Lock Him Up! Legislative Immunity Doesn’t Cover Rhoden’s False Alarm

Representative Larry Rhoden’s criminal political stunt Monday—hitting the panic button in a Capitol committee hearing room just to see how long it would take the Highway Patrol to respond and thus justify his vote for a bill allowing concealed firearms in the Capitol—has gone remarkably underreported and unpunished. A sitting legislator broke the law to make a political point—where’s the arrest?

Some observers have suggested that Rep. Rhoden’s false alarm is protected by legislative immunity, a concept written into the South Dakota Constitution:

Rep. Larry Rhoden
Bad boys, bad boys, whatcha gonna do….

Senators and representatives shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same; and for words used in any speech or debate in either house, they shall not be questioned in any other place [SD Const., Article 3, Section 11].

However, an eager reader points us toward the Issue Memorandum 96-28, in which the Legislative Research Council explains that legislative immunity doesn’t legislators can commit criminal acts and go scot free:

The phrase “treason, felony or breach of the peace” can be traced back to Parliamentary England. Since the framers adopted those exact words from England, it follows that they must have intended the well understood and accepted meaning of those words in England at the time. The words as used there were well understood as excluding from the parliamentary privilege all arrests and prosecutions for criminal offenses, confining the privilege to arrests in civil cases. The United States Supreme Court, citing this rationale, held that the exemption applied only to civil arrests and not to criminal charges.

This provision in state constitutions has generally been given the same interpretation. For example, a legislator was held not to be exempt from arrest for the charge of the criminal offense of battery [Legislative Research Council, Issue Memorandum 96-28: “Legislative Immunity”, 1996.11.19, p.2].

The LRC gives criteria for determining whether an act qualifies for legislative immunity:

Two requirements must be met in order for there to be legislative immunity. The act must be legislative in character; that is, it must involve policymaking on a broad scale affecting a large number of people. The act must also be procedurally legislative. The act must have been undertaken by established legislative procedure. The action of voting and participating in committee are acts that are procedurally legislative. For example, a hearing held by a state legislative committee was within the scope of legitimate legislative action since investigations by legislative committees are an established part of representative government. Those acts that go beyond broad policymaking and are accomplished without legislative procedure fall outside the bounds of legislative immunity. Also outside the scope of legislative immunity are those acts which are deemed administrative, like a legislator’s actions as an employer. Finally, the privilege does not extend to political acts [LRC 1996.11.19, p. 4].

Pushing the panic button is not a legislative act: it was not part of a vote or a result of a vote. Anyone in the room, not just a legislator, could have pushed the button to summon law enforcement (which, don’t forget, was already in the room, in the form of an armed plainclothes Highway Patrolman). Rhoden was engaging in a political act, trying to make a political point with a juvenile stunt that backfired.

Now there are statutes saying we can’t prevent a legislator from attending Session (SDCL 2-4-7) or try a legislator during Session (SDCL 15-11-5). But Representative Rhoden committed a Class 1 misdemeanor Monday. He should be arrested, tried, and punished as surely as would have been any HB 1069 protestor last week who had pulled a fire alarm to clear the Capitol during debate on the Legislature’s repeal of IM 22.

28 Responses to Lock Him Up! Legislative Immunity Doesn’t Cover Rhoden’s False Alarm

  1. Yes, Rep. Rhoden should be charged with a violation of SDCL 22-11-9(1).

    22-11-9. False reporting to authorities–Misdemeanor. Any person who:
    (1) Except as provided in § 22-11-9.2, knowingly causes a false fire or other emergency alarm to be transmitted to, or within, any fire department, ambulance service, or other government agency which deals with emergencies involving danger to life or property;
    (subsections 2 and 3 omitted)
    is guilty of false reporting to authorities. False reporting to authorities is a Class 1 misdemeanor.

    The exception in subsection 1 is for more serious bomb threats that are classified as felonies rather than misdemeanors:

    22-11-9.2. Falsely reporting a threat–Felony–Restitution–Minor to perform public service. Any person who makes a false report, with intent to deceive, mislead, or otherwise misinform any person, concerning the placing or planting of any bomb, dynamite, explosive, destructive device, dangerous chemical, biological agent, poison or harmful radioactive substance, is guilty of falsely reporting a threat. Falsely reporting a threat is a Class 6 felony.

  2. What could his little stunt cost in lives if an actual crisis occurred while he was grandstanding?

    Of course he wasn’t thinking about that or others, he was thinking about himself and the big bucks from the NRA. So typical.shallow.thoughtless. Sad.

