Appendix — Revell v. Port Authority of New York

APPENDIX TABLE OF CONTENTS

Opinion of the United States Court of Appeal!

for the Third Circuit

( pinion and Order of the United States District

Court for the District of New Jerse’

(3/3 1/09

Opinion of the United States District Court

the District of New Jersey (6/29/07)

Order of the United States Court of Appeal!

the Third Circuit Denying Rehearing

PRECKEDENTIA

NITED STATES COURT OF APPEAL

FOR THE THIRD CIRCUTI

GREGG C. REVELI

SOCIATION OF NEW JERSEY RII

PISTOL

CLUBS IN

PORT AUTHORITY OF NEW YORK

IE RSEY: SCOTT ERICKSON

PORT AUTHORITY OF NEW YORK

JERSE

CONTINENTAL AIRLINES; COUNTY OF ESSEX

ESSEX COUNTY JAIL; ESSEX COUNTY

PROSECUTOR; JOHN DOES 1-10,

hird Party Defendant

Richard &. Gardiner

3925 Chain Bridge Re

lt airtax VA Z2ZOU30

Richard V. Gilbert

Evan IF. Nappen

?21 Throckmorton Avs

Ky itontown, NJ 07724

Counsel for Appe

Donald F’. Burke, >

Port Authority of

One PATH Plaza

Jersey City, NJ 07

Shirley J. Spira

Sharon K. McGahee

Port Authority of New York & New Jersey

Law Dept., Opinions & Appeals Div.

225 Park Avenue South

13° Floor, Room 1324

New York, NY 10003

Counsel for Appellees

OPINION OF THE COURT

JORDAN, Circuit Judge.

Gregg C. Revell appeals from the dismissal of

his claims, brought pursuant to 42 U.S.C. § 1983,

seeking to impose lability 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 §

926A-based claim and the grant of summary judgment

to the Port Authority and Erickson on Revell's closely

related Fourth Amendment claim. We will likewise

4a

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 counter’ 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

' While the record is not entirely clear, it appears that

Northwest and Continental Airlines had some _= shared

responsibility for transporting Revell to Allentown

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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.’

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 x-rayed. 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

9

£

In a triple-whammy for Revell, not only had the airline

made him miss his connection and then put him on a bus instead

of a plane, a Northwest employee had mistakenly checked his

luggage to Newark, instead of Allentown, as his final destination

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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. Erickson asked Revell

whether he had authority to carry the firearm in

Pennsylvania, but Revell did not respond. '

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

’ At his deposition, 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

ammunition in violation of N.J. Stat. Ann. §

2C:39-3().* 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.’ In essence, § 926A allows a person to

Section 2C:39-5(b) provides that “laJmy person who

knowingly has 1n his possession any handgun, .. without first

having obtained a permit to carry the same as provided in

N J.S 2C.58-4, is guilty of a crime” of the second or third degree

depending on the nature of the handgun Section 2C:39-3(f)

provides that “la]ny person, who knowingly has in his

possession any hollow nose or dum-dum bullet, . is guilty of a

crime of the fourth degree .”

Additionally, the Association of New Jersey Rifle &

Pistol Clubs, Inc. brought a § 1983 claim based on 18 U.S.C. §

926A, seeking to enjoin the Port Authority from enforcing against

the Association's non-resident members the New Jersey statutes

under which Revell was arrested The Distnct Court found that

8a

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.® 18 U.S.C. § 926A. Revell also alleged

that the appellees violated his Fourteentn 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.’ They argued, among other things, that

probable cause existed for the arrest because § 926A

the Association lacked standing and dismissed its claim. The

Association appealed that ruling to our Court. and we reversed,

holding that the Association did, in fact, have standing to pursue

its claim on behalf of its members. Feve//v. Port Auth. of NY. &

N.J., 321 F App'x 113, 117 (3d Cir.2009). The Association's

lawsuit is not at issue in this appeal.

” The text of § 926A 1s set forth in section III A, :afra.

‘ Since the Port Authority had already answered Revell's

complaint, it moved for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c), while Erickson, who had not

answered the complaint, moved to dismiss for failure to state a

claim under Rule 12(b\6).

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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, “[bJecause 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.*

The Court, relying on FParrattv. Taylor, 451 U.S. 527

a 7 . . ‘ 1 ' °

The District Court analyzed Revell's due process claims

to determine whether he had also pled a substantive due process

violation and concluded that he had not. That tssue is not on

appeal

LOa

(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

Lla

voluntarily dismissed his due process claim for

injunctive relief, after his property was returned to

him.

KE. 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

rors

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.’

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.

Il. Standard of Review

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 #.J. DuPont de Nemours & Co. v. United States,

508 F.3d 126, 131 (3d Cir.2007); DeHartv. Horn, 390

The Court noted that Revell's property was apparently

returned to him after he made “a simple request to Essex County.”

(App. at 81.)

The Distnct Court had jurisdiction over Revell's claims

pursuant to 28 U.S C. §$§ 1331 and 1343. Our jurisdiction is based

upon 28 U.S.C § 1291

F.3d 262, 272 (3d Cir.2004). A court confronted witli 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. Turhe

v. Govt of the V.1., 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 i

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 thi

evidence in the record in the light most favorable to

the nonmoving party.” /d

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.” Westv. 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."’ We

will first address the § 926A claim and the Fourth

Amendment claim, before turning to the due proce

claim

1. Section 926A and the Fourth Amendment

Revell challenges both the District Court’

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 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. Revel!

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

kor ease of reference W ¢ Wil reter to th

claims as Revell's § 926A claim, his Fourth Amendm«

due proce clain

circumstances presented here He al

District Court's conclusion that Erickson was entitled

to qualified immunity against the Fourth Amendment

claim

In order for Revell prevail either on

theory that he had a right under § 926A that can bi

remedied through § 1983 or on the theory that thi

Fourth Amendment should have protected him from

arrest because § 926A gave him aright to transport hi

gun, he must first establish that he complied with the

conditions set forth in § 926A so as to be entitled to it

protection. Accordingly, we begin our analysis with the

question of whether Revell was in compliance with

926A when he was arrested in New Jers:

Section 926A of FOPA. entitled

transportation of firearms,” provide

Notwithstanding any other provision of

any law or any rule or regulation of

State or any political subdivision thereo!

.

inhy per ()T) VM Té no otherw

No provision of this chapter shall be constr

indicating an intent on the part of the Congr t

xcupy the field in which such provision operate

to the exclusion of the law of any State on th

ame subject matter, unless there is a direct and

positive conflict between such provision and thi

law of the State so that the two cannot bi

reconciled or consistently stand together

prohibited

transporting

shall be

" any

such fire:

firearm

immunition being transported

tae ible or 1s directly accessible

ompartn ent

mpartmeée nt

mpartme nt tne

hall ne contalne

a

I20A. It

yn transporting a firear! cro

ure that the firearm and any ammun

transported 1s not readily acce ible or

iccessible fro1 enger compartmen

transporting vehicle.’ ld Looking ole

illegation Revell riginal complaint

5

>

clear that what happe ned here doe not fal!

926A’ cope becau: firearm and ammunition

l7a

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.”

'S The District Court dismissed Revell's § 926A claim

based upon its conclusion that Revell was required to bring that

claim pursuant to the Fourth Amendment. But, we “may affirm a

result reached by the district court on reasons that differ so long

as the record supports the judgment.” Johnsonv. Orr,776 F 2d 75,

83 n. 7 (3d Cir 1985). Based solely on the allegations of the

complaint, itis clear that Revell did not comply with § 926A, so we

can affirm the Distnct Court's dismissal on that basis alone.

18a

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."

Erickson testified that, under questioning, Revell said

he had been forced to stay overnight at a hotel in

Newark because he had missed his flight. Erickson

also testified that Revell acknowledged he “had the

firearm with him when he left for Newark, that he had

picked up the bag and taken it with him.” (App. at 33.)

Specifically, Erickson testified as follows:

Q: He told you that he picked up the bug

at Newark because he missed his flight,

and went out of the airport, correct?

A: Yes.

Q: And did he tell you that he went to a

hotel that night?

A: Yes.

