Civil-Suit Provision in House-Passed Concealed Carry Reciprocity Bill (H.R. 38): Scope and Application

Civil-Suit Provision in House-Passed Concealed Carry Reciprocity Bill (H.R. 38): Scope and Application

Legal Sidebari

Civil-Suit Provision in House-Passed
Concealed Carry Reciprocity Bill (H.R. 38):
Scope and Application
February 21, 2018

In December 2017, the House of Representatives passed H.R. 38, The Concealed Carry Reciprocity Act
of 2017. H.R. 38’s overarching 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. In
furtherance of this goal, the bill authorizes a private right of action against any person who interferes with
a concealed-carry right that the bill establishes.
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.
This provision has garnered significant attention in light of the questions it has raised about when civil
liability may be triggered, particularly with respect to the circumstances under which law enforcement
agencies and personnel could potentially become liable for investigating whether a person is lawfully
carrying a concealed handgun. 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.
Indeed, H.R. 38’s civil-suit provision raises numerous legal questions. For instance, what rights does the
bill bestow, who may enforce them, and who may be sued for interfering with those rights? Additionally,
would principles of sovereign immunity prevent law enforcement from being sued under H.R. 38? And
does the civil liability provision of H.R. 38 expose states and their law enforcement to civil liability for
engaging in conduct beyond that for which civil suits may already be brought under 42 U.S.C. § 1983?
These questions, among others, are explored in detail in a general distribution memorandum that is
Congressional Research Service
https://crsreports.congress.gov
LSB10084
CRS INSIGHT
Prepared for Members and
Comm

ittees of Congress

Congressional Research Service
2
available through the author of this Sidebar upon request.

Author Information

Sarah Herman Peck

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10084 · VERSION 2 · NEW