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:
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.