High Court sidesteps controversies over gun control, ‘sanctuary cities,’ police immunity

WASHINGTON — After studying the issues for weeks and months, the Supreme Court on Monday sidestepped a slate of controversial issues, including gun control and the debate over “sanctuary cities” for immigrants.

The court passed on a group of gun cases that included restrictions on permits to carry firearms in public places and bans on certain types of weapons — something of a surprise because conservative justices at various times have said such a review is necessary.

The justices also declined to take up a form of immunity that has shielded police officers from lawsuits alleging excessive force and other civil rights violations. A wide range of academics and civil rights groups on the left and right had called for the court’s intervention, and its most liberal and conservative justices — Sonia Sotomayor and Clarence Thomas, respectively — had expressed interest. The issue of qualified immunity found renewed attention after nationwide protests over the death of George Floyd last month in police custody.

As usual, the court did not give reasons Monday for denying the cases, so it is only speculation whether it was the issue or the specific cases that the court was rejecting. The justices’ avoidance of such fraught topics, at least for now, allows the court to stay out of the political fray when its next term begins in the heat of the presidential election.

Among the batch of Second Amendment cases the court did not accept were challenges to regulations in Maryland and New Jersey for carrying handguns outside the home. The court earlier this term had dismissed a challenge from New York about transporting guns. Three justices objected, with the newest, Justice Brett Kavanaugh, adding that it seemed likely lower courts have been too quick to uphold state and local gun-control measures.

Although he agreed that the New York case was moot, Kavanaugh added that he shared the “concern that some federal and state courts may not be properly applying” the Supreme Court’s decision recognizing an individual’s right to gun ownership.

Kavanaugh and Thomas objected again Monday.

In dissent, Thomas wrote that the New Jersey case presented the ideal opportunity to clarify which regulations are consistent with the individual right the court declared in its 2008 landmark decision in District of Columbia v. Heller. He criticized his colleagues for prolonging “our decade-long failure to protect the Second Amendment” and characterized the New Jersey measure as a near-total prohibition on carrying guns.

“This court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free-speech rights. And it seems highly unlikely that the court would allow a state to enforce a law requiring a woman to provide a justifiable need before seeking an abortion,” Thomas wrote.

“But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the court simply looks the other way.”

The reluctance to re-enter the gun-control debate was almost entirely due to retired justice Anthony Kennedy. He was part of the court’s 5-to-4 majority in the 2008 decision, which declared a right to gun ownership for personal protection and apart from military service. But Kennedy had also insisted on language that presumed states and localities still had leeway to pass gun restrictions.

Lower courts have pointed to that to uphold many restrictions, and overturn very few.

Kavanaugh’s replacement of Kennedy, his former boss, was thought to change the dynamic on the court. Kavanaugh was skeptical of gun restrictions while a judge on the appeals court, and the National Rifle Association was an enthusiastic backer during his nomination by President Donald Trump. It takes the votes of four justices to review a case.

Thomas also dissented Monday from the court’s refusal to hear eight cases presenting reconsideration of the doctrine of qualified immunity that establishes protection from civil suits for government officials, particularly police officers. Thomas called on his colleagues to revisit the doctrine and expressed “strong doubts” about the court’s past approach.

The doctrine, created by the Supreme Court decades ago, allows civil suits only when it can be shown that an official’s actions violated a “clearly established” statutory or constitutional right. When determining whether the right was clearly established, courts consider whether a reasonable official would have known that the actions were a violation.

In practice, the “clearly established” test often means that for lawsuits to proceed, civil rights plaintiffs must identify a nearly identical violation that has been recognized by the Supreme Court or appellate courts in the same jurisdiction.

Floyd’s death in Minneapolis on May 25 amplified calls for the court — and Congress — to act. Changing qualified immunity is part of the House Democrats’ policing legislation, and some senators have called for action. Trump has opposes those efforts.

“The Supreme Court’s deeply disappointing decision today to punt on the critical issue of official immunity, in this time of national reckoning over police violence, places the ball squarely in Congress’s court,” David Cole, national legal director for the American Civil Liberties Union, said in a statement Monday.

The court also let stand California’s sanctuary law that forbids local law enforcement in most cases from cooperating with aggressive federal action to identify and deport undocumented immigrants.

The law passed after Trump took office and was challenged by his administration. The most significant measure limits police from sharing information unless the immigrants have been convicted of violent or serious crimes.