Can Cynthia McKinney be Arrested?
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James Joyner | Thursday, April 6, 2006 |
Jeff Quinton notes that Cynthia McKinney has issued a rather lame apology for her assault on a Capitol Hill police officer. What struck me as interesting, though, was that she has cited the first clause of Article I, Section 6 on her Website (note: I don’t see it now)
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
Since she was going to and from the House, is she exempt from arrest? The plain language would seem to imply just that.
According to FindLaw, though,
This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ”treason, felony or breach of the peace” is interpreted to withdraw all criminal offenses from the operation of the privilege. 379
——–
[Footnote 376] Long v. Ansell, 293 U.S. 76 (1934).[Footnote 377] Id., 83.
[Footnote 378] United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800).
[Footnote 379] Williamson v. United States, 207 U.S. 425, 446 (1908).
So, neither McKinney nor any other Member is free to assault people on their way to work. Not even the white ones. One would have thought that a mere technicality but it’s apparently a very good thing.
About the Author: James Joyner is the publisher of Outside the Beltway and the managing editor of the Atlantic Council. He's a former Army officer, Desert Storm vet, and college professor with a PhD in political science from The University of Alabama. He lives just outside the Beltway in Alexandria, Virginia with his wife and infant daughter.
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Besides, wouldn't punching a cop be considered a 'breach of the peace'?
Exactly. An assault or an assault and battery is a breach of the peace, and arrestable under the common law in the presence of a police officer.
Breach of Peace is more or less a verbal assault from the cases I have seen. I believe the officer was just using good judgement, and not allowing this incident to escalate further. The authorities knew where to find poor Miss Cynthia.
My hope is that she is allowed to attend anger management as a requirement to 'make this go away'.
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