Legislative Immunity and The Things Man Was Not Meant To Know

By Tom Prezelski

Re-blogged from Rum, Romanism and Rebellion

Most folks here have already heard that former State Representative Daniel Patterson (D-Tucson) has filed a suit against the City of Tucson and The Pima County Sheriff, alleging that they violated his legislative immunity back in 2012.

It needs to be pointed out that legislative immunity, which is spelled out in the State Constitution, is hardly unique to Arizona. There is similar language in many, if not most, constitutions. In fact, it was such a matter of course that the article was the subject of little or no discussion at the 1910 Constitutional Convention.

Everybody who has worked with or in the legislature has at least one story about someone embarrassing themselves with regard to legislative immunity, usually these have something to do with some arrogant boob being obnoxious to a cop. There are also a number of urban legends about what immunity is and how it works, but the fact is that it has never been tested in court and most law enforcement agencies have no clear policy to deal with it.

Of course, there is a good purpose behind it. Such language is there to prevent police harassment of legislators during the session. One can easily imagine, given what happened to the owners of the Phoenix New Times at the hands of Sheriff Arpaio’s office in 2007, how a megalomaniacal  and politically motivated law enforcement agency could attempt to use their power to influence legislation by threatening lawmakers.

Staff counsel at the legislature tends to tell legislators not to cite immunity. If one gets pulled over for a traffic violation, for example, they say to simply pay the ticket and let it go. They also tend to point out that immunity does not extend outside the session, and police can simply choose to sit on a complaint and wait to serve the legislator. Making an issue about immunity potentially makes a routine stop for a broken tail-light into a headline story about an obnoxious and entitled Representative or Senator getting out of a ticket. This would mean attention that was unwanted not only because it could be embarrassing, but also because it would mean that people would be talking about legislative immunity. Generally, folks at the capitol do not want to see this becoming a political issue.

I will not be surprised if Patterson’s lawsuit does not go far, but if it does, a good result might be some clarification of how legislative immunity is supposed to work, either by court precedent or through policy. However, it also draws unwanted attention to an easily misunderstood and abused, though necessary, protection of the integrity of the legislative process, placing it in political jeopardy. It remains to be seen if Patterson has thought through the long-term constitutional consequences of his suit.