "Chapter 3, Article 28" for
"Sections 3-28-1 through 3-28-19" in Subsection C; and in Subsection F, substituted the
language beginning "Paragraphs (7), (8) through (10)" and ending "or the Mortgage
Finance Authority Act" for "Paragraphs (6) and (7) of this subsection" in the introductory
language, substituted "department of health" for "health and environment department" in
Paragraph (4), added present Paragraphs (6) and (10) through (13), making related
grammatical changes, and renumbered former Paragraphs (6) through (8) accordingly.

The 1991 amendment, effective July 1, 1992, added Subsection E; redesignated
former Subsections E to G as Subsections F to H; in Subsection F, added Paragraph
(7), redesignated former Paragraph (7) as Paragraph (8) and made a related and minor
stylistic changes; and made a minor stylistic change in Subsection G.

The 1988 amendment, effective February 29, 1988, added the exclusion in the
definition of "public employee" near the beginning of Subsection E; deleted "Except as
provided by this paragraph, the term does not include an independent contractor" from
the end of Subsection E(6); added Subsection E(7); and made minor stylistic changes.

                          I.     GENERAL CONSIDERATION.

Scope of duties. — Where school administrators allegedly used procedures ostensibly
based upon statute and regulations and used the mechanism of their employment to
harass and attempt to force plaintiff out of her job, the school administrators were acting
within the scope of their duties as school administrators and were immune from liability
under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Henning v. Rounds,
2007-NMCA-139, 142 N.M. 803, 171 P.3d 317.

Under the definition of "scope of duties" in Subsection G of this section, when
reconciled with the indemnification provisions in Subsection E of 41-4-4 NMSA 1978
and Subsection A of 41-4-17 NMSA, an employee's acts are not excluded simply
because they are criminal. Risk Mgmt. Div. v. McBrayer, 2000-NMCA-104, 129 N.M.
778, 14 P.3d 43, cert. denied, 130 N.M. 17, 16 P.3d 442.
Failing to perform a regular duty, such as timely responding to requests for records, still
falls with the scope of duties for purposes of the Tort Claims Act. Derringer v. State,
2003-NMCA-073, 133 N.M. 721, 68 P.3d 961, cert. denied, 133 N.M. 727, 69 P.3d 237.

Public employee may be within scope of authorized duty even if the employee's acts are
fraudulent, intentionally malicious, or even criminal. Seeds v. Lucero, 2005-NMCA-067,
137 N.M. 589, 113 P.3d 859, cert. denied, sub nom. Seeds v. Vandervossen, 2005-
NMCERT-005, 137 N.M. 522, 113 P.3d 345.

Driving to and from a work-related activity is within the scope of a public
employee's duties. — When a public employee is driving to and from a work-related
function, such travel benefits the employer and is necessarily "required, requested or
authorized" within the definition of "scope of duty" set forth in the Tort Claims Act.
Wright v. Seventh Judicial District Ct., 2024-NMCA-059, cert. denied.

The district court was vicariously liable for judge's negligence where judge was
acting within the scope of her official duties while driving home from a work-
related event. — Where plaintiffs filed suit under the Tort Claims Act (TCA), 41-4-1 to
41-4-27 NMSA 1978, against a seventh judicial district court judge and her employer,
the seventh judicial district court (SJDC), seeking damages for personal injury and
wrongful death after the judge, while driving home from a speaking event for a private
contractor who worked with the SJDC by providing a variety of pretrial services for the
court including treatments related to the SJDC's adult drug court treatment program,
collided with plaintiffs who were cycling along the edge of U.S. Highway 60, and where
plaintiffs sought to establish that the judge was acting within the scope of her official
duties under the TCA such that the SJDC was vicariously liable for the harms caused in
the accident, the district court did not err in granting plaintiff's motion for partial summary
judgment, finding that, as a matter of law, the judge was acting within the scope of her
official duties as a judge in the SJDC at the time her vehicle struck the cyclists, and
therefore the SJDC was vicariously liable under the TCA for the injuries the judge
caused during the accident, because the judge's attendance at the event, and her
associated travel, provided meaningful benefit to the SJDC's mission regarding its drug
courts, and therefore the judge's conduct had a sufficient nexus to the duties requested,
required, or authorized by the SJDC. Wright v. Seventh Judicial District Ct., 2024-
NMCA-059, cert. denied.

