July 15, 2014 – Carol Rayos, a natural parent and next friend of C.H., a minor v. State of 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 the New Mexico Department of Corrections, Adult Probation and Parole Division, No. 32,911

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: July 15, 2014
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
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

2
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 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

3
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.

4
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 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

5
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

6
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

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.
7
law enforcement officers.” Coyazo v. State, 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

8
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

9
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.
{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

10
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

11
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 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

12
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.

13
{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

14
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 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

15
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

16
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
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

17
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

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
18
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 judgment record distinguishes between

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 “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).
19
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

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.
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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. 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

21
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