Given our disposition, we do not address the more difficult

question of whether, if he had complhied with § 926A, Revell would

have been able to pursue a § 1983 claim based upon § 926A

'’ Revell's amended complaint, which contains his Fourth

Amendment claim, alleges the same facts as his omginal

complaint, with the addition of one new allegation-that Revell did

not open either of the locked hard cases while he was in New

Jersey The amended complaint also described in greater detail

the inaccessibility of the luggage during the shuttle ride to and

from the airport to the hotel.

19a

(/d.) Revell’s own deposition further confirms that,

upon missing his flight to Allentown, he retrieved his

luggage, took a shuttle to a nearby hotel, and then

returned to the airport the following morning with his

bags.

Revell thus had access te 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.'" (App. at 77 (“[Nlothing in the

' With regard to whether probable cause existed for his

arrest, Revell attempts to raise factual disputes concerning what

Emckson knew at the time he arrested Revell, arguing that

Erickson did not know what Revell did with his bag when he went

to the hotel and that Erickson did not know whether he stayed

overnight. First, Revell mischaracterizes the record, as Revell

himself testified that he told the officers that he “had been forced

to stay in the hotel.” (App. at 37.) Second, even if Erickson were

required to consider § 926A's impact in his probable cause

analysis, an issue on which we express no holding, Revell told

Erickson that he had picked up his luggage from the airport and

went to a hotel for the night A reasonable officer would be

entitled to infer from Revell's statements that he had access to his

firearm and ammunition while at the New Jersey hotel. Whether

Revell in fact accessed them is irrelevant Given our conclusion

that Revell was not protected by § 926A when he was arrested in

New Jersey, we need not address the interrelation between § 926A

and probable cause. We do, however, note our concern with the

implications of Revell's argument that § 926A requires an officer

to “investigate the laws of the jurisdiction from which the traveler

was traveling and the laws of the jurisdiction to which the

traveler was going” pnor to making an arrest. (Appellant's Reply

Br. at 13.) It seems doubtful that, in passing § 926A, Congress

20a

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.'* We will therefore affirm the

District Court's grant of summary judgment on his

Fourth Amendment claim."’

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

intended to impose upon police officers such a _ potentially

burdensome requirement. See Jorraco v. Port Auth. of NY. &

N.J., 539 F.Supp.2d 632, 644 (E.D.N.Y 2008) (“[I]t 1s simply too

much to read into § 926A a Congressional intent to require local

police to have on-the-spot knowledge of the firearms laws of all 50

States.”).

'© To satisfy the Fourth Amendment, a warrantless arrest

must be based on probable cause that a crime has been or is being

committed. Devenpeckyv Alford, 543 U.S. 146, 152 (2004), see also

United Statesv. Stubbs, 281 F.3d 109, 122 (3d Cir.2002). There is

no question that Erickson observed Revell in possession of a

firearm and hollow-point bullets in violation of New Jersey law

'’ Because we conclude that Revell's weapon and

ammunition were readily accessible to him, we need not address

Revell's argument that § 926A should be broadly construed to

“iImmunizel | non-vehicular transportation if the firearm is not

readily accessible.” (Appellant's Op. Br. at 32.) Nor do we reach

the issue of qualified immunity

2la

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.

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[s] 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

18

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 1n that

way.

22a

person's property, “[iJn some circumstances ... the

Court has held that a statutory provision for a

postdeprivation hearing, or acommon-law tort remedy

for erroneous deprivation, satisfies due process.” Id. at

128.

For example, in Farratt 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

post-deprivation 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 Distmet Court relied on Parrattin 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 post-deprivation hearing to satisfy due process.”

(Appellant's Op. Br. at 25.) But, Revell's due process

23a

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 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. Hslinger, 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 “|b]ecause of

the availability of [such] procedures ..., a claimant's

24a

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)’’ and 4:61-1

(replevin). Nor has Revell shown any entitlement to

special notice of those procedures. See C7ty 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 Moray. 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.”).

IV. Conclusion

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

19

Although Rule 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 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

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

2boa

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GREGG C. REVELL,

Plaintiff,

THE PORT AUTHORITY

OF NEW YORK AND NEW

JERSEY and SCOTT

ERICKSON,

Defendants and

Third-Party

Plaintiff

CONTINENTAL AIRLINES,

THE COUNTY OF ESSEX,

THE ESSEX COUNTY JAIL,

THE OFFICE OF THE ESSEX

COUNTY PROSECUTOR et al.

Third-Party Defendants.

Civ. Action

No. 06-402 (KSH)

OPINION

KATHARINE S. HAYDEN, U.S.D.J.

This action arises from the arrest and

subsequent detention of plaintiff Gregg C. Revell at

Newark Liberty Airport (“Newark Airport”) on April 1,

2005. The following motions are before the Court in

this matter. Defendants Port Authority of New York

and New Jersey (“Port Authority”) and Police Officer

Scott Erickson (“Erickson”) (collectively, “Port

Authority defendants”) have moved for summary

judgment dismissing the complaint against them.

(D.E.93.) Third-Party Defendants, the County of Essex

and the Essex County Prosecutor's Office (collectively,

“Essex County”), have moved to dismiss in lieu of

answering the third-party complaint asserted against

them by Third-Party Plaintiffs Port Authority and

~rickson. (D.E.92.) Third-Party Defendant Continental

Airlines (“Continental”) has moved for summary

judgment of dismissal as to the Port Authority's

third-party complaint against it. (D.E. 97, 106.) In this

opinion, the Court addresses all pending motions

I. FACTUAL BACKGROUND

Because the relevant facts were stated in an

earlier decision, and are essential to understanding

Revell's claims, they are recited here

On March 31, 2005, Revell, a

resident of Utah, checked in with

Northwest Airlines at the Salt Lake City

Airport. His destination was Allentown,

Pennsylvania, via Minneapolis/St. Paul

and Newark, New Jersey. When he

checked in, Revell declared that his bag

contained an unloaded firearm in a

locked hard case container and

ammunition in a separate locked hard

case container. Revell signed an orange

firearm declaration tag, which was

placed inside the container holding the

firearm

Revell's flight to Newark was late

and he missed his connecting flight to

Allentown. After waiting five hours

inside the secure area of the airport, he

was directed to board a bus that would

drive him and other passengers to

Allentown. After taking his seat on the

bus, Revell learned from the driver that

his checked luggage had not been placed

on the bus, so he got off to search for his

bag. By the time Revell found it in the

lost luggage area of Newark Airport, the

bus to Allentown had already left. An

airline employee told him that the

airline?s computer system showed that

although he had checked the bag through

to Allentown, the airline had mistakenly

tagged his bag with Newark as its final

destination. As there were no other

connections to Allentown that night,

Revell took his bag and stayed overnight

at a nearby hotel

The next morning, Revell went

directly to Newark Airport. At the airline

check-in counter, he once again declared

that he had a firearm and ammunition in

his bag and that they were stored in

separate locked hard case container

Revell signed a white form and wa

directed to an x-ray area, where he again

declared the firearm and ammunition

After his bag went through the x-ray

machine, an agent at the end of the

machine opened the cases using Revell

key. The orange firearm declaration from

Revell's Salt Lake City check-in was still

in the firearm container After

approximately 20 minutes, several police

officers escorted Revell to a different area

of the airport where they questioned hi m

about the firearm and ammunition

Revell showed them his Utah concealed

firearm permit and driver?s license, and

explained that he was simply traveling

through New Jersey from Utah and that

he was on his way to Pennsylvania

It is unclear exactly when Officer

Scott Erickson appeared on the scene,

but he ultimately arrested Revell for

possession of a handgun without a permit

in violation of N.J.S.A. § 2C:39-5(b) and

for possession of hollow. point

ammunition in violation of N.J.S.A. §

2C:39-3(f). Revell's firearm, ammunition,

holster, locks, and hard case containers

were seized, and he was charged with

unlawful possession of a handgun

y] hollow

handcuffed

L.utnority jal Th iext day, Revell!

transported to the Essex County

where he wa detained for three

Ultimately, some four month

August 2. 2005. the E

Prosecutor admin

charge

complaint, the firearm ammunition

holster, locks, and hard case contains

id not been returned

Op. dated June 29, 2007 (D.E.38)). On June ! 9007

the Court granted Port Authority defendants’ moti

to dismiss Count One of Revell’s omginal complaint

which s to recover monetary da nave ind

injunctive relief pursuant to 42 U.S.C. § 1983 for

violation of a statutory right secured by 18 U.S.

