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N.J. Handgun Outrage
tr fox
Member Posts: 13,856
Outrage Of The Week
Friday, April 02, 2010
This week's Outrage concerns a legal case that comes to us from New Jersey, where a well-meaning firearm owner, through a series of events that were no fault of his own, inadvertently ran afoul of the law (or, rather, an interpretation of the law).
Gun owner Gregg C. Revell was flying from Salt Lake City, UT, to Allentown, PA, by way of Minneapolis, MN, and Newark, NJ. Revell had an unloaded firearm that was legally checked in his luggage, which he was to pick up upon his arrival in Allentown.
That was the plan, but things soon went awry. Revell's flight into Newark was delayed, causing him to miss his connecting flight to Allentown. He was able to book a seat on the next flight, but that course of action was changed by the airline. He then tried to take a bus, but his luggage didn't make it to the bus on time. He retrieved his luggage, but missed the bus. With no more connections to Allentown until the following morning, Revell went (with his luggage, of course) directly to, and stayed the night at, the Airport Sheraton Hotel. By this time, Revell had been through a lot, but his real trouble was just beginning.
The next morning, Revell returned with his luggage directly to the airport. He checked his luggage and, as he was supposed to, told the agent that he had an unloaded firearm stored in a locked case in his luggage. It was at this point that Revell's destination changed from Allentown to a Newark jail cell. He was arrested on the spot because New Jersey law requires a permit to possess a handgun (and also bans the hollow-point ammunition that Revell also had in a separate locked container in his luggage), and as soon as Revell's luggage became "readily accessible" to him (in this case, when he took possession of his luggage to go to the hotel) he violated state law.
The Firearms Owners' Protection Act (FOPA) states that, "Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console."
After spending four days in a Newark jail cell, Revell was released on bail. Revell was eventually cleared of all charges, but he didn't get his firearm and other property back until almost three years later.
With help from the NRA Civil Rights Defense Fund, Revell sued for damages related to his unjust arrest and detention (as a violation of his civil rights), but lost, with the U.S. Court of Appeals, Third Circuit's finding that Revell was not covered under FOPA's narrowly defined safe harbor provision.
So we have a case where a firearm owner does everything he can to obey the law and ensure that he safely transports his firearm. Through no fault of his own, he is accused of violating the law. He is arrested, then thrown in the Newark jail for four days, and loses possession of his personal property for almost three years. That is outrageous!
This case is not as unusual as you may think. NRA presently has two similar cases awaiting rulings by the U.S. Second Circuit.
NRA members would be well advised to use caution when traveling with a firearm-especially by plane, and especially in the states of New York and New Jersey-if a planned, or unplanned stop in "hostile territory" is necessary.
Copyright 2010, National Rifle Association of America, Institute for Legislative Action.
This may be reproduced. It may not be reproduced for commercial purposes.
11250 Waples Mill Road, Fairfax, VA 22030 800-392-8683
Friday, April 02, 2010
This week's Outrage concerns a legal case that comes to us from New Jersey, where a well-meaning firearm owner, through a series of events that were no fault of his own, inadvertently ran afoul of the law (or, rather, an interpretation of the law).
Gun owner Gregg C. Revell was flying from Salt Lake City, UT, to Allentown, PA, by way of Minneapolis, MN, and Newark, NJ. Revell had an unloaded firearm that was legally checked in his luggage, which he was to pick up upon his arrival in Allentown.
That was the plan, but things soon went awry. Revell's flight into Newark was delayed, causing him to miss his connecting flight to Allentown. He was able to book a seat on the next flight, but that course of action was changed by the airline. He then tried to take a bus, but his luggage didn't make it to the bus on time. He retrieved his luggage, but missed the bus. With no more connections to Allentown until the following morning, Revell went (with his luggage, of course) directly to, and stayed the night at, the Airport Sheraton Hotel. By this time, Revell had been through a lot, but his real trouble was just beginning.
The next morning, Revell returned with his luggage directly to the airport. He checked his luggage and, as he was supposed to, told the agent that he had an unloaded firearm stored in a locked case in his luggage. It was at this point that Revell's destination changed from Allentown to a Newark jail cell. He was arrested on the spot because New Jersey law requires a permit to possess a handgun (and also bans the hollow-point ammunition that Revell also had in a separate locked container in his luggage), and as soon as Revell's luggage became "readily accessible" to him (in this case, when he took possession of his luggage to go to the hotel) he violated state law.
The Firearms Owners' Protection Act (FOPA) states that, "Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console."
After spending four days in a Newark jail cell, Revell was released on bail. Revell was eventually cleared of all charges, but he didn't get his firearm and other property back until almost three years later.
With help from the NRA Civil Rights Defense Fund, Revell sued for damages related to his unjust arrest and detention (as a violation of his civil rights), but lost, with the U.S. Court of Appeals, Third Circuit's finding that Revell was not covered under FOPA's narrowly defined safe harbor provision.
