The Volokh Conspiracy
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Should "Loopholing" Be Protected By Qualified Immunity?
an argument about post-Bruen gun legislation from Robert Leider.
Over at his generally gun-related blog, Standing His Ground, Professor Robert Leider has two interesting blog posts about state reactions to the Supreme Court's decision in Bruen: some states are enacting or considering policies to broadly restrict the carrying of firearms in many public situations, notwithstanding Second Amendment doctrine.
In one post, Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules, Leider argues that some of these regimes are unconstitutional because of crucial exceptions that render them pretextual:
. . . [T]hese laws do not switch the property default rule for gun carrying by politically favored groups (e.g., retired and off-duty police). This shows that they are not actually making a generally applicable default rule that a person may not bring a gun onto another person's property without express consent. Instead, these laws target gun carry by one group only: civilians without prior law enforcement experience. . . . When asked where a gun permit holder could carry his firearm under the new law, Gov. Kathy Hochul (D-NY) forthrightly answered "probably some streets."
Because these laws are clearly a pretext, they are not a valid regulation of the right to bear arms.
In a second post (Should State Officials Receive Qualified Immunity for Creatively Resisting Bruen?), Leider confronts the even more interesting (to me) question of remedy:
[S]tates are counting on an asymmetry of legal liability. While gun owners face felony convictions for violating state laws, these states are betting that their employees will face much more lenient consequences. Although 42 U.S.C. § 1983 purports to give a tort cause of action for depriving someone of his constitutional rights, the Supreme Court has narrowed its effective application through qualified immunity. Qualified immunity shields government officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law."
Leider argues that even if you accept the doctrine of qualified immunity, that it should not apply to deliberate "loopholing" behavior like this:
This loopholing behavior has none of the usual traits for which the Supreme Court permits qualified immunity. Most qualified immunity cases involve state actors engaged in legitimate policing, who make reasonable or negligent mistakes about the law. These mistakes, moreover, are often made by police in the heat of the moment, in difficult circumstances (e.g., while potentially under the threat of force). The Supreme Court has tried to shield officers from such liability for fear that it will chill them from vigorously performing their duties. In contrast, these states, through their combined regulations on sensitive places and private property, are intentionally trying to subvert Bruen's specific holding. These policies, moreover, are not split-second judgments made in the heat of the moment; states have pursued these laws after extensive deliberation. 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.
Of course, the doctrine of qualified immunity has been broadly criticized (by me among many others). But it is the doctrine. And if one looks at some of the best defenses of the doctrine, by folks like Scott Keller and Nathan Chapman, it is not at all clear that it extends to this kind of loopholing.
Anyway, for more, read both of Professor Leider's posts (1, 2).
