Unhappy with the Supreme Court’s decision in New York Rifle & Pistol Association v. Bruen, New York and New Jersey have passed laws designed to nullify Bruen’s practical effect. California and Maryland look set to join them. Before Bruen, these states denied most residents the ability to publicly carry handguns by making licenses to carry pistols difficult to obtain. With Bruen taking that option off the table, these states are replicating their general bans by prohibiting private citizens from carrying firearms in long lists of “sensitive places” and on most private property. A state senator in Maryland is trying to go even further; his bill (SB1) would prohibit the carrying of firearms not only on most private property, but also within 100 feet of any place of public accommodation. Their thought—and it’s a sound one—is that if they make it illegal for private citizens to carry firearms in most places (and back those bans with devastating penalties), few people will venture out in public armed.
Although the Supreme Court recognized a general right to bear arms in Bruen, the precise scope of that right remains unknown. Despite this uncertainty, mistake of law is not a defense for private citizens (unless the specific crime includes a mistake of law defense). If a private citizen violates state law and his conduct is not protected by the Second Amendment, he will face criminal conviction, no matter how reasonable his belief that the Second Amendment protected his conduct. Moreover, the states imposing these new rules are in federal judicial circuits that have been traditionally hostile to gun rights. So not only does a gun owner have to guess correctly that his conduct is protected by the Second Amendment, he also has to wager, in the face of a near-certain loss in the circuit court, that the Supreme Court would be willing to review his case. These are serious risks to take, with felony penalties (and life-altering collateral consequences) backing these laws.
In imposing these bans, these states 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.”
The post-Bruen laws may test the scope of the second exception. In substance, these states are defying Bruen by reimposing de facto general bans on publicly carrying handguns. Had these states simply ignored the Supreme Court opinion and continued to enforce their old laws, there would be no question that their officers would be civilly liable under § 1983 and would face potential criminal liability under 18 U.S.C. § 242.
But of course, these states are not directly defying the Supreme Court by continuing to enforce their old laws. Instead, they are engaged in loopholing. “Loopholing” occurs when “a potential offender can readily identify and exploit gaps between what the law should cover and what it actually does.” Here, states are trying to find some loophole—broad definitions of “sensitive places” and bans on carrying firearms on most private property—that will allow them, de facto, to reinstate their general bans on public carry.
In the firearms law space, law enforcement agencies frequently engage in loopholing behavior. The most common form is that sheriffs and police chiefs avoid their duty to issue licenses to carry firearms by refusing to process application forms. In the seven months since Bruen was decided, for example, San Francisco has not issued a single concealed weapons permit. Several Pennsylvania sheriffs refuse to process non-resident gun permits despite a clear legal duty to do so. (See Montgomery County and Lancaster County, for example.) Yet, courts have long held that law enforcement officers cannot evade their duties to issue permits by refusing to process applications or by blanketly denying all applications. (See, e.g., here and here.)
For the Supreme Court, the question will be whether the exception for “those who knowingly violate the law” includes unsuccessful loopholers. In recent years, the Court has strengthened qualified immunity by requiring that police be on notice that their conduct violates the Constitution through the existence of prior cases that have the same or very similar facts. Although the Supreme Court denies this, in practice qualified immunity usually gives police one free bite to violate the Constitution. Yet, I think there are strong reasons that the courts should deny qualified immunity to unsuccessful loopholers on their first bite.
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.
To apply qualified immunity in these cases would be to pervert the doctrine. In criminal law, Dan Kahan has argued that mistake of law should be a defense, but one that protects the virtuous, not the wicked. Qualified immunity should be the same. Qualified immunity was never meant to facilitate state actors’ deliberate efforts to undermine constitutional rights.
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. Faced with no insurance coverage for deliberately violating constitutional rights, law enforcement agencies will be loathe to enforce patently unconstitutional laws or to engage in stonewalling tactics of their own (e.g., refusing to process gun permit applications). This is the correct incentive structure to stop flagrantly unconstitutional behavior. And if the Court does not do this, it will probably find itself micromanaging implementation of Bruen injunction by injunction, much as it had to overcome resistance to desegregation.
Finally, curbing qualified immunity for patently unconstitutional action does not require the Supreme Court to cut it back in all Second Amendment cases involving the right to carry arms. Many of these new laws also prohibit possessing firearms in true sensitive places for which there is no reasonable question about the state’s authority (e.g., courthouses and legislative buildings). Police officers will face no liability when they enforce these provisions. These new laws also list sensitive places about which there are legitimate and unresolved constitutional questions about whether states may ban guns in these locations (e.g., libraries and public transportation). Where there are legitimate questions about whether the state has reasonably regulated the right to bear arms, I have no doubt that qualified immunity will protect government officials as they navigate this new constitutional terrain. But the courts should recognize that qualified immunity will not protect state officers who enforce laws that are transparent attempts to prohibit all public carrying of arms in defiance of Bruen.
In former may-issue states, gun owners will face substantial legal risks when exercising their rights. But the legal risk may not only be on private citizens. Despite strengthening qualified immunity in recent years, the Supreme Court has not shielded government agents who willfully seek to violate the Constitution. New York, New Jersey, Maryland, and California may find that, in bringing down the heavy hand of the state against individuals who exercise their Second Amendment rights, their own police officers will get hit by the blow.