Imagine you’re up late one night. It’s after midnight, and maybe you’re finishing a movie. Or perhaps you’re reading a book, and it’s too good to put down. Or maybe you’re like a young man named Andrew Scott: You’re playing video games with your girlfriend.
You hear a loud pounding on your front door. You’re not expecting anyone, and no one is shouting or yelling anything from the other side. Instead, the pounding continues, and the door rattles on its hinges. If this happened to me, living in a rural part of Tennessee, I’ll tell you exactly what I’d do — I’d answer the door warily, with a gun at my side.
After all, my home is my castle. It’s where my wife and kids are, and it’s hard to imagine a situation where there’s loud pounding, that late, that doesn’t involve a degree of urgency. I have a constitutional and a human right, guaranteed under the Second Amendment, to defend my family, my life, and my home.
Unless, of course, the people pounding on the door are cops who 1) had no search warrant, 2) didn’t turn on their emergency lights, 3) didn’t identify themselves as police, 4) misunderstood a neighbor’s directions, and 5) showed up at the wrong house, the house of a completely innocent man. Then, my right to defend myself turns into a right to die in two seconds flat, without firing a shot or even clambering a round.
That’s the effective holding of a panel of the Eleventh Circuit Court of Appeals, a holding that the entire Circuit declined to review en banc just last week. The officer who shot Andrew Scott, a man by the name of Richard Sylvester, never faced prosecution for killing an undeniably innocent man. That decision is wrenching but defensible. There was conflicting testimony as to whether Scott was pointing the gun at the officers, and the officers did (mistakenly) believe they were at the home of a man who they thought had just committed a violent crime.
But the Eleventh Circuit wasn’t deciding a criminal case and threw out a mere civil lawsuit (a claim brought by Scott’s estate for monetary damages for violations of Scott’s civil rights). The court held that the officer was entitled to “qualified immunity” when he fired the fatal shots. Why? Because when he showed up at the wrong door, misunderstood a neighbor’s directions, refused to identify himself as a cop, and then gunned down a man who was entirely lawfully carrying a gun in an entirely lawful circumstance, the officer did not, the court claimed, violate any of Scott’s “clearly established” legal rights.
The qualified-immunity doctrine holds that public employees can’t be held individually liable for violating citizens’ constitutional rights unless those rights have been “clearly established.” It’s a controversial doctrine and typically requires plaintiffs — even plaintiffs who’ve suffered egregious and unjustified harm at the hands of the state — to conduct furious searches for other cases with fact patterns just like theirs, hoping that the right court in the right jurisdiction had already ruled against the state under just the right circumstances.
In this circumstance, the judges writing for the majority of the court chastised the dissenting judges’ alleged failure to “identify any cases with facts similar to the undisputed facts here” and then noted that “clearly established law” shouldn’t be defined at a “high level of generality” but must be “particularized.” In other words, since Scott’s attorneys couldn’t find another court that had ruled against the police in a similar set of disastrous circumstances, they were out of luck.
But how’s this for a clearly established right? “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Much of the case turned on analysis of the Fourth Amendment, which lays out the right of the people to be secure against “unreasonable search and seizure.” The panel specifically considered whether the police officer at Scott’s door had engaged in a permissible “knock and talk” procedure. The dissent noted: “There was no talk here. This was a knock and shoot.” But in reality, the case represents an unacceptable collateral attack on the Second Amendment. To understand why, consider the testimony in the case.
Deputy Sylvester testified that Scott “flung open” the door and pointed his gun directly at his face. The plaintiffs presented evidence that when Scott opened the door and saw a man outside crouching with a gun, he immediately retreated, and his gun was at all times pointed down at his side. This next part is critical for understanding the danger of the court’s reasoning: Through the quirks of civil procedure, the court was required to evaluate the case as if the plaintiffs’ account was true.
Pay close attention, citizens of the Eleventh Circuit (that’s Alabama, Georgia, and Florida). If you exercise your constitutional right to keep and bear arms in your own home, agents of the state who show up at the wrong house and don’t announce themselves can kill you with legal impunity, even if you are retreating — and even if you point your gun at the ground.
As Slate’s Mark Joseph Stern notes in an excellent piece about the ruling, this is now the second federal court of appeals (the other being the Fourth Circuit, in an opinion I wrote about in January) that has essentially held that exercising your Second Amendment rights means diminishing your Fourth Amendment rights. In fact, that Fourth Circuit opinion was so broadly written that exercising your Second Amendment rights means that gun-owning citizens, in the words of a concurring judge, can even “face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment.”
Stern urges the Supreme Court to “step in” and affirmatively declare that the exercise of one constitutional right cannot diminish the protection of another. He’s right. And he’s also right that this is “an area where liberals and conservatives should be in agreement.”
Again, this is not a case in which an officer faces jail time for a fatal mistake in what he thought were dangerous circumstances. Instead, it’s a case in which judges held that an officer was immune from even possibly paying compensation to the family of the man he wrongly killed. The judges of the federal court of appeals slammed the courthouse door in the face of aggrieved citizens without even granting them the right to stand in front of a jury and make their case.
Yes, there was conflicting evidence. Yes, the situation was confused and tense. No, we should not use this incident to indict all cops. But in the United States of America, when an agent of the state makes mistake after mistake and kills an innocent man who is “guilty” only of exercising his most basic and fundamental constitutional and human right of self-defense, at the very least he should have to face the possibility of paying for his mistake.
And, at the very least, I should retain the right to open my door in tense situations under my terms. The Eleventh Circuit says I don’t. The Supreme Court should now say that I do.
— David French is a staff writer for National Review, a senior fellow at the National Review Institute, and an attorney.