Qualified Immunity

Laws Are for the Little People

Lots of government officials enjoy legal immunity with a wink and a nod. But in Arizona, immunity is actually official.


Douglas Graham / Loudoun Now/Newscom

For aww-shucks acknowledgment of abuse of power, it's hard to beat Arizona-style honesty. When informed by a sheriff's deputy that doing 97 miles per hour in a 55 zone was a tad excessive, state Rep. Paul Mosley (R-District 5) answered, "Well, I was doing 120 earlier…This goes 140. That's what I like about it."

Under fire from the public and the press, Rep. Mosley apologized both for speeding and for his "jokes about frequently driving over 100 miles per hour." But he drove away from that incident free as a bird, and likely faces no consequences more perilous than what the voters can muster up at the ballot box. As he explained to the deputy, he enjoys "legislative immunity."

Lots of government officials seem to enjoy immunity with a wink and a nod. But in Arizona, immunity is actually official.

"Members of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace, and they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session," according to Arizona law.

But I'm guessing that Mosley's legislative colleagues aren't thanking him for the publicity about their sweet situation. After all, the first rule of powerful government weasel club is that you don't talk about powerful government weasel club. If you do, the peasants get all upset. And then you might lose some perks—at least on paper.

That's what happened in Minnesota when college political science students researched the application of legislative immunity in that state. They found out that when the legislature was in session, so was happy hour.

"There is no evidence that legislators have successfully evaded arrest for drunken driving using their immunity," noted the Minneapolis StarTribune, "but neither could researchers find a case of a Minnesota legislator who was arrested for drunken driving during sessions (although many have been arrested for drunken driving at other times)."

Of course legislators weren't arrested for drunken driving during legislative sessions. Why would cops bother when the arrestee would just flash a "get out of jail free" card (a real one, issued by the Minnesota Secretary of State)? Those cards are no longer printed and issued in Minnesota, but further reforms of legislators' privileges stalled amidst wrangling over the limits of the practice.

What's unfortunate here is that lawmakers historically granted themselves such immunity to protect against politically motivated arrests by the king, or governor, or whoever might try to lock lawmakers away to affect the outcome of a vote. These immunity provisions were legitimate protections against real abuses—or, originally they were, anyway. Too bad they've degenerated into a comfy privilege for lead-foot legislators with drinking problems.

Not that a privilege has to be formally recorded in black and white to be real.

Nothing on paper prescribed especially lenient treatment of Broward County, Florida, Judge Giselle Pollack, who habitually decided the fate of defendants in the county's drug court while she herself was three sheets to the wind.

"Pollack admitted showing up drunk on the job in December 2013," reports the Sun-Sentinel. "She later promised the JQC it would not happen again, only to show up drunk a second time in March 2014. Weeks later, Pollack left a Gainesville rehabilitation program, got drunk while driving back to South Florida, and got into an accident, injuring another driver in Plantation."

For the physical mayhem she inflicted on the road, as well as whatever casualties she inflicted in the courtroom, Pollack was pressured to resign and take another public sector job. She landed on her feet, providing well-marinated legal counsel to the clients of the Broward County Public Defender's Office.

Nor is there any written guidance specifying leniency for presidential offspring nabbed buying booze with fake ID (Jenna and Barbara Bush) or photographed smoking marijuana (Malia Obama) in jurisdictions where that's still illegal. Of course, everybody should get a pass on such victimless conduct. But the kid gloves always seem to come out for the connected, even when their connections advocate tougher treatment of everybody else.

If the folks making the law and presiding over its application are cutting each other slack, it's no surprise that those enforcing it expect to enjoy similar leeway. That's the sort of leeway that lets FBI agent Chase Bishop keep his service weapon after accidentally shooting a Denver bar patron when the fed reached to retrieve a gun that dropped to the floor while he was dancing. Bishop still faces a charge of second-degree assault, but even before legal proceedings get under way, he's already getting better treatment than any mere civilian could hope for.

Bishop would likely get better treatment than you or I even if he'd deliberately and lethally opened fire in that bar.

"[T]here is built-in leeway for police, and the very breadth of this leeway is why criminal charges against police are so rare," Walter Katz, of the Los Angeles County Office of Independent Review, told The Nation in 2014 for a story about "why it's impossible to indict a cop."

A lot of that leeway is from colleagues. A 2000 National Institute of Justice survey of police officers found that "a majority (52.4 percent) agreed or strongly agreed that it is not unusual for police officers to 'turn a blind eye' to other officers' improper conduct."

Turn a blind eye—and insist that others do the same. A Florida Highway Patrol officer was investigated for not extending such "professional courtesy" to a cop she caught driving 120 miles per hour, former Reasoner Radley Balko reported for The Washington Post in 2014. She was also stalked by cops who later won a legal case affirming they had "qualified immunity" in misusing a database to punish a fellow officer who had the temerity to enforce the law against one of their own.

Also, "firing a police officer with a record of abusive behavior (or worse) is often extremely difficult and can carry a heavy political cost," continued The Nation's Chase Madar. "Patrolmen Benevolent Associations, which have escaped the kind of resentment directed at other public-sector unions, tend to be powerful players in local politics able to inflict pain on any politico who would cross them."

So, even when the stakes are life and death, "the law is firmly on the side of police who open fire on unarmed civilians," added Madar.

Maybe we got off easy with Rep. Mosley. Sure he's obnoxious, but he not only didn't try to kill anybody; he doesn't even appear to have wanted to kill anybody—just to engage without consequence in activities for which he would punish others.

For an exercise in privilege by a member of the ruling class, speeding and boasting about it comes off as pretty benign. So long as we're going to tolerate government officials exempting themselves from the rules they inflict on the rest of us, we might just have to be happy when there's no body count.