Co-conspirator's acts are imputed to employee. — As long as the act of conspiring
is within the scope of a public employee's duties, any co-conspirator's acts that are
imputed to the public employee will be, by definition, within the scope of the employee's
duties. Seeds v. Lucero, 2005-NMCA-067, 137 N.M. 589, 113 P.3d 859, cert. denied
sub nom. Seeds v. Vandervossen, 2005-NMCERT-005, 137 N.M. 522, 113 P.3d 345.

Two-year statute of limitations applicable to negligence suit involving public
utility's employee. — Section 41-4-15 NMSA 1978 of the Tort Claims Act, allowing two
years to bring suit, and not the one-year limitation of 37-1-24 NMSA 1978, which refers
to the time for bringing suits in negligence against any city, town or village, or any
officers thereof, applies to a suit for negligence of a public employee in the operation of
a public utility. Cozart v. Town of Bernalillo, 1983-NMCA-053, 99 N.M. 737, 663 P.2d
713.

"Interpretation of 'maintenance'". — In addition to meaning the upkeep and repair of
the physical surface of the roadway, the duty to maintain roadways also embraces the
duty to conduct reasonable inspections of roadways, the duty to identify dangerous
conditions on roadways, and the duty to remediate dangerous conditions on roadways.
Valdez v. N.M. Dep't of Transp., 2025-NMCA-027, cert. denied.

                          II.     GOVERNMENTAL ENTITIES.

Corrections department is a "governmental" entity under the Tort Claims Act, not an
"employee" of a governmental entity. Therefore, it does not fall within 41-4-6 and 41-4-
10 NMSA 1978 (negligence of "public employees"). Silva v. State, 1987-NMSC-107,
106 N.M. 472, 745 P.2d 380.

City is "governmental entity". — Under the Tort Claims Act [41-4-1 through 41-4-27
NMSA 1978], a city is a "governmental entity" because of its legal status as a "local
public body" and as a "political subdivision of the state." Cole v. City of Las Cruces,
1983-NMSC-007, 99 N.M. 302, 657 P.2d 629.

Charter schools are public schools subject to the Tort Claims Act. — A charter
school is a public school that operates as part of a political subdivision of the state and,
as such, is a governmental entity within the meaning of Subsection B of this section.
Kreutzer v. Aldo Leopold High School, 2018-NMCA-005.

Issue of whether town or municipality is "local public body" is not open to
question. Cozart v. Town of Bernalillo, 1983-NMCA-053, 99 N.M. 737, 663 P.2d 713.

State police and highway departments are "state agencies". — The state police
department and the state highway department fit the statutory description of "state" or
"state agency." Ferguson v. N.M. State Hwy. Comm'n, 1981-NMCA-071, 98 N.M. 718,
652 P.2d 740, rev'd on other grounds, 1982-NMSC-107, 98 N.M. 680, 652 P.2d 230.

Emergency communications center is a "governmental entity" for purposes of the
Tort Claims Act. — Where plaintiff, a police officer who was injured during a call for
service, filed suit for personal injuries against the Valencia regional emergency
communications center (VRECC), an entity created pursuant to the New Mexico
Enhanced 911 Act, NMSA 1978, §§ 63-9D-1 to 63-9D-11.1, to provide enhanced 911
emergency communications functions for an area that includes the incorporated
boundaries of the villages of Los Lunas and Bosque Farms and Valencia county, and
where the district court dismissed claims against the VRECC, finding that the VRECC
was a governmental entity for purposes of the Tort Claims Act and that immunity had
not been waived, the district court did not err in dismissing claims against the VRECC,
because the VRECC is an entity created pursuant to statute to provide basic safety and
health services on behalf of the villages and Valencia county, is controlled by the
villages and Valencia county, and possesses their same powers and duty with regard to
the health and welfare of their citizens, and is thus a "governmental entity" under the
Tort Claims Act. Gebler v. Valencia Reg'l Emergency Commc'n Ctr., 2023-NMCA-070.

Foster parents are state actors. — Where personal representative of wrongful death
estate of son and guardian ad litem for minor daughter, who were removed from, and
then returned to their biological mother, brought a tort claim action against the Children,
Youth and Families Department (CYFD), alleging that CYFD placed the children in or
subjected them to an injurious and unsafe environment, court held that foster parents
are state actors because in the foster care context, a custodial relationship sufficient to
establish a special relationship arises when the state assumes control of a child's
environment and replaces whatever private source of protection the child had in the free
world with a new source of protection. Valdez v. Roybal, 186 F.Supp.3d 1197 (D. N.M.
2016).

