Immunity sovereign and absolute: How the state plays god

God’s perfections include is absolute immunity from any accusation of man, or any demand by man that He justify himself. “Will the thing formed say to him who formed it, ‘Why have you made me like this?’”

As creator and sovereign, as prophet, priest and king of His people, he has no equal. His children appeal to Him as their beloved Father, revere Him and dread to contradict him in His law. Immunity is part of sovereignty. Sovereignty is a sum of God’s attributes.

By David Tulis / AM 1240 Hot News Talk Radio

The modern state has no equal, either, in its eyes and in the ways it protects its priesthood. The ministers of the modern progressive state are its employees, who are cloaked in this aspect of divinity — immunity.

Immunity is absolute or qualified.

An abusive state actor can be held to account under our state’s oppression statute. He can be accused criminally under TCA 39-16-403 for “official oppression” when he “[i]ntentionally subjects another to mistreatment or to arrest, detention, stop, frisk, halt, search, seizure, dispossession, assessment or lien when the public servant knows the conduct is unlawful” or when he “[i]ntentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity, when the public servant knows the conduct is unlawful.”

Still, he enjoys absolute immunity when his abuse takes place when he knows his actions are “lawful.” If cloaked with the lawfulness of his activity, the state actor’s exactions against the liberty and happiness of other have no redress, and the state actor is invulnerable.

Sloppy testimony brings indictment of gospel minister

A Tennessee child pornography case against a Christian minister is a case in point. The case centers on an Internet router lacking password protection and testimony by a TBI agent, Kenneth Mark Wilson, and a detective from Winchester, Tenn., Chris Layne.

Messrs. Wilson and Layne testified before a grand jury, which indicted Mr. Hoschar, pastor of Kimball Baptist church.

The 2010 case against David Hoschar of South Pittsburg, Tenn., was dropped because no child porn was found on the Hoschar computer. Evidently an interloper had used the signal to download illegal images.

Mr. Hoschar sued the men individually and as government employees in federal court, claiming the duo gave “false and misleading” testimony to win the indictment. These claims were dismissed, and Mr. Hoschar appealed. The court of appeals upheld the dismissal on grounds of absolute immunity.

“The facts viewed in a light most favorable to the Hoschars are that Layne and Wilson knew, but did not explain to the grand jury, that someone in the vicinity of the Hoschar home could have downloaded the child pornography because the Hoschars’ router was not password protected. Additionally, Layne and Wilson told the grand jury that a second laptop was not found during the search of the Hoschar home without clarifying that the Hoschars’ adult daughter, who lived elsewhere, had taken that laptop with her when she married in 2009, and that Emily Hoschar had so informed Wilson when she called him several days after Defendants searched the Hoschar home.

“Further, Layne knew or should have known that the TBI report ruled out that either computer found at the Hoschar home had been “scrubbed” of child pornography because the report stated that the only peer-to-peer software found on either computer, Limewire, had been uninstalled in 2009.

It is unfortunate that Layne and Wilson did not provide a more complete and balanced picture to the grand jury. *** ”

The court rests its dismissal of the Hoschar case on “absolute immunity” as developed in a 2012 case, Rehberg v. Paulk , 132 S. Ct. 1497, 1500. If it’s grand jury testimony, witnesses (almost always state actors) can get away with anything. “[E]ven if the defendant police detective misled or gave false testimony before the grand jury, as the plaintiff asserted, the detective had absolute immunity***.”

“[T]he Hoschars’ claim derives from Layne’s and Wilson’s grand jury testimony. The Hoschars challenge, for example, the officers’ failure to explain to the grand jury that the router was not password protected, the officers ‘failure to explain that the Hoschar home was located next to a motel, and the officers’ failure to mention that they knew that the Hoschars’ daughter had the second laptop computer. Because the Hoschars’ claim depends on the grand jury testimony, Layne and Wilson are protected by absolute immunity even if their testimony was false or misleading.”

