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MEMORANDUM
February 20, 2018

Subject:
Civil-Suit Provision in the House-passed Concealed Carry Reciprocity Act of 2017
(H.R. 38)
From:
Sarah Herman Peck, Legislative Attorney, shermanpeck@crs.loc.gov, 7-0796
This memorandum was prepared to enable distribution to more than one congressional office.


This memorandum evaluates legal issues potentially arising from the civil-suit provision in H.R. 38, the
Concealed Carry Reciprocity Act of 2017, which the House of Representatives passed on December 6,
2017.1 The bill’s broader purpose is to allow persons who are eligible to carry a concealed handgun in one
state to lawfully carry a handgun in other states that have a concealed-carry regime for their residents,
without regard to differences in the states’ eligibility requirements for concealed carry.2 The bill’s civil-
suit provision, broadly speaking, authorizes a private right of action against any person who interferes
with a concealed-carry right that the bill establishes. This memorandum evaluates what rights are created
by the bill, identifies who may be able to sue and be sued under the bill’s civil-suit provision, addresses
questions of sovereign immunity raised by the civil-suit provision, and examines potential liability under
H.R. 38 versus 42 U.S.C. § 1983.
H.R. 38 Civil-Suit Provision
The civil-suit provision in H.R. 38 provides that:
[a] person who is deprived of any right, privilege, or immunity secured by this section, under color
of any statute, ordinance, regulation, custom, or usage of any State or any political subdivision
thereof, may bring an action in any appropriate court against any other person, including a State or
political subdivision thereof, who causes the person to be subject to the deprivation, for damages
or other appropriate relief.3
Accordingly, the civil-suit provision potentially authorizes a person who is deprived of a concealed-carry
right secured by H.R. 38 to sue the responsible person or state or local government entity. Additionally,
H.R. 38 allows successful plaintiffs to recover money damages and attorney’s fees.4

1 The Concealed Carry Reciprocity Act of 2017, H.R. 38, 115th Cong., 1st Sess. (2017) (as passed by the House on Dec. 6, 2017)
[hereinafter H.R. 38].
2 H.R. 38 provides that its reciprocity requirements would not supersede state laws that (1) allow private persons or entities to
prohibit or restrict the possession of concealed firearms on their property, or (2) prohibit or restrict firearm possession on any
state or local government property, installation, building, base, or park. Id. § 101. H.R. 38 is otherwise silent on whether state
laws pertaining to firearm possession eligibility would be affected by the bill’s concealed-carry reciprocity provisions.
3 Id.
4 Id.

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Scope of Potential Legal Liability: Persons and Activities Protected by
H.R. 38
Language in the civil-suit provision of H.R. 38, as well as elsewhere in the bill, aims civil liability at the
conduct of state actors. The circumstances when states and their political subdivisions, including their law
enforcement officers, may be subject to civil liability under the bill depends on what rights H.R. 38
affords individuals carrying concealed firearms.
Persons Protected by H.R. 38
H.R. 38’s provisions generally afford certain rights to any person who either (1) has a valid concealed
carry license from any state or (2) may lawfully carry a concealed handgun without a license in his or her
state of residence.5 Further, such persons “may possess or carry a concealed handgun . . . that has been
shipped or transported in interstate or foreign commerce” in any state that permits its residents to carry
concealed firearms.6 Although statutes that use “may” to describe authorized conduct are often interpreted
as permissive, context is instructive as to whether a particular provision establishes a judicially
enforceable right to engage in conduct.7 For instance, a law is generally deemed to include “rights-
creating” language when the text is “phrased in terms of the persons benefitted.”8 Because H.R. 38 states
that its purpose is “to provide a means by which nonresidents of a State whose residents may carry
concealed firearms may also do so in the State,” it would appear that, by declaring that certain persons
may possess or carry concealed weapons in certain states, the bill gives those persons permission, or the
right, to carry concealed firearms in those states.9 Accordingly, preventing a person from exercising that
right, for example, by seizing a handgun from a person who was carrying it in compliance with H.R. 38,
may violate a right granted by the bill.
To reap protection under H.R. 38 while carrying a concealed handgun, a covered person must also carry a
valid, government-issued photo identification (ID).10 This ID requirement is the sole requisite for H.R.
38’s protections to extend to covered residents of permitless carry states (i.e., states that authorize
concealed carry without a state-issued permit). Otherwise, a person must also carry a valid concealed-
carry license issued by any state.11 Concealed-handgun carriers must also comply with any state laws that
(1) permit private persons or entities to restrict the carrying of concealed firearms on their property and
(2) prohibit or restrict firearm possession on certain state or local government properties.12
Additionally, the bill states that a person who carries a concealed handgun in compliance with the bill’s
directives “may not be arrested or otherwise detained” for violating a state law related to firearm

