UNDER the legal doctrine of sovereign immunity, states and their political subdivisions cannot be sued in state or federal court by residents of other states or foreign countries without their consent. Sovereign immunity is a vestigial practice derived from English common law, which held that since the reigning monarch could do no wrong and since there was no higher authority, bringing a lawsuit against the king would be futile.
The American version of sovereign immunity was added to the U.S. Constitution in the form of the 11th Amendment, which was ratified in 1795, and which the U.S. Supreme Court has interpreted as also applying to lawsuits brought against the states by their own citizens.
However, according to Miles McCann, a former visiting scholar at the National Association of Attorneys General, there are exceptions to this general rule. “States always have the option to voluntarily waive state sovereign immunity,” he wrote.
And that’s exactly what the Commonwealth of Virginia should do in the case of former Virginia State Police investigator Antonio Passaro Jr., who was diagnosed in 2012 with Post Traumatic Stress Disorder after years of working on child pornography investigations. Passaro asked for a transfer to another unit, but his request was denied. He was fired after filing a disability discrimination lawsuit against the state with the Equal Employment Opportunity Commission.
The State Police claimed his dismissal was due to poor job performance; Kevin Martingayle, Passaro’s attorney and a past president of the Virginia State Bar, disagrees. But because Attorney General Mark Herring’s office invoked sovereign immunity in the case, Passaro was not allowed his day in court.
PTSD is common among law enforcement officers due to the kind of work they do, Dr. Daniel Blumberg, associate professor of psychology at Alliant International University in San Diego who has studied police psychology for over 30 years, told The Free Lance–Star. “A lot of the common challenges relate very specifically to chronic exposure to other people’s pain, which often leads to compassion fatigue and moral distress,” he explained.
Although some officers are more resilient than others, researchers have found that repeated exposure to horrific human suffering can trigger PTSD. And that’s what SWAT team members, homicide investigators, and those investigating crimes against children, such as child abuse, trafficking, and child pornography, experience on a near-daily basis.
In fact, Criterion A for a diagnosis of PTSD includes “indirect exposure to aversive details of the trauma, usually in the course of professional duties,” according to the American Psychological Association’s 5th Diagnostic & Statistical Manual of Mental Disorders. Dr. Blumberg noted that assignments involving repetitive exposure to suffering victims are a sufficiently common occurrence to cause some law enforcement officers to experience the symptoms of PTSD. But police departments are often reluctant to transfer these specially trained employees, he said, because “their expertise is hard to replace.”
Blumberg advises law enforcement agencies to promote a “culture of wellness” that acknowledges “the emotional, cognitive, spiritual, and social challenges” of such difficult assignments, and provides resources—including psychological counseling, peer support, time off, mentoring and other interventions—to support officers assigned to such crucial, but often emotionally devastating work.
The Pentagon, which was slow to acknowledge PTSD in returning combat troops from Afghanistan and Iraq, has since admitted “critical gaps” in providing treatment for these wounded warriors after a wave of veteran suicides and drug addiction—many right here in Virginia—made the issue impossible to ignore.
So it’s disappointing, to say the least, that Virginia’s attorney general is engaging in the same kind of shameful head-in-the-sand approach to a former state employee suffering from his exposure to the horrific sexual abuse of innocent children.
Mr. Herring should do the right thing by officially waiving sovereign immunity and allowing Passaro—and any other law enforcement officers in similar circumstances—to proceed with his disability discrimination claim unimpeded.