Few Americans recognize the Yukon-sized void in legal rights in their daily lives. I was recently reminded of this reality after encountering what appeared to be an anti-tank spike leftover from the battle of Stalingrad in a government parking lot. Unfortunately, government’s promise to serve also routinely conveys a license to harm.
Heading for a hike along the Potomac River, I pulled my car into a spot in an unpaved, uneven Fairfax County Park Authority lot at Difficult Run Stream. I nudged forward and stopped before my wheels tapped the concrete block at the end of the spot. The front of my car extends 20 inches beyond my wheel and I was chagrined to hear something tearing into the underside of my Ford Contour. I stepped out of the car and saw that the concrete parking barrier was topped by an unmarked five-inch steel rebar that had ripped through my plastic bumper, tore loose my power steering hose, and doused the block with liquids from my engine. Most of the nearby concrete bars had no such spurs but Fairfax County apparently missed this one.
Ever the optimist, I filed a claim with Fairfax County for the $129 power steering hose repair (the towing was “free” thanks to GEICO and that bumper was already ugly before the gash). Seven weeks later, Fairfax County notified me that “you failed to pay full time and attention to a stationary object resulting in the proximate cause of this loss and contributing to you [sic] own damages.” Apparently, since a Fairfax County employee did not willfully target my power steering hose, the government had no liability.
The letter cited a 1947 Virginia court case which purportedly exonerated Fairfax County. I read the court case seeking profound insights into malignant parking lots. Instead, the case dealt with a drunk who was heaved out of a Norfolk movie theater. While sprawled on the sidewalk, he cast a “vile insult” towards a passing theater employee who punched him out. The court rejected the man’s lawsuit for damages thanks to his “contributory negligence.”
Admittedly, I did heartily cuss that steel rebar. But I was puzzled by the lack of liability – especially since the county sent a crew to that parking lot to “hammer those rebars back in” the same day I initially complained, a safety analyst assured me. I emailed the county press office inquiring if the county ever compensated anyone for steel rebar damage and received a blizzard of legalese in response. No matter how high the rebar protrudes, it is apparently “close enough for government work.” But federal OSHA inspectors would crucify a private construction company for uncapped steel rebars on their site.
I posted the spike photos on Facebook and a small business owner responded: “You’re lucky the county did not try to charge you for a hazmat clean up the hydraulic fluid you dumped on their property.” A Navy scientist quipped, “If you parked one foot from the spike, you probably would have gotten a ticket for parking outside the space.” Another commenter, paraphrasing a venerable legal principle, nailed the issue: “Ignorance of the spike is no excuse.”
The perils from unaccountable government agencies extend far beyond the undersides of old Fords. The U.S. military is the largest polluter in the nation in part because they can ignore the laws that purportedly apply to everyone else. In 2015, EPA officials horrifically blundered and released three million gallons of toxic waste water from an abandoned Colorado mine, causing billions of dollars of damage and ravaging the Animas River watershed. The states of Utah and New Mexico and the Navajo Nation sued, but the federal government urged a court to dismiss their case because “granting any relief… would conflict and interfere with EPA’s exclusive jurisdiction over its on-going response action activities and cleanup remedies.” After causing one of the biggest environmental debacles in recent years, EPA has a simple message: “Trust us – we’re the good guys.” And regardless of how many disasters government produces, judges still pretend that federal agencies are doing God’s work.
Immunity can provide a license to kill with impunity. Police shot and killed almost a thousand people last year, and Supreme Court rulingsprovide broad immunity for police who open fire. High speed police chases have killed more than 5000 innocent bystanders and passengers and injured more than a quarter million people since 1979. But the victims and next of kin are routinely out of luck when seeking damages. Permitting reckless behavior that knowingly endangers private citizens is okay as long as police departments recite empty promises to protect the public.
If the government decides to provide a service, it is rarely liable for any damages it inflicts. There is no such thing as “gross negligence” because the government means well. A federal judge recently rejected a lawsuit claiming that utterly dysfunctional schools in Detroit had violated children’s “right to literacy.” No matter how much parents are forced to pay in taxes for schools, “no plaintiff to date has been able to convince a court that a school owes him or her any more than ‘a chair in a classroom,’” as law professor Judith Berliner Cohen wrote. Joining the PTA is no substitute for a legally enforceable claim to decent schooling.
Exempting government agencies from liability effectively licenses them to inflict vast harm across the land. Unfortunately, almost the entire political class supports perpetuating the legal doctrine that “the king can do no wrong.” “Abandon Almost All Hope of Liability Ye Who Enter!” should be the warning sign in front of almost every government facility in the land.
* An earlier version of this article appeared in the American Conservative.