5 Id.
6 Id. (emphasis added). The bill also requires concealed carriers to bear certain documentation. Id. § 101.
7 See, e.g., Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193, 198 (2000) (“Although ‘may’ could be read as
permissive . . . the mere use of ‘may’ is not necessarily conclusive of congressional intent to provide for a permissive or
discretionary authority.”); Ballou v. Kemp, 92 F.2d 556, 559 (D.C. Cir. 1937) (“Whether the language of a statute is imperative
or merely permissive depends on the intention as disclosed in the nature of the act and in the context.”) (internal quotation marks
and citation omitted).
8 See Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (internal quotation marks and citation omitted).
9 See H.R. 38, § 101; Office of Congressman Richard Hudson, Rep. Richard Hudson’s (NC-08) Concealed Carry Reciprocity Act
of 2017, https://hudson.house.gov/uploads/Concealed%20Carry%20Reciprocity%20Act%20of%202017%201-pager.pdf (“This
legislation prioritizes the rights of law-abiding citizens to concealed carry and the ability to travel freely between states without
worrying about conflicting state codes.”).
10 H.R. 38, § 101.
11 Id.
12 Id.

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possession “unless there is probable cause to believe that the person is doing so in a manner” that fails to
comply with the bill’s concealed carry requirements.13 The bill thus appears to give a covered person a
right to be free from arrest or detention for carrying a concealed handgun in a state that authorizes
concealed carry for its residents, so long as law enforcement does not have probable cause to believe that
the person is carrying the handgun in a manner that contravenes H.R. 38’s standards.14 Further, the bill
states that “[p]resentation of facially valid documents” (government-issued photo ID and, as necessary, a
concealed-carry permit) to law enforcement “is prima facie evidence that the individual has a license or
permit” that H.R. 38 requires.15
Activities by State Law Enforcement Potentially Giving Rise to Liability
As mentioned above, in addition to protecting a person against certain firearms-related arrests, similar
safeguards in H.R. 38 prevent police from “otherwise detain[ing]” a person for violating state laws related
to possessing, carrying, and transporting handguns, absent probable cause that the detainee’s conduct is
unprotected by the bill.16 The text of H.R. 38 does not expressly define the scope of conduct covered by
the phrase “otherwise detain.” The ordinary meaning of “detain,” according to Merriam-Webster
Dictionary, is “to hold or keep in or as if in custody.”17 This definition seems to cover conduct that would
be considered a “seizure” in Fourth Amendment jurisprudence.18 Activities that qualify as a police seizure
for Fourth Amendment purposes include briefly stopping a person for questioning,19 a traffic stop,20
arresting someone,21 or confiscating property,22 among other things. Unlike an arrest or confiscation of
property, for which probable cause typically is required, a brief investigatory stop requires only
“reasonable suspicion” that the person has committed, or is about to commit, a crime.23