So we have a case where a firearm owner does everything he can to obey the law and ensure that he safely transports his firearm. Through no fault of his own, he is accused of violating the law. He is arrested, then thrown in the Newark jail for four days, and loses possession of his personal property for almost three years. That is outrageous!
This case is not as unusual as you may think. NRA presently has two similar cases awaiting rulings by the U.S. Second Circuit.
NRA members would be well advised to use caution when traveling with a firearm-especially by plane, and especially in the states of New York and New Jersey-if a planned, or unplanned stop in "hostile territory" is necessary.
Copyright 2010, National Rifle Association of America, Institute for Legislative Action.
This may be reproduced. It may not be reproduced for commercial purposes.
11250 Waples Mill Road, Fairfax, VA 22030 800-392-8683
Comments
i hope he hires a pitbull lawyer who will get him off...and get his pistol and ammo back![:(!]
Dan, did you read the whole thing? Read it again![;)]
i hope he hires a pitbull lawyer who will get him off...and get his pistol and ammo back![:(!]
Yeah, but if the damn NJ government would just obey the 1968 Firearm Owner's Protection Act (helped to pass by the NRA BTW) the poor man would never had a problem to begin with. I don't know how the NJ government can break federal law without getting into trouble. If I broke a federal law I sure as he!! would get into trouble.
Your post name implies you are a retired NJ cop. You should pay a visit to your former employer and take note of the infilitration of the gestapo minded young guns they are calling the new generation of law enforcement in those areas.
There was a time as recent as 10 years ago when officers knew the law and how to and when to enforce it in those regions, but not any more.
quote:Originally posted by njretcop
There's gotta be more to this story than meets the eye........
EVERYBODY wants to talk about the GCA 69..'obeying it'..'more then meets the eye', etc..ad nauseum.
NOBODY wants to talk about the Second Amendment...and FORCING governments to OBEY THAT...by force of arms, if required...just as the Second Amendment instructs us...
I pray nightly for a total ban on weapons.
All you fence-sitters, you closet Beast-lovers, all you jack-booted thugs get your day in the Sun...HONESTLY, forthrightly, and right out in the open.
Meanwhile...keep right on walking on eggshells..and realize that One of these days...the Beast is gonna look YOUR way...for some infraction or another.
Nothing odd here at all.
EVERYBODY wants to talk about the GCA 69..'obeying it'..'more then meets the eye', etc..ad nauseum.
NOBODY wants to talk about the Second Amendment...and FORCING governments to OBEY THAT...by force of arms, if required...just as the Second Amendment instructs us...
I pray nightly for a total ban on weapons.
All you fence-sitters, you closet Beast-lovers, all you jack-booted thugs get your day in the Sun...HONESTLY, forthrightly, and right out in the open.
Meanwhile...keep right on walking on eggshells..and realize that One of these days...the Beast is gonna look YOUR way...for some infraction or another.
Wikipedia def:extremist
HIGHBALL
[:D]
May I assume you to be a gun controlling Beast Lover, then ? That term you use is ALWAYS a compliment...coming from people with absolutely no understanding of the Constitution and Bill of Rights.
I stand FIRMLY on the ground laid out by the Founders.
That is quicksand you are standing in...
Thank you, Shilowar.
May I assume you to be a gun controlling Beast Lover, then ? That term you use is ALWAYS a compliment...coming from people with absolutely no understanding of the Constitution and Bill of Rights.
I stand FIRMLY on the ground laid out by the Founders.
That is quicksand you are standing in...
no actually it was a joke, hence the smiley face
In case you weren't aware Wikipedia doesn't have a stellar reputation for accuracy, and I was pointing to the fact that anyone that would interpret the 2nd Amendment to include the private ownership of firearms is in our current media is considered an extremist.
"the only power goverment has is the power to crack down on criminals Well when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws
The adversaries of the Constitution are numerous..it is sometimes difficult to keep track of just whom is attacking it today.
I don't know who done this qoute but it sure is being put to use nowdays
"the only power goverment has is the power to crack down on criminals Well when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws
as said before...one man's terrorist is another man's freedom fighter (or patriot)
Thats what true power is, the ability to manipulate the definitions of words to what YOU want them to mean...to create and enforce your definitions(Law)
Bill Ayers- to most us he's a POS criminal/terrorist to POTUS he is an activist for social "change"
I don't know who done this qoute but it sure is being put to use nowdays
"the only power goverment has is the power to crack down on criminals Well when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws"
An Ayn rand quote and one that points out the simple truism that collectivism inevitably leads to totalitarianism.
The FOPA was neither 1968 or 1969 (by the way), I think it was 1986.
I think you are correct and thanks for that correction, but in this case the correct year doesn't change the overall picture here.
There's gotta be more to this story than meets the eye........
You could could very well be correct. But over the years I have heard numerous horror stories about how overly strict NJ is regarding gun owners from out of state.