Irrigation district is "local public body" for purposes of this section. Tompkins v.
Carlsbad Irrigation Dist., 1981-NMCA-072, 96 N.M. 368, 630 P.2d 767.

Privately owned irrigation company is not "local public body" under the Tort
Claims Act [41-4-1 through 41-4-27 NMSA 1978], even though it performs the same
function as a public irrigation district, where the company has had the option of
reorganizing as a body politic and gaining the benefits and obligations of such status but
has chosen not to do so. Carmona v. Hagerman Irrigation Co., 1998-NMSC-007, 125
N.M. 59, 957 P.2d 44.

Water and Sanitation District Act districts are a quasi-municipal governmental entity and
fall within the definition of "governmental entity" under the Tort Claims Act. El Dorado
Utils., Inc. v. Eldorado Area Water and Sanitation Dist., 2005-NMCA-036, 137 N.M. 217,
109 P.3d 305.

Summary judgment for defendant was improper where defendant failed to show
that nonprofit corporation was so intertwined with a governmental entity for the
Tort Claims Act to apply. — Where plaintiff, the personal representative of decedent,
filed a complaint alleging medical malpractice and other claims arising from medical
treatment received by decedent, and where defendant, the surgeon that performed the
surgery on decedent, filed a motion for summary judgment, claiming that he was a
public employee and therefore the two-year statute of limitations barred claims that
were filed more than two years after decedent's last visit with defendant, the district
court erred in finding that defendant's employer, a nonprofit corporation, fell under the
ambit of the Tort Claims Act and that the complaint was untimely, because in his
motion, defendant did not make any showing that his employer, a nonprofit corporation,
was so intertwined with a governmental entity for the Tort Claims Act to apply. The
district court therefore erred by holding plaintiff's claims were time barred by the Tort
Claims Act's two-year statute of limitations. Murphy v. Lash, 2024-NMCA-031, cert.
granted.
Public defenders' immunity not violation of equal protection. — Public defenders,
whether regular employees of the public defender's office or performing as contractors,
are immune from malpractice claims, and statutes providing such immunity did not
violate the equal protection rights of a former prisoner. Coyazo v. State, 1995-NMCA-
056, 120 N.M. 47, 897 P.2d 234.

                       III.   LAW ENFORCEMENT OFFICERS.

Office of state engineer employee. — Where the defendant, who was employed as a
water resource specialist and supervisor of the Hondo Basin by the office of the state
engineer, who had never actually arrested anyone, who had no law enforcement
certification, who did not carry a gun, whose duties were mainly administrative, but
included enforcement regarding water rights, and whose vehicle did not have police
emergency light, caused the destruction of the plaintiff’s dam that diverted water to
which the plaintiff had some right pursuant to a compliance order that was based solely
on the defendant’s field investigation, the defendant did not engage in conduct sufficient
to trigger the law enforcement officer waiver of immunity. Limacher v. Spivey, 2008-
NMCA-163, 145 N.M. 344, 198 P.3d 370, cert. denied, 2008-NMCERT-011, 145 N.M.
531, 202 P.3d 124.

Animal control officer. — For an animal control officer to come within the definition of
"law enforcement officer" under this section, the officer's principal duties under law must
be: (a) to hold in custody any person accused of a criminal offense, (b) to maintain
public order or (c) to make arrests for crimes. It suffices if an animal control officer's
principal duties are either (a), (b) or (c). Baptiste v. City of Las Cruces, 1993-NMCA-
017, 115 N.M. 178, 848 P.2d 1105.

Sheriffs and deputies. — The Eddy county sheriff, deputies and the jailers at the
Bernalillo county jail are "law enforcement officers" within the meaning of Subsection D.
Methola v. County of Eddy, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234.

District attorneys are not law enforcement officers. — Neither district attorney nor
assistant district attorney is a "law enforcement officer," as defined in Subsection D;
rather, both are "public employees" under Subsection E. Candelaria v. Robinson, 1980-
NMCA-003, 93 N.M. 786, 606 P.2d 196.

District attorneys and their staffs do not fall within the "law enforcement officer"
exception from immunity under the Tort Claims Act [41-4-1 through 41-4-27 NMSA
1978]. Coyazo v. State, 1995-NMCA-056, 120 N.M. 47, 897 P.2d 234.