  3. His stunt put lives at risk! Idiot.

    Lock Him Up!

  4. Roger Cornelius

    When Rhoden hit the panic, what other law enforcement agencies besides the Highway Patrol would have been notified?
    Was the Pierre Police Department also notified?

  5. So who is responsible for enforcing this law? What do they have to say or have they been muzzled by the GOP under the threat of less funding?

  6. Thanks for this deeper analysis, Cory! I hope to get further legal guidance on prosecutability tomorrow night. If no one else has made a formal complaint by the time I find out, I plan to.

  7. I know some smell blood in the water and are ready to strike, but might I suggest Rhoden’s arrest would do little for the common good. This is more akin to a stupid stunt by a high school student hoping to avoid a mid-term exam and my understanding is in the majority of those cases punishment comes via the school much more often than it does from the courtroom.

    Perhaps Rhoden should be censured by the Legislature as a form of reprimand. I’d rather not waste tax dollars trying to “punish” him when there is a good chance it would result in a not guilty verdict anyway, and somehow he would probably figure out a way to force the state to pay for his defense as he was acting in his capacity of a sitting legislator.

    Sometimes you need to pick your battles. I don’t see this one being worth of the fight.

  8. Interestingly, I’m seeing discussion both with and opposing the “pick your battles” argument on another forum. An SFSD middle school student at Edison was just *charged* in addition to extended suspension last month for a pulled fire alarm, FWIW. Elsewhere, I said “This incident isn’t the biggest boat-rocker in history, but it is indicative of a “meh” attitude toward responsibility and *thoughtfulness* in SD’s elected officials. And I’m perfectly happy to be a PITA about it.” Someone else got more succinct for me (or at least reflected my feelings on the matter): “This is worth pursuing. They seem to think they are beyond accountability for their actions.” I am quite sick of this legislature’s insufferable attitude of EXTRA compared to voters, and this is something non-amorphous I can do. I definitely appreciate all the comments and input, however. I’m an outgoing introvert by nature and generally avoid public attention.

  9. South DaCola

    Some have been calling them the ‘House of Lords’ with their recent sexcapades with interns and calling up the emergency clause to thumb their noses at voters, but Rhoden’s act proves they should instead be called the ‘House of Jackasses’.

  10. Roger Cornelius

    Democrats can walk and chew gum at the same time.
    Democrats should be prepared to fight republicans on all fronts at any given time. This one of those times.

  11. Porter Lansing

    How about a dozen people throw icy snow balls at him when he walks to his car, from the capitol? “Just seeing if you could get out of the way, Larry-Man.”

  12. Kim Conlin

    Just emailed Rep. Jean Hunhoff (R-18) to vote no on this. Rhoden needs to be disciplined for this. I think we as taxpaying voting citizens of South Dakota should be able to vote in all Legislative Districts regardless of whether we are their constituents or not. Pipe dream. The oligarchy rolls on!!

  13. When Larry Rhoden crosses the street, the cars look both ways.

  14. Ms. Conlin, I’m sure that Ms. Hunhoff appreciates your input but I am sure she had already voted on that law bill well before the moment you emailed her.

  15. I am told that Ms. Hunhoff voted “yeah.”

  16. Craig, I understand that this isn’t the kind of fight that brings down a legislator or stops a bill.

    But this isn’t a fight; it’s law enforcement. A citizen broke the law. That citizen should be punished.

    The fact that punishment isn’t happening, perhaps because the lawbreaker is a powerful individual, is problematic. It fits into the pattern of Mathew Wollmann treating interns as his hook-up pool for two years with no one in the Legislature putting a stop to his misconduct. Wollmann didn’t even break the law, but his leaders should have acted to protect the integrity of the Legislature, not to mention the interns. Now we have patent lawbreaking in the Capitol, and no one acts to punish that lawbreaking?

    Giving Rhoden a fine doesn’t change the power dynamic in Pierre. Not giving Rhoden a fine reinforces the narrative that legislators think they can get by with anything and not be held accountable.

  17. The people we elect to office should be setting good examples of behavior for all of us to follow.

    Why do we have so many people in jail? Why do we have so much fighting going on?

    If you watch or read the news, you see our elected leaders doing all kinds of bad behavior. How can people be expected to follow the law when the people who create the laws are displaying such poor behavior and lack of respect for law and just common decency?

  18. CAH – I’m assuming us taxpayers are stuck with paying the bill for any of the organizations that had to send their people for this stunt. Just more South Dakota Tax & Spend Republicans.