Case Style: Gregg C. Revell v. Port Authority of New York and New Jersey
Case Number: 09-2029
Judge: Jordan
Court: United States Court of Appeals for the Third Circuit on appeal from the District of New Jersey, Essex County
Plaintiff's Attorney: Richard Gilbert, Evan F. Nappen, P.C., Eatontown, New Jersey
Defendant's Attorney: Donald F. Burke, Sr., Port Authority of New York & New Jersey, Jersey City, New Jersey and Shirley J. Spira and Sharon K. McGahee, Port Authority of New York & New Jersey, Law Dept., Opinions & Appeals Div., New York, New York
Description: Gregg C. Revell appeals from the dismissal of his claims, brought pursuant to 42 U.S.C. ? 1983, seeking to impose liability upon the Port Authority of New York and New Jersey ("Port Authority") and Port Authority Police Officer Scott Erickson for arresting him under New Jersey's gun laws and seizing his firearm and ammunition. According to Revell, his arrest was unlawful because he was in compliance with a provision of the Firearm Owners' Protection Act ("FOPA"), 18 U.S.C. ? 926A, which allows gun owners licensed in one state to carry firearms through another state under certain circumstances. Because we conclude that, at the time of his arrest, Revell's conduct did not bring him within the protection of that statute, we will affirm both the dismissal of his ? 926Abased claim and the grant of summary judgment to the Port Authority and Erickson on Revell's closely related Fourth Amendment claim. We will likewise affirm the grant of summary judgment against Revell on his due process claim under the Fourteenth Amendment.
I. Background
A. Revell's Arrest
On March 31, 2005, Revell, a resident of Utah, embarked on a flight from Salt Lake City to Allentown, Pennsylvania, via Minneapolis/St. Paul and Newark, New Jersey. When he arrived at the Northwest Airlines counter1 in the Salt Lake City Airport, he checked his luggage through to his final destination and declared that, in the luggage, he was carrying an unloaded firearm contained in a locked hard case and ammunition in a separate locked hard case. He signed an orange firearm declaration tag, which was placed inside the locked hard case containing the firearm. That was apparently the last thing on the trip that went as expected. The several mishaps that followed ultimately relate to the accessibility of the firearm and ammunition and are thus key to this dispute.
Because his flight into Newark was late, Revell missed his connection from Newark to Allentown. He booked the next flight to Allentown, which was scheduled to leave Newark at 8 p.m. that evening, but, after the airline changed arrangements, the passengers scheduled for that flight were asked to board a bus, instead of a plane, headed for Allentown. Revell got on the bus; however, when he learned that his luggage was not on board, he got off to locate it.2 By the time he retrieved his luggage, he had missed the bus, and no other connections to Allentown were available. He then went directly to the Newark Airport Sheraton Hotel in a hotel shuttle, taking his luggage with him. The driver of the shuttle van placed Revell's luggage, which contained the locked hard case containers, in the rear storage area of the van, which was not immediately accessible from the passenger compartment where Revell was seated.
Revell stayed at the hotel overnight but did not open either of the locked containers during his stay.
The next morning, he took the hotel's airport shuttle back to the Newark Airport and, again, his luggage was placed out of his reach in the rear of the shuttle. Upon arriving at the airport around 8:30 a.m., he proceeded to the ticket counter to check his luggage and declared that he was carrying an unloaded firearm in a locked hard case and ammunition in a separate locked hard case. Revell was told to take his luggage to the Transportation Security Administration ("TSA") area so that it could be xrayed.
After the luggage went through the x-ray machine, the TSA agent at the other end of the machine took the hard cases out and asked Revell for the key to them, which Revell provided. The TSA agent opened the cases using Revell's key and removed the firearm and ammunition. The orange declaration sheet from Salt Lake City was still in the case with the firearm.
About twenty minutes later, several Port Authority officers, including Officer Erickson, escorted Revell to an area away from other passengers where they questioned him about the firearm and ammunition. Revell explained that he had declared his weapon and ammunition, and that he was merely passing through New Jersey en route to Allentown, Pennsylvania. He also showed the officers his Utah concealed firearm permit and his driver's license. When Erickson questioned Revell about why he had the firearm, Revell explained that he was traveling to Pennsylvania to pick up a car to bring back to Utah and that "he was going to need the weapon for protection" as he drove the car home. (App. at 33.) Revell also informed Erickson that, upon missing his flight the day before, he had taken possession of his bag with the firearm in it and had gone to a hotel in Newark to stay for the night. At his deposition, 3 Revell stated that he did not check to make sure that he could carry his firearm in Pennsylvania prior to traveling there, but believed that it was legal for him to carry a weapon there because the instructor for his concealed firearm permit class did not mention that he could not do so.
