Legislative Immunity

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Attorney Dan Barr explains how far Arizona’s legislative immunity law really goes in shielding legislators from arrest.

Ted Simons: State senate majority leader Scott Bundgaard was involved this past weekend in what Phoenix police at the time called a domestic violence situation. Bundgaard's girlfriend was arrested at the scene and later released, but Bundgaard was not arrested because of a legislative immunity clause in the Arizona constitution. What does legislative immunity really mean, and how far does it go in shielding state lawmakers from arrest? Here to help answer those questions is Dan Barr, a constitutional expert from the law firm of Perkins Coie. Good to see you. Thanks for joining us. What does the constitution say about legislative immunity?

Dan Barr: Well, what the constitution says about legislative immunity is that legislators are immune for their acts on the floor of the senate or the house, they can't be sued for libel, or defamation, or anything like that. Also they can't be served with civil process. They can't be served with a civil lawsuit during the legislative session. However, there's no immunity whatsoever for criminal acts committed by a senator or a representative during the session. It just doesn't exist. What the constitution provides is that it says members of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace. Those words, treason, felony, breach of the peace, come from English law. It is a privilege extended to members of Parliament over 350 years ago. And the English courts in a case decided by the American Revolution held that the laws of this country allow no place or employment as a sanctuary for crime. And so the privilege was held only to apply for being arrested for a civil violation. And that violation doesn't exist in this country anymore. People used to be sent to debtor's prison, for instance, could you -- so you could be arrested for having a debt. The English courts held there's no immunity for a criminal violation. And that's been held by the U.S. constitution as well in a 1908 case called Williamson versus U.S., the U.S. Supreme Court held that the privilege did not apply to prevent a U.S. Congressman who had been indicted for supporting perjury and later convicted, that he did not have a privilege from being convicted for that crime. Then later in a case involving senator Huey Long back in 1934, Huey Long had been sued for libel, the Supreme Court again held that the privilege did not apply for criminal acts, but only applied for being arrested in a civil violation.

Ted Simons: In this particular case if the lawmaker, and he says he didn't necessarily say this, the police are acting like he did, whatever that case may be, if he cannot, a lawmaker cannot invoke immunity if the police believe that a crime has taken place.

Dan Barr: Right. They have to treat him like anybody else. Scott Bundgaard, no other Arizona legislator has any immunity whatsoever from crimes.

Ted Simons: How common is this kind of -- before we get --

Dan Barr: hopefully not very.

Ted Simons: Not the crime, but forget that part; let me go back to an earlier question from what you had said. Are we confusing diplomatic immunity with this kind of legislative immunity?

>> Perhaps. Say the ambassador from Russia or the ambassador from Britain has complete diplomatic immunity in this country, as do their family members. So they can commit a crime, they could actually murder somebody and not be prosecuted in this country. They would have to -- we can deport them, but we can't prosecute. They're not subject to the law of the United States, which is that phrase in the 14th amendment that some people in this state now are reading to apply to illegal immigrants. What that clause was meant to apply to were ambassadors and their families who are not subject to the laws of the United States.

Ted Simons: But back to my other question, how common in state constitutions is this particular kind of immunity?

Dan Barr: Well, I haven't made a survey of all the constitutions, but the law -- the words come verbatim from English law to the articles of confederation, which preceded the U.S. constitution in this country, to the U.S. constitution in the article involving Congress, and then to the Arizona constitution, I imagine it's gone to other state constitutions as well.

Ted Simons: So what happens next? Can the county attorney look at this and say, I think something needs to be done?

Dan Barr: They going arrest Scott Bundgaard right now. He does have any immunity from arrest. Whether the Phoenix police choose to do so or not should be done on exactly the same criteria as they would apply to anybody else.

Ted Simons: In this particular situation the other person involved in what they originally described as domestic situation, the other person gets hauled in it sounds like a breach of the peace, it sounds like if nothing else, if you got one side, what --

Dan Barr: The police put senator Bundgaard in handcuffs for a reason. I would assume that reason was because of the violence of the situation.

Ted Simons: Last question, do you think that this particular incident will make people look again at the Arizona constitution or at least at what this provision provides? Is this something --

Dan Barr: You know, there's nothing wrong with the provision, it's just being misapplied. Scott Bundgaard convinced the police that he had immunity when he didn't. I mean, it just isn't there. So there's nothing wrong with the provision in the Arizona constitution. It's just been misapplied here.

Ted Simons: All right. Dan, good to have you on the show. Thanks for joining us.

Dan Barr: Thanks for having me.

Dan Barr:Attorney;

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