  19. Larry Rhoden can finish a whole pail of unpasteurized milk in under 10 seconds.
    Using a fork.

  20. Larry Rhoden’s blood type is 30-06.

  21. When Larry Rhoden chairs a committee, he doesn’t wear a watch.
    Chair Rhoden decides what time it is.

  22. My other friend Bob refers to himself in the third person.
    Larry Rhoden refers to himself in the fourth person.

  23. private richard

    I refer to him as just another d—head repugnantlican. The dude’s junior high school material and probably goes around bragging about it to his d—head buddies.

  24. Cory, can I steal and re-use your last comment with attribution on another forum?

  25. When Larry Rhoden picks his nose grudz wants the boogers because they taste like unpasteurized milk chocolate.

  26. Craig posts some good sense with regard to trying to prosecute Rhoden and frankly, I would be surprised if the Hughes County State’s attorney would actually accept much less act on a citizen complaint for precisely the reasons Craig mentions; albeit that the State’s Attorney is likely to question the complaint on the grounds of what serves “the best interests of justice.” I don’t believe there is any requirement for State’s Attorneys to accept and affirmatively follow up on citizen complaints because, in reality, they are allowed great latitude in such decision making. Of course decisions such as one to follow up with either a warrant or grand jury indictment are discretionary- unfortunately. Seems to me, however, that it is pretty hard for a prosecutor to argue with presenting a case in front of a grand jury. Ideally, that process almost completely absolves him of prosecutorial bias which simply means eliminating the political influence in this case. Might be a perfectly legitimate and decisive demand that a grand jury be seated to hear this specifically to take some of the process out of the political sewer that the state gets dragged into with cases like this.

    While I’d agree in principle with Craig’s assessment, I don’t believe this is a “pick your battles” issue. The point is, there are far to many elected officials in state government that are predisposed to the Rhodenesk type of behavior or they are predisposed to vehemently defend it as a matter of having the political power and will to do so. Rhoden is a muskoxen and most of the other like minded muskoxen are obliged to encircle him and defend him against the evils of partisan or even non partisan related verbal assaults for wrong doing.
    Even though it will be perceived as a political assault, and most certainly will be labeled as such by every dull minded republican in the legislature, (save for perhaps Dave Lust and a couple of others, an example needs to be made. We can no longer allow that sort of accusation to explain away behavior that insults both law and civic decency. What we fail to realize is that this sort of juvenile impudence seems to be prevalent in the hallowed halls and what IM-22 said was, among a lot of other things, “we’re fed up with petulant, childish, inconsiderate and irresponsible behavior”. If what Rhoden did isn’t in that class of behavior, I don’t know what is?
    I evidence that last remark by pointing to the passage of this measure through the House already. The House majority obviously supported or endorsed Rhoden’s behavior and I think it safe to say that the behavior “emboldened” many of them to vote for the bill. Its a rally point, not a vote of reason or thought provocation. That thought speaks to pathetic weakness of testimony intended to influence the passage of bills that would not otherwise pass; hopefully due to more well reasoned and responsible thinking public servants.
    Furthermore, as a part of a greater agenda, the public should insist on strict liability in law. In order for each person to be treated equally and fairly under law, every person must answer to it’s violation in the proper venue. If any one of us, had pushed the panic button in that Committee hearing, I have every confidence that he/she would have been immediately confronted by that plain clothes officer, escorted out of the room in handcuffs, and transported to the County Jail for questioning and placed in temporary custody pending assignment of bond. ( I doubt that such offenses are listed on the Uniform Fine and Bond Schedule) The mere fact that Rhoden was not so treated, and then more or less “exalted” for his bold, “albeit defiant” behavior in support of liberty and defense of the Constitution, shows a type of protection of the “elite” class that can’t be and shouldn’t be tolerated by the people of this state. We didn’t elect these people to knighthood. We elected them to represent all of us in a mature, statesmanlike manner and jerking our chain by pushing panic buttons without the slightest regard or thought for potential consequences, or the slightest amount of awareness of security already in the room and surveillance cameras in operation, is an act of thoughtless criminality that demands a punitive response. If it takes a court appearance to remind these sorts of folks that their attitude and behavior is socially and legally unacceptable, then the reminder should be applied universally, first time every time.

  27. I’ve heard grumblings (and about more grumblings) from the GOP and law enforcement circles, Venn diagram-style and otherwise. I’m hopeful that charges can be made.

  28. Sharon S, you are welcome to share DFP commentary widely and with gusto! That’s what I’m here for, helping citizens make their point with solid information in all forums. :-)