Erickson asked Revell whether he had authority to carry the firearm in Pennsylvania, but Revell did not respond.3
Erickson arrested Revell for possession of a handgun without a permit in violation of N.J. Stat. Ann. ? 2C:39-5(b) and for possession of hollow-point ammunition in violation of N.J. Stat. Ann. ? 2C:39-3(f).4 Revell was handcuffed, held overnight at the Port Authority jail, and then transferred to the Essex County, New Jersey, Jail, where he was incarcerated for three days until he was released on bond. Four months later, on August 2, 2005, the Essex County prosecutor administratively dismissed all of the charges against him. However, Revell's firearm, ammunition, holster, locks, and hard cases, which were seized at the time of his arrest, were not returned until July 24, 2008, more than two years after the ill-fated trip and approximately a year after he filed his amended complaint in this action.
B. Revell's Complaint
Understandably troubled about his and his property's treatment, Revell brought the present ? 1983 case, alleging that the Port Authority and Erickson had violated his rights under ? 926A of FOPA.5 In essence, ? 926A allows a person to transport a firearm and ammunition from one state through a second state to a third state, without regard to the second state's gun laws, provided that the traveler is licensed to carry a firearm in both the state of origin and the state of destination and that the firearm is not readily accessible during the transportation.6 18 U.S.C. ? 926A. Revell also alleged that the appellees violated his Fourteenth Amendment rights by retaining his firearm, holster, locks, containers and ammunition, thereby depriving him of his property without due process. He sought damages and an injunction requiring the Port Authority to return his property.
C. The District Court's Dismissal of Revell's Complaint
Erickson moved to dismiss Revell's claims and the Port Authority moved for judgment on the pleadings.7 They argued, among other things, that probable cause existed for the arrest because ? 926A was inapplicable, given Revell's overnight stay in New Jersey. They also argued that Erickson was entitled to qualified immunity.
The District Court noted that its first task was to "determine whether 18 U.S.C. ? 926A created an enforceable personal right," an issue of first impression. (App. at 44.) The Court answered that question by holding that, pursuant to the Supreme Court's decision in Graham v. Connor, 490 U.S. 386 (1989), Revell was required to frame his ? 1983 claim in terms of the Fourth Amendment, as opposed to ? 926A, because he sought damages for an allegedly improper arrest. In other words, the Court concluded that, "ecause individuals already have a method of recovering damages pursuant to ? 1983 if they are arrested or charged without probable cause, [i.e., a claim under the Fourth Amendment,] it is unnecessary and, indeed, improper ... to conclude that ? 1983 provides a separate or alternative remedy for a violation of ? 926A." (App. at 49.)
The Court thus dismissed Revell's ? 1983 claim for the alleged violation of ? 926A, but it granted him leave to file an amended complaint stating a Fourth Amendment claim.
The Court also dismissed Revell's procedural due process claims for damages and injunctive relief.8 The Court, relying on Parratt v. Taylor, 451 U.S. 527 (1981), explained that, if constitutionally adequate state procedures were available to remedy the deprivation of Revell's property, he could not succeed on his due process claim. Since Revell neither availed himself of state law remedies nor explained why those remedies would be futile or constitutionally inadequate, the Court dismissed that claim. However, it granted Revell leave to amend his complaint to allege that "the Port Authority's postdeprivation remedies for the return of seized property are constitutionally inadequate." (App. at 53.) On June 29, 2007, the District Court entered an order dismissing Revell's complaint and allowing him leave to amend pursuant to the memorandum opinion.
D. Revell's Amended Complaint
Not long after, on July 13, 2007, Revell filed an amended complaint against the Port Authority and Erickson. In the first count, he asserted that his arrest and the seizure of his property violated his Fourth Amendment rights because, pursuant to ? 926A, he was legally entitled to carry the firearm and ammunition in his luggage, notwithstanding New Jersey law.
Revell also asserted two procedural due process claims - one for damages and one for injunctive relief requiring the return of his property - based on allegations that the Port Authority "has no post-deprivation procedure for Revell to recover the [property] seized from him" and that the defendants "did not provide him notice of the basis for the retention of the property and of an opportunity for a post-deprivation hearing." (App. at 64.) He later voluntarily dismissed his due process claim for injunctive relief, after his property was returned to him.
E. The District Court Grants Summary Judgment on Revell's Claims
Following discovery, the Port Authority and Erickson moved for summary judgment, arguing that probable cause supported Revell's arrest and that Erickson is protected by qualified immunity. They asserted that ? 926A did not immunize Revell from arrest for violating New Jersey's gun laws because, contrary to an express requirement of ? 926A, Revell's weapon was readily accessible to him during his stay in New Jersey. They also moved for summary judgment on Revell's due process claim, arguing that New Jersey has in place adequate post-deprivation procedures for those who seek the return of property seized upon arrest, including state tort remedies, and that Revell failed to avail himself of any of those procedures.
