Week of 07/30/2012

More Reasons To End Sovereign Immunity
– by David Matthews 2

I recently got into a mini-argument with someone on Facebook over a certain news story from Columbia County here in Georgia.

The story was about a woman named Erica Masters, who was woken up by the sight of a county code enforcement officer in her bedroom, shouting at her to wake up and sign a disturbance notice for, of all things, an un-mowed lawn. When asked about the allegation, the officer in question firmly denied ever being inside the woman’s home and accused her of making the whole thing up. In most instances this kind of complaint would her word against that of a government official, and the government wins every time.

But Ms. Masters had more than just her word on her side. She had a home surveillance system, along with video of Code Enforcement Officer Jimmy Vowell walking into the house and sauntering around.

Mr. Vowell was subsequently fired for violating county policy and for lying. Of that, the Facebook poster and I are in agreement. The guy screwed up, and then he lied about it, and there’s video proving that he was a liar.

But what got us into the mini-argument was the follow-up news that Vowell will not face criminal charges for breaking-and-entering. Even though he clearly broke the law and is no longer a code enforcement officer (although he is fighting his termination as of this column) he will never face jail for his actions.

What my unnamed Facebook colleague did not understand is a legal concept called “sovereign immunity”. Just like “diplomatic immunity” protects diplomats from criminal charges in other countries, so too does “sovereign immunity” protect agents of the government from criminal prosecution when they violate their own laws.

There are several measures of immunity that governments large and small here in the United States enjoy. Legislators enjoy “legislative immunity” as specifically provided in Article I, Section 6 of the United States Constitution. This prohibits local or state governments from arresting members of Congress or interfering with them from anything shy of “Treason, Felony, or Breach of the Peace”. They also cannot be arrested or detained going to and from Congress, or for what is said or done in “Speech or Debate”. These all came from the abuses from the British Empire. In addition, there is the Eleventh Amendment, which protects states from being sued by its citizens or by other states or nations. And while the courts have haggled over its interpretations, they are unified in their belief that governments at all levels, as being functions and extensions of “the law”, are therefore above “the law”.

In short, what this means is that government and its agents - namely legislators, administrators, regulators, courts, police officers, and anyone else with a government badge and authority - are all considered above the law. As long as they can say that they are “doing their jobs” as agents of the government, then they are automatically immune from any kind of accountability or responsibility for their actions.

Yes, it is quite literally the Nuremburg Defense that is systematically supported and sustained by our judiciary!

Jimmy Vowell was fired from Columbia County because he violated administrative procedure and was caught lying about it. That’s an internal human resource decision. But when he broke into Erica Masters’ home and sauntered about like he owned it, he was doing so as a Code Enforcement Officer. In other words, he was still an agent of the government, and therefore he was above the law.

Baring acts of treason (using the definition in the U.S. Constitution, and not from the sociopathic definitions often given by talk radio and cable news channels), the only other way an agent of the government can be held to account for his actions is if there is a demonstrated personal gain to it. If, for instance, Mr. Vowell stole something for his own personal use while in the Masters’ residence, then that would be something he could be prosecuted for.

But just because I understand the notion of sovereign immunity, that doesn’t mean that I support either the concept or its current applications. In fact long-time Brutally Honest supporters know that I have not only spoken out against the current applications of sovereign immunity, but I am a firm believer that it is a concept that needs to come to an end.

Here’s another example: state and local legislators are supposedly “prohibited” from withholding records of their activities from the public. These kinds of laws are often called “Sunshine Laws”, based on the idea that political “cockroaches” scurry when exposed to the “sunlight” of public access.

The problem is that these are laws with no real teeth to them.

Let’s suppose some Good Ol’ Boy here in Georgia with a modicum of local power gets together with his cronies and he arbitrarily decides that Georgia’s Open Records Act doesn’t apply to him at all. They’re not going to have “public meetings” to discuss local business as per the Open Meetings Act. They’re not going to let the public know about the deals they make that benefit their “friends”. And they certainly will not let any kind of notes or records be made available for anyone outside of their little group. Ever.

Bear in mind that this is not just hypothetical. There have been several instances here in Georgia where local leaders have either found ways to supposedly “skirt” this kind of requirement or else out-and-out violated the law.

So you, the good little citizen, wants to know what your “elected officials” are up to. So you request a copy of the records under Georgia’s Open Records Act. The Good Ol’ Boy says “Hell No” and tosses your request into the Ollie North Shredder.

He has just knowingly and willingly violated a state law. What do you do?

Can the State Police arrest the Good Ol’ Boy for violating a state law? Nope. Sovereign Immunity still prevails.

You now have to file a civil lawsuit against the local government under the Georgia Open Records Act and Open Meetings Act. That costs money out of your own pocket. And even if the judge says you’re in the right, that doesn’t mean that you’ll either be compensated for that money spent or that you’ll have access to those records.

Let’s suppose the judge agrees with you and orders Good Ol’ Boy to release the records of all past meetings and Good Ol’ Boy again says “Hell No”. He then throws the order into the Ollie North Shredder.