13 Id.
14 Judicial assessments concerning whether there is probable cause to support an arrest turn on the particular facts of the case,
although, generally, “[p]robable cause is a common-sense inquiry requiring only a probability of criminal activity . . . exist[ing]
whenever an officer or a court has enough information to warrant a prudent person to believe criminal conduct has occurred.”
See Leaver v. Shortess, 844 F.3d 665, 669 (7th Cir. 2016); see also Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)
(“Probable cause to arrest exists when the arresting officer has knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime.”) (internal quotation marks and citation omitted)).
15 H.R. 38, § 101.
16 Id.
17 Detain, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/detain?utm_campaign=sd&utm
_medium=serp&utm_source=jsonld.
18 A Fourth Amendment seizure may occur when an officer, “by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” See Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968); United States v. Stover, 808 F.3d 991, 995 (4th
Cir. 2015); Salmon v. Blesser, 802 F.3d 249, 252 (2d Cir. 2015). An encounter between a police officer and private citizen is
deemed to have risen to the level of a seizure when it would be reasonable for the person who has been stopped to believe that he
is not free to walk away and end the encounter. See United States v. Mendenhall, 446 U.S. 544, 554 (1980); United States v.
Foster, 824 F.3d 84, 88 (4th Cir. 2016); United States v. Lopez, 443 F.3d 1280, 1283 (10th Cir. 2006); see also United States v.
Berry, 670 F.2d 583, 591 (5th Cir. 1982) (describing types of police encounters).
19 United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (“The Fourth Amendment applies to all seizures of the person,
including seizures that involve only a brief detention short of traditional arrest.”); Terry v. Ohio, 392 U.S. 1, 16 (1968) (“It must
be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that
person.”).
20 See, e.g., United States v. Pacheco, 841 F.3d 384, 389-90 (6th Cir. 2016).
21 See, e.g., Fontana v. Haskin, 262 F.3d 871, 879 (9th Cir. 2001).
22 See, e.g., Soldal v. Cook Cty., Ill., 506 U.S. 56, 61 (1992) (noting that property is seized “when there is some meaningful
interference with an individual’s possessory interests in that property”) (internal quotation mark and citation omitted).
23 See United States v. Manzo-Jurado, 457 F.3d 928, 934 (9th Cir. 2006). “Reasonable suspicion” exists when the detaining
officer has “a particularized and objective basis” for suspecting that the person stopped has committed criminal activity.
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Accordingly, the bill’s reference to “otherwise detaining” a person, outside the context of an arrest,
arguably could be construed to cover an investigatory stop or brief hold that constitutes a Fourth
Amendment “seizure.” If so, the application of H.R. 38’s civil liability provision to a police interaction
with a person suspected of unlawfully carrying a firearm may depend upon the particular circumstances
of the encounter. At first blush H.R. 38 appears to require probable cause to “detain” an individual to
investigate whether certain firearm activity is unlawful—a standard that is higher than the reasonable
suspicion that is constitutionally necessary for law enforcement to conduct brief investigatory stops to
investigate potentially unlawful behavior. A rule of construction in the bill specifies, however, that H.R.
38 does not purport to prohibit “a law enforcement officer with reasonable suspicion of a violation of any
law from conducting a brief investigative stop in accordance with the Constitution of the United States.”24
This rule seems to address the kinds of police stops that the Supreme Court recognized in Terry v. Ohio
(sometimes referred to as “Terry stops”).25 Police activities generally associated with Terry stops include
questioning, identification checks, and protective searches for, and seizures of, weapons to ensure officer
safety—practices that are considered lawful under the Fourth Amendment.26 Accordingly, the rule of
construction perhaps nullifies the requirement for officers to have probable cause before initiating brief
investigatory stops prompted by reasonable suspicion that a person was unlawfully carrying a concealed
weapon. In that case, potential police liability under H.R. 38 likely would depend on the specific facts of
the case, particularly, the underlying reason for, and the nature, including the duration, of any police
“detention” to investigate certain unlawful firearm activity.27
For example, suppose that a police officer in New York—a state that does not issue concealed carry
permits to persons under the age of 2128—identifies an individual who appears to be under 21 and
carrying a concealed handgun. In this hypothetical, the concealed carrier is a 16-year-old from Vermont,
where persons over the age of 16 may carry a concealed handgun without a license.29 There appear to be a
number of ways in which the officer potentially could be exposed to civil liability while investigating
whether the 16-year-old Vermonter visiting New York is lawfully carrying a concealed handgun. First, if
the officer stops that Vermont resident for questioning to determine whether the person is lawfully
carrying a concealed handgun, the officer may become liable if the officer did not have reasonable
suspicion to believe that the suspect was carrying a handgun in a manner that does not comply with H.R.
38. Liability may also attach if the length of the detention extends beyond a brief investigatory stop and
the officer does not have probable cause to believe that the suspect is carrying a concealed handgun
unlawfully.30 Additionally, if the officer temporarily seizes the firearm while investigating whether the
person is a Vermont resident and thus lawfully carrying a concealed handgun as a 16-year-old, the seizure
potentially may cause liability if the seizure is deemed outside the scope of a Terry stop. Finally, the