The District Court held that the Port Authority and Erickson were entitled to summary judgment on the Fourth Amendment claim, "because probable cause [for the arrest and property seizure] developed during ... [Erickson's] questioning concerning Revell's transportation of a handgun and ammunition through New Jersey." (App. at 78.) The Court found persuasive the defense argument that Revell's conduct fell outside ? 926A since it is undisputed that Revell left the airport with his luggage for an overnight stay at a hotel in New Jersey, thus giving him ready access to the gun during that period. The Court also explained that "? 926A does not address anything but vehicular travel; it does not encompass keeping the weapon - locked in a case or not - in an airport hotel overnight." (App. at 77.) Alternatively, the Court held that Erickson was entitled to qualified immunity because probable cause existed for Revell's arrest and, therefore, no constitutional right was violated. The District Court also concluded that summary judgment against Revell on his due process claim was proper because he had failed to take advantage of available state remedies for the return of his property, namely, a state court lawsuit.9
The District Court had jurisdiction 10 over Revell's claims pursuant to 28 U.S.C. ?? 1331 and 1343. Our jurisdiction is based upon 28 U.S.C. ? 1291.
In a March 31, 2009 order, the District Court granted the summary judgment motion in accordance with its memorandum opinion. Revell timely appealed both the summary judgment order and the order dismissing his original complaint.
II. Standard of Review10
Our review of the District Court's decision to grant the Port Authority's motion for judgment on the pleadings and Erickson's motion to dismiss is plenary. See E.I. DuPont de Nemours & Co. v. United States, 508 F.3d 126, 131 (3d Cir. 2007); DeHart v. Horn, 390 F.3d 262, 272 (3d Cir. 2004). A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir. 2008). A motion for judgment on the pleadings based on the defense that the plaintiff has failed to state a claim is analyzed under the same standards that apply to a Rule 12(b)(6) motion. Turbe v. Gov't of the V.I., 938 F.2d 427, 428 (3d Cir. 1991).
We also exercise plenary review over an appeal from a grant of summary judgment. Jacobs Constructors, Inc. v. NPS Energy Servs., Inc., 264 F.3d 365, 369 (3d Cir. 2001). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing FED. R. CIV. P. 56(c)). "In making this determination, we must consider the evidence in the record in the light most favorable to the nonmoving party." Id.
III. Discussion
"To state a claim under ? 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). There is no question that the defendants in Revell's suit were acting under color of state law when effecting his arrest. The issue is whether Revell has alleged a violation of any right under federal law. Revell's ? 1983 claims seek to remedy perceived violations of his alleged statutory right under ? 926A, his Fourth Amendment rights, and his Fourteenth Amendment due process rights.11 We will first address the ? 926A claim and the Fourth Amendment claim, before turning to the due process claim.
A. Section 926A and the Fourth Amendment
Revell challenges both the District Court's dismissal of his ? 926A claim and the Court's grant of summary judgment on his Fourth Amendment claim. He asserts that he never should have been required to re-frame his ? 926A claim in terms of the Section 927 of Title 18, captioned 12 "Effect on State law," provides:
No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.
Fourth Amendment, since, as he sees it, ? 926A provides a federal right that may be remedied by way of ? 1983, independent of the Fourth Amendment. As to his Fourth Amendment claim, Revell asserts that the District Court erred in concluding that probable cause existed for his arrest. More specifically, and returning to the same ? 926A theme, he says that the District Court incorrectly determined that he did not fall within the protection provided by that statute. Revell does not dispute that his conduct violated New Jersey law but instead claims that he was not subject to arrest because he complied with ? 926A and that ? 926A preempts New Jersey's gun laws under the circumstances presented here.12 He also challenges the District Court's conclusion that Erickson was entitled to qualified immunity against the Fourth Amendment claim.
In order for Revell to prevail either on the theory that he had a right under ? 926A that can be remedied through ? 1983 or on the theory that the Fourth Amendment should have protected him from arrest because ? 926A gave him a right to transport his gun, he must first establish that he complied with the conditions set forth in ? 926A so as to be entitled to its protection. Accordingly, we begin our analysis with the question of whether Revell was in compliance with ? 926A when he was arrested in New Jersey.
Section 926A of FOPA, entitled "Interstate transportation of firearms," provides:
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
18 U.S.C. ? 926A. It is clear from the statute that a person transporting a firearm across state lines must ensure that the firearm and any ammunition being transported is not "readily accessible or ... directly accessible from the passenger compartment of [the] transporting vehicle." Id. Looking solely at the allegations of Revell's original complaint, it is also clear that what happened here does not fall within ? 926A's scope because his firearm and ammunition were readily accessible to him during his overnight stay in New Jersey.
