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
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Author Information
Sarah Herman Peck
Legislative Attorney
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