2d Amendment claim fails under qualified immunity

Qualified immunity is a daily problem for plaintiffs' lawyers. It means the case gets dismissed even if the case technically has merit. A government official is immune from suit if the state of the case law was unclear at the time of the offense. That kills off a case involving Second Amendment rights.

The case is Burgess v. Town of Wallingford, a summary order decided on June 12. Second Amendment jurisprudence was dormant for decades before the NRA and other interest groups argued that it confers an individual right to own and carry a gun (for decades, courts assumed the Second Amendment only governed collective militias). In 2008, a 5-4 Supreme Court majority accepted this theory, ruling that the right to bear arms is a civil right and not a collective right.

Plaintiff was arrested for disorderly conduct. He was carrying his firearm openly, outside the home. It may be, under current Second Amendment law, that the arrest was wrong and the local criminal criminal court had no choice but to dismiss the charges. But that does not mean plaintiff can sue the police officers for the arrest. Again, qualified immunity. When this all happened, the scope of plaintiff's rights under the Second Amendment were not clear. Here is how the Court of Appeals (Parker, Livingston and Droney) sums it up:

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment conferred an individual right to keep and bear arms for self-defense sufficient to invalidate a law that prohibited keeping firearms in one’s home. But as the Court also said, the right protected by the Second Amendment “is not unlimited.” Even at present, we are unsure of the scope of that right. See Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (“[W]e do not know . . . the scope of [the Second Amendment] right beyond the home and the standards for determining when and how the right can be regulated by a government. This vast ‘terra incognita’ has troubled courts since Heller was decided.”). Thus, the protection that Burgess claims he deserves under the Second Amendment – the right to carry a firearm openly outside the home – is not clearly established law. And as of Burgess’s arrest on May 16, 2010, this right was even less concrete, as the Supreme Court had not yet held that the Second Amendment right in Heller applies to state governments; it did so shortly thereafter in McDonald v. City of Chicago, 561 U.S. 742 (2010). Given this legal ambiguity, Defendants-Appellants were entitled to qualified immunity.

This does not mean that Second Amendment violations will forever be immune from damages. Once the law becomes clearly-established (and maybe it is by now), then police officers can be sued for violating that right if the plaintiff proves a high-noon example of that rights violation. For plaintiff in this case, though, he cannot maintain this lawsuit.