Qualified Immunity is a controversial legal principle that “protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a ‘clearly established’ statutory or constitutional right.” The bottom line for those of us who believe in civil liberties is that Qualified Immunity makes it very difficult to hold public officials accountable, especially police officers even in cases of horrific brutality, and it’s grating to think that this doctrine was invented by the Supreme Court in 1967.
There’s a tension between the Bill of Rights, especially the Second Amendment, and Qualified Immunity. We have covered it here at Bearing Arms before, and discussed the downsides and risks to our rights and liberties from this invented doctrine. But there are Very Smart People out there, a couple of law professors, who think that the worst aspects of Qualified Immunity are a fantastic mechanism to undermine the Supreme Court’s NYSRPA v. Bruen ruling and attack gun rights.
In a forthcoming paper in the Notre Dame Law Review Reflection, Prof. Guha Krishnamurthi (University of Oklahoma College of Law) and Prof. Peter Salib (University of Houston Law Center) call for the abuse of Qualified Immunity to confiscate guns.
QUALIFIED IMMUNITY AS GUN CONTROL
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. […] 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.
The professors are encouraging the abuse of power by the police, centralizing the functions of judge, jury, and executioner into one, so the police can “confiscate an individual’s firearm if the officer deems that person too dangerous to possess it.” There’s no separate locus of power evaluating evidence or determining dangerousness; it’s all rolled into one modern-day King George incarnate. And the professors think that because the cops risk no liability, they should do what they think is right even if it’s flagrantly wrong.
Besides their infuriating proposals, the professors’ claim that there was a “relatively stringent means-ends test” before Bruen is utterly laughable. The stringent means-end test of their imagination was a rubber-stamp whether it was in California or New York. That’s what led to Bruen. The professors continue their screed with an off-mark parting shot at gun rights supporters:
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.
This shows total ignorance of the gun rights movement. Whether it’s dogs getting shot, the killing of Kelly Thomas, Breonna Taylor, Amir Locke, or the wrong-door raid on Vang Khang, gun rights supporters have been on the right side of the fight. The late Conservative Justice Antonin Scalia and sitting Justice Clarence Thomas have both openly questioned Qualified Immunity.
It’s not gun rights supporters, but these gun control supporting professors who are willing and happy to see a redo of such injustices in their quest for what they openly admit is the “political project of gun regulation.”