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
November 16, 2018
Friday - Sunday
Jonah Raskin
A California Jew in a Time of Anti-Semitism
Andrew Levine
Whither the Melting Pot?
Joshua Frank
Climate Change and Wildfires: The New Western Travesty
Nick Pemberton
The Revolution’s Here, Please Excuse Me While I Laugh
T.J. Coles
Israel Cannot Use Violent Self-Defense While Occupying Gaza
Rob Urie
Nuclear Weapons are a Nightmare Made in America
Paul Street
Barack von Obamenburg, Herr Donald, and Big Capitalist Hypocrisy: On How Fascism Happens
Jeffrey St. Clair
Roaming Charges: Fire is Sweeping Our Very Streets Today
Aidan O'Brien
Ireland’s New President, Other European Fools and the Abyss 
Pete Dolack
“Winners” in Amazon Sweepstakes Sure to be the Losers
Richard Eskow
Amazon, Go Home! Billions for Working People, But Not One Cent For Tribute
Ramzy Baroud
In Breach of Human Rights, Netanyahu Supports the Death Penalty against Palestinians
Brian Terrell
Ending the War in Yemen- Congressional Resolution is Not Enough!
John Laforge
Woolsey Fire Burns Toxic Santa Susana Reactor Site
Ralph Nader
The War Over Words: Republicans Easily Defeat the Democrats
M. G. Piety
Reading Plato in the Time of the Oligarchs
Rafael Correa
Ecuador’s Soft Coup and Political Persecution
Brian Cloughley
Aid Projects Can Work, But Not “Head-Smacking Stupid Ones”
David Swanson
A Tale of Two Marines
Robert Fantina
Democrats and the Mid-Term Elections
Joseph Flatley
The Fascist Creep: How Conspiracy Theories and an Unhinged President Created an Anti-Semitic Terrorist
Joseph Nevins
Twitter: Fast Track to the Id
William Hawes
Baselines for Activism: Brecht’s Stance, the New Science, and Planting Seeds
Bob Wing
Toward Racial Justice and a Third Reconstruction
Ron Jacobs
Hunter S. Thompson: Chronicling the Republic’s Fall
Oscar Gonzalez
Stan Lee and a Barrio Kid
Jack Rasmus
Election 2018 and the Unraveling of America
Sam Pizzigati
The Democrats Won Big, But Will They Go Bold?
Yves Engler
Canada and Saudi Arabia: Friends or Enemies?
Cesar Chelala
Can El Paso be a Model for Healing?
Mike Ferner
The Tragically Misnamed Paris Peace Conference
Barry Lando
Trump’s Enablers: Appalling Parallels
Jasmine Aguilera
Beto’s Lasting Legacy
Ariel Dorfman
The Boy Who Taught Me About War and Peace
Yves Engler
Ottawa, Yemen and Guardian
Michael Winship
This Was No Vote Accident
Binoy Kampmark
The Disgruntled Former Prime Minister
Tracey L. Rogers
Dear White Women, There May be Hope for You After All
Faisal Khan
Is Dubai Really a Destination of Choice?
Arnold August
The Importance of Néstor García Iturbe, Cuban Intellectual
James Munson
An Indecisive War To End All Wars, I Mean the Midterm Elections
Nyla Ali Khan
Women as Repositories of Communal Values and Cultural Traditions
Thomas Knapp
Scott Gottlieb’s Nicotine Nazism Will Kill Kids, Not Save Them
Dan Bacher
Judge Orders Moratorium on Offshore Fracking in Federal Waters off California
Christopher Brauchli
When Depravity Wins