Law Profs Tout Qualified Immunity for Unconstitutional Gun Restrictions

Promoting impunity for violating rights as a policy tool? What could go wrong?

Some ideas are so terrible that combining them into a cocktail of awfulness makes rotten sense. So it is with gun control and qualified immunity: Why not mix impunity for violating basic rights with denial of a specific right so as to maximize the harm? At least, that's the inspiration that struck two law professors who propose qualified immunity for enforcing even overtly unconstitutional gun control measures. While the duo sees the idea as much as a means of weakening officials' protections from liability as for promoting restrictions on private arms, it's a dangerous innovation that could entrench authoritarianism.

Constitutional Protections Are So Frustrating

"Gun regulation seems to have hit a legal brick wall," complain Guha Krishnamurthi, associate professor at the University of Maryland Francis King Carey School of Law, and Peter Salib, assistant professor at the University of Houston Law Center in Notre Dame Law Review Reflection. "In New York State Rifle & Pistol Association Inc. v. Bruen, the Supreme Court threw out what had been the standard approach for applying the Second Amendment to gun laws."

Krishnamurthi and Salib argue that Bruen impedes "regulatory innovation" and leaves lawmakers "shackled to the regulations of the distant past." That's an interesting way of regretting that government is bound to respect constitutional protections for individual rights. But the two legal thinkers have a fresh regulatory innovation to propose for bypassing such protections—or, at least, a fresh way of applying a controversial legal doctrine to achieve their desired ends.

Feature? Bug? What's the Difference?

"Qualified immunity is a doctrine that protects government officials from liability for allegedly violating an individual's constitutional rights, when the officials' actions do not clearly violate the law," they note. "The theory is that state officials should not be monetarily liable unless a 'reasonable person would have known' that their conduct was unconstitutional."

Some people might argue that qualified immunity is a bad thing. "Something has gone seriously wrong in our criminal justice system when the federal courts are running this kind of interference on behalf of blatantly unconstitutional police actions," Reason's Damon Root wrote in 2020 on his way to calling for the doctrine to be abolished. But Krishnamurthi and Salib see opportunity.

"Even if Bruen is eventually read to reject most or all new laws specifically aimed at regulating guns, states may retain significant power to decide who is and is not armed," they insist. "That power will be effectuated via state law enforcement officers, pursuant to state law or traditional police powers, and enacted via case-by-case disarmaments. Under current qualified immunity doctrine, such disarmaments would enjoy broad protection against monetary liability."

Basically, they propose that police seize guns from whomever their Spidey senses tell them ought not be allowed to own firearms. Those on the receiving end of gun grabs could pursue expensive litigation that might win them back their property but is otherwise unlikely to result in consequences for misbehaving officers, even when the courts conclude that the Second Amendment has been violated.

Even if They Lose, They Win!

To give the authors their due, they're not huge fans of qualified immunity as such. Instead, they see a clever—well, they think so—opportunity to squeeze conservatives between a rock and a hard place.

"Gun rights advocates, who lean conservative, would doubtless decry this state of affairs as lawless. Liberals and civil libertarians have long said the same about qualified immunity, albeit as applied to violations of other rights," they write. "The possibility of qualified immunity as a gun control law thus poses a dilemma for the conservative voting public: Support qualified immunity and police, at the expense of gun rights, or vice-versa?"

In their eagerness to stick it to their ideological foes, Krishnamurthi and Salib briefly acknowledge and then gloss over the existence of libertarians, who overwhelmingly oppose qualified immunity and support self-defense rights, and even of conservative critics of qualified immunity such as Supreme Court Justice Clarence Thomas. The bright idea here is to weaponize qualified immunity so as to make conservatives' heads explode.

"Going forward, the doctrine will either provide cover for left-leaning states to disarm potentially dangerous citizens, even in tension with Second Amendment principles. Or it will be weakened, reinvigorating civil liability as a mechanism for policing the police."

Ha! Gotcha!

Or Maybe We All Lose

But if Krishnamurthi and Salib see deliberately creating tension between gun rights and qualified immunity as a means for building conservative support for stripping government officials of protections against liability for their misdeeds, their tactic is at least as likely to invigorate a liberal constituency for qualified immunity. Actually, if you assume (as I do) that people who pursue government office are more strongly wedded to wielding state power than to shielding people from it, that's a likelier outcome as left-leaning officials who might nominally oppose qualified immunity for reasons of tribal affiliation instead learn to love it as a means of pushing preferred policies past constitutional barriers.

Using qualified immunity to achieve gun control might nudge conservatives to question the doctrine. But it's easier to envision it becoming a popular means of working around not just the Second Amendment, but all sorts of constitutional protections. Clever idea, indeed.

Does the proposal in this law review article pose real danger? We live at a time when supposedly serious publications run piece claiming that "free speech is killing us," when the ACLU questions its own civil liberties mission, and when we're told that "freedom" is a fetish word for extremists.

"There is a long history of ugly freedoms in this country," George Washington University's Elisabeth Anker huffed last year. "From the start of the American experiment the language of freedom applied only to a privileged few."

Courts May Not Consider the Scheme So Clever

Encouraging politicians already embracing authoritarianism to attack protected rights is dangerous and deeply irresponsible. But there is hope since Krishnamurthi's and Salib's clever gambit was anticipated.

"The Supreme Court has never said that qualified immunity protects state actors who intentionally seek to violate a recognized constitutional right simply because the legal artifice they employ has not been the subject of a prior court decision," Robert Leider, assistant professor at George Mason University's Antonin Scalia Law School, pointed out earlier this year when officials proposed anti-gun policies they knew wouldn't stand scrutiny with the idea of daring people to risk arrest and litigation. "Denying qualified immunity in these cases could mitigate much of the resistance to Bruen. Law enforcement agencies are often regulated by their insurance providers, and insurance providers may deny coverage to jurisdictions engaged in willful court-defiant behavior."

Insurance companies seem unlikely saviors from government functionaries running roughshod over constitutional rights. But maybe that's what it takes to thwart law professors hoping to bypass legal protections for liberty.