Qualified Immunity as Gun Control
BY Herschel Smith
9 months, 2 weeks ago
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.
On July 17, 2023 at 9:13 am, HouseWolf said:
That a very cocky and foolhardy assumption, that if you break the law because you can get away with it as “law enforcement”, that the people will not very quickly assume you are a law breaker due just recompense.
The social contract must be reciprocal.
On July 17, 2023 at 9:53 am, JT said:
Neither of the authors of this “paper” even remotely qualify as “Americans.”
On July 17, 2023 at 10:43 am, MTHead said:
The legal system has already moved police into the “highwaymen”, category. That would just move them to open war status.
Watch what happens when “qualified immunity” meets “weapons free”. And see who ends up with who’s weaponry.
Communism truly makes them clueless doesn’t it?
On July 17, 2023 at 10:45 am, Archer said:
Making a policy that cops can do whatever they want (or whatever their bosses want) and hide behind “qualified immunity” due to not having a SCOTUS decision covering that behavior … will quickly cause SCOTUS to severely limit or strike down “qualified immunity”.
The next plaintiff doesn’t have to challenge a specific behavior or policy, and then wait for another plaintiff to challenge another behavior or policy. The next plaintiff only needs to challenge “qualified immunity” as it pertains to what the officers “knew or should have known” to be unconstitutional orders.
IOW, if police departments take this ridiculous “academic” paper to heart, the People won’t have to take back their rights piecemeal. Once the propensity to abuse “qualified immunity” is established — with evidence of multiple unconstitutional policies depending on it as a shield — departments will quickly find “qualified immunity” itself on the chopping block.
On July 17, 2023 at 12:53 pm, pyrrhus said:
It might be true that individual officer who violates your rights may escape in a civil suit where he likely doesn’t have many assets to seize…But the municipality usual ends up on the hook, with Chicago being a prime example of a city nearly bankrupted by lawsuits based on police brutality..My guess is that if a particularly egregious case reaches SCOTUS, qualified immunity will be clarified in a manner unfavorable to the cops….
On July 17, 2023 at 1:17 pm, foot in the forest said:
Does qualified immunity stop bullets above the neck and below the waist?
On July 18, 2023 at 11:08 am, LargeMarge said:
LawEnforcementOfficials have an address.
LawEnforcementOfficials have a bank account, families, a church.
LawEnforcementOfficials are not invisible.
On July 18, 2023 at 11:56 am, Sisu said:
Qualified Immunity is a proven failure, and inconsistent with the Constitution; and hopefully SCOTUS will soon find a case to review which will allow it to strike the construct down in its entirety.
Qualified Immunity is unconstitutional and thus undermines the foundation of the republic because it:
i) is a judicial construct;
ii) furnishes no remedy (in fact precludes all remedies) for willful violation of vested enumerated and unenumerated individual rights by servants of the People;
iii) is applied arbitrarily by judges sometimes mimicking other judges, yet often simply exercising inexplicable, often outrageous judgement;
iv) “chills” the atmosphere of “liberty”, “freedom” and general exercise of enumerated and unenumerated rights;
v) reinforces “bad behaviour” among individual members and whole units of law enforcement, government lawyers and judges;
vi) excuses lower standards related to hiring practices for law enforcement, government lawyers and judges, and the hiring of those with a predilection to manifest psychotic and sociopath personalities; and
vii) pits government as the enemy of the People as opposed to their servants, i.e., it promotes tyranny – a class of rulers and those that would gain personal and group status not through merit but by submitting to voluntary servitude.
* * * * *
Notwithstanding the above, if hiring standards were such that candidates for law enforcement roles were required to demonstrate a personality which was “mild of temper; not easily provoked or irritated; patient under injuries; not vain, or haughty, or resentful; forbearing; submissive”; not entitled (i.e., privileged, seeking great wealth for least amount of effort) or jurisdictional (re: work rules; comparison to others), … and they were educated in constitutional law (especially: fundamentals of the republican form of government; powers flow from the People not politicians or political parties; “innocent until proven guilty”; etc.); held to the highest standard of conduct; … and they had such intellectual and personal confidence that to use a weapon to control a situation would instill a debilitating sense of failure, … perhaps some form of “limited immunity” might be feasible.
Improve the suitability of those at the foundation of the legal system and there would be fewer cases introduced into the legal system available for abuse by government lawyers and judges.
* * * * *
Another alternative would be to allow all law abiding citizens to enjoy “qualified immunity” to the same extend as LEOs currently enjoy; and simply reduce the number of LEOs in society by 80% (given the 80/20 rule).
On July 19, 2023 at 6:53 pm, ruralcounsel said:
No gun control laws have ever meaningfully reduced danger.