In the case of the State of West Virginia v. Michael Caputo, it seems a mole hill has become a mountain.
Last March, Delegate Caputo (D-Marion) angrily pushed his way through the main door of the House of Delegates chamber. He was among the Democratic lawmakers who were upset over an anti-Muslim display at the Capitol.
The criminal complaint claims Caputo “either pushed, hit, or kicked” the door, striking the doorman on the inside. The doorman sought medical attention, but he was not seriously injured. The complaint says Caputo elbowed fellow delegate Sharon Malcolm out of the way.
Malcolm said at the time she was not hurt, but the complaint indicates she later told Capitol Police that she “sought medical attention for pain that she had been experiencing on the right side of her chest and shoulder.”
Caputo later took to the House floor and apologized. “I know there are a lot of you who feel less of me today than you did yesterday,” he said. “I can certainly understand that. I will do my best to rebuild your trust and confidence in me, because that’s who Mike Caputo is.”
Separate votes to expel or censure him failed, although House Speaker Roger Hanshaw removed Caputo from his committee assignments for the remainder of the session.
But that was not the end of the story.
The Capitol Police filed a complaint against Caputo accusing him of a misdemeanor charge of battery. He appeared in Kanawha County Magistrate Court yesterday and, to the surprise of many, Caputo’s attorney, Tim DiPiero, moved to dismiss the charge “based on legislative immunity.”
The filing contends that West Virginia Code 4-1A-6 affords the protection of legislative immunity “to all of a legislator’s legislative acts, (as defined in section three of this article).” The code says the immunity extends to both civil suits and criminal prosecutions [emphasis added] for all actions within the legislative sphere.”
DiPiero argues Caputo was attempting to enter the House chamber “in an effort to carry out his privileges and obligations as a member of the House of Delegates.” DiPiero is a smart attorney, so let’s be generous and say he’s making a novel argument.
Perhaps the state’s Founders did intend to provide immunity for legislators back in old days when fisticuffs might well have broken out among quarreling legislators.
However, it is far more likely the statute is in code to provide some limited protection for legislators as they carry out their responsibilities. For example, a legislator cannot be charged criminally or sued for passing a particular bill and they are protected from libel for comments made on the floor.
If DiPiero’s argument is carried out to the point of absurdity, then a legislator could rob a fellow lawmaker or even murder him and be immune from prosecution as long as the legislature was in session.
Additionally, the suggestion that a legislator enjoys protection from criminal prosecution in a matter only tangentially connected to their responsibilities creates the impression that the individual is above the law. Politically, that’s bad for Caputo, who is running for the State Senate in the 13th District next year.
Caputo made a mistake, which he has acknowledged and apologized for. That seems like it should have been the end of it. Caputo disputes many of the allegations in the criminal complaint and that could all get sorted out if he decided to go to trial.
However, claiming immunity from prosecution is now a second mistake he must explain.