The Conflict Between Qualified Immunity And The Second Amendment

When police use lethal force against law-abiding gun owners, the court system often sides with law enforcement over those exercising their 2nd Amendment rights. On today’s Bearing Arms’ Cam & Co, we take a closer look at a new Reuters report that explores the troubling issue by focusing on the case of Andrew Scott, who was killed by police in 2012 in his own apartment.
Police had been pursuing an assault suspect who was believed to be armed, and they spotted his motorcycle parked in front of the apartment that Scott shared with his girlfriend, Miranda Mauck. It was 1:30 in the morning when police began banging on the front door, and Andrew Scott had no idea who might be outside. He grabbed his 9mm before he cracked open the door, which had no peephole, and moments later one the deputies on the other side opened fire, striking Scott three times and fatally injuring the 26-year old.
Deputy Richard Sylvester was never charged criminally, and a civil lawsuit filed by Mauck and Scott’s family was dismissed by a judge who callously blamed Andrew Scott for his own death.

Judge Anne Conway let Sylvester off the hook, too. Her main reason: Scott’s gun.

“Andrew Scott made a fateful decision that night: he chose to answer his door with a gun in his hand. That changed everything. That is the one thing that — more than anything else — led to this tragedy,” Conway wrote in her Sept. 18, 2014, decision to toss out the lawsuit.

Conway’s ruling lays bare a sometimes tragic conflict inherent in the U.S. legal system. This conflict, fostered by the Supreme Court in recent years, pits Americans’ cherished gun rights against formidable legal protections for police accused of excessive force in the country with the most heavily armed citizenry in the world. When that conflict plays out in court, as it did in the Scott case, cops often win.

The Second Amendment to the U.S. Constitution guaranteed Scott’s right to have a gun. Under a landmark 2008 Supreme Court ruling, District of Columbia v. Heller, he had an explicit right to keep and use a gun for self-defense at home.

None of that mattered, in the end. It was trumped by Sylvester’s claim that he was protected by qualified immunity, a controversial legal doctrine the Supreme Court created 50 years ago to shield police and other government officials from civil liability for actions undertaken on the job.

In her decision, Conway determined that Sylvester was legally justified to use deadly force because Scott was holding a gun, and that the officer was thus entitled to immunity. Conway’s decision was later upheld by the 11th Circuit Court of Appeals. The courts’ rulings meant, in effect, that Scott gave up his Fourth Amendment rights when he exercised his Second Amendment rights.

Reuters looked at several hundred cases involving use of force by police, and found that when there was a gun involved, courts granted immunity to officers 55% of the time, compared to 45% of cases that did not involve a gun. Of course, as even Reuters acknowledges, not all of these cases involve innocent law-abiding citizens exercising their Second Amendment rights, but they lay out several instances that bear similarities to the death of Andrew Scott.

Cases like these are why some gun rights advocates want qualified immunity to be reined in. “These cases are rare, but they shouldn’t happen at all. When they do happen, law enforcement should be held liable,” said Alan Gottlieb, founder of the Second Amendment Foundation, a Bellevue, Washington-based group that filed a brief in support of Mauck and the Scott family’s failed attempt to appeal their case to the Supreme Court. Gottlieb said police officers should not be able to cite the mere presence of a gun as a threat that justifies the use of deadly force.

Another gun rights group, the Firearms Policy Coalition, based in Sacramento, California, also favors reform of qualified immunity, Director of Legal Strategy Adam Kraut told Reuters. The National Rifle Association, the most influential U.S. gun rights group, did not respond to requests for comment on the issue.

Even gun control groups like Everytown for Gun Safety are on board with limiting qualified immunity, though for very different reasons than gun rights organizations like the Second Amendment Foundation and Firearms Policy Coalition.
Everytown for Gun Safety, a group financed by former New York City Mayor Michael Bloomberg that pushes for stricter gun controls, says that making it easier to hold cops accountable for excessive force could help reduce gun violence. If cops knew they might be held financially liable for their actions, the thinking goes, they might be less inclined to escalate in encounters with armed civilians.
Of course Everytown also wants to make it less likely that cops encounter armed citizens by going after legal gun ownership itself, reducing the number of legal gun owners under the premise of “less guns, less crime.”
A far saner (not to mention constitutional) approach would be to recognize that there are more than 100-million American gun owners and to adjust law enforcement tactics accordingly. Police didn’t announce themselves when they banged on Andrew Scott’s door, for instance, and there are still questions about whether or not Louisville police announced themselves before they broke down the door of Breonna Taylor’s apartment and were met with a single gunshot fired by Taylor’s boyfriend, who believed they were being targeted by home invaders.
In a saner world, this would be one of those issues where Left and Right could collaborate on reforms that would benefit both law enforcement and the general population, but I’m not optimistic that it will happen anytime soon. Still, the issue is real; we don’t give up your Fourth Amendment rights simply by exercising our Second Amendment rights, yet that’s the legal rationale used by far too many courts at the moment.

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