Notre Dame Law Review Reflection (forthcoming 2023) will (presumably) publish this pre-print by these two writers on Qualified Immunity as Gun Control. They think they’re on to something big, and hence the obvious snarkiness by the end of their summary.
The Supreme Court’s ruling in NYSRPA v. Bruen threw the political project of gun regulation into question. Before Bruen, states could enact new kinds of gun restrictions if they passed a relatively stringent means-ends test. That is, if laws meaningfully reduced danger, while not too heavily burdening the right to self-defense, they were allowed. After Bruen, only gun controls actually in force in the founding era, and their close analogues, are permissible. Many fewer regulations will now pass the constitutional test.
Here, we suggest an unlikely source of continuing power, after Bruen, for states to disarm individuals they deem dangerous: qualified immunity. Qualified immunity shields state officers from monetary liability for many constitutional violations. In short, unless a previous case “clearly established,” with high factual particularity, that the officer’s conduct was unconstitutional, the officer does not pay. Thus, a state law enforcement officer may, after Bruen, confiscate an individual’s firearm if the officer deems that person too dangerous to possess it. The officer’s justifications may conflict with the federal courts’ understanding of Bruen or the Second Amendment—perhaps flagrantly. But unless a previous, authoritative legal decision examining near-identical facts says so, the officer risks no liability. And because each individual act of disarmament will be unique, such prior decisions will be vanishingly rare. The result is a surprisingly free hand for states to determine who should and should not be armed, even in contravention of the Supreme Court’s dictates.
Proponents of gun rights, who skew conservative, may see this as lawlessness. In the past, it has been liberals and civil libertarians who have seen qualified immunity that way. Here, as elsewhere in the law, what’s good sauce for the goose is good for the gander. Gun rights advocates may therefore either accept qualified immunity’s implications for their preferred rights or join with their usual adversaries in opposing it everywhere.
If it sounds like these authors, Guha Krishnamurthi (University of Maryland Francis King Carey School of Law) and Peter Salib (University of Houston Law Center) are hinting that cops just violate second amendment rights under the color of law based on the protections police enjoy virtually everywhere and in most, if not all, circumstances, you’d be wrong. They say, “The officer’s justifications may conflict with the federal courts’ understanding of Bruen or the Second Amendment—perhaps flagrantly.”
And they don’t really mind very much that you understand them. They aren’t hinting at latitude (not that there is any) – they are obviously and directly saying that police should violate constitutional protections if they want to, including the 2A.
They are trying to appeal to so-called “law and order conservatives.” They’re everywhere in government, from Bill Barr (who supported red flag laws, waiting periods, magazine capacity bans, etc., and who defended Lon Horiuchi after he killed Vicki Weaver for no good reason), to “law and order conservative” judge Frank Easterbrook in Chicago, all of whom would disarm Americans.
But these are dinosaurs on the “conservative” side, or another way of saying it is that there isn’t a dime’s worth of difference between a communist and a “law and order conservative.”
The authors of the silly paper above presume to impale someone on the horns of a dilemma (certainly not gun owners). Gun owners have seen the dark side of state power, from overbearing and lying cops during traffic stops, to overreach by the ATF, to the weaponization of federal law enforcement by the power that happens to be in charge at the moment, whether Obama, Biden or Trump (and here I include the bump stock ban just to ensure that I take shots at “law and order conservatives” as well as statists).
Qualified immunity is a concoction and witch’s brew of the courts because the police are agents and enforcers of state power, whether local, state or federal, not protectors of the people.
That dog won’t hunt. The authors of the study failed, and miserably so. Between losing qualified immunity or red flag laws, most sensible people will say, “The dilemma fails. I don’t have to choose – lose them both.” They have no basis in the constitution and represent the worst from the minds of men.