926A, concluding that § 926A did not creaté

right of actio! ) k. 38.) At the same time,

permitted Revell to amend his complaint “t

1983 claim for an unreasonable arrest and

property in violation of the Fourth Amendment

(D.-h.38.) The Court also dismissed Counts Two and

Three, which claimed that defendants, acting under

color of State law, had depri property

(firearm, ammunition, holster, locks, and hard casi

containers), without due process of law as guaranteed

by the Fourteenth Amendment and sought redre in

the form of monetary relief (Count Two) and injunctive

f(Count Three D.B.38.) The Court granted |

‘

3la

for Revell to reframe these counts as “a claim alleging

that the Port Authority's post-deprivation remedies for

the return of seized property are constitutionally

inadequate.” (D.E.38.) The Court also dismissed Count

Four, which had been brought by the Association of

New Jersey Rifle and Pistol Clubs, Inc. (the

“Association”), finding that the Association's claim to

enjoin defendants from enforcing N.J.S.A. §§

2C:39-5(b) (possession of a handgun without a permit)

and 2C:39-3(f) (possession of hollow point ammunition)

against its non-resident members transporting a

firearm and ammunition through New Jersey

pursuant to 18 U.S.C. § 926A “d[id] not meet Article

III's injury in fact requirement to establish an actual

case or controversy.” (D.E.38.) On September 7, 2007,

the Association filed a notice of appeal of its dismissal

as a plaintiff. (D.E.64.)

Revell timely filed an amended complaint,

recasting Claims One, Two and Three as permitted by

the Court, and the Association dropped Claim Four, as

ordered. (D.E.46.) In the amended complaint, Count

One asserts a § 1983 claim for damages pursuant

under the Fourth Amendment. Count Two pleads a

claim for damages, alleging that Port Authority

deprived Revell of his property without due process of

law. Count Three, which Revell has since voluntarily

dismissed,' sought injunctive relief for the same

alleged due process violations. In the new complaint,

Revell supplements paragraph 12 of his original

complaint regarding his transportation to the airport

* Revell advised the Court on July 24, 2008 that the Port

Authority returned his property. (D.E 101 )

32a

Sheraton (corresponds to {J 11 in the amended

complaint), as follows:

His bags (including both locked hard case

containers) were placed in the rear,

baggage area of the van by the driver of

the hotel shuttle van. The bags were not

readily or directly accessible from the

passenger compartment of the hotel

shuttle van as there were two seats

between him and the bags and he would

have had to climb over the rear seat t

get to the bags.

(Am.Compl.{ 11.)

A final pretrial order was entered on September

28, 2007. (D.E.70.) Essex County filed its motion to

dismiss in lieu of answering on June 11, 2008, followed

by Port Authority defendants’ cross-motion for

summary judgment on June 13, 2008. Continental

thereafter moved on August 8, 2008 for summary

judgment as to the third-party complaint.*

Il. STANDARD OF REVIEW

Port Authority defendants’ m&tion, as well as

Continental's motion, are made pursuant to Rule 56(c),

Fed.R.Civ.P. Summary judgment may be granted “if

A third-party action was brought by Port Authority

against Essex County and Continental, essentially alleging that

Continental's malfeasance was the proximate cause of any injury

to Revell. (D.E.55 )

33a

the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no

genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(c). The Court must “view the facts in

the light most favorable to the non-moving party and

[must] draw all inferences in that party's favor.” Gray

v. York Newspapers, 957 F.2d 1070, 1080 (3d

Cir.1992). Summary judgment is inappropriate if there

is evidence sufficient to allow a reasonable jury to

return a verdict for the non-moving party, see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986), or if the factual dispute is one which might

affect the outcome of the suit under the governing law

” Id. The movant's burden, however, “may be

discharged by ‘showing’ ... that there is an absence of

evidence to support the non-moving party's case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Additionally, the non-movant “may not rest upon mere

allegations or denials of the ... pleading”; instead, the

non-movant, “by affidavits or as otherwise provided in

[Rule 56], must set forth specific facts showing that

there is a genuine issue for trial.” Matushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). Here, the facts necessary to the determination

of the pending motions for summary judgment are not

in dispute.

Essex County's motion is made in lieu of an

answer, and although Essex County does not set forth

a standard in its papers, the grounds it cites for

dismissal comport with a motion made pursuant to

Rule 12(b)(6), Fed.R.Civ.P. The bases for dismissal

advanced by Essex County include that the Port

34a

Authority has no right of contribution on a § 1983

action, that the Eleventh Amendment and absolute

immunity bar monetary claims against Essex County

Prosecutor?s Office, and that no Eighth Amendment

claim is properly pled. None of these arguments

require the Court to look further than the pleadings,

and, accordingly, the Court will treat Essex County's

motion as being made under Rule 12(b)(6).

To survive a motion to dismiss under Rule

12(b)(6), a complaint must allege facts that raise a

right to relief above the speculative level. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007). Although a court must accept as

true all allegations in the complaint and view them in

the light most favorable to the plaintiff, Phillips v.

County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008),

the court need not accept sweeping legal conclusions

that are framed as factual allegations, unwarranted

inferences, or unsupported conclusions. Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d

Cir.1997). A plaintiff must allege sufficient facts to

show that the legal allegations are not just possible,

but also are plausible. Phillips, 515 F.3d at 234.

According to the Third Circuit, Rule 12(b)(6) “requires

not merely a short and plain statement, but instead

mandates a statement showing that the pleader is

entitled to relief,” meaning “there must be some

showing sufficient to justify moving the case beyond

the pleadings to the next stage of litigation.” Id. at

234-35.

lil. ANALYSIS

A. Probable Cause

Port Authority defendants’ principal arguments

are that Revell's § 1983 claim must be dismissed

because there was probable cause for Revell's arrest,

and, in any event, that Erickson is protected by

qualified immunity because his actions were

objectively reasonable.

Port Authority defendants' “motion is based on

the probable cause [issue] for the arrest of Mr. Revell

in hght of the facts and circumstances presented to the

arresting police officers who questioned Mr. Revell

regarding his authority to possess and carry the hand

gun in his luggage.” (Port Auth. Br. 1.) Revell agrees

with the centrality of probable cause, stating “the issue

for this motion is whether Defendants had probable

cause to arrest Reveli.” (Revell Br. 6.)

Revell's complaint alleges that he “was entitled

to transport a firearm and ammunition through New

Jersey, notwithstanding N.J.S. § 2C:39-5(b) and N.J.S.

§ 2C:39-3(f)” because his travel was protected under 18

U.S.C. § 926A. (Am.Compl.47 29-30.) Revell alleges

that his arrest and the seizure of his property at

Newark Airport were unreasonable, thereby violating

the Fourth and Fourteenth Amendments to the U.S.

Constitution.

The statute upon which Revell relies, 18 U.S.C

§ 926A, provides:

36a

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 [18 USC §§

921 et seq.] 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.

Revell argues that § 926A shielded him from

criminal liability under N.J.S. § 2C:39-5(b) for

possession of an unlicensed handgun, which provides

in pertinent part: “Any person who knowingly has in

his possession any handgun ... without first having

obtained a permit to carry the same as provided in

N.JS. 2C:58-4, is guilty of a crime|[.]” Revell likewise

37a

argues that § 926A insulates his possession of hollow

nose ammunition from prosecution under N.J.S. §

2C:39-3(), which provides: “Any person, other than a

law enforcement officer or persons engaged in

activities pursuant to subsection f. of N.J.S. 2C:39-6,

who knowingly has in his possession any hollow nose

or dum-dum bullet ... is guilty of a crime[.]” As the

parties have correctly posited, see supra, the Court

must determine whether Officer Erickson had

probable cause to arrest Revell based upon the

information known to Erickson during their encounter

at Newark Airport.”

“Probable cause exists where the facts and

circumstances within the arresting officer?s knowledge

are sufficient to warrant a reasonable person to believe

an offense had been committed [by the suspect in

question].” United States v. Goode, 2009 U.S.App.

LEXIS 2471, *8 (3d Cir. Feb. 9, 2009) (quoting United

States v. McGlory, 968 F.2d 309, 342 (3d Cir.1992)).

