# Appendix — Revell v. Port Authority of New York

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2370%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1178

## Text

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

5a

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

6a

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).

9a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2370%3A2. Public record. Not legal advice.