2 days ago
Legislative immunity is an old concept gaining new notoriety
The National Conference of State Legislatures said most state constitutions contain similar immunity from arrest provisions. (Photo from Indiana State Archives)
Many Hoosiers recently learned that Indiana has an immunity statute that protects lawmakers from some arrests during the legislative session. The reaction has been surprise and frustration.
One social media user posted, 'How have we gotten to the point in this state where our elected leaders are above the law? This is pure insanity & would NEVER be acceptable for the average citizen.'
Another reader responded, 'Are they immune from common sense too?'
So, I thought I would delve into the provision and explain why it exists and how often it's used.
State Sen. Mike Bohacek was pulled over for suspected drunk driving in January and recorded a blood-alcohol content of 0.238%. But the Michiana Shores Republican wasn't charged until this week due to the legislative immunity provision.
The first important fact is that no modern-day lawmaker created this exemption, and it basically mirrors a similar provision for federal lawmakers. The National Conference of State Legislatures said most state constitutions contain similar provisions.
The state's prohibition is found in Article 4, Section 8 of the Indiana Constitution.
'Senators and Representatives, in all cases except treason, felony, and breach of the peace, shall be privileged from arrest, during the session of the General Assembly, and in going to and returning from the same; and shall not be subject to any civil process, during the session of the General Assembly, nor during the fifteen days next before the commencement thereof.'
Indiana's current Constitution was adopted in 1851 with numerous amendments since then. But this portion goes back as far as the state's 1816 constitution before Indiana became a state. Then it was under Article 3.
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For a long time, there was no definition of breach of the peace in Indiana code but lawmakers in 2021 added one: 'breaking or disturbing the public peace, order, or decorum by any riotous, forcible, or unlawful proceedings, including fighting or tumultuous conduct.'
The federal immunity provision is almost exact. Some historical texts indicate the language was created so that lawmakers weren't blocked from being able to vote on a matter or otherwise participate in proceedings.
In his Commentaries on the Constitution of the United States, U.S. Supreme Court Justice Joseph Story said this:
'When a representative is withdrawn from his seat by a summons, the people whom he represents, lose their voice in debate and vote, as they do in his voluntary absence. When a senator is withdrawn by summons, his state loses half its voice in debate and vote, as it does in his voluntary absence. The enormous disparity of the evil admits of no comparison. The privilege, indeed, is deemed not merely the privilege of the member, or his constituents, but the privilege of the house also.'
The Supreme Court of the United States has interpreted the provision to apply to all crimes, but Indiana has generally seen it used in cases of misdemeanors.
Bohacek's case is almost identical to one from 1992 when then-Rep. Keith Bulen was pulled over for drunk driving in January. Police also didn't arrest him due to the immunity clause and he was charged weeks later after session ended. Similar to Bohacek, Bulen refused the breathalyzer test and said a prescribed medicine made him groggy. But Bulen's incident resulted in him hitting an off-duty police officer's car.
Bulen's case, though, was not hidden from public view at the time. He was eventually acquitted.
In 2002, two northwest Indiana lawmakers — Reps. Charlie Brown and Vernon Smith — used the provision to contest their criminal case.
The Gary Post Tribune reported the pair was arrested June 18 on traffic and related offenses. They protested the action and claimed they were shown a lack of respect as elected officials and residents.
The legislature was in special session in Indianapolis, although the men were in Gary.
They were arrested immediately but the chief of police quickly apologized. The men were charged with obstructing traffic later that year by a special prosecutor. Smith was acquitted but Brown was found guilty.
If Hoosiers want to change the constitutional provision they will have to convince lawmakers to start that years-long process because Indiana doesn't allow citizen-initiated constitutional amendments or referendums.
It remains to be seen what will happen to Bohacek, including any punishment by leaders of the Senate. Voters have the ultimate say on consequences at the ballot box, but they will have to wait a long time. Bohacek isn't up for election again until 2028.
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