“(P]robable cause is a fluid concept-turning on the

assessment of probabilities in particular factual

’ Given the nature of the police encounter-in which Revell

was passing through a security checkpoint in an airport-Revell

cannot contend that Ernckson should not have stopped him or that

Enckson’s questioning of him offends the Fourth Amendment See

Terry v. Ohro, 392 U.S. 1, 19 n. 16 (1968) (noting that police

officers may investigate without offending the Fourth

Amendment), see also United States v. Hartwell, 436 F.3d 174,

179 (3d Cir.2006) (quoting Singleton v. Comm, 606 F.2d 50, 52

(3d Cir 1979) (“The government unquestionably has the most

compelling reasons|-]the safety of hundreds of hives and millions

of dollars worth of private property[-]for subjecting airline

passengers to a search for weapons or explosives that could be

used to hijack an airplane.”).

38a

contexts-not readily, or even usefully, reduced to a

neat set of legal rules.” ///rnois v. Gates, 462 U.S. 213,

232 (1983). Probable cause is a “common-sense

standard” wherein the belief of a “man of reasonable

caution ... does not demand any showing that such a

belief be correct or more likely true than false.” Texas

v. Brown, 460 U.S. 730, 742 (1983). As is the case here,

where “facts are not in dispute, the presence or

absence of ‘probable cause’ has long. been

acknowledged to be a question of law.” Wyatt v. Cole,

504 U.S. 158, 178 (1992).

Port Authority defendants contend that, with

regard to the facts known by Erickson, probable cause

existed for Revell's arrest for illegally possessing a .45

caliber handgun and hollow-nose bullets in violation of

New Jersey law. Port Authority defendants submit

that the indicia leading Erickson to a determination of

probable cause included: Revell's failure to respond to

questions regarding the legality of Revell carrying a

handgun in Pennsylvania (his final destination); the

overnight break in Revell's airline travel during which

his luggage was accessible to him at the Sheraton

hotel; and Revell's statement that he planned to use

the handgun for “personal protection” while traveling.

The Port Authority defendants' most persuasive

argument that Erickson had probable cause to arrest

Revell is that Erickson grew suspicious that Revell's

conduct fell outside of the protective ambit of 18 U.S.C.

§ 926A because he left the airport with the luggage for

an overnight stay at a Newark hotel. The record

supports defendants' assertion that Emckson was

concerned that Revell had ready access to the firearm

39a

and ammunition during the preceding night, which

meant Revell would be in violation of at least two New

Jersey Statutes. From Erickson's deposition testimony

it is clear he knew that Revell spent the night w’th his

luggage (containing the handgun and ammunition) in

a Newark hotel.

Q. He told you that he picked up the bag

at Newark because he missed his flight,

and went of the airport, co rect?

A. Yes

Q. And did he tell you that he went to a

hotel that night?

A. Yes.

(Erickson Dep. Trans. 65:13-20.) Erickson testified

that he believed he had _ probable’ cause

notwithstanding § 926A due to Revell's possession of

hollow-nose ammunition: “The fact that he had the

hollow-nosed bullets, and the circumstances that he

had, we had to believe that he had the weapon readily

available to him, you know, overnight in the hotel. All

of these circumstances lead us to believe we have

enough probable cause.’ (Erickson Dep. Trans.

72:15-22.)

Revell’s arguments on this point attempt to

reframe the dispute into whether Erickson knew

“what, if anything, Revell did with his bag when he

went to the hotel.” (Revell Br. 17.) Revell counters that

his pleadings indicate that he “did not open either of

40a

the locked hard case containers while he was in New

Jersey” Ud. (quoting Am. Compl. 7 13)), and, argues

that Erickson had “no basis to conclude that Revell's

firearm was ‘readily accessible’ to him.” ( Id.) Revell

chooses to focus on Erickson's questions as to where

Revell intended to use the handgun for protection,

arguing that the correct answers would not have

suggested the handgun was readily accessible during

the trip to New Jersey. But this ignores the fact that

the handgun was accessible to Revell from the time he

left Newark Airport after the cancellation of his flight

to the time he returned the next day. Revell's

unsupported assertion that he did not open the gun or

ammunition containers in New Jersey is irrelevant to

whether Erickson had probable cause to suspect the

weapon and bullets were readily accessible. Moreover,

nothing 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. Revell does not allege, for instance, that

the keys to his locked hard cases were held by Port

Authority Police, or that the cases were held in

safekeeping by TSA or Port Authority officials

overnight.

In addition, Erickson was not constrained to

believe Revell's responses to his questions during their

airport encounter, especially because RKevell's

responses did not satisfy Erickson?s suspicion as to

whether laws had been violated. In Torraco v. Port

Authority of New York & New Jersey, 539 F.Supp.2d

632 (E.D.N.Y.2008), the court considered questioning

by an airport police officer of an_ individual

transporting a handgun who claimed the protection of

4la

§ 926A. The court concluded that “la] reasonable

officer, even one aware of § 926A, would be fully

justified in not accepting plaintiff's explanation at face

value. This is because § 926A itself does not answer

the question; it requires confirmation of a particular

set of facts, which a police officer is not obligated to

accept from the mouth of the suspect.” /d. at 650.

Moreover, § 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. For that reason, Revell's amendment to his

complaint wherein he asserts that his encased

handgun and ammunition were transported from

Newark Airport to the Sheraton in a van's inaccessible

cargo area is without force for purposes of the probable

cause analysis. It may very well be that Revell could

not access his luggage during his ride in the shuttle

van-but he assuredly could have later, when it wa

with him during his hotel stay.

Revell also attempts to draw on inapposite

Supreme Court precedent arising from enforcement of

the Civil Rights Act of 1964 to show that his stay at

the hotel did not constitute a “break in travel.” To

support his point, Revell cites At/anta Motel v. United

States, 379 U.S. 241 (1964), which stands for the

proposition that a hotel can be regulated as part of

interstate commerce under the Commerce Clause. To

apply the At/anta Mote/ precedent to the § 926A

framework, as Revell suggests, would stretch § 926 too

thin. Section 926A plainly discusses the transportation

of firearms through a state; it does not contemplate a

firearm transporter staying for any period of time in a

state with an unlicensed firearm in luggage within

that transporter?s unsupervised possession

Even if Erickson's understanding of any of the

facts was mistaken, however, the probable cause he

developed to arrest Revell is not diminished, as

“[p|robable cause does not demand any showing that a

good-faith belief be correct, or more likely true thar

false.” Torraco, 539 F.Supp.2d at 647

The Court finds as a matter of law that Port

Authority defendants’ arrest of Revell does not offend

the Fourth Amendment because probable caus¢

developed during the arresting officer's questioning

concerning Revell's transportation of a handgun and

ammunition through New Jersey. This ruling make

it unnecessary for the Court to address whether or not

' 926A pre-empts New Jersey's ban on possession of

hollow point bullet

B. Qualified Immunity

‘he Port Authority defendants also ;

KH rickson is entitled to qualified immunity as a matte!

of law in arresting Revell because his actions did not

offend the Constitution and were not objectively

h the Court has determined

unreasonable. Altiioug

probable cause existea to arrest Revell, the question of

qualified immunity will also be determined as al

alternative sround for Line (Court cle CISION

{ qualified immunity must be

he earhest po sible stage of litigation

4 |

linton ( oul Lh 644 I ' ‘ 1 |

Cir.2008). Under the doctrine of qualified immunity

officers performing discretionary functions § art

“shielded from liability for civil damages insofar a

their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Qualified immunity analysis is a

two-pronged test. A court must first ask whether the

facts alleged, viewed in the light most favorable to the

party asserting the injury, show that the officer

conduct violated a constitutional right? Saucier 1

Katz, 533 U.S. 194, 201 (2001). Then, only if the court

answers the threshold question affirmatively should it

proceed to the second prong and determine whether

the right was clearly established, i.e., “whether it

would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.” /d. Thu

the Court must first determine whether

constitutional infmngement has been satisfactorily

illeged to create a genuine issue of matenia! fact

The Port Authority defendants “are entitled to

qualified immunity here if a reasonable officer could

have believed that probable cause existed to arrest

defendant] in light of clearly established law and the

information the arresting officers possessed.” Blaylock

v. City of Philadelphia, 504 F.3d 405, 411 (3d Cir.2007

internal citation and quotation omitted). Here

Krickson demonstrated awarene of the

established New Jersey tatute prohibiting

unlicensed handguns and hollow-nose ammunition

during the airport encountel Furthe althoug!