(...continued)
See Navarette v. California, 134 S. Ct. 1683, 1688 (2014). The suspicion must be more than a “mere hunch,” but it is less than
probable cause. See id.; United States v. Whitfield, 634 F.3d 741, 744 (3d Cir. 2010).
24 The Concealed Carry Reciprocity Act of 2017, H.R. 38, § 102, 115th Cong. (2017) (emphasis added).
25 392 U.S. 1 (1968).
26 See Florida v. J.L., 529 U.S. 266, 273 (2000); United States v. Hensley, 469 U.S. 221, 232 (1985); Michigan v. Long, 463 U.S.
1032, 1049 (1983); Adams v. Williams, 407 U.S. 143, 156-46 (1972). Additionally, at least one federal appellate court has held
that a law enforcement officer may, without violating the Fourth Amendment, frisk an occupant of a vehicle that has been pulled
over for a traffic stop, if the officer has reasonable suspicion to believe the occupant is armed, even if the state permits the
concealed carrying of firearms. See United States v. Robinson, 846 F.3d 694, 696-701 (4th Cir. 2017) (en banc).
27 See Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015) (opining that “a police stop exceeding the time needed to handle
the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”).
28 See N.Y. PENAL LAW § 400.00.
29 See VT. STAT. ANN. tit. 13, §§ 4008, 4017.
30 See The Concealed Carry Reciprocity Act of 2017, H.R. 38, 1st Sess. 115th Cong. (2017); Terry v. Ohio, 392 U.S. 1 (1968).

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officer potentially may incur liability for extending a stop to investigate the validity of the photo ID
presented, if the ID appears to be “facially valid.”31
In sum, H.R. 38’s civil-suit provision suggests that civil liability will be triggered for a detention not
supported by probable cause unless the detention is a brief investigatory stop for which the officer has
reasonable suspicion to believe that (1) the detainee is carrying a concealed firearm in violation of state or
local law, and (2) the detainee is not carrying a concealed handgun in a manner protected by H.R. 38. As
the above examples demonstrate, the bill raises questions as to how what may be viewed as typical police
activity might spur litigation. The success of such a potential lawsuit would depend on the nature of the
particular police interaction and involve a highly fact intensive judicial inquiry.
H.R. 38’s Civil-Suit Provision and Sovereign Immunity
Sovereign immunity principles may inform how H.R. 38’s civil-suit provision may apply to suits brought
against state governments and their subdivisions. Absent a relevant exception, these principles may
constrain a state from being subject to suit in either federal or state court. Each of these forms of
immunity is discussed below.
State Immunity from Suit in Federal Court
The Eleventh Amendment32 generally shields a state (including an “arm” of the state such as state
agencies and state officials acting in their official capacities) from suit in federal court unless that state
consents.33 There are limited exceptions to this principle. Notably, Section Five of the Fourteenth
Amendment enables Congress to abrogate a state’s Eleventh Amendment immunity through legislation
designed to enforce the Fourteenth Amendment’s protections.34
It is unclear from H.R. 38’s text, however, whether Congress is invoking its Section Five enforcement
power. Moreover, even if Section Five is intended to be the constitutional basis for waiving state
sovereign immunity to enforce the bill’s civil-suit provision, there is still uncertainty about whether
Section Five is a viable basis to do so. H.R. 38 cites the Second Amendment35 as the constitutional source
of authority for the legislation.36 The Second Amendment applies to the states via the Fourteenth

31 The Concealed Carry Reciprocity Act of 2017, H.R. 38, § 101, 115th Cong. (2017).
32 U.S. CONST. amend. XI. (“The judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign
state.”).
33 See, e.g., Sossamon v. Texas, 563 U.S. 277, 284 (2011); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Peirick v.
Ind. Univ.-Perdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 695 (7th Cir. 2007). But see MCI Telecomms. Corp. v. Ill.
Bell Tel. Co., 222 F.3d 323, 337 (7th Cir. 2000) (listing the exceptions to Eleventh Amendment immunity).Eleventh Amendment
immunity does not extend to political subdivisions of a state, like counties or municipalities. See Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Pittman v. Or., Emp’t Dep’t, 509 F.3d 1065, 1071 (9th Cir. 2007); Kitchen v.
Upshaw, 286 F.3d 179, 183-84 (4th Cir. 2002).
34 See, e.g., Coleman v. Court of Appeals of Md., 566 U.S. 30, 36 (2012); United States v. Georgia, 456 U.S. 151, 158-59 (2006);
Mich. Corr. Org. v. Mich. Dep’t of Corr., 774 F.3d 895, 900 (6th Cir. 2014).
35 The Second Amendment states that “[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.” U.S CONST. amend. II.
36 163 CONG. REC. H47 (daily ed. Jan. 3, 2017) (constitutional authority statement for H.R. 38). The text of H.R. 38 also invokes
the Commerce Clause as additional constitutional authority. H.R. 38, § 101 (2017) (authorizing concealed carry reciprocity for a
handgun “that has been shipped or transported in interstate or foreign commerce”) For further discussion of the use and legal
significance of constitutional authority statements, see generally CRS Report R44729, Constitutional Authority Statements and
the Powers of Congress: An Overview, by Andrew Nolan.

