ATTACHING A PRICE TO “MASSIVE RESISTANCE:” Should State Officials Receive Qualified Immunity for Creatively Resisting Bruen?

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.

I would abolish qualified immunity entirely. But in this case there’s certainly no “good faith” argument to be made.