Revell attempts to invoke the protection of the statute by alleging that "[d]uring the transportation of the firearm, neither the firearm nor the ammunition were readily accessible or directly accessible from the passenger compartment of the aircraft or the bus [that he took to the hotel]." (App. at 25.) But only the most strained reading of the statute could lead to the conclusion that having the firearm and ammunition inaccessible while in a vehicle means that, during the owner's travels, they can be freely accessible for hours at a time as long as they are not in a vehicle. The complaint reveals that Revell's luggage containing the firearm was, in fact, available to him while he was at the hotel. He alleged that, "[a]fter retrieving his bag, because there were no more connections to Allentown until 9:45 a.m. the following morning ... , [he] went directly to, and stayed the night at, the Airport Sheraton Hotel." (App. at 23.) He further alleged that he returned with his luggage directly to the airport the next day and that a TSA agent, after x-raying the luggage, opened it with a key that Revell gave him. Taking those facts as true, it is clear that the gun and ammunition were readily accessible to Revell during his stay in New Jersey and, thus, by the allegations of his own complaint, he was not within the scope of ? 926A. Dismissal of the ? 926A claim was therefore proper.13
Turning to the summary judgment motion on Revell's Fourth Amendment claim, the depositions filed in support of that motion serve to confirm the conclusion that Revell had access to his gun and ammunition, contrary to ? 926A's requirement.14 Erickson testified that, under questioning, Revell said he had been forced to stay overnight at a hotel in Newark Revell thus had access to his firearm and ammunition during his stay at the New Jersey hotel, whether or not he in fact accessed them and regardless of whether they were accessible while he was traveling by plane or van. That crucial fact takes Revell outside the scope of ? 926A's protection, as the District Court correctly noted.15 (App. at 77 ("[N]othing in the pleadings or the record indicates that Revell's handgun and ammunition were anything but readily accessible to him during his overnight stay in New Jersey.").) Accordingly, Revell was subject to arrest for violating New Jersey's gun laws.16 We will therefore affirm the District Court's grant of summary judgment on his Fourth Amendment claim.17
Although we conclude that Revell fell outside of ? 926A's protection during his stay in New Jersey, we recognize that he had been placed in a difficult predicament through no fault of his own. However, Section 926 clearly requires the traveler to part ways with his weapon and ammunition during travel; it does not address this type of interrupted journey or what the traveler is to do in this situation. Stranded gun owners like Revell have the option of going to law enforcement representatives at an airport or to airport personnel before they retrieve their luggage. The careful owner will do so and explain his situation, requesting that his firearm and ammunition be held for him overnight.18 While this no doubt adds to the inconvenience imposed upon the unfortunate traveler when his transportation plans go awry, it offers a reasonable means for a responsible gun owner to maintain the protection of Section 926 and prevent unexpected exposure to state and local gun regulations.
B. Due Process
Revell also asserts that the District Court erroneously granted summary judgment on his due process claim. In order to determine whether an individual has been deprived of his property without due process "it is necessary to ask what process the State provided, and whether it was constitutionally adequate." Zinermon v. Burch, 494 U.S. 113, 126 (1990). "This inquiry ... examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law." Id. Although a pre-deprivation hearing is generally required before a state seizes a person's property, "n some circumstances ... the Court has held that a statutory provision for a postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process." Id. at 128.
For example, in Parratt v. Taylor, and thereafter in Hudson v. Palmer, the Supreme Court held that, when a state officer randomly and without authorization departs from established state procedures, the state need only provide postdeprivation procedures. Hudson, 468 U.S. 517, 533 (1984); Parratt, 451 U.S. 527, 543 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986) (overruling Parratt to the extent it suggested that a constitutional injury could be established based on negligence). The Supreme Court held in Parratt that a state tort claim was an adequate remedy for a prisoner aggrieved by prison officials' negligent loss of his property, and in Hudson the Court held the same with respect to a prisoner whose property was intentionally destroyed by a prison guard.
The District Court relied on Parratt in deciding that Revell's failure to take advantage of available remedies, namely a state court lawsuit, warranted summary judgment on his due process claim. Revell argues that, because his deprivation was made pursuant to Port Authority policy as opposed to an unauthorized act, a state tort remedy is insufficient and that, instead, "there must be a statutory provision for a postdeprivation hearing to satisfy due process." (Appellant's Op. Br. at 25.) But, Revell's due process claim is not based on defendants' initial seizure of the property. Instead, in his opening brief, Revell clarified that his claim rests on the defendants' retention of his property after the charges against him had been dismissed and on their failure to provide him notice and an opportunity for a post-deprivation hearing.
(Appellant's Op. Br. at 26 ("Revell should not have been deprived of the property after August 2, 2005 without being Although R 19 ule 3:5-7 directly speaks to the ability of a defendant to move for the return of property that was unlawfully seized, which Revell could have done in light of his claim that his arrest and the seizure of his property were unlawful, Revell provided constitutionally adequate notice and an opportunity for a post-deprivation hearing.").) Revell has identified no policy requiring officers of the Port Authority to retain property that is no longer needed for a prosecution, and it is highly unlikely that any such policy exists. Accordingly, the rationale of Parratt and Hudson does apply. See Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009) ("We have recognized that a civil cause of action for wrongful conversion of personal property under state law is a sufficient postdeprivation remedy when it extends to unauthorized seizures of personal property by state officers." (internal quotations omitted)).