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Amendment.37 Thus, legislation designed to remedy or deter state violations of the Second Amendment
arguably would be a permissible exercise of Congress’s Section Five’s enforcement power.38
Still, when drafting legislation to enforce the Fourteenth Amendment’s protections, Congress cannot
“determine what constitutes a constitutional violation.”39 In other words, Congress, in carrying out its
Section Five enforcement power, cannot define or modify the scope of the Second Amendment.40
Complicating the matter, the Supreme Court has provided little guidance on the scope of the individual
right protected by the Second Amendment, including whether the Second Amendment protects the right to
carry a concealed firearm in public. To date, the Court has opined only that the Second Amendment
provides an individual right to keep and bear arms for lawful purposes.41 That said, Section Five
legislation is nevertheless lawful even if, in the course of addressing a protected constitutional right, the
measure covers some “conduct which is not itself unconstitutional and intrudes into legislative spheres of
autonomy previously reserved to the states.”42 Ultimately, “[t]here must be a congruence and
proportionality between the injury to be prevented or remedied and the means adopted to that end.” 43
Applying these principles to H.R. 38, there appear to be two viable avenues for using Section Five to
abrogate state sovereign immunity to suit to protect against violations of an individual’s Second
Amendment rights. First, Congress may avail itself of Section Five if a reviewing court were to conclude
that the Second Amendment encompasses an individual right to carry a concealed handgun. Currently,
though, lower courts are split on this issue.44 Second, even if a reviewing court does not hold that the

37 McDonald v. City of Chicago, 561 U.S. 742 (2010). In McDonald, a majority of the Court held that the Second Amendment
applies to the states via the Fourteenth Amendment. Id. But there was not a controlling opinion as to whether the right was
applicable through the Fourteenth Amendment’s Due Process Clause or Privileges and Immunities Clause. Id. Four Justices held
that the Due Process Clause provides the constitutional basis for applying the Second Amendment to the states. Id. at
791.Whereas another Justice, concurring in the judgment, concluded that the Privileges and Immunities Clause provides the
constitutional support. Id. at 778 (Thomas, J., concurring).
38 Congress has previously cited Section Five of the Fourteenth Amendment to support a law designed to protect Second
Amendment rights. The Protection of Lawful Commerce in Arms Act, for example, shields firearm manufacturers and sellers
from certain civil liability suits. Pub. L. No. 109-92, 119 Stat. 2096, §§ 2(b)(3), 3, 4 (2005). One of the Act’s purposes is “[t]o
guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United
States Constitution, pursuant to section 5 of that Amendment.” Id. § 2(b)(3). In ruling on the constitutionality of the Act, a district
court assessed the various constitutional bases Congress had cited for its authority to enact the law, including enforcing the
Second Amendment through Section Five of the Fourteenth Amendment. See City of New York v. Beretta U.S.A. Corp., 401 F.
Supp. 2d 244 (E.D.N.Y 2005), partially reversed on other grounds, 524 F.3d 384 (2d Cir. 2008). The district court ultimately
concluded that there was a constitutional basis for the law, but unlikely through Section Five of the Fourteenth Amendment.
Beretta, 401 F. Supp. 2d at 295-97. This is so because, the court concluded, Congress had shown “no history or pattern of
constitutional violations to remedy, and a blanket statement of Congress’ intent to regulate under Section 5 does not suffice for it
to exercise that power.” Id. at 297. The Second Circuit ultimately upheld the law as a valid exercise of Congress’s power under
the Commerce Clause. See City of New York v. Beretta U.S.A. Corp., 524 F.3d at 392-95 (2d Cir. 2008).
39 City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
40 See id.
41 District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) ("[O]ur central
holding in Heller[ is] that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most
notably for self-defense within the home."); see also CRS Report R44618, Post-Heller Second Amendment Jurisprudence, by
Sarah Herman Peck.
42 Boerne, 521 U.S. at 518 (internal quotations marks and citation omitted).
43 Id. at 520.
44 Compare Peruta v. Cty. of San Diego, 824 F.3d 919, 927 (9th Cir. 2016) (en banc) (concluding that the Second Amendment
“does not extend to the carrying of concealed firearms in public by members of the general public”), denied cert., 137 S. Ct. 1995
(2017), with Wrenn v. District of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017) (striking D.C.’s concealed carry regime after
concluding that the right to carry a concealed firearm is a core Second Amendment right), and Kachalsky v. Cty. of Westchester,
701 F.3d 81 (2d Cir. 2012) (assuming that the Second Amendment protects a right to carry a concealed firearm and, after
applying intermediate scrutiny, upholding New York’s “good cause” requirement for obtaining a concealed carry permit).

