They are untouchable.
Unlike you and I, who can be held legally accountable for our negligence and wrongdoings, they are beyond the reach of the law. Unlike those wrongly arrested who are forced to plead guilty to crimes they did not commit in order to avoid going on trial for crimes with even longer prison sentences, the untouchables will not be victims of a broken legal system. Unlike those poor or working class men and women who are caught with small amounts of marijuana, the untouchables will see no long years of jail time.
The untouchables involved in this story are the State of Michigan, Governor Rick Snyder and Flint Emergency Manager Darnell Earley, as well as the functionaries who serve them. As facts continue to emerge implicating Snyder and his administration in ignoring and covering up the poisoning of Flint’s water, a legal obstacle has come into view that may thwart efforts to hold these people accountable for their conduct.
That obstacle is the principle of “sovereign immunity.” The old maxim associated with sovereign immunity was “The king can do no wrong.” Derived from a centuries-old tradition of preventing one sovereign state or ruler from suing another, today’s doctrine of sovereign immunity protects states and their agents—such as governors—from most civil suits. The doctrine has caused many large plaintiffs’ firms, who might eagerly take on a polluting corporation, to think twice before representing the residents of Flint.
Bringing a suit that can dodge or defeat sovereign immunity will call for creative lawyering and poses a daunting challenge. A coalition of Michigan attorneys, however, is rising to that challenge. “We’re zigging and zagging around government immunity,” said Michael Pitt of Royal Oak, Michigan. One of the suits Pitt and his colleagues are bringing claims that the state government violated Flint residents’ federal constitutional rights to bodily integrity and to be free from state-created danger.
The residents of Flint and the few attorneys who represent them so far find themselves in unpromising and uncharted legal waters. While some suits may prevail, the overall lesson we can take from the situation is that kings can do no wrong. Whether they are General Motors executives who bear responsibility for over 200 deaths due to faulty ignition switches and are shielded from civil liability and prosecution by the legal fiction of corporate personhood, or a governor and his cronies who knowingly allowed a city of 100,000 to drink poisoned water and are protected by the doctrine of sovereign immunity, there are those in this society who in the performance of their jobs stand beyond th reach of the law.
Another point to consider is the effect such privilege has on those who hold it. Surely not all the GM execs who played a part in covering up the dangers of the bad switches are without a sense of morality. Nor can we assume a condition of innate evil in the state and Environmental Protection Agency employees who knew about the danger of lead poisoning in Flint yet said nothing. It is imperative that we see fault not—or not only—in individuals, but in a system that props up ordinary humans with both the power to harm others and immunity to the consequences of any such harm. In other words, a system of kings and serfs.
Because a king will always do wrong.