From time to time, a legislator makes headlines by invoking “immunity” when he or she is stopped by law enforcement. The news stories almost always bring up this question: Do lawmakers really have a “get out of jail free” card? The answer is, almost always, “no.” Most states have in their constitutions privilege for legislators, but the actual protections can be misunderstood by law enforcement, the public and lawmakers alike.
Legislative privilege has historical roots that date back to 17th-century Britain, says Steven Huefner, a professor at The Ohio State University. That tradition eventually took hold in the United States, but today, the immunity language in state and federal constitutions has very little relevance.
“It’s a bit of a historical anachronism from when there existed a ‘civil arrest’ to detain people. We no longer even have that in any meaningful sense; if you’re being arrested by the police, they have probable cause [for criminal arrest],” he says.
But the provision still grabs headlines today.