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Second Amendment encompasses the right a carry a concealed handgun in public, the bill arguably may
be permissible under Section Five if a court concludes (1) that it remedies or deters state conduct that
violates the individual right to keep and bear arms for lawful purposes and (2) there is a congruence and
proportionality between the Second Amendment right being protected and the remedy of concealed carry
reciprocity.
Still, even without lawful abrogation of Eleventh Amendment immunity, there is a judicially created
exception—the Ex Parte Young doctrine, based on the eponymous Supreme Court case45—which allows
individuals seeking prospective relief (i.e., in the future) to sue state officials in their official capacity “to
require them to comply with federal law on an ongoing basis.”46 Accordingly, even if sovereign immunity
considerations were found to preclude plaintiffs from suing a state government for violations of H.R. 38,
those considerations may not extend to suits seeking injunctive relief that are brought against state
government officials.
State Immunity from Suit in Its Own Courts
Another relevant principle of immunity is based on a state’s own sovereign immunity—independent of
the immunity granted by the Eleventh Amendment—which may bar aggrieved persons from bringing a
lawsuit against a state in its own court system.47 The Supreme Court has declared that “the States’
immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the
ratification of the Constitution, and which they retain today (either literally or by virtue of their admission
into the Union upon an equal footing with the other States) except as altered by the plan of the
Convention or certain constitutional Amendments.”48 The Court has further stated that “the immunity of a
sovereign in its own courts has always been understood to be within the sole control of the sovereign
itself.”49 But Congress may not use its Article I powers—like the Commerce Clause50—to abrogate state
immunity to private suit in its own courts.51 Thus, civil action against states brought under H.R. 38 might
not be permissibly brought in the defendant-state’s courts without the state’s consent.52
Liability under H.R. 38 versus 42 U.S.C. § 1983
Current law, namely, 42 U.S.C. § 1983 (Section 1983), allows civil-suits against state and local law
enforcement personnel alleging constitutional violations, including for conducting searches and seizures
that violate the Fourth Amendment.53 Under the statute:

