The US Supreme Court has upheld qualified immunity time and again.

Qualified immunity refers to a series of legal precedents that protect government officials — including police officers — accused of violating constitutional rights.

To win a civil suit against a police officer, complainants must show that the officer violated “clearly established law,” most often by pointing to factually similar previous cases. Otherwise, officers are protected from liability.

Police advocates say that qualified immunity is necessary so that police officers can do their often-dangerous jobs without fear of frivolous lawsuits.

But those in favor of criminal justice reform say the doctrine has essentially created a Catch-22. Officers are shielded from liability even when it appears they violated civil rights because there is no “previously established law” to challenge them because similar cases have not been pursued because officers are shielded from such cases.

Qualified immunity is a judicial construct. It can be overridden by the legislature. All a state legislature would have to do is pass a law saying that it doesn’t exist — you can sue a police officer if your rights are violated.

In the last legislative session, Montana passed HB 361, which has become law as MCA 49-1-210. Here’s the juicy part:

A person whose right to bear arms has been burdened by the state, or is likely to be burdened by the state, in violation of subsection (1) may assert the violation or impending violation as a claim or defense against the state in a judicial proceeding. The person asserting the claim or defense may obtain appropriate relief, including but not limited to injunctive relief, declaratory relief, and compensatory damages.

The word “state” in the MCA includes subdivisions thereof (MCA 49-1-209).

Let’s consider these scenarios: You have a concealed weapons permit and you are lawfully carrying in a parking deck in a city in Montana. The county “no guns sign” is posted, such as the one in this photo:

A cop who doesn’t understand what that sign means and doesn’t realize that you are acting in a perfectly legal fashion arrests you and takes you into custody. You end up spending the night in jail and your case is dismissed at your hearing the next day. You sue the cop individually and the department, for burdening your right to keep and bear arms under the Montana Constitution as well as for infringing the Second Amendment of the US Constitution, and you seek damages. Are the cop and the department protected by qualified immunity? What if you are arrested under a local ordinance that is preempted by the state? Do they get the qualified immunity defense?

I would argue Nope in both scenarios (with the usual caveat that I am not a lawyer, and you should consult with one if you want legal advice). The Montana Legislature has made them liable pursuant to MCA 49-1-210. Admittedly, the text didn’t specifically call out that qualified immunity was removed as a defense, but the law clearly states that you may obtain appropriate relief, including damages. It would not be possible to obtain damages if qualified immunity was available as a defense. Therefore, for violations of the right to keep and bear arms, qualified immunity appears to have been eliminated in Montana. Furthermore, in addition to the relief the law provides, you also get your attorney’s fees per MCA 49-1-210(3).

I haven’t read the legislative history of HB 361, but it would be interesting to read it and see if the issue of qualified immunity was ever specifically addressed during any of the hearings prior to passage of the bill.

Obligatory notice: I am not a lawyer, do not play one on TV, and am just publishing my musings on the law as a lay person. If you are reading this and you are a lawyer, I welcome your thoughts on this topic.