Revell cannot prevail on his due process claim if the state's post-deprivation procedures, including state tort remedies, are adequate. He has failed to explain why New Jersey's state procedures to recover wrongfully seized property, such as the ability to move in the criminal action for return of his property or the ability to file a separate action for a writ of replevin, are insufficient. See State v. One 1986 Subaru, 576 A.2d 859, 318 (N.J. 1990) (explaining that owner of seized property can file a replevin action or move to retrieve improperly seized property and "ecause of the availability of [such] procedures ... , a claimant's inaction may weigh against a claim that his or her due-process rights have been violated"); see also N.J. Rule 3:5-7 (motion for return of property)19 and may well have found a New Jersey court sympathetic to a motion under that Rule for the return of his property once the charges against him were dropped.
4:61-1 (replevin). Nor has Revell shown any entitlement to special notice of those procedures. See City of W. Covina v. Perkins, 525 U.S. 234, 236 (1999) (holding that due process clause does not "require[] a State or its local entities to give detailed and specific instructions or advice to owners who seek return of property lawfully seized but no longer needed for police investigation or criminal prosecution"). Thus, his due process claim fails and summary judgment was warranted. Cf. Mora v. City of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008) (rejecting plaintiff's procedural due process claim, when police retained plaintiff's weapons after seizing them because "[plaintiff] has had, and continues to have, notice and an opportunity to be heard in Maryland, and he cannot plausibly claim that Maryland's procedures are unfair when he has not tried to avail himself of them.").
* * *
See: http://www.ca3.uscourts.gov/opinarch/092029p.pdf
Outcome: Section 926A does not apply to Revell because his firearm and ammunition were readily accessible to him during his stay in New Jersey. That conclusion is fatal to his ? 926A claim and the associated Fourth Amendment claim. We accordingly affirm the District Court's dismissal and grant of summary judgment, respectively, on those claims. We also affirm the District Court's grant of summary judgment on Revell's due process claim because he did not take advantage of state procedures available to him for the return of his property.
Seems like you guys(&gals) want it both ways. State law above and more important then federal law. But when it suits your cause Fed law is boss.
Nope...State Rights provided they fall within the guidelines of the United States Constitution. The Constitution is the supreme law of the land...and it severely limits the federal gov't.
Sadly, it's been raped and torn to shreds over the years...and organizations like the NRA have helped make it happen.
Anybody else see it this way?
If so, pretty damn overly restrictive.
quote:Originally posted by Da-Tank
Seems like you guys(&gals) want it both ways. State law above and more important then federal law. But when it suits your cause Fed law is boss.
Nope...State Rights provided they fall within the guidelines of the United States Constitution. The Constitution is the supreme law of the land...and it severely limits the federal gov't.
Sadly, it's been raped and torn to shreds over the years...and organizations like the NRA have helped make it happen.
In red above. It is curious you would make that statement in view of the fact that the NRA spend money, time and effort trying to help this victim. Where were you? You didn't help this victim? Yet you criticize the NRA who did try and help him.
Pretty twisted logic. BEsides, if the NRA hadn't help get the FOPA passed, there would be NO WAY you could travel through NJ having your handgun and ammo with you. With the FOPA, if you plan ahead you CAN travel through NJ without getting arrested.
I don't like such restrictions, but what we have with the FOPA is better than nothing.
This person's constitutional right to keep and bear arms were most definitely "infringed upon" and with great prejudice.
In my opinion, this is EXACTLY what actions the FOPA was designed to prevent and it failed miserably.
We gotta get back to basics.
quote:Originally posted by ECC
quote:Originally posted by Da-Tank
Seems like you guys(&gals) want it both ways. State law above and more important then federal law. But when it suits your cause Fed law is boss.
Nope...State Rights provided they fall within the guidelines of the United States Constitution. The Constitution is the supreme law of the land...and it severely limits the federal gov't.
Sadly, it's been raped and torn to shreds over the years...and organizations like the NRA have helped make it happen.
In red above. It is curious you would make that statement in view of the fact that the NRA spend money, time and effort trying to help this victim. Where were you? You didn't help this victim? Yet you criticize the NRA who did try and help him.
Pretty twisted logic. BEsides, if the NRA hadn't help get the FOPA passed, there would be NO WAY you could travel through NJ having your handgun and ammo with you. With the FOPA, if you plan ahead you CAN travel through NJ without getting arrested.
I don't like such restrictions, but what we have with the FOPA is better than nothing.
Like all the anti-NRA'ers on this site, Eric has no good alternative, just cage rattling and "what part of the 2nd don't you understand" rhetoric. A true case of mandating "all or none" in all cases. Sadly, almost 100% of the time we will get none. Following the anti-NRA crowd will get EVERY ONE of your gun rights eliminated. In fact, if the "WPOTSADYU" crowd was the only force for gun rights, I guarentee the 2nd amendment would be repealed. But at least the anti-NRA crowd will still have their principles right? We won't have Richard but they will have the moral high-road.
The only thing that I ask of the anti-NRA crowd is that when you are stamping your feet (and doing little else), PLEASE have a disclaimer saying that you don't represent the VAST majority of gunowners, because you don't.