45 Ex Parte Young, 209 U.S. 123 (1908).
46 McDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1049 (7th Cir. 2013); see Antrican v. Odom, 290 F.3d 178, 184 (4th Cir.
2002) (explaining that Ex parte Young “allows private citizens, in proper cases, to petition a federal court to enjoin State officials
in their official capacities from engaging in future conduct that would violate the Constitution or a federal statute”).
47 See Alden v. Maine, 527 U.S. 706, 713 (1999).
48 Id.
49 Id. at 749 (emphasis added). However, state control over immunity in its courts does not extend to suits in other state courts.
See Nevada v. Hall, 440 U.S. 410, 414-27 (1979). Thus, citizens of California may sue Nevada in California state court. See id.
(concluding that citizens of California could sue Nevada in California state court for violations of California law).
50 H.R. 38 invokes the Commerce Clause by limiting concealed-carry reciprocity to handguns “that ha[ve] been shipped or
transported in interstate or foreign commerce.” The Concealed Carry Reciprocity Act of 2017, H.R. 38, § 101, 115th Cong.
(2017).
51 Alden, 527 U.S. at 754.
52 See James P. Hanlon & James J. Powers, States as Defendants in Employment Litigation: Beyond Alden v. Maine, 88 ILL. B.J.
280 (2000) (describing the practical implications of Alden v. Maine, 527 U.S. 706 (1999)).
53 42 U.S.C. § 1983. Suits for damages must be brought against an officer in his or her individual capacity. See Hafer v. Melo,
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[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress.54
Thus, a relevant question is to what extent H.R. 38 may expose states and their law enforcement to civil
liability for engaging in conduct beyond that for which Section 1983 may impose liability. Civil liability
for law enforcement under H.R. 38 may be somewhat broader than liability under Section 1983 based on
differences in the provisions concerning the categories of people and entities that may be sued, and the
type of conduct that may create liability.
One principal difference between H.R. 38’s civil-suit provision and Section 1983 is that Section 1983
does not abrogate a state’s sovereign immunity and thus states and their political subdivisions cannot be
sued for constitutional infractions.55 Further, the Supreme Court has held that “neither a State nor its
officials acting in their official capacities are ‘persons’ under § 1983.”56 Accordingly, a state law
enforcement officer may be sued under Section 1983 only if the suit is brought against the officer in her
“individual capacity.” Municipalities and other local governmental units, though, are not protected by
Eleventh Amendment immunity and are considered “persons” for the purposes of Section 1983 and, thus,
may be sued.57 Conversely, H.R. 38 expressly authorizes lawsuits against “a State or political subdivision
thereof.”58 Thus, more persons and entities may be subject to liability under H.R. 38, as opposed to
Section 1983.
H.R. 38 also may bring a broader range of conduct within the scope of its civil-suit provision than that
which may create liability under Section 1983. For instance, a person may invoke Section 1983 to sue a
state police officer (in her individual capacity) for violating the person’s Fourth Amendment rights (made
applicable to the states through the Fourteenth Amendment),59 for example, by committing an unlawful
search or seizure.60 But to be actionable under Section 1983, the search or seizure must be unreasonable.61
Thus, liability under Section 1983 would not attach if, for example, a seizure is supported by probable
cause.62 Likewise, liability under H.R. 38 would not attach if a seizure of a handgun, or the arrest or
detention of a person for unlawful firearm possession is made with probable cause.

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502 U.S. 21, 27, 30-31 (1991); Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011).
54 42 U.S.C. § 1983 (emphasis added).
55 Quern v. Jordan, 440 U.S. 332, 345 (1979).
56 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
57 Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978) (“Congress did intend municipalities and other local
government units to be included among those persons to whom § 1983 applies.”); Lake Country Estates, Inc. v. Tahoe Regional
Planning Agency, 440 U.S. 391, 401 (1979) (“[T]he [Supreme] Court has consistently refused to construe the [Eleventh]
Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a
‘slice of state power.’”). To bring a 1983 suit against a municipality or local government, the plaintiff must show that “‘action
pursuant to official municipal policy’ caused their injury.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell, 436
U.S. at 691)).
58 The Concealed Carry Reciprocity Act of 2017, H.R. 38, § 101, 115th Cong. (2017).
59 See Wolf v. Colorado, 338 U.S. 25 (1949).
60 See U.S. CONST. amend. IV (The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”); Carter v. Butts
County, Ga., 821 F.3d 1310, 1319 (11th Cir. 2016).
61 See Tapley v. Chambers, 840 F.3d 370, 376 (7th Cir. 2016); United States v. Ganias, 824 F.3d 199, 210 (2d Cir. 2016).
62 See, e.g., Doornbos v. City of Chicago, 868 F.3d 572, 581 (7th Cir. 2017) (“For a search or seizure to be reasonable, probable
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One difference between the ability to bring suit under H.R. 38 and Section 1983 appears to be the extent
of liability that may be incurred for investigative stops, which, in the context of the Fourth Amendment,
require less proof than probable cause to be lawful. A brief investigatory stop—like a traffic stop—is
deemed reasonable (and thus constitutionally permissible) if the officer has reasonable suspicion to stop
and question an individual, “‘justified by some objective manifestation that the person stopped is, or is
about to be, engaged in criminal activity.’”63 In other words, a person could not successfully bring suit
under Section 1983 against a law enforcement officer who, acting on reasonable suspicion, briefly
stopped the individual to investigate a possible criminal violation. And it appears that H.R. 38’s rule of
construction—declaring that “[n]othing in this [bill] prohibits a law enforcement officer with reasonable
suspicion of a violation of any law from conducting a brief investigative stop in accordance with the
Constitution of the United States”64—could be construed as precluding civil liability for officers
conducting lawful Terry stops.
However, H.R. 38’s rule of construction does not definitely solve potential liability issues related to Terry
stops. For instance, “a police stop exceeding the time needed to handle the matter for which the stop was
made violates the Constitution’s shield against unreasonable seizures.”65 So if a police officer stops a car
for speeding, the stop may become unreasonable under the Fourth Amendment if the officer prolongs the
stop beyond the amount of time reasonably necessary to issue a ticket, unless there is reasonable
suspicion to believe that there is other criminal activity to investigate.66 If such reasonable suspicion
exists, the continued holding of the person might be permitted, and a claim could not be brought under
Section 1983 for a purported violation of the driver’s Fourth Amendment rights, even if the detention was
not supported by probable cause.
Conversely, notwithstanding the bill’s rule of construction, it is possible that, because H.R. 38 requires an
officer to have probable cause to believe that an individual is not complying with the bill’s concealed-
carry requirements before arresting or detaining the person for a firearms-possession violation, an officer
potentially may be required to have probable cause—rather than just reasonable suspicion—to prolong a
traffic stop beyond the time necessary to resolve the traffic issue and to investigate whether the driver is
carrying a concealed handgun in compliance with H.R. 38.67 The stop perhaps might be prolonged, for
example, to determine the validity of a driver’s concealed-carry permit or photo ID. Failure to support a
continued detention with probable cause in such a case arguably could give rise to a legal claim under
H.R. 38.
Accordingly, it appears that, at least in some ways, actions giving rise to civil liability under H.R. 38
would mirror those that could give rise to liability under Section 1983. But it is not apparent, however,
whether any of the court-made defenses available to law enforcement in Section 1983 actions—such as

