A lot of folks have been asking “Why can’t Fenty be sued over his refusal to honor Heller.” Others suggest he should be in jail. I certainly agree with folks that Fenty and DC City Council have not been acting in good faith in regards to changing their laws, and I look forward to the smack down being put on them, either by Congress, or by further court action.
First, a bit about the actions available to go after public officials who violate civil rights. For criminal statutes, you have:
- Title 18, U.S.C., Section 241 – Conspiracy Against Rights
- Title 18, U.S.C., Section 242 – Deprivation of Rights Under Color of Law
For civil action you have Title 42, U.S.C., Section 1983 -Civil action for deprivation of rights. The criminal provisions and the civil remedy both require that the defendant be violating clearly established precedent. The criminal provision would require willing cooperation from the US Attorney General, which is not likely to be forthcoming. That pretty much leaves the civil action. In the civil action, there are two ways you can sue an official. You can sue them in their official capacity, where your only remedy is to enjoin them from further violation of rights, or you can sue them in their personal capacity, if you want to seek damages. The problem is, all government officials enjoy qualified immunity from suit if they are sued in their personal capacity.
Qualified immunity fails to apply if a reasonable person would have known that his or her actions violated clearly established precedent. Fenty would fail the reasonableness test, but is he violating clearly established precedent? DC’s ridiculous “machine gun” law was not challenged in Heller, which Fenty is currently using as justification for banning semi-automatic firearms. There is currently no judicial precedent that suggests machine guns have to be defined a certain way.  It certainly violates the spirit of the Heller ruling, but whether it violates the letter of it is a bit more murky. The Court also ruled that “the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.” But DC did change their law to make a self-defense exception. It’s a ridiculous exception, but The Court was not entirely clear on what kind of provision was unacceptable, and what kind might be acceptable. It just said that DC’s law as it stands violates the second amendment. Again, Fenty and DC are violating the spirit of Heller, but whether they are violating clearly established precedent for the purposes of stripping qualified immunity is another matter. Courts tend to be reluctant to strip public officials of qualified immunity.
It would certainly feel good to get back at Fenty, but right now, the best way to resolve this issue is through Congressional action to set DC’s gun laws, and then preempt City Council from passing further gun laws. The next best action, next best becuase it will take longer than Congressional action, is the path already being taken by Steven Halbrook and Richard Gardiner on behalf of Mr. Heller. Once we get some more precedent under our belts, that more clearly defines the scope and bounds of the Second Amendment, it will be easier to sue public officials in their personal capacities under Section 1983, but for now, it would be a costly move that wouldn’t accomplish much other than making people feel better. The best course of action forward, and the one most likely to succeed, is the one currently being undertaken.