Erickson did not poss full information about

ing from Pennsylvar

1.e. the states through which Revell planned t

arive), erick SOT) did i@arn of Revell’ lan to use tne

}

gun for “protection” and that Revell had left

airport on the previous night with the unlicen

handgun and ammunition. Because, “in a qualified

immunity case, the question of probable cause t

arrest 1s an objective inquiry that does not depend on

the officers subjective motivations, the Inquiry can

end there. See Blaylock, 504 F.3d at 411 n. 5. Thus, |

virtue of Erickson having probable cause to

Revell, Erickson is entitled to qualified immun:

the Court need not reach the econd pron

C. Due Process Claim Against Port Authority Under

§ 1983

Count [wo olf the amended complaint addr

the adequacy of the Port Authority?s post-deprivat

due process, seeking damages for “depriv|ing| Revell

property without due process of law pursuant to

established policy of Defendant Port Authority

A4m.Compl.{ 39.) Thus, Revell is seeking damages !

the taking of his property dunng the arrest and failing

to return it. In his amended complaint, Revell had als

ough Injunctive rehel ordering that on

property be returned to him, but voluntar!

(

ount lhree for injunctive relief on Ju

y

,

returned |! run

om

On

©

Where, as here, the necessity of quick action makes a

pre-deprivation remedy impracticable, the Due Process

Clause requires only that States provide an adequate

post-deprivation remedy. Parratt v. Taylor, 451 U.S.

527, 539-41 (1981). As the Court previously ruled in its

June 29, 2007 opinion, in cases of random or

unauthorized deprivations, the availability of a State

law tort action against the rogue State officer in State

court qualifies as an adequate post-deprivation

remedy. (D.E.38); see also Parratt, 451 U.S. at 543.

Revell argues that the option of requesting that

Essex County release his property was not an

adequate post-deprivation remedy because it was not

a statutorily-created means of redress. (Revell Br. 28.)

Interestingly, it appears that such a simple request to

Essex County is precisely what led to the return of

Revell’s seized property. Critically for purposes of

Count Two, however, Revell did not file a state court

tort suit for return of his seized property. Revell

cannot recover for inadequacy of post-deprivation

remedies because the option of commencing a state

court lawsuit was available to him at all times, which

satisfies Revell's right to due process. Accordingly, the

Court grants summary judgment of dismissal as to

Count Two.

D. *Prison Claim”

Revell clarifies in his papers that he is not

alleging a “prison claim” under the Eighth

Amendment, but only seeks to “recover against the

Port Authority for injuries suffered at the Essex

County Jail as part of his compensation for the arrest.”

46a

(Revell Br. 32.) Without commenting on _ the

availability of damages on this theory, the Court has

found that probable cause existed for Revell's arrest.

As such, he is not entitled for damages related to his

detention at Essex County Jail.

E.. The Remaining Motions

Because the Court grants Port Authority

defendants’ motion for summary judgment, it need not

decide third-party defendant Essex County's motion to

dismiss 1n lieu of answering and third-party defendant

Continental's motion for summary judgment, and they

are both denied as moot. All third-party claims are

dismissed as moot.

IV. CONCLUSION

For the foregoing reasons, Count One of Revell's

complaint is dismissed because probable cause existed

for Revell'’s arrest. Revell's only remaining claim,

Count Two, is likewise dismissed because New Jersey

afforded adequate post-deprivation due process to

Revell. The motions of Essex County and Continental

are denied as moot, as there is no hability for the

actions of the Port Authority defendants, and all

third-party claims are, accordingly, dismissed. An

appropriate order will be entered.

/s/ Katherine S. Hayden

Katherine’S. Hayden, U.S.D.J.

Alva

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GREGG C. REVELL,

Plaintiff,

Civ. Action

No. 06-402 (KSH)

THE PORT AUTHORITY

OF NEW YORK AND NEW

JERSEY and SCOTT

ERICKSON,

Defendants and

Third-Party

Plaintiff ORDER

CONTINENTAL AIRLINES,

THE COUNTY OF ESSEX,

THE ESSEX COUNTY JAIL,

THE OFFICE OF THE ESSEX

COUNTY PROSECUTOR et al.

Third-Party Defendants

Oa

Katherine 5. Hayden, U.S.D.d

For the reasons stated in the opinion filed herewith,

IT IS on this 31" day of March, 2009,

ORDERED that Port Authority’s cross-motion

for summary judgment is granted (D.E. 93), dismissing

the remaining counts, counts one and two, of Revell’s

complaint; and it is further

ORDERED that the motions of Essex County

(D.E. 92) and Continental (D.E. 97, 106) are denied as

moot: and it is further

ORDERED that the Clerk of ‘t shall mark

the matter closed.

/s/ Katherine 8S. Hayden

Katherine S. Hayden. U.S

49a

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NOT FOR PUBLICATION

GREGG C. REVELL and

ASSOCIATION

OF NEW JERSEY

RIFLE AND PISTOL

CLUBS, INC.,

Plaintiffs.

V. Civil Action

No. 06-402 (KSH)

PORT AUTHORITY OF

NEW YORK AND NEW

JERSEY, et al.,

Defendants. OPINION

KATHARINE S. HAYDEN, U.S.D.J.

In this § 1983 case, Plaintiff Gregg Revell

(“Revell”) claims that Port Authority Police Officer

Scott Erickson (“Erickson”) and the Port Authority of

New York and New Jersey (“the Port Authority”)

violated his rights, privileges, or immunities secured

by 18 U.S.C. § 926A when Erickson arrested him in

Newark Liberty International Airport in Newark, New

50a

Jersey for possession of a firearm without a license

and for possession of hollow point bullets. Revell also

claims that Erickson and the Port Authority violated

his Fourteenth Amendment right to due process of law

by retaining, without providing notice and an

opportunity to be heard, the firearm, holster, locks,

hard case containers and ammunition seized from him

during the arrest. Reveli seeks both monetary and

injunctive relief. Plaintiff Association of New Jersey

Rifle and Pistol Clubs, Inc. (the “Association”), a

non-profit membership corporation organized to

protect the rights of its members and the public to

possess and carry firearms and ammunition, seeks

purely injunctive relief in the form of an order

enjoining Erickson and the Port Authority from

enforcing certain New Jersey gun laws against

non-resident Association members who are

transporting firearms and ammunition through New

Jersey in compuance with § 926A.

Erickson and the Port Authority have moved to

dismiss the complaint on several grounds. For the

reasons explained more fully below, the motion is

granted, and Revell is given leave to amend Counts

One, Two, and Three of the complaint.

I. STANDARD

Erickson and the Port Authority filed a joint

motion for dismissal.’ Revell's complaint can only be

' Technically, because the Port Authority filed a

responsive pleading prior to filing this motion and Erickson did

not, they have filed for dismissal under different rules of

5la

dismissed “if it appears to a certainty that no relief

could be granted under any set of facts which could be

proved.” D.P. Enters., Inc. v. Bucks County Cmty.

Coll., 725 F.2d 943, 944 (3d Cir.1984). Moreover, the

court must accept all well-pled factual allegations as

true and must construe the complaint in the light most

favorable to the plaintiff. Trump Hotels & Casino

Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483

(3d Cir.1998).

Il. FACTUAL BACKGROUND’

On March 31, 2005, Revell, a resident of Utah,

checked in with Northwest Airlines at the Salt Lake

City Airport. His destination was Allentown,

Pennsylvania, via Minneapolis/St. Paul and Newark,

New Jersey. When he checked in, Revell declared that

his bag contained an unloaded firearm in a locked hard

case container and ammunition in a separate locked

hard case container. Revell signed an orange firearm

declaration tag, which was placed inside the container

holding the firearm.

procedure. Fed.R.Civ.P. 12(b)(6) authorizes a defendant to file a

pre-answer motion to dismiss for “failure to state a claim upon

which relief can be granted.” Fed.R.Civ.P. 12(c), on the other

hand, permits a defendant who has already filed an answer to file

a motion for judgment on the pleadings. As a result, the Port

Authonty's motion is made pursuant to Rule 12(c), while

Erickson's motion is made pursuant to Rule 12(b\(6) The

difference is purely semantic, however, because the standard is

the same for both rules. Turbe v. Government of the Virgin

Islands, 938 F.2d 427, 428 (3d Cir.1991).

