Scholars argue that qualified immunity could shield officers who confiscate guns from dangerous individuals from liability.
In New York State Rifle & Pistol Association Inc. v. Bruen, the U.S. Supreme Court announced a new standard for reviewing the constitutionality of firearms regulations—one that strikes all regulations that are not “relevantly similar” to laws existing when the Second Amendment was adopted.
Although Bruen invalidates regulations inconsistent with the historical tradition of U.S. firearm regulation, states retain significant power to disarm dangerous individuals, argue Guha Krishnamurthi, professor at the University of Maryland Francis King Carey School of Law, and Peter N. Salib, professor at the University of Houston Law Center, in a recent article. Specifically, Krishnamurthi and Salib posit that the doctrine of qualified immunity could shield state law enforcement officers who confiscate guns from dangerous individuals—even if the confiscations violate Bruen.
Qualified immunity protects officers from personal, monetary liability unless a previous case with close factual similarity clearly established that the officer’s conduct was unconstitutional. Thus, even after Bruen, an officer who confiscates an individual’s firearm after deeming that person dangerous will only be liable if a previous legal decision with nearly identical facts says so, Krishnamurthi and Salib explain.
Before Bruen, courts recognized the government’s interest in protecting people from gun violence and approved well-tailored regulations that served that interest without disproportionately burdening the right to possess firearms. According to Krishnamurthi and Salib, the Bruen court rejected the established “means-end scrutiny” test and adopted a textual, historical approach that considers whether “‘historical precedent’ from before, during, and even after the founding evinces a comparable tradition of regulation.” Consequently, Bruen directs courts to strike down gun control laws that lack a close historical analog, Krishnamurthi and Salib state.
Although Krishnamurthi and Salib recognize that Bruen poses a serious obstacle to gun regulation, they argue that qualified immunity provides states with a “relatively free hand in deciding who should and should not have guns.” Qualified immunity shields government officials who have allegedly violated an individual’s constitutional rights from monetary liability if the officials’ actions are not clearly unconstitutional.
Qualified immunity typically arises in the context of lawsuits brought under 42 U.S.C. § 1983 or a so-called Bivens action, both of which authorize individuals whose constitutional rights were violated by government officials to sue those officials for monetary damages. The officials, however, only face liability if a “reasonable person would have known” that their conduct was unconstitutional. Accordingly, the plaintiff must demonstrate that a prior judicial ruling “clearly established” that the official’s conduct was unconstitutional, Krishnamurthi and Salib explain.
Whether a government official’s conduct violated clearly established rights is a highly fact-specific question. As the Supreme Court put it, “the clearly established law must be particularized to the facts of the case.” According to Krishnamurthi and Salib, courts consequently demand factually analogous governing case law even in the face of an obvious violation. Krishnamurthi and Salib point to a case in which the U.S. Court of Appeals for the Ninth Circuit held that qualified immunity protected the officers because the governing precedent involved a taser on “dart mode,” whereas the officer in the instant case used a taser in the “drive-stun mode.”
Krishnamurthi and Salib concede that qualified immunity protects officials from monetary damages but does not preclude the owner of a confiscated gun from suing to obtain injunctive relief in the form of a court order requiring that the state return the gun. Accordingly, a confiscated gun may be returned to the individual even if the official avoids liability. Still, Krishnamurthi and Salib emphasize that the drawn-out litigation process provides significant—if temporary—protection to potential victims of gun violence.
According to Krishnamurthi and Salib, even if a court later rules that a particular confiscation violates Bruen and returns the firearm to its owner, the factual specificity requirement means that the precedent established by one lawsuit is unlikely to overcome qualified immunity in a later case with even slightly different facts. Krishnamurthi and Salib conclude that, in such situations, “all that would happen would be that the individuals with sufficient fortitude to maintain civil lawsuits would eventually have their firearms returned.”
Krishnamurthi and Salib recognize that qualified immunity will not allow states to adopt blanket policies that disarm certain categories of people, such as a recently struck federal law that prohibited anyone under a domestic violence restraining order from possessing a firearm.
Although states cannot categorically disarm all domestic abusers, officials may still disarm particular domestic abusers on a case-by-case basis after deeming disarmament necessary given the factual circumstances, Krishnamurthi and Salib contend.
Existing statutes already authorize officers to disarm dangerous individuals, Krishnamurthi and Salib explain. For example, a Texas statute gives “peace officers” the power to disarm a person “at any time the officer reasonably believes it is necessary for the protection of . . . another individual.”
Krishnamurthi and Salib explain that liberals have long opposed qualified immunity and argued that it prevents those whose constitutional rights have been violated from obtaining relief. Today, liberals are the most vocal proponents of gun control measures, Krishnamurthi and Salib state. On the other hand, Krishnamurthi and Salib note that conservatives, who traditionally have supported the police, have both championed qualified immunity and spearheaded the modern movement against gun control. Bruen, Krishnamurthi and Salib predict, is set to scramble qualified immunity’s political valence.
Krishnamurthi and Salib anticipate that gun rights supporters will be outraged if qualified immunity operates as a means of gun regulation. Accordingly, Krishnamurthi and Salib question whether gun rights supporters and liberals may forge an alliance in opposition to qualified immunity. If so, “the possibility of qualified immunity as a gun control law may finally bring about the doctrine’s demise,” Krishnamurthi and Salib state.