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cause is generally required.”). Fish v Brown, 838 F.3d 1153, 1167 (11th Cir. 2016) (arrest); Untied States v. Walker, 840 F.3d
477, 483 (8th Cir. 2016) (traffic stop); United States v. Church, 823 F.3d 351, 354-55 (6th Cir. 2016) (search for contraband).
63 See, e.g., United States v. Thompson, 842 F.3d 1002, 1007 (7th Cir. 2016) (quoting United States v. Cortez, 449 U.S. 411, 417
(1981)); see also Navarette v. California, 134 S. Ct. 1683, 1687 (2014); Whren v. United States, 517 U.S. 806, 810 (1996);
United States v. Pacheco, 841 F.3d 384, 389-90 (6th Cir. 2016); United States v. Stevenson, 832 F.3d 412, 428-29 (3d Cir. 2016).
64 The Concealed Carry Reciprocity Act of 2017, H.R. 38, § 102, 115th Cong. (2017) (emphasis added).
65 Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015).
66 Id. at 1612, 1614, 1616-17; United States v. Calvetti, 836 F.3d 654, 665-66 (6th Cir. 2016).
67 An officer does not violate the Fourth Amendment when a traffic stop is extended based on reasonable suspicion there is
another crime (other than the traffic offense) to investigate. For instance, in United States v. Fadiga, the Seventh Circuit held that
a traffic stop was not impermissibly extended by thirty minutes after the officer discovered from a consensual car search a bag
full of gift cards, and then requested the dispatcher to send someone with a card reader to determine whether the gift cards had
been tampered with in violation of 18 U.S.C. § 1029(a)(3). 858 F.3d 1061, (7th Cir. 2017).

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qualified immunity—would be afforded to law enforcement sued under H.R. 38.68 If not, plaintiffs may
be more likely to prevail by bringing lawsuits under H.R. 38, rather than Section 1983, for similar police
conduct related to inquiries into potential unlawful firearm activity.

68 See Wyatt v. Cole, 504 U.S. 158, 163-64 (1992) (“Section 1983 creates a species of tort liability that on its face admits of no
immunities. Nonetheless, we have accorded certain government officials either absolute or qualified immunity from suit if the
tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that Congress
would have specifically so provided had it wished to abolish the doctrine.” (internal quotation marks and citations omitted)).

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