Warden and head of department not law enforcement officers. — The secretary of
corrections and the penitentiary warden were not proper defendants in a wrongful death
suit arising out of the escape of state prisoners, who killed a store owner during a
robbery, since they are not "law enforcement officers". Wittkowski v. State, Corr. Dep't,
1985-NMCA-066, 103 N.M. 526, 710 P.2d 93, cert. quashed, 103 N.M. 446, 708 P.2d
1047 (1985), overruled on other grounds by Silva v. State, 1987-NMSC-107, 106 N.M.
472, 745 P.2d 380.

Secretary of corrections. — The secretary of corrections is not a law enforcement
officer within the meaning of 41-4-12 NMSA 1978 as defined in Subsection D of this
section. Silva v. State, 1987-NMSC-107, 106 N.M. 472, 745 P.2d 380.

To determine whether positions are of a law enforcement nature, the court will look
at the character of the principal duties involved, those duties to which employees devote
the majority of their time. Anchondo v. Corrections Dep't, 1983-NMSC-051, 100 N.M.
108, 666 P.2d 1255.

The statutory requirement that the defendants be law enforcement officers does not
focus on the defendants' specific acts at the time of their alleged negligence; instead, it
simply requires that the defendants' principal duties, those duties to which they devote a
majority of their time, be of a law enforcement nature. The requirement in 41-4-12
NMSA 1978 that the officer must be acting within the scope of his duties simply means
that the officer must be acting within the scope of employment in order to be sued in his
or her capacity as a law enforcement officer. Weinstein v. City of Santa Fe ex rel. Santa
Fe Police Dep't, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.

County detention center officers. — The director and the captain and assistant
director of a county detention center are subject to suit as law enforcement officers
under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Davis v. Board of Cnty.
Comm'rs, 1999-NMCA-110, 127 N.M. 785, 987 P.2d 1172.

Director of DMV is not law enforcement officer. — The director of the motor vehicle
division, whose duties involved principally administrative matters, and who did not serve
as a full-time law enforcement officer whose principal duties involved holding in custody
persons accused of criminal offenses, maintaining public order or making arrests for
crimes, was not a "law enforcement officer" within the contemplation of 41-4-12 NMSA
1978. Dunn v. State ex rel. Taxation & Revenue Dep't, 1993-NMCA-059, 116 N.M. 1,
859 P.2d 469.

Motor vehicle division official who investigated plaintiff’s participation in forging
automobile title was not acting as a full-time law enforcement officer, as contemplated
by Subsection D of this section, and his immunity from suit was not waived. Boydston v.
New Mexico Taxation & Revenue Dep’t., 125 F.3d 861 (10th Cir. 1997).

Parole officers not law enforcement officers. — Parole officers and their supervisors
are not law enforcement officers under Subsection D of this section, and therefore the
waiver of immunity in 41-4-12 NMSA 1978 does not apply to them. Vigil v. Martinez,
1992-NMCA-033, 113 N.M. 714, 832 P.2d 405.

A tribal police officer, also commissioned as a county deputy sheriff and acting
under his state authority as a deputy sheriff, is a "public employee" under the
New Mexico Tort Claims Act. — A tribal officer, who is also commissioned as a county
deputy sheriff, is a "public employee" under the New Mexico Tort Claims Act [41-4-1
through 41-4-27 NMSA 1978] when the tribal officer is enforcing state law, not tribal law.
Loya v. Gutierrez, 2015-NMSC-017, rev’g 2014-NMCA-028, 319 P.3d 656.

Where an on-duty, full time pueblo tribal law enforcement officer, who was also
commissioned as a Santa Fe county deputy sheriff, stopped plaintiff’s vehicle on a
state-maintained highway within the exterior boundaries of the pueblo and arrested
plaintiff for reckless driving, the tribal officer was acting under his state authority as a
deputy sheriff, not under tribal authority, when he charged, detained, and prosecuted
plaintiff under state law; the tribal officer was therefore a public employee under the
New Mexico Tort Claims Act because he was a person acting on behalf or in service of
a governmental entity, in an official capacity, whether with or without compensation.
Loya v. Gutierrez, 2015-NMSC-017, rev’g 2014-NMCA-028, 319 P.3d 656.