“As long as I am engaged in my normal duties on a case, I have absolute immunities for obvious reasons,” says Mike Taylor, the district attorney general for the 12th district, which includes Marion County. “You could never function if every guy accused of murder turned around to sue you.”  Wayne Rich Jr., a former federal prosecutor in Chattanooga with 33 years of experience tells the Times Free Press about the day he was sworn in:  “The United States Attorney sat me down and said, ‘You know, you have tremendous power. And in exercising the authority to authorize an arrest warrant or authorize the presentation of an indictment to a grand jury, you need to believe the person is guilty beyond any doubt. ‘Because if you believe that person is innocent and he’s arrested or indicted, it can ruin his life.’”

Untouchable state actors

Local economy and free markets are not easily advanced when state actors, in grand jury testimony, are protected even when lying to the people (the grand jury) and getting the people to indict innocent people.

The immunity of the TBI agent and the cop in the defeated Hoschar civil case is seen elsewhere in the week’s news, and its religious nature exposed.

Historian the Rev. Wilson D. Miscamble defends the Americans’ nuclear annihilation of Hiroshima and Nagasaki in the Wall Street Journal, even though he brings up President Harry Truman’s Christian background. Truman “tried to live by a moral code grounded in the Ten Commandments and the Sermon on the Mount. Yet he also knew that statesmen must make difficult decisions in the fog of war.”

He argues that exploding nuclear bombs over the two cities “[helped] win the gruesome Pacific War as quickly as possible and with the loss of the fewest American lives — and, as it turned out, the loss of the fewest Japanese lives.” He says nuclear bombing “freed innocent people throughout Asia from Japanese oppression” and says Japan had  “murderous rampage from Manchuria to New Guinea” that he says killed 17 million people.

In other words, slaughtering innocent people — noncombatants and civilians — is the moral high ground, because it saves lives. Such calculation is purely utilitarian. It stands upon no biblical basis whatsoever. “Within the first two to four months of the bombings, the acute effects of the atomic bombings killed 90,000–146,000 people in Hiroshima and 39,000–80,000 in Nagasaki,” Wikipedia says; “roughly half of the deaths in each city occurred on the first day. During the following months, large numbers died from the effect of burns, radiation sickness, and other injuries, compounded by illness and malnutrition.”

Courts give the state’s agents, its priests and ministers, absolute immunity before grand juries and in many other venues. The national government gives itself sovereign absolute immunity, as well, to void God’s law with scale of operation. Nagasaki and Hiroshima are the pinnacle of state terrorism and genocide — all acceptable and moral if it favors Americans and the American way. So huge was the atomic slaughter — to make clear the U.S. demand for unconditional surrender — that it is right in our own eyes.

Story not over

But the reach of immunity is never quite far enough for the modern state. Tennessee is going further to immunize state employees who abuse members of the public.

Connie Reguli, a Nashville attorney who defends families against predatory acts by child protective services agents, complains about a bill in the general assembly that “requires that attorneys’ fees be awarded for state employees when they are sued in individual capacities and are the prevailing party.”

She says Gov. Bill Haslam deferred to the will of the legislature on the bill.

“Let me explain to you how stinkin rotten this is,” Mrs. Reguli says. “You cannot sue the ‘state’ if you get injured by a state employee and you cannot sue the ‘state’ for civil rights violations. You can only sue the individual. Now if someone sues you for, let’s say assault, and they lose, you Mr. Joe Blow Man on the Street, CANNOT get your attorney’s fees paid.

This law elevates, immunizes, and shields state employees to do whatever they want. The effect will be a chilling effect on civil rights litigation in state courts, perhaps even federal court.

“Let’s say you are sued by the state, for licensure issues, if you win, you do NOT get your attorney’s fees, but if they win, they DO get their attorney fees.”

Sources

Zack Peterson, “Detectives leave out key information, win ruling after pastor sues over child pornography case,” Chattanooga Times Free Press, May 13, 2016. http://www.timesfreepress.com/news/local/story/2016/may/13/federal-appeals-court-ruling-sheds-light-disp/365349/#document_1587

Wilson D. Miscamble, “Obama, Truman and Hiroshima,” Wall Street Journal, May 12, 2016