Government Immunity Kills, Ravages and Skewers

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.


More articles by:

James Bovard is the author of Attention Deficit Democracy, The Bush Betrayal, Terrorism and Tyranny, and other books. Bovard is on the USA Today Board of Contributors. He is on Twitter at @jimbovard. His website is at www.jimbovard.com  This essay was originally published by Future of Freedom Foundation.

Weekend Edition
January 18, 2019
Friday - Sunday
Melvin Goodman
Star Wars Revisited: One More Nightmare From Trump
John Davis
“Weather Terrorism:” a National Emergency
Jeffrey St. Clair
Roaming Charges: Sometimes an Establishment Hack is Just What You Need
Joshua Frank
Montana Public Schools Block Pro-LGBTQ Websites
Louisa Willcox
Sky Bears, Earth Bears: Finding and Losing True North
Robert Fisk
Bernie Sanders, Israel and the Middle East
Robert Fantina
Pompeo, the U.S. and Iran
David Rosen
The Biden Band-Aid: Will Democrats Contain the Insurgency?
Nick Pemberton
Human Trafficking Should Be Illegal
Steve Early - Suzanne Gordon
Did Donald Get The Memo? Trump’s VA Secretary Denounces ‘Veteran as Victim’ Stereotyping
Andrew Levine
The Tulsi Gabbard Factor
John W. Whitehead
The Danger Within: Border Patrol is Turning America into a Constitution-Free Zone
Dana E. Abizaid
Kafka’s Grave: a Pilgrimage in Prague
Rebecca Lee
Punishment Through Humiliation: Justice For Sexual Assault Survivors
Dahr Jamail
A Planet in Crisis: The Heat’s On Us
John Feffer
Trump Punts on Syria: The Forever War is Far From Over
Dave Lindorff
Shut Down the War Machine!
Glenn Sacks
LA Teachers’ Strike: Student Voices of the Los Angeles Education Revolt  
Mark Ashwill
The Metamorphosis of International Students Into Honorary US Nationalists: a View from Viet Nam
Ramzy Baroud
The Moral Travesty of Israel Seeking Arab, Iranian Money for its Alleged Nakba
Ron Jacobs
Allen Ginsberg Takes a Trip
Jake Johnston
Haiti by the Numbers
Binoy Kampmark
No-Confidence Survivor: Theresa May and Brexit
Victor Grossman
Red Flowers for Rosa and Karl
Cesar Chelala
President Donald Trump’s “Magical Realism”
Christopher Brauchli
An Education in Fraud
Paul Bentley
The Death Penalty for Canada’s Foreign Policy?
David Swanson
Top 10 Reasons Not to Love NATO
Louis Proyect
Breaking the Left’s Gay Taboo
Kani Xulam
A Saudi Teen and Freedom’s Shining Moment
Ralph Nader
Bar Barr or Regret this Dictatorial Attorney General
Jessicah Pierre
A Dream Deferred: MLK’s Dream of Economic Justice is Far From Reality
Edward J. Martin
Glossip v. Gross, the Eighth Amendment and the Torture Court of the United States
Chuck Collins
Shutdown Expands the Ranks of the “Underwater Nation”
Paul Edwards
War Whores
Peter Crowley
Outsourcing Still Affects Us: This and AI Worker Displacement Need Not be Inevitable
Alycee Lane
Trump’s Federal Government Shutdown and Unpaid Dishwashers
Martha Rosenberg
New Questions About Ritual Slaughter as Belgium Bans the Practice
Wim Laven
The Annual Whitewashing of Martin Luther King Jr.
Nicky Reid
Panarchy as Full Spectrum Intersectionality
Jill Richardson
Hollywood’s Fat Shaming is Getting Old
Nyla Ali Khan
A Woman’s Wide Sphere of Influence Within Folklore and Social Practices
Richard Klin
Dial Israel: Amos Oz, 1939-2018
David Rovics
Of Triggers and Bullets
David Yearsley
Bass on Top: the Genius of Paul Chambers