’ The factual background comes from the complaint

5 I

Za

Revell's flight to Newark was late and he missed

his connecting flight to Allentown. After waiting five

hours inside the secure area of the airport, he was

directed to board a bus that would drive him and other

passengers to Allentown. After taking his seat on the

bus, Revell learned from the driver that his checked

luggage had not been placed on the bus, so he got off to

search for his bag. By the time Revell found it in the

lost luggage area of Newark Airport, the bus to

Allentown had already left. An airline employee told

him that the airline's computer system showed that

although he had checked the bag through to

Allentown, the airline had mistakenly tagged his bag

with Newark as its final destination. As there were no

other connections to Allentown that night, Revell took

his bag and stayed overnight at a nearby hotel.

The next morning, Revell went directly to

Newark Airport. At the airline check-in counter, he

once again declared that he had a firearm and

ammunition in his bag and that they were stored in

separate locked hard case containers. Revell signed a

white form and was directed to an x-ray area, where

he again declared the firearm and ammunition. After

his bag went through the x-ray machine, an agent at

the end of the machine opened the cases using Revell's

key. The orange firearm declaration from Revell's Salt

Lake City check-in was still in the firearm container.

After approximately 20 minutes, several police officers

escorted Revell to a different area of the airport where

they questioned him about the firearm = and

ammunition. Revell showed them his Utah concealed

firearm permit and driver's license, and explained that

he was simply traveling through New Jersey from

oda

Utah and that he was on his way to Pennsylvania.

It is unclear exactly when Officer Scott Erickson

appeared on the scene, but he ultimately arrested

Revell for possession of a handgun without a permit in

violation of N.J.S.A. § 2C:39-5(b) and for possession of

hollow point ammunition in violation of N.J.S.A. §

2C:39-3(f). Revell's firearm, ammunition, holster,

locks, and hard case containers were seized, and he

was charged with unlawful possession of a handgun

without a permit and unlawful possession of hollow

point ammunition. He was handcuffed, placed in a

police car, and held overnight in the Port Authority

jail. The next day, Revell was transported to the Essex

County Jail, where he was detained for three days.

Ultimately, some four months later, on August 2, 2005,

the Essex County Prosecutor administratively

dismissed all charges. As of the date of filing the

complaint, the firearm, ammunition, holster, locks,

and hard case containers had not been returned.

The complaint includes four counts brought

pursuant to 42 U.S.C. § 1983. In Count One, Revell

claims that he is entitled to $3 million in damages

because Erickson and the Port Authority, acting under

color of State law, deprived him of his federal right to

transport firearms and ammunition through states

where possession of such items might otherwise be

illegal, as guaranteed by 18 U.S.C. § 926A. In Count

Two, Revell claims that he is entitled to $100,000 in

damages because Erickson and the Port Authority,

acting under color of State law, deprived him of his

property without due process of law as guaranteed by

the Fourteenth Amendment to the United States

54a

Constitution. In Count Three, Revell seeks injunctive

relief in the form of an order directing Erickson and

the Port Authority to return his property. In Count

Four, the Association seeks an injunction enjoining

Erickson and the Port Authority from enforcing

N.J.S.A. §§ 2C:39-5(b) and 2C:39-3(f) against its

non-resident members who are entitled to transport a

firearm and ammunition through New Jersey

pursuant to 18 U.S.C. § 926A.

Itt. ANALYSIS

Revell seeks to recover monetary damages and

injunctive relief pursuant to 42 U.S.C. § 1983 for a

violation of a statutory rmght secured by 18 U.S.C. §

926A° and for violation of his right to due process as

guaranteed by the Fourteenth Amendment to the

United States Constitution. To properly assert a §

1983 claim, the complaint must allege (1) “a violation

of a right secured by the Constitution or laws of the

United States,” and (2) “that the alleged deprivation

was committed by a “person” acting under color of

State law.” West v. Atkins, 487 U.S. 42, 48 (1988).

A. Count One-Does § 1983 provide Revell a remedy for

a violation of 18 U.S.C. § 926A?

Revell's brief in opposition to the motion to dismiss

specifies that he is not suing for a violation of his Fourth

Amendment right to be free from unreasonable searches and

seizures “Indeed, the Fourth Amendment 1s not even mentioned

in the complaint. Rather, Revell seeks to recover under 42 U S.C

Section 1983 for violation of a statutory right secured by 18 US C

§ 926A. ”(PI.'s Br. at 1 )

It is well-settled that violation of a federal

statute by a person acting under color of State law 1

insufficient, on its own, to support an action under §

1983. Blessing v. Freestone, 520 U .S. 329, 340 (1997)

Golden State Transit Corp. v. City of Los Angeles, 493

U.S. 103, 105-106 (1989). Such a lawsuit is only

permissible if (1) the statute creates enforceable

rights, privileges, or immunities; and (2) Congress ha:

not, either expressly or impliedly, foreclosed a private

remedy. Three Rivers Ctr. for Indep. Living v. Hous

Auth., 382 F.3d 412, 421-22 (3d Cir.2004). As a

threshold jurisdictional matter, the Court must

determine whether 18 U.S.C. § 926A created an

enforceable personal right. This appears to be an issue

of first impression

Whether § 1983 provides a remedy for violation

of a federal statute, is a separate, but overlapping,

inquiry from whether the statute creates an implied

private right of action. Three Rivers Ctr. for Indep

Living, 382 F.3d at 421. The Supreme Court has

instructed that four factors must be considered in

determining whether a federal statute provides a

private right of action:

First, is the plaintiff one of the class for

whose especial benefit the statute was

enacted-that is, does the statute create a

federal right in favor of the plaintiff?

Second, is there any indication of

legislative intent, explicit or implicit,

either to create such a remedy or to deny

one? Third, is it consistent with the

underlying purposes of the legislative

Ha

scheme to imply such a remedy for the

plaintiff? And finally, is the cause of

action one traditionally relegated to state

law, in an area basically the concern of

the States, so that it would be

inappropniate to infer a cause of action

based solely on federal law?

Cannon y. University of Chicago, 441 U.S. 677, 689 n

9 (1979) (internal citations and quotations omitted

However, because § 1983 by its very terms provides a

private remedy, the analysis for determining whether

an individual may sue for violation of a federal statut

pursuant to § 1983 is slightly different. Three River

Ctr. for Indep. Living, 382 F.3d at 421

The threshold question remains

however, whether the federal statute

creates a personal right-i.e., a plaintifl

must show that the statute create

enforceable rights, privileges, 01

immunities within the meaning of &¢

1983. Once the plaintiff establishes the

existence of a federal right, there arises a

rebuttable presumption that the right i:

enforceable through the remedy of §

1983. This presumption may be rebutted

by showing that Congress specifically

foreclosed a remedy under § 1983, either

expressly, by forbidding recourse to §

1983 in the statute itself, or impliedly, by

creating a comprehensive enforcement

scheme that is incompatible’ with

individual enforcement under § 1983

omitted)

The federal aLUuULe INV

‘Vant part

Notwithst inding any ovunel

any law or any rule or regulation of

otate or any p It1C% ubdivision thereof

any perso! ‘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

uch transportation the firearm

unloaded, and neither the firearm nor

iny ammunition being transported

readily accessible or is directly acce:

from the passenger compartment of s

transporting vehicle: Provided, that

the case I a vehicle without

compartment eparate from

compartment the

ammunition shall

locked container other

compartment or consol

1I8 U.S.C. § 926A (2006). The statute

1986 as part of the Firearms Owners Protecti

(“FOPA”) to enable individual:

through a State, even if possession

that State would otherwise

FOPA wa a comprehen lve atut lal

attempted to fix perceived problem with the Gun

Control Act of 1968. During a debate on the Senat«

floor over the bill. Senator Bob Dol tated

The Firearms Owner! Protection

would correct various abuses which !

occurred under the Gun Control Act o

1968. The 1968 law wa pa ed during an

emotional penod, when the Nation wa

reacting to two political assassin:

The national judgment at that time w:

to take away rights enjoyed by many

order to prevent recurrence of the

outrageous abuses of a few. Hach year

experience under the law brought with

new evidence that Congre had gone to

fal Hunter |port men, hobby t ana

collector were being pro ecuted te)

technical violations, diverting limited law

enforcement resources from the pursull

of those guilty of truly criminal firearm

9 |FOPA! is the culmination

of pain taking debate and an ily

the deficienci in the 196%

oOrrecte |

HQu

form, the “legislation would [have] exemptled] the

transport of firearms in interstate commerce from any

State or local laws that might otherwise make such

transport illegal, thereby overriding States’ rights to

regulate gun carrying across their borders, and

allowing criminals the opportunity to transport their

weapons across State lines with impunity.” Id

(statement of Sen. Daniel Patrick Moynihan). To allay

these concerns, Senator Strom Thurmond proposed the

Statute that was ultimately passed, known colloquially

as both the “rhurmond Amendment’ and “Son of Gun.”