Tribal police officer was not a "public employee". — Where an on-duty, full-time
pueblo tribal law enforcement officer, acting in the officer’s capacity as a commissioned
deputy sheriff for the county stopped plaintiff’s vehicle on a state-maintained road within
the exterior boundaries of the pueblo and arrested plaintiff for reckless driving; the
officer was dressed in a full tribal police uniform, displaying a tribal badge of office, and
driving a tribal police vehicle; in addition to acting under tribal law, the officer was on
duty as a duly commissioned deputy sheriff, which gave the officer authority to arrest,
charge, and jail non-Indians for violations of New Mexico state laws; the officer took
plaintiff to the tribal police department for processing and later transported plaintiff to the
county jail; the officer was not a salaried officer employed by the county; the pueblo was
a sovereign Indian tribe; plaintiff sued the officer for violation of plaintiff’s constitutional
rights, the officer was not a "law enforcement officer" or a "public employee" of a
"governmental entity" as defined in 40-4-3 NMSA 1978 and the county did not have a
duty under 40-4-4 NMSA 1978 to defend or indemnify the officer for tortious acts
committed while exercising the officer's authority as a commissioned deputy sheriff.
Loya v. Gutierrez, 2014-NMCA-028, cert. denied, 2014-NMCERT-002.

Navajo police officer not "public employee". — Fact that Navajo Nation police officer
was cross-deputized as a county sheriff did not make the officer a "public employee" of
a New Mexico governmental body. Williams v. Board of Cnty. Comm'rs, 1998-NMCA-
090, 125 N.M. 445, 963 P.2d 522, cert. denied, 125 N.M. 654, 964 P.2d 818.

Prison guards are not law enforcement officers for purposes of Subsection D,
because: (1) the principal duties of prison guards are to hold in custody persons who
have already been convicted rather than merely accused of a criminal offense; (2)
maintenance of public order relates to a public not a penitentiary setting; and (3)
although prison guards may have the supplemental power to arrest pursuant to the
guidelines of 33-1-10 NMSA 1978, their principal statutory duties are those set forth in
33-2-15 NMSA 1978. Callaway v. N.M. Dep't of Corrs., 1994-NMCA-049, 117 N.M. 637,
875 P.2d 393, cert. denied, 118 N.M. 90, 879 P.2d 91.
A mayor is not a law enforcement officer for purposes of this act. Montes v.
Gallegos, 812 F. Supp. 1165 (D.N.M. 1992).

Medical investigator. — The office of the medical investigator and a physician
employed as a medical investigator by that office are not law enforcement officers.
Dunn v. McFeeley, 1999-NMCA-084, 127 N.M. 513, 984 P.2d 760, cert. denied, 127
N.M. 389, 981 P.2d 1207.

Crime laboratory. — A crime laboratory technician and his employer, the state police
crime laboratory, whose duties are to examine and evaluate physical evidence that may
relate to a possible offense, are not law enforcement officers. Dunn v. McFeeley, 1999-
NMCA-084, 127 N.M. 513, 984 P.2d 760, cert. denied, 127 N.M. 389, 981 P.2d 1207.

Private citizen volunteers of animal cruelty task force were not law enforcement
officers. — Where ranch owners brought a federal civil rights action against the county,
the state attorney general, certain police officers, and two private citizen volunteers of
the state attorney general's animal cruelty task force, after plaintiffs' ranch property was
searched on suspicion of illegal cockfighting, and hundreds of hens, roosters, baby
chickens, and eggs were seized and destroyed, and where the private citizen volunteers
moved for summary judgment, advancing a qualified immunity defense, the district court
did not err in granting defendants' motion for summary judgment, because the private
citizen volunteers could not be considered law enforcement officers because they were
not employed or compensated by the state and had not received any law enforcement
training or training on constitutional rights. Marin v. King, 720 Fed. Appx. 923 (10th Cir.
2018).

