Arizona Capitol

Legislative Immunity Repeal Proposed Again by Group of Arizona Lawmakers

For the third time in as many years, some legislators are proposing a repeal of Arizona's law that protects legislators from being arrested in certain situations.

Although many people say the law doesn't truly shield legislators from arrest in criminal cases, several lawmakers have made immunity claims over the last few years.

See also:
-Daniel Patterson Files Lawsuit Claiming Legislative Immunity Was Ignored
-Police Report: Bundgaard Invoked Immunity

Phoenix police said in 2011 that then-Senator Scott Bundgaard, a Republican, claimed legislative immunity following a roadside altercation with his girlfriend. Although Bundgaard wasn't arrested, and his then-girlfriend was, he's denied that he told police he was immune from arrest.

A couple years before that, then-Senator Frank Antenori, also a Republican, reportedly tried to claim legislative immunity in response to a photo radar ticket.

Just a few months ago, former Representative Daniel Patterson, a Democrat, sued the Pima County Sheriff's Office and the City of Tucson, claiming they violated his legislative immunity by serving him with restraining orders and charging him with domestic violence. (Patterson was eventually acquitted of the charges.)

Even when Governor Jan Brewer was a state senator back in the '80s, she got to take advantage of this apparent immunity. After having a few drinks and crashing into another car, Arizona Department of Public Safety officers wrote in their reports that Brewer failed several sobriety tests. However, the officers believed she had legislative immunity and drove her home.

None of these situations describe how legislative immunity is supposed to work, according to the experts.

The Arizona Legislative Manual, compiled by the Legislative Council, says the immunity is only "for legislative acts."

"Generally, legislative immunity applies to all types of legislative actions relating to introducing, developing and voting for legislation . . ." the manual says, as it notes a few specific scenarios. (Click here for the manual; the explanation is on pages 26 and 27.)

Drunk driving and fighting with girlfriends aren't legislative actions.

"There are exceptions and instances in which legislative immunity does not protect legislators, typically relating to administrative and political areas that are not directly related to the legislative process," the manual says.

Local attorney Dan Barr, of the Perkins Coie firm, agreed with the Leg' Council as he explained the meaning of legislative immunity in detail on Arizona Horizon after the Bundgaard incident in 2011, which you can see in the video below.

Even if that is the intent of the law, that's clearly not how it's been applied in certain cases. Phoenix police got legal advice that Bundgaard was immune from arrest. Officers volunteered to drop off Brewer at her house, as the officers brought up the immunity claim, not Brewer.

After the Bundgaard episode, Democratic Senator Steve Gallardo proposed a repeal of the part of the Arizona Constitution that says legislators "shall be privileged from arrest in all cases except treason, felony, and breach of the peace . . . "

That legislation was held in the committee stage in 2012, and met the same fate in 2013, despite four other legislators joining in sponsoring it.

This year, Gallardo and three other Democrats are sponsoring House Concurrent Resolution 2004.

If lawmakers did approve this legislation, it would appear as a proposition on the next election ballots, as changes to the state constitution have to be approved by voters.

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Follow Matthew Hendley on Twitter at @MatthewHendley.