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Revell v. Port Authority of New York and New Jersey

by Professor Will Huhn on January 18, 2011

in Firearms regulation,Wilson Huhn

     The Supreme Court today refused to hear the appeal of an "accidental traveller" who was arrested in New Jersey for unlawful possession of a firearm.

     Gregg Revell's 1983 action against the Port Authority of New York and New Jersey came to an end today when the Supreme Court refused to hear his appeal from a decision of the Third Circuit Court of Appeals dismissing his case.

     Revell found himself in New Jersey with an unlawful firearm through no fault of his own.  The facts, as described by the Third Circuit, were as follows:

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 counter[1] 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.

     Revell's plane was diverted to Newark Airport in New Jersey, where the law prohibits possession of the type of firearm he was carrying.  He boarded a bus bound for Allentown but discovered that his luggage was still at the airport.  He disembarked the bus, retrieved his luggage, and stayed at a Newark hotel for the night.  The next day at Newark Airport he notified the TSA that he had a firearm in the luggage that he intended to check through.  The police were called and Revell was arrested for unlawful possession of a firearm.   He spent three days in jail, after which charges were dismissed against him.  A year later he filed this action under 42 U.S.C. 1983 against the Port Authority for seizing his gun and ammunition.  It took him more than another year for the Port Authority to return his property to him.

     1983 actions are derivative – they allow someone to sue state government officials whenever those officials "under color of law" violate the individual's rights under federal law.  Revell claimed that the Port Authority had violated his rights under a federal statute that allows travellers to move interstate with firearms if possession of the firearms is legal in the state from which they leave and the state to which they are going.  The federal law, 18 U.S.C. 926A, the Firearm Owners Protection Act, states:

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.

     Revell's possession of the firearm in New Jersey was not his fault.  That's why the New Jersey prosecutors wisely and fairly dismissed the criminal charges against him.  On the other hand, 926A of FOPA doesn't really apply.  Revell was not travelling in a vehicle when he was at the hotel or the airport.  More seriously, the weapon and ammunition were "readily accessible" to Revell while he was at the hotel in Newark.  The Third Circuit gave Revell this belated advice:

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.  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.

     The Third Circuit also found that Revell could have sued the Port Authority under New Jersey law for the seizure of his gun.  Plaintiffs may not sue under 42 U.S.C. 1983 if there is an adequate remedy under state law.  The Court of Appeals stated:

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.

     The Court of Appeals' decision may be found here.  Revell's lawsuit was funded by the National Rifle Association, which posted this description of the case on April 2, 2010.

{ 1 comment }

CAV January 19, 2011 at 10:32 am

I appreciate knowing what to do if I ever find myself in a similar situation.

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