Grant of summary judgment improper where defendant failed to meet his burden
of showing that transit security officers were not law enforcement officers for
purposes of the Tort Claims Act. — Where plaintiff brought a tort claim against the
city of Albuquerque and two transit security officers (TSO), alleging excessive force,
unlawful seizure, assault, battery, and false arrest/false imprisonment, and where the
district court dismissed plaintiff's tort claims after concluding that the TSOs were not law
enforcement officers under the provisions of the New Mexico Tort Claims Act and were
therefore immune from plaintiff's tort claims, the district court erred in granting
defendants' motion for summary judgment, because the description of a TSO's essential
functions included providing security services, conducting periodic patrols, regulating
the flow of city employees and the public to ensure safety, providing crowd and traffic
control as needed, responding to calls for service and reports of crimes in progress,
calling for emergency medical or police services as needed, assisting law enforcement
agencies as needed, conducting preliminary investigations to determine if a crime had
been committed, documenting incidents and preparing reports, providing general
assistance to the public, and preparing a variety of reports regarding security
enforcement activities, and therefore, aside from the absence of a gun and the authority
to arrest, a TSO's job was nearly identical to the normal commonplace activities of a
police officer on patrol. Defendants failed to carry their burden of showing the absence
of a genuine dispute of material fact, and therefore summary judgment was improper.
Hernandez v. Fitzgerald, 840 F. App'x 333 (10th Cir. 2020).

Municipal police officers are law enforcement officers. — The officers in this case
are municipal police officers subject to 3-13-2 NMSA 1978, and their principal duties
entail making arrests for crimes and maintaining public order; accordingly, they are law
enforcement officers for purposes of the Tort Claims Act [41-4-1 through 41-4-27 NMSA
1978]. Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 1996-NMSC-021,
121 N.M. 646, 916 P.2d 1313.

"Any person accused". — A person who has been convicted is no longer an
"accused" for the purposes of Subsection D of this section. Vigil v. Martinez, 1992-
NMCA-033, 113 N.M. 714, 832 P.2d 405.

"Maintenance of public order". — Maintenance of public order, within the meaning of
Subsection D of this section, is not a principal duty of probation and parole officers or
their supervisors. Vigil v. Martinez, 1992-NMCA-033, 113 N.M. 714, 832 P.2d 405.

Officers of county detention home. — Whether officers of a county detention home
were acting within the scope of their duties in making an employment recommendation
about a former employee was a question of fact. Davis v. Board of Cnty. Comm'rs,
1999-NMCA-110, 127 N.M. 785, 987 P.2d 1172.

Scope of duties. — An assistant district attorney's letter to the sheriff, containing
quotation from an allegedly defamatory investigation report by the assistant district
attorney, was authorized and within the scope of assistant district attorney's duty, and
he was immune from liability for the alleged defamation in the letter. Candelaria v.
Robinson, 1980-NMCA-003, 93 N.M. 786, 606 P.2d 196.

Deputy sheriff who was involved in accident while driving her assigned department
vehicle home was acting within the scope of her duties, because she was required to be
available for calls at all times. Medina v. Fuller, 1999-NMCA-011, 126 N.M. 460, 971
P.2d 851.

Liability for failure to detain intoxicated driver. — Law enforcement officers may be
liable if they fail to detain an intoxicated driver who then acts with the requisite level of
intent to commit a battery while driving intoxicated. Blea v. City of Espanola, 1994-
NMCA-008, 117 N.M. 217, 870 P.2d 755, cert. denied, 117 N.M. 328, 871 P.2d 984.

            IV.    PRIVATE PERSONS, CORPORATIONS AND ENTITIES.

Developmental disabilities center subject to Act for discharge error. — If the state
provides developmental disability services by delegating those responsibilities to a
private entity under former 28-16-1 to 28-16-18 NMSA 1978, while retaining the right to
determine discharge terms and the responsibility to protect patients' constitutional and
statutory rights, a sufficient nexus between the private entity's decision and the state
has been demonstrated so that the private entity's discharge decision will be considered
state action, and the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] is applicable.
LaBalbo v. Hymes, 1993-NMCA-010, 115 N.M. 314, 850 P.2d 1017, cert. denied, 115
N.M. 359, 851 P.2d 481 (decided prior to 1995 amendment).

Act not applicable to foster homes. — The department of human services was not
liable under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] for negligently
placing a child in a foster home, since those duties fall outside of the Act. M.D.R. v.
State ex rel. Human Servs. Dep't, 1992-NMCA-082, 114 N.M. 187, 836 P.2d 106.

Guardian ad litem was not a "public employee" within the meaning of the Tort
Claims Act [41-4-1 through 41-4-27 NMSA 1978]. Collins ex rel. Collins v. Tabet, 1991-
NMSC-013, 111 N.M. 391, 806 P.2d 40, abrogated by State v Mares, 2024-NMSC-002.

