On Tuesday, January 18, 2011, the U.S. Supreme Court denied certiorari (discretionary review) in an important case from the U.S. Third Circuit Court of Appeals involving the right of a licensed gun owner from one state to travel through another state with strict gun laws. The case is Revell v. Port Authority of New York & New Jersey, 598 F.3d 128 (3d Cir. 2010) (No. 10-236). Although the case implicates the Second Amendment and gun rights generally, the specific issue in the case was whether the federal Firearm Owners' Protection Act (FOPA), 18 U.S.C. s. 926A, covered the traveler and preempted the local gun laws of which he was in violation.
The plaintiff in Revell was a licensed gun owner from Utah who in March 2005 was traveling from Salt Lake City, Utah, to Allentown, Pennsylvania. He took a commercial flight that included stopovers in Minneapolis/St. Paul and Newark, New Jersey. When he arrived at the airport in Salt Lake City, he checked his luggage through to Allentown. Importantly, he properly stored his handgun and ammunition in separate hard cases in his suitcase and declared them in advance to the airline.
The plaintiff's problems developed when his flight into Newark was late and he missed his connection to Allentown. As a result, he was forced to spend the night in the airport hotel and take another flight early the next morning. Significantly, the airline had made a mistake and failed to check the plaintiff's luggage through to Allentown. Instead, it ended up in Newark, where the plaintfif retrieved it before going to the hotel. Unfortunately, New Jersey has strict gun laws, and the plaintiff was not licensed to have a handgun or hollow point ammunition in New Jersey.
The next morning, the plaintiff went through the same rigamarole involved in checking and declaring his gun in the Newark airport. However, after his luggage was screened by a TSA employee, the plaintiff was detained and questioned by Port Authority police officers. After the plaintiff explained what had happened with his flight and that he was forced to spend the night, with his luggage, in the airport hotel, he was arrested and charged with unlawful possession of the handgun and ammunition. The plaintiff ended up spending four days in custody before being released on bond. The criminal charges against him were dismissed by the prosecutor four months later. The plaintiff's handgun and related belongings were not returned to him for more than two years after the incident. The plaintiff eventually sued the Port Authority and the arresting officer under 42 U.S.C. s. 1983, which allows a person to sue state and local officials for violating his constitutional rights.
The central issue in the case was whether the plaintiff's actions were covered by FOPA, Section 926A, which 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.
As the Third Circuit explained (here is the court's opinion): "In essence, s. 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."
Both the district court and the Third Circuit on appeal held that the plaintiff was not covered by this provision because he had ready access to the handgun and ammunition during his overnight stay at the airport hotel. Accordingly, the courts concluded that Section 926A did not cover the plaintiff's actions and, therefore, his false arrest and due process claims had to be denied because he was in violation of the New Jersey gun laws. Interestingly, neither decision refers to any Second Amendment claims asserted by the plaintiff.
So what's a law-abiding gun owner to do in this situation? The Third Circuit gave the following Orwellian suggestion:
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 926A and to prevent unexpected exposure to state and local gun regulations.
In a footnote, the court added:
Of course, this suggestion leaves unanswered the question of what the gun owner should do if the law enforcement officers decline to assist him. It may be hoped, however, that officers will not compound a blameless owner’s problems in that way.
Being "stranded" in a city while traveling is not an uncommon experience; it happens frequently and is a known problem while traveling long distances by plane, especially when multiple connections are involved. It seems clear that the plaintiff in this case was "in transit" the entire time he was in New Jersey. Moreover, there is no evidence that he removed the handgun and ammunition from his luggage during his overnight hotel stay. Even if the plain language of the statute does not cover this situation, the court's interpretation is much too constrained and restrictive.
Consider that the statute plainly authorizes a person to travel by car through a state like New Jersey with a firearm locked in a case and stored in the trunk (even if the firearm would be "readily accessible" during gas and meal stops, etc.). So could the plaintiff in Revell have retrieved his luggage at the Newark airport, rented a car, and then continued on his way to Allentown with the putatively illegal handgun and ammunition in the trunk? It appears that, in such scenario, once the luggage was in the car, it would have been covered by Section 926A. But what about during the interim period, between luggage claim area and the rental car area? Under the Third Circuit's interpretation, the plaintiff would not have been covered by the statute during that period and, therefore, could have been arrested and charged with a crime. This makes no sense. The statute does not state that the firearm/ammunition must be placed in a particular vehicle at the start of the trip and then not be returned to the gun owner until the very end of the trip. Moreover, the statute does not state that the firearm cannot ever, even for a moment, be potentially accessible to the owner during the trip. The statute only says that "during such transportation" the firearm must be unloaded and not be "readily accessible." There may be sufficient play in the statutory wording to cover situations like the one in this case -- that is, assuming a court were inclined to protect gun rights, which most are not.
What is abundantly obvious from this case is that the present gun rights regime is grossly unfair to gun owners and violates the Second Amendment. A person in Revell's situation should never be subject to criminal prosection and should never have his civil rights violated by government authorities. Do we need a stronger federal law to provide the needed protection? Apparently. Hopefully Congress will address this issue in the near future. But what we don't need is more "helpful guidance" along the lines provided by the Third Circuit that essentially turns citizens into supplicants at the mercy of the police.
For useful commentary on the Revell case, see here; for news coverage, see here.