PHOENIX — Saying legislative immunity is being abused, Gov. Doug Ducey directed that police officers under his control have the authority to cite — and if necessary arrest — lawmakers whose bad driving is more than simple speeding.
The governor’s executive order Friday came after news coverage of a state lawmaker being let off with a warning for driving 97 in a 55 mph zone and bragging that he sometimes goes 140 mph.
Ducey pointed out that the constitutional provision protecting lawmakers from arrest is not absolute. Exemptions include treason, felonies and “breach of the peace.” There is no definition in Arizona law of what that breach entails, but it’s generally considered to fall into the category of disorderly conduct.
In his order, the governor told Department of Public Safety officers they “shall consider any criminal violation that endangers the safety of another ... as a breach of the peace.”
He said that specifically includes drunken driving, reckless driving and criminal speeding, which means driving at least 20 miles per hour over the posted speed limit.
This is not an order to DPS officers to issue a citation in each of these cases, said gubernatorial press aide Daniel Scarpinato.
Instead, he said, it simply gives officers the discretion to decide on appropriate action when lawmakers are involved, discretion they do not have under current policy that lets lawmakers drive away with a warning.
Still, Scarpinato said, there are situations where Ducey would expect that discretion be exercised in a certain way.
“Obviously, if someone is going 140 miles per hour, I think that would certainly, under almost any circumstance, warrant a ticket,” he said.
In fact, Ducey favors repeal of the entire constitutional provision on legislative immunity, Scarpinato said.
“Everyone in elected office, including him, should have to follow the same laws as every other citizen and be held accountable,” Scarpinato said. “So he thinks this should go.”
However, Ducey lacks the power to simply abolish the immunity. Constitutional provisions can be altered or repealed only with a public vote.
Some have said the immunity exists to keep a rogue police officer or agency from preventing legislators from getting to the Capitol to cast their votes.
“Have you ever heard of an instance like that?” Scarpinato asked. “And, by the way, today we have cellphones,” he added, meaning a legislator who believes he or she is being wrongfully detained can seek assistance. “This isn’t 1912.”
In his order, the governor never directly named Rep. Paul Mosley, R-Havasu City, who was stopped on March 27 by a La Paz County sheriff’s deputy for driving 97 on a 55 mph stretch of Arizona 95 in La Paz County. The deputy, after learning he was a legislator, let him off with a warning.
“I was doing 120 earlier,” Mosley is seen on body camera footage telling the deputy. “I go 130, 140, 120.”
It was clearly that incident, though, that got Ducey’s attention.
“It is clear in some recent cases that the peace has been breached, and we have a responsibility to enforce the law in these cases,” the order states.
Ducey’s order does not govern the conduct of other police agencies. They remain free to set their own policies.
But the decision to direct the actions of officers under state control likely would have an impact — at least on this one legislator: Records show that DPS officers stopped Mosley at least six other times while the Legislature was in session the past two years, five times for speeding and once for failing to stop at a stop sign.
Those records do not show whether Mosley specifically claimed legislative immunity. But each time he was let off with a warning.
Mosley has since apologized through a Facebook post.
“My desire to get home to see my family does not justify how fast I was speeding nor my reference to legislative immunity when being pulled over,” he wrote, calling it “a serious responsibility (that) should not be taken lightly or abused.”
Mosley also said his “jokes” about frequently driving faster than 100 miles per hour “were entirely inappropriate and showed extremely bad judgment on my part, for which I am truly sorry.”
In his order, Ducey also pointed up that the immunity is limited not just in scope but in time: It applies only when the Legislature is in session and for 15 days leading up to each session.
The governor’s directive and views about the scope of the immunity clause are now more in line with those used by the state House of Representatives for more than a decade.
In a 2002 memo, Don Jansen, then an attorney for the House, said he reads the constitutional provision to say that there is no immunity from speeding tickets or violations of drunken-driving laws. A House spokesman said that remains the policy.
Jansen’s memo, however, pointed out something else: The immunity language covers more than criminal and traffic citations. It also says that lawmakers “shall not be subject to any civil process” during the session and for 15 days leading to it.
That, in essence, means they cannot be sued during those periods. But Scarpinato said that, as far as Ducey is concerned, that part of the immunity provision also should be repealed.
“He thinks this should be a priority.”