That’s now called contempt of court. Will he be arrested and spend time in jail until he complies? Nope. Sovereign Immunity still prevails. The local government is assessed a fine that they can choose to pay off or not. But the Good Ol’ Boy is not the one that has to pay that fine, because he knows that bill ultimately belongs to the taxpayers, so he’ll have them pay for his pig-headiness.

But suppose we were to change that by eliminating sovereign immunity and imposing criminal penalties for government officials for violating those same laws. Do you really think that Good Ol’ Boy and his cronies would be flippant about violating open records and open meetings laws if they knew that they could be personally arrested and personally sent to prison for it? I don’t think so.

And how about our small-town “your home is my home” code enforcement officer? Prior to him being fired, do you really think he would be so “self-inviting” if he thought there was a chance that he could end up going to prison?

Bear in mind that these instances are just the tip of the proverbial iceberg of gross abuses of power by those in the government that claim that they’re just “doing their jobs”. Again, here in Georgia, the local police were given blanket authority to seize any material they suspect are supposed “bath salts” or “synthetic marijuana”. No warrant needed.

I’ll repeat that… no warrant needed!

The State of Georgia has knowingly and willingly violated the Fourth Amendment of the United States Constitution!

The state claims that these drugs are so dangerous, and the synthetic properties can be altered and redistributed so fast, that they cannot wait for the legislature to “officially” outlaw them, so they just issue the dictatorial blanket authority to just seize anything the police suspect are the illegal substances. If they’re right about the substance, then they can file charges later. If they’re wrong… well then nothing happens. They still keep the product, again in direct violation of the Fourth Amendment.

Concerned yet?

How many of you take those “energy” supplements? You know, the small containers with liquid stuff you either down like a whisky shot or else add to your other drink. Suppose “Officer Unfriendly” sees you buy one at the local gas station and thinks it’s the “new drug”. Under this new “blanket authority”, that cop can seize your little “keep-me-up” mix. No warrant needed, and good luck trying to get it back.

Government officials operate under the presumption that they are always right, and they validate these kinds of tyrannical encroachments by claiming some vague “social good”.

But what happens when they are in the wrong, and they know that they are in the wrong? Nothing happens. They aren’t punished. Sovereign Immunity prevails. Sovereign Immunity always prevails!

Again, this is not something new. In 2008 there was the story of the mayor of a suburb of Baltimore whose home was violently invaded by state and county officials. His family rousted, the family dogs slaughtered in front of them, the family members, including their children, dragged out and sitting in the street in their underwear, all because of a package that was delivered to their home they had no idea about. Not one of the officers involved faced any kind of accountability for their actions. Not one. Sovereign Immunity prevails.

Then again, that suburban mayor should be thankful that only his dogs were slaughtered. Back in 2006, Atlanta’s oh-so-precious drug squad battered down the door of what they later claimed was a drug distribution center. In truth it was the home of 92-year old Kathryn Johnston. They killed her in her own home and then invented a reason for the raid, including fabricating testimony of drug purchases and then planting evidence to support it. And they probably would have gotten away with it if they didn’t do such a shoddy job lying about what they did.

Let’s get brutally honest here… the very notion of Sovereign Immunity is a blatant and deliberate violation of both the spirit and the very concept of “Rule of Law”. To declare that “no-one is above the law” and then to hold those in government above any kind of accountability for their actions negates the principle itself. You cannot claim to have a system of “checks and balances” and then nullify those “checks and balances” by declaring those people inside the system as being capable of doing no wrong.

Sovereign Immunity invites the very abuse that government officials claim “never can happen”. It tells local agents like Jimmy Vowell “Go ahead and do whatever you feel is right, and we’ll back you up all the way. Just don’t lie to us about it.” It tells local officials “You don’t really have to obey this law as long as you can find ways to get around it.” And it tells gun-toting militarized agencies “Go ahead and break down any door you want, slaughter the family pets, humiliate anyone you want, even kill them, and we’ll justify it afterward. Just don’t lie to us about it.”

“Government” is more than just a political phrase to be bantered about on the Sunday talk shows. It is more than just some vague reference to some non-corporeal entity through which law is “dispensed”. When we say “Government”, we are talking about human beings holding positions of power and authority in society. Whether that position is elected, appointed, or employed, it is still manned by and carried out by human beings; and what separates the just “Rule of Law” from the tyrannical “Rule of Man” depends on whether those human beings are treated no differently under that law than anyone else, or if they place themselves above that law, and thus above the rest of the people.

In his classic story “Animal Farm”, George Orwell slowly points out the road to tyranny by perverting an idealized society’s standards one by one. In a “farm” that declared that “all animals are equal”, it was no coincidence that this particular principle, considered the most essential of them all, would be the very last one perverted by the ruling pigs to read “All animals are equal, but some animals are more equal than others.” Substitute “animals” with “humans” and you see precisely what Sovereign Immunity is designed to do.