The new language closed the loophole by limiting the

right to travel interstate with firearms to situations

where the firearm was unloaded, the firearm was not

readily accessible, and any ammunition was stored

separately.

During debate, Senator Jim McClure discussed

the need for law abiding individuals to. travel

interstate with their firearms:

I believe that the Second Amendment

means exactly what it says. I believe that

our forefathers intended for all honest

citizens to be able to arm themselves.

This is not a privilege meted out by the

Government-it is a_ sovereign right,

belonging to the people themselves....

Under present law, there is no legal way

for a person to transport firearms

through some States. For example, a

hunter from South Carolina has no way

of getting through the State of New York

to go moose hunting in Maine. The

60a

Firearm Owners Protection Act would

allow an individual to transport a

firearm through the State if the firearm

is unloaded and not easily accessible. The

possession of the firearm must be legal

both in the State of residence and in the

State of final destination.... This right of

transportation does not hinder a State

from enacting laws concerning intrastate

transportation.... Each year thousands of

law abiding citizens travel on interstate

trips with firearms for hunting purposes,

competitions, matches, moving

residences, and personal protection upon

arrival. There must be some way for

law-abiding Americans to exercise the

right to interstate travel with personally

owned firearms.

132 Cong. Rec. 55358-04 (daily ed. May 6, 1986)

(emphases added). Speaking out in favor of the

proposed bill on the House floor, Representative Bill

McCollum described § 926A as a “safe harbor”

provision, rather than as a_ statute creating an

affirmative right. 1382 Cong. Rec. H4102-03 (daily ed.

June 24, 1986). He noted:

No one is_ required to follow” the

procedures sei forth in section 926A, but

any traveler who does cannot be

convicted of violating a more restrictive

State or local law in any jurisdiction

through which he travels. Thus, section

926A will be valuable to the person who

61a

cither knows he will be traveling through

a jurisdiction with restrictive laws or 1s

unfamiliar with the various laws of the

jurisdiction he will be traversing

Many times people traveling in interstate

commerce can unwittingly — find

themselves in violation of all kinds of

technical requirements for possession of

firearms.

The legislative history shows that the statute

was passed as a compromise that balanced the needs

of certain individuals to travel across state lines with

firearms with the needs of States to keep illegal guns

out of the hands of criminals. Effectively, Congress

passed a statute, codified as § 926A, that trumps State

gun laws under limited circumstances, but that does

not preempt all State regulation of firearms, City of

Camden v. Beretta U.S.A. Corp., 81 F.Supp.2d 541,

549 (D.N.J.2000) (Simandle, J.), leaving the States

with the power to regulate firearms and to prosecute

individuals who violate State gun laws. Section 926A,

therefore, places police officers in the unenviable

position of having to determine in the first instance

whether an individual should be arrested for violation

of a State gun law, or whether the individual's actions

are immunized by compliance with § 926A.

Revell's lawsuit presents a situation where an

individual has complied with the requirements of §

926A and is nonetheless arrested for violation of an

62a

otherwise valid State gun law. Arguably, there is a

violation of § 926A if he has complied with § 926A and

is nonetheless detained by the police and/or arrested,

and/or if the firearms are seized. But the § 926A

violation is a subsection of the main event: seizures

that are arguably “unreasonable” have occurred, and

this necessarily directs a Fourth Amendment analysis

to determine if he was stripped of “(tlhe right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and

SseCIZUres.

Revell seeks a statutory route toward relief, but

inescapably, the legal inquiry draws on established

legal principles of constitutional law enforcement

activity. Thus: “[A] warrantless arrest by a law officer

is reasonable under the Fourth Amendment where

there is probable cause to believe that a criminal

offense has been or is being committed.” Devenpeck v.

Alford, 543 U.S. 146, 152 (2004) (citing United States

v. Watson, 423 U.S. 411, 417-24 (1976); Brinegar v.

United States, 338 U.S. 160, 175-76 (1949)). If a law

enforcement officer arrests an individual without

probable cause, the officer may be liable under § 1983.

Atwater v. City of Lago Vista, 532 U.S. 318 (2001).

Furthermore, the filing of criminal charges against an

individual without probable cause is also actionable

under § 1983. Lohman v. Twp. of Oxford, 816 F.Supp.

1025 (F.D.Pa.1993).

The Supreme Court has specifically held that all

§ 1983 claims alleping an unlawful seizure must be

brought pursuant to the Fourth Amendment. Graham

v. Connor, 490 U.S. 386, 395 (1989) (holding that

63a

“(blecause the Fourth Amendment provides an explicit

textual source of constitutional protection against this

sort of physically intrusive governmental conduct, that

Amendment ... must be the guide for analyzing these

claims”). While the FOPA provision at issue in this

case might be properly considered as a factor weighing

on reasonableness, it does not provide greater

protection from arrest than the Fourth Amendment

already provides, nor under the strictures of Graham

v. O'Connor, may it substitute for Fourth Amendment

analysis

By passing § 926A, Congress was attempting to

protect law abiding gun owners from prosecution

without diluting the States’ abilities to prosecute

criminals using guns for illicit purposes. Because

individuals already have a method of recovering

damages pursuant to § 1983 if they are arrested or

charged without probable cause, it is unnecessary and,

indeed, improper for this Court to conclude that § 19838

provides a separate or alternative remedy for a

violation of § 926A. Subjecting law enforcement

officers to § 1983 liability for unlawful arrests over and

above the Fourth Amendment's reasonableness inquiry

risks an impact on the enforcement of a given State's

gun laws, something that motivated Congress's

insistence on the Thurmond Amendment in the first

place.

Revell carefully drafted his complaint to avoid

mention of the Fourth Amendment, and specifically

points out in his brief that he is not raising a Fourth

Amendment claim. But he is seeking to recover

damages for the unconstitutional seizure of his person

O4a

and his firearm under circumstances that require a

classic reasonableness analysis. Nothing in the statute

or legislative history would support a finding by this

Court that by passing the FOPA provision at issue,

Congress intended to provide firearms-transporting

individuals with separate protection against arrest

and seizure of property from what the Fourth

Amendment already provides. ‘Therefore, Count One of

Revell's complaint is dismissed

Because, as the foregoing analysis indicates, the

facts alleged could be sufficient to state a § 1983 claim

for an unreasonable arrest and seizure of property in

violation of the Fourth Amendment, Revell is granted

20 days leave to file an amended complaint.

B. Counts Two and Three-Due Process Claims

[In Counts Two and Three, Revell claims that

defendants, acting under color of State law, have

deprived him of his property (firearm, ammunition,

holster, locks, and hard case containers), without due

process of law as guaranteed by the Fourteenth

Amendment to the United States Constitution. The

complaint states: “Defendants ... deprived Revell of

property without due process of law by retaining,

without notice and opportunity for a hearing, the

firearm, holster, locks, hard case containers, and

ammunition seized from him.” (Compl. at 44 36, 43.)

Both counts are brought pursuant to § 1983, the only

difference being that Revell seeks monetary damages

in Count Two and injunctive relief in Count Three.

The most naturai reading of the complaint is

65a

that Revell is asserting a procedural due process claim

based on defendants’ failure to return his firearm,

ammunition, holster, locks, and hard case containers

to him. However, because Revell does not explicitly

state whether his due process claim is of the

procedural or substantive variety, the Court will

analyze his claim as if he has asserted both.

