Nahmod Law

When one thinks of guns and section 1983, the Second Amendment immediately comes to mind. Indeed, I previously blogged about this developing connection. See The Second Amendment and Gun Control: Unanswered Questions and Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago.

However, in the course of preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.), I came across an interesting Third Circuit case involving potential liability under section 1983 and the Child Safety Lock Act of 2005 (PDF, see § 5).

Estate of Arrington v. Michael, 738 F.3d 599 (3^rd Cir. 2013)

In this case, the estate of a young woman, shot eight times and killed by the defendant police officer’s son who had used his father’s service-issued Smith & Wesson handgun, sued the police officer under section 1983 alleging a substantive due process violation. The decedent had obtained a temporary protection from abuse order against the officer’s son, which the officer knew about and discussed with his son.

Without reaching the merits, the Third Circuit reversed the district court and dismissed the complaint. It ruled that the officer was protected from all civil liability resulting from the use of a gun, including section 1983 liability, by the Child Safety Lock Act of 2005 (CSLA), 18 U.S.C. § 922(z)(3). Under its terms, the unlawful use of a gun by a third person does not result in civil liability for the owner where “access was gained by the person not so authorized [to have access to it and] the handgun had been made inoperable by use of a secure gun storage or safety device….”

Here, the officer took reasonable precautions to ensure that nobody, including his son, would have access to his gun within the meaning of the CSLA. Indeed, the son had great difficulty in eventually accessing the gun. Among other things, the officer had locked the gun with a police department issued gun lock, had hidden the key and had kept the magazine and ammunition separate from the gun, which was itself hidden. Thus, he was fully protected from liability.

Comments

Had the substantive due process merits been reached, the officer likely would still have prevailed on any one of several grounds.

1. The officer’s conduct may not have constituted state action. He was not required as a police officer to take his weapon home; it was only “preferred.”

2. Even if there was state action, the officer may not have been deliberately indifferent to the physical safety of the decedent, the state of mind required for substantive due process violations.

3. His conduct may not have been the proximate cause of the decedent’s death because of the intervening criminal act of his son and the officer’s own conduct which made it very difficult for his son even to access his gun.

4. There is the threshold question in this case of the very existence of an affirmative due process duty. Unless the officer somehow created the danger to the decedent, he may have had no duty to her.

In any event, the effect of the CSLA, according to this Third Circuit decision, is to amend section 1983 by providing a new statutory defense in such cases going beyond absolute and qualified immunity.