Done and did...and I do it every day.
I mention, harp upon, state without category, and DECRY the fact that we that support the Constitution and Bill of Rights AS WRITTEN comprise three percent of the population....with perhaps another 25-30 percent willing to aid us.
Just as in the American Revolution, the bulk of the people are much as cows...willing to put up with nearly ANYTHING...just as long as they get a bite of grass now and again.
The 'vast majority of gunowners' are go-along-to-get-alongers...and if guns are banned...TTHEY WILL TAKE UP GOLF...and squeal on their neighbors that refuse to turn in their weapons.
'Liberty',in other words, is just another word to them.
As for 'losing ALL weapons through a ban'...then you damn well deserve to be disarmed. If you and enough 'men' in this country lack the balls to rip their Republic away from power-mad insane elites...then take up golf and STOP pretending to be a 'man'.
quote:The only thing that I ask of the anti-NRA crowd is that when you are stamping your feet (and doing little else), PLEASE have a disclaimer saying that you don't represent the VAST majority of gunowners, because you don't.
Done and did...and I do it every day.
I mention, harp upon, state without category, and DECRY the fact that we that support the Constitution and Bill of Rights AS WRITTEN comprise three percent of the population....with perhaps another 25-30 percent willing to aid us.
Just as in the American Revolution, the bulk of the people are much as cows...willing to put up with nearly ANYTHING...just as long as they get a bite of grass now and again.
The 'vast majority of gunowners' are go-along-to-get-alongers...and if guns are banned...TTHEY WILL TAKE UP GOLF...and squeal on their neighbors that refuse to turn in their weapons.
'Liberty',in other words, is just another word to them.
As for 'losing ALL weapons through a ban'...then you damn well deserve to be disarmed. If you and enough 'men' in this country lack the balls to rip their Republic away from power-mad insane elites...then take up golf and STOP pretending to be a 'man'.
Well then we agree to disagree. And I hope that you guys are successful. Also I highly suspect there is not 3% of you, mayby .03%, but certainly not 3%. And while you guys are cutting off your noses to spite your face, we'll be fighting to preserve and gain back 2nd A rights.
News Alert ;
You, with your CCWS, Castle Doctrines, and the rest of the assorted 'triumphs' your type LOVES to trumpet about are NOT 'regaining Rights'.
You are merely codifying INTO LAW that there ARE no basic freedoms...merely privileges given by the government.
Therein lies the difference between a free man...and a slave. The ability to recognize the chains around ones ankles.
You carry YOURS as a badge of honor.
I carry mine in shame and humiliation..
Yeah, but if the damn NJ government would just obey the 1968 Firearm Owner's Protection Act (helped to pass by the NRA BTW) the poor man would never had a problem to begin with. I don't know how the NJ government can break federal law without getting into trouble. If I broke a federal law I sure as he!! would get into trouble.
Looking at the BIG picture IF federal,state and local governments would abide by the constitution(2A)there would be no 1968 GCA or arrests for "gun crime"
quote:originally posted by tr fox Well, from reading that long court case, it appears that if you are in or driving a vehicle through NJ, and you have a handgun locked up and your ammo locked up seperately, and if both items are in for example the trunk of your car, and if you are LICENSED to possess the gun and bullets in the state you are coming from as well as in the state you are going to, then it is legal for you to travel through N.J. as long as you don't purposely go out of your way to stop and shop or vist friends, sight see, etc.
Anybody else see it this way?
If so, pretty damn overly restrictive.
In red above, I'm not sure I want to know BUT can you explain "overly restrictive"?
BTW Happy Easter guys!! [;)]
I don't see what the arresting officers goal was, what was accomplished that was protecting and serving the people?
Don`t get me wrong there are good people in these states and they are held hostage by the rules of the state. Seems that the 2nd Amendment don`t apply to some places as a mater of intuition as anywhere, but more so there.
The downfall of the 2nd will be brought nabout by those that beller and hollor about their rights but do not lift na finger to do anything to preserve them.
The glass is half full, no! the glass is half empty.
The downfall of the 2nd will be brought nabout by those that beller and hollor about their rights but do not lift na finger to do anything to preserve them.
Just so you know...
Your 'opinions' and your 'assessments' are largely meaningless, based on your demonstrated lack of comprehension and understanding of constitutional and liberty-based issues.
An example from another thread...
Just so you know. quote:How convenient to leave out the few words the Highball..
All Debts contracted and Engagements entered into, before the Adoption of this Constitution,
You'd be better served in sticking to topics such as 'what's for supper' and 'did you see what that idiot did', etc...
You have failed to even recognize what the fight IS, nor what Amendment II so simply states.
An apt analogy is that you and your band of merry-men are no different than an organization of convicted proven child-molesters insinuating and inserting themselves into the role of 'support and defense of children' and then attempting to influence legislation relating to protecting children from, well, child molesters.[;)]