A private corporation is generally not the type of "instrumentality" contemplated
within the context of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978], although
there may be situations where a private corporation may be so organized and
controlled, and its affairs so conducted, as to make it merely an instrumentality or
adjunct of a municipality under the terms of the act. Cole v. City of Las Cruces, 1983-
NMSC-007, 99 N.M. 302, 657 P.2d 629.

Community mental health facility employees. — Employees at a community mental
health facility regulated by the health and environment department (now the department
of health) were not "public employees" within the meaning of the Tort Claims Act [41-4-1
through 41-4-27 NMSA 1978], where the regulatory scheme did not give the department
the right to control the details of the work of the facility. Armijo v. Department of Health
& Env't, 1989-NMCA-043, 108 N.M. 616, 775 P.2d 1333.

Physician. — Where the contract between a physician and a public hospital precluded
the physician from practicing medicine except as an employee of the hospital, the
hospital could fire the physician with or without cause, and dictated the terms of the
physician’s service; the hospital required the physician to maintain certain office hours
and ask permission to change the office hours, to be an active member of the hospital
staff, and to perform other duties and services requested from time to time by the
hospital. The hospital compensated the physician with a salary, benefits, and insurance,
paid taxes and professional dues, and provided leave time. The hospital billed patients
directly for the physician’s services; and the hospital provided all of the physician’s
supplies, equipment, and staff; the physician was a public employee. Blea v. Fields,
2005-NMSC-029, 138 N.M. 348, 120 P.3d 430.

Independent corrections contractor employees. — An employee of an independent
corrections contractor is not a "public employee" immune from tort liability under this
article. Giron v. Corrs. Corp. of Am., 14 F. Supp. 2d 1245 (D.N.M. 1998).

Volunteers. — It is an express declaration of legislative intent in including volunteers
acting on behalf of a governmental entity within the purview of the Tort Claims Act [41-
4-1 through 41-4-27 NMSA 1978]. Celaya v. Hall, 2004-NMSC-005, 135 N.M. 115, 85
P.3d 239.

Tort Claims Act explicitly contemplates that volunteers acting on behalf of the
government may become public employees, thereby entitled to the protections of the
Tort Claims Act and subject to the reliability of the same. Celaya v. Hall, 2004-NMSC-
005, 135 N.M. 115, 85 P.3d 239.

Sheriff’s department chaplain. — Whether a defendant who volunteered as a
chaplain for a county sheriff’s department was a public employee or an independent
contractor was a question of fact, upon which the "right to control" test would bear.
Celaya v. Hall, 2003-NMCA-086, 134 N.M. 19, 71 P.3d 1281, aff'd in part and rev'd in
part, 2004-NMSC-005, 135 N.M. 115, 85 P.3d 239.

Where, at the time of the incident, defendant had been an official sheriff's department
volunteer chaplain for eight years, and as part of his official duties, defendant was
summoned to crime and accident scenes by the department on an as-needed basis
where he provided counseling and support services to civilians, acting primarily at the
department's request, therefore, defendant was an employee of the department
because, considered in context, the department exercised sufficient control over
defendant's activities in a manner consistent with the status of employee. Celaya v. Hall,
2004-NMSC-005, 135 N.M. 115, 85 P.3d 239.

Volunteers for the board of nursing would likely be covered under the liability
policies for the state of New Mexico. — The New Mexico Tort Claims Act explicitly
contemplates that volunteers acting on behalf of the government may be considered
public employees subject to its protections and to its waivers of those protections, 41-4-
3(F)(3) NMSA 1978, and therefore, volunteers charged with reviewing complaints and
making recommendations to the nursing board regarding potential disciplinary action
against licensees would likely be deemed public employees acting on behalf or in
service of a governmental entity, and liability policies of the state of New Mexico likely
would cover negligent acts by these volunteers. Use of Volunteers at the New Mexico
State Board of Nursing (11/26/18), Att'y Gen. Adv. Ltr. 2018-09.

Law reviews. — For article, "Constitutional Torts and the New Mexico Torts Claims
Act," see 13 N.M.L. Rev. 1 (1983).

For note, "An Employer's Duty to Third Parties When Giving Employment
Recommendations - Davis v. Board of County Commissioners of Dona Ana County,"
see 30 N.M.L. Rev. 307 (2000).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County,
School, and State Tort Liability §§ 31, 67, 191 to 196.