By Cecilia Chan GSN Staff Writer
East Valley police agencies don’t expect a significant change in how they would handle state lawmakers who invoke legislative immunity from arrest despite Gov. Doug Ducey’s desire to eliminate it.
Ducey recently inked a directive that allows state troopers to cite and even arrest legislators for any criminal violation that endangers the safety of another motorist – including excessive speeding, reckless driving and driving under the influence. The governor urged other law enforcement agencies to follow suit.
“This has not been an issue for us,” said Sgt. Darrell Krueger with the Gilbert Police Department. “The executive order will be incorporated into our policy for the rare circumstance we have to use it.”
Krueger said it has always been the department’s protocol to enforce reckless driving laws and treat DUIs and misdemeanors that involve violence as an arrestable offense – lawmaker or not.
The state Constitution gives legislators immunity from arrest in all cases except treason, felony and breach of peace when the Legislature is working and 15 days before the start of each session.
The governor took action after the well-publicized traffic stop in March of Lake Havasu state Rep. Paul Mosley, who was clocked driving 97 mph in a 55-mph zone.
He was let off with a warning by a La Paz County Sheriff’s deputy, who indicated in his report the lawmaker claimed legislative immunity.
Since 2017, the Republican House member reportedly had been pulled over five times for excessive speeding by Arizona Department of Public Safety officers, who let him off with a warning each time because of the constitutional immunity clause.
Chandler Police have not dealt with an errant state lawmaker in recent history.
Department policy dictates its offices arrest legislators for misdemeanors only for offenses involving violence or DUI. The policy followed the state’s in exempting legislators from civil traffic citations.
“If we had a state legislator during the session get stopped and there was an impairment issue, we would make an arrest and process for a DUI and do what we will do with most everybody else,” said police spokesman Seth Tyler.
For a misdemeanor DUI, the legislator would not be booked into jail, Tyler said.
“We would not interfere with the legislative process but would still work through a misdemeanor investigation, arrest if applicable,” he said. “In short, we would still pursue the criminal process.”
Same goes for misdemeanors involving violence, he added.
Mesa and Tempe Police did not respond to requests for comment.
Before Ducey’s directive, DPS policy did not define breach of peace, which generally relates to disorderly conduct, said agency spokesman Quentin Mehr.
“Breach of the peace is a concept defined by the courts and is determined based on the facts and surrounding circumstances of each situation,” he said. “Generally, actions that threaten disaster and disorder and pose a perilous public risk may be a breach of the peace.”
Although Ducey’s order specifically included drunken driving as enforceable, Arizona courts already determined driving under the influence could be a breach of the peace in 2005, Mehr said.
Prior to 2005, legislative immunity came into play in 1988 after a state senator was suspected of driving under the influence when she smacked into the back of another vehicle on Interstate 17.
DPS administered several field sobriety tests that then-Sen. Jan Brewer failed. Brewer, who later became governor, was detained but released when officers decided she had immunity from arrest.
Brewer denied she was under the influence and did not request immunity at the time.
Legislative immunity also played a role in 2011 when a state senator and his girlfriend were involved in a domestic-violence incident while driving on State Route 51.
Then-Sen. Scott Bundgaard invoked immunity while handcuffed in the back of a Phoenix police patrol vehicle and was let go while his girlfriend spent the night in jail, according to a police report.
The officer in his report, however, recommended a domestic violence assault charge be brought against Bundgaard when the Legislature was not in session.
Bundgaard was later prosecuted and agreed to a plea deal.
Phoenix Police in addition to the state protocol also limits legislators’ arrests for misdemeanors to crimes of violence, “an immediate disturbance of the public order,” or a drunken driving case, according to department spokesman Vince Lewis.
When asked why Bundgaard was not arrested on suspicion of domestic violence, Sgt. Lewis responded the governor’s order was not in effect in the 2011 case.
“Our policy states that ‘the interpretation of a breach of peace and the decision to arrest will be referred to a supervisor in all cases,’” he said. “This would be dealt with on a case-by-case basis.”
Days after he signed the order, Ducey tweeted: “It’s time to repeal so-called ‘legislative immunity’ from our state Constitution.”
He added he intended to work in collaboration with the Legislature next session to address this issue by bringing a referendum before the voters, but legislative leaders are cool to the idea.
There’s been a number of attempts to revise or repeal legislative immunity in Arizona.
In 2012, The People for Ethical Government failed to get a constitutional amendment on the November ballot banning lawmakers from claiming legislative immunity and then-state Sen. Steve Gallardo couldn’t get support for a similar measure that year.
And in 2016, a state senator and three state representatives introduced a concurrent resolution calling for a constitutional amendment to go before voters that would limit legislative immunity to civil proceedings. That measure failed.
-Capitol Media Services contributed to this report.