Looks like it’s being filed as a Title 42 U.S.C. Section 1983 lawsuit, which is a federal civil rights statute that allows officials to be sued for deprivation of civil rights under the color of law.Â The case is Guy Montag Doe vs. San Francisco Housing Authority (CV-08-3112).Â You can see a copy of the complaint here.Â One of the attorneys in this case is Don Kates, who is a pioneer of Second Amendment rights.Â It names several defendants, including Mayor Gavin Newsom, as defendants.Â They are being sued in their official capacity.
This case would seem to be a test as to whether the Second Amendment is actionable under Section 1983.Â I don’t see any reason why it wouldn’t be.Â No doubt the officials being sued are going to claim qualified immunity, using the theory that Heller is not clearly established law as applied to state and local government and officials.Â My understanding is that qualified immunity is often difficult to overcome in these kinds of suits, especially where there’s not well established case law.Â But I imagine the hope might be that The Courts might use existing case law and take notice that the second amendment is incorporated.
In the case of Duncan v. Louisiana, which incorporated the right to trial by jury, The Court laid out a guideline for whether a right would be considered applied to the states through the Fourteenth Amendment.Â They stated:
The question has been asked whether a right is among those “‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,'”Â whether it is “basic in our system of jurisprudence,” and whether it is “a fundamental right, essential to a fair trial.”
Given the broad ruling in Heller, it would be hard to see how the Second Amendment right to keep and bear arms doesn’t pass the conditions spelled out in Duncan.Â Nontheless, there is no clear ruling that says the second amendment is incorporated.Â It will be interesting to see if the courts here simply take notice of its incorporation based on existing case law, or whether this will go to the Supreme Court.Â Considering Justice Scalia’s disdain for selective incorporation, this might be just the kind of case The Court is looking for.Â It’s very good that we’ll have a wide variety of cases proceeding upwards on this important question.
UPDATE: I asked Dave Hardy about qualified immunity claims in suits like this, and he indicated that when the 1983 suits merely asks for an injunction, qualified immunity isn’t at issue.Â That only comes into play when the plaintiff is seeking damages.Â In this case, they seem to only be asking for an injunction.