1. Procedural Due Process

Under the Fourteenth Amendment, a State may

not “deprive any person of life, liberty, or property,

without due process of law.” A procedural due process

claim is analyzed under a two-part inquiry: the Court

must determine whether Revell “was deprived of a

protected interest, and if so, what process was his

due.”

428 (1982). The second prong bars a § 1983 suit if a

constitutionally adequate State process was available

but not used. Parratt v. Taylor, 451 U.S. 527, 541-42

(1981).

The Supreme Court explained in Board of

Regents v. Roth, 408 U.S. 564, 577 (1972), that

property interests “are not created by the Constitution.

Rather they are created and their dimensions are

defined by existing rules or understandings that stem

from an independent source such as state law....” It is

not disputed that Revell enjoyed a property interest in

items seized and subsequently retained by defendants,

so the issue is what process he was due.

“Usually, the process that is constitutionally

‘due’ must be afforded before the deprivation

66a

occurs-the state must provide predeprivation process.”

Brown v. Muhlenberg Twp., 269 F.3d 205, 213 (3d

Cir.2001). However, when deprivation by a State

‘random and

‘

official acting under color of Jaw is

unauthorized” or ifthe necessity of quick action makes

a predeprivation remedy impracticable, as is the case

here, the Due Process Clause requires only that States

provide an adequate postdeprivation remedy, Parratt,

451U.S. at 539-41. In cases of random or unauthorized

deprivations, the availability of a State law tort action

against the rogue State officer in State court qualifies

as an adequate postdeprivation remedy. Id. at 543.

While Revell has alleged that the Port Authority

has a policy of arresting individuals in violation of 18

U.S.C. § 926A (Compl. at J 17), he has not alleged that

the Port Authority's postdeprivation remedies to

recover a firearm seized during the course of an arrest

are constitutionally inadequate. Revell also does not

indicate whether or not he has availed himself of the

Port Authority's remedies for the recovery of seized

property or why these remedies are constitutionally

inadequate. He simply claims that his “requests for

return of the property have been ignored.” (Compl. at

q 22.) To the extent that Revell has not availed himself

of the Port Authority's formal procedures for

requesting the return of seized property, his

procedural due process claim must be dismissed for

failure to state a claim because he has not shown that

complying with the procedures would be futile. Insofar

as Revell claims that Erickson's retention of his

property is a random and unauthorized act and that

Erickson is wrongly holding his property in violation

of official Port Authority policy, this claim must also be

67/a

dismissed because Revell is capable of filing a State

law tort action against Erickson in State court seeking

the return of his property. Parratt, 451 U.S. at 543

(holding that in cases of random and unauthorized

deprivations, the availability of a State law tort action

in State court qualifies as an adequate postdeprivation

remedy).

2. Substantive Due Process

To the extent that Revell is claiming that his

arrest and the seizure of his property should be

analyzed under a substantive due process standard,

such a claim is foreclosed by the Supreme Court's

decision in Graham _ v. Connor, 490 U.S. 386, 388

(1989). As noted above, the Graham Court held that

“(blecause the Fourth Amendment provides an explicit

textual source of constitutional protection against this

sort of physically intrusive governmental conduct, that

Amendment, not the more generalized notion of

‘substantive due process,’ must be the guide for

analyzing these claims.” Id. at 395

For the foregoing reasons, Counts Two and

Three are dismissed for failure to state a claim. Revell

is granted leave to file an amended complaint within

20 days if he wishes to pursue a claim alleging that the

Port Authority's postdeprivation remedies for the

return of seized property are constitutionally

inadequate.

C. Count Four-Injunctive Relief for the Association

In Count Four, the Association seeks an

68a

injunction enjoining defendants from’ enforcing

N.J.S.A. §$ 2C:39-5(b) (possession of a handgun

without a permit) and 2C:39-3(f) (possession of hollow

point ammunition) against its non-resident members

who are entitled to transport a firearm and

ammunition through New Jersey pursuant to 18

U.S.C. § 926A.

Defendants have not raised any arguments in support

of dismissing this claim. However,

those who seek to invoke the jurisdiction

of the federal courts must satisfy the

threshold requirement imposed by Art.

[ll of the Constitution by alleging an

actual case or controversy. Plaintiffs

must demonstrate a personal stake in the

outcome in order to assure that concrete

adverseness which’ sharpens. the

presentation of issues necessary for

proper resolution of constitutional

questions. Abstract injury is not enough.

The plaintiff must show that he has

sustained or is immediately in danger of

sustaining some direct injury as the

result of challenged official conduct and

the injury or threat of injury must be

both real and immediate, not coniectural

or hypothetical.

City of Los Angeles v. Lyons, 461 U.S. 95, 101-102

(1983) Gnternal citations and quotations omitted).

In Lyons, the Court held that an individual who

was severely injured by the police after they subjected

him to a choke hold during ‘a traffic stop did not have

standing to seek an injunction preventing the police

from using the choke hold in the future. Id, at 105. In

so holding, the Court stated that although

Lyons may have been illegally choked by

the police on October 6, 1976, while

presumably affording Lyons standing to

claim damages against the individual

officers and perhaps against the City,

does nothing to establish a real and

immediate threat that he would again be

stopped for a traffic violation, or for any

other offense, by an officer or officers who

would illegally choke him = into

unconsciousness without any provocation

or resistance on his part. The additional

allegation in the complaint that the

police in Los Angeles routinely apply

chokeholds in situations where they are

not threatened by the use of deadly force

falls far short of the allegations that

would be necessary to establish a case or

controversy between the parties

Under this standard, the Association does not

meet Article III's injury in fact requirement to

establish an actual case or controversy. Although the

complaint summarily asserts that there “exists a

credible threat of prosecution for violation ... [of these

laws] for non-resident members of the Association who

intend to transport firearms and hollow point

ammunition through New Jersey” pursuant to 18

U.S.C. § 926A,” (Compl, at { 52), the Association has

failed to plead any fact in support. Because the

Association cannot show a sufficient likelihood that its

members will be injured in the future, iis claim must

be dismissed for failure to establish a case or

controversy between the parties. Lujan v. Defenders of

Wildlife, 504 U.S. 555 (1992): Lyons, 461 U.S. at 105

IV. CONCLUSION

For the foregoing reasons, defendants’ motion to

dismiss is granted. Revell is granted leave to amend

Count One to substitute a § 1983 claim for a violation

of his Fourth Amendment rights in place of his § 1983

claim for a violation of 18 U.S.C. § 926A; and Revell is

also granted leave to amend his complaint as to

Counts Two and Three insofar as he wishes to claim

that the Port Authority's postdeprivation remedies for

property seized in connection with his arrest are

constitutionally inadequate. An appropniate order will

be filed

Dated: June 29, 2007

/s/ Katherine 8S. Hayden

Katherine 8. Hayden, U.S.D.J

!

ft

NITED STATES COURT OF APPEAL

FOR THE THIRD CIRCUTI

No. 09-2029

GREGG C. REVELL; ASSOCIATION OF NEW

JERSEY RIFLE & PISTOL CLUBS IN

PORT AUTHORITY OF NEW YORK AND NEV

JERSEY; SCOTT ERICKSON

PORT AU'THORITY OF NEW YORK

AND NEW JERSEY

hird Party Plain

CONTINENTAL AIRLINES; COUNTY OF ESSE?

ESSEX COUNTY JAIL; ESSEX COUNTY

PROSECUTOR; JOHN DOES 1-10

C‘hird Party Defendant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 06-cv-402

District Judge: Honorable Katherine S. Hayden

R PETITION FOR REHEARING

Before: RENDELL and JORDAN, Circuit Judge

PADOVA*, District Court Senior Judge

The petition for panel rehearing filed b

Petitioner having been submitted to all judges who

participated in the decision of this court, and a

majority of the judges who concurred in the decision

not having asked for rehearing, itis hereby ORDERED

that the petition for panel rehearing is hereby

DENIED

BY THE COUR]

Is/ Kent A. Jordar

Circuit Judge

Dated April 20, 2010

MB/c Richard E. Gardiner, Esq

Donald F. Burke, Sr., Esq

Honorable John R. Padova, LJnited States District

Court Senior Judge, for the Eastern District of

Pennsylvania, sitting by designation