Opposition Brief — Revell v. Port Authority of New York

IN THE

Supreme Court of the United States

On PETITION FOR A Writ or CERTIOKARL TO Tite UN

STATES CourT OF APPEALS FOR THE Thirp Cirneur

BRIEF IN OPPOSITION

( VM

( Record

James M. |

AUTH

» Par AV

hn F loon

New York, NY 1000

, 135-3434

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TABLE OF CONTENTS

TABLE OF CONTED

TABLE OF CITIED AUTH!

LIIMMARY OF ARGUMI]

POINT

CHk THIRD CIRCUIT COURT OF APPEA

CORRECTLY AFFIRMED THE DISMISSAI

OF REVELUS CLAIMS BASED ON 18 U.S.

926A AND THE FOURTH AMENDMENT

SINCE ON THE PLEADINGS AND

UNDISPUTED FACTS HE DID NO!’

FALL WITHIN Hit PROTECTIO

PROVIDED BY THAT STATUTE

? 1? | Bal ’ | i Ww

a al of Revell (Claim Based O

sf; + G26A Wa Proper Since The

Stated Fact Which Took

(Complaint

Revell Outside The Pr

| ~ | QVYOHA

The Third Circuit Correctly Affirmed T!

Granting of Summary Judgment

Dismissing The Claim Tor Violation Of

Revell’s kourth Amendment Rights (on

The Ground That There Was Probable

(‘ause For His Arrest

: VO Oubstantial Questor

nted For This Court As The Third

-

uit’s Ruling Does Not Impair Revell

d Amendment Right

SIZURE AND RETENTION OF

REVELUS PROPERTY DID NOT VIOLATI

PROCESS CLAUSE OF THI

NTH AMENDMENT

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160 (2000

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294 (1967

94 US

STATE ST

EEDERAL STATUTES

TREATISES & OTHER AUTHORITIES

Wright &

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SUMMARY OF ARGUMENT

The Court of Appeals for the Third Circuit (“Third

Circuit”) correctly affirmed the district court’s granting

summary Judgment dismissing petitioner Gregg Revell’s

(“Revell”) claim pursuant to 42 U.S.C. § 1983 that his

fourth Amendment rights as secured by the Fourteenth

Amendment were violated by his arrest on April 6, 2005

at Newark Liberty International Airport (“Newark”) for

unlawful possession of a firearm and hollow-point bullet

because Revell did not fall under the protection of 18

U.S.C. § 926A, known as the Firearm Owners Protection

Act (“FOPA"). This statute permits persons to trave

between places where they lawfully possess a firearn

through a jurisdiction where they might not lawfully

possess it, provided they comply with certain condition

set forth in the statute. A key condition is that during

transport, the firearm and ammunition are not “readily

accessible” to the person traveling with them. Revell

failed to comply with this condition when through a

series of mishaps, he missed his airline connection and

retrieved the gun and ammunition, which he then to

a hotel overnight before ret inning t Lne a rport

There wa probable

irrived at the airport the next day to resume his trip

; undisputed that he told The Port Authority of

New York and New Jersey (the “Port Authority ") Pohies

Officer Scott Erickson that he had stayed with

;

firearm and ammunition at an airport hotel. At the tin

of his arrest, Revell was in possession of a handgun fo

Which he had no permit as required by N.J.S.A

»y and for possession of holl

LSA

The Third Circuit’s ruling does not implicate Revell’s

Second Amendment rights because there is no claim that

the New Jersey’s gun laws being enforced were

unconstitutionally restrictive or that the Third Circuit

imposed conditions on Revell that were not expressly

tated in the statute

The claim for violation of Revell’s due process right:

based on the retention of his firearm and ammunition

after the charges against him were dropped was also

properly dismissed, since New Jersey provided adequat

post deprivation remedies. which he failed to use

POINT I

THE THIRD CIRCUIT COURT OF APPEALS

CORRECTLY AFFIRMED THE DISMISSAL OF

REVELUS CLAIMS BASED ON 18 U.S.C. § 926A AND

THE FOURTH AMENDMENT SINCE ON THE

PLEADINGS AND UNDISPUTED FACTS HE DID

NOT FALL WITHIN THE PROTECTION

PROVIDED BY THAT STATUTE

Procedural History

ed Revells first cor

based solely on 18 U.S.C. § 926A pursuant to RE R.C

12(b)(6), but allowed him to replead under the Fourth

Amendment and the Fourteenth Amendment (App. 49a

(0a). Revell served an amended complaint alleging

violation of his Fourth Amendment right to be free fron

unlawful arrest and imprisonment and a violation of hi

due prucess right based on the retention of his property

] ° | ] °% © ]

Dv police atter the daism) i r tne criminal action

him on August 2, 2005. At the conclusion of

avalnst

discovery, the district court granted summary Judgment

dismissing the complaint on the ground that there was

no violation of his Fourth Amendment right since there

was probable cause for his arrest, and on the ground

that there was no due process violation because there

were adequate post-deprivation remedies (App. 26a

18a). The Third Circuit affirmed the decision of the

district court on different grounds with respect to 18

U.S.C. § 926A, since the Third Circuit determined that

Revell did not fall within the protection of this statute

(App. 3a-25a

8B) The Standard of Review

his Court has held that on

pursuant to Fed. R. Civ. P 12 (b )(6), the pleadings must

than a statement of fact

a motion to dism

ontain “ ‘something more

that merely creates a suspicion [of] a legally cognizabl

. ll Atlantic Corp Twombly. 550

Lingo & Wright & A. Miller, Kedera

‘proc +*)*>

ra tice and Procedure y 1216, Dp Zode) 2336 3d ed AOO4)

“Wright v. Miller’). In Twombly, supra, this Court

allegations in a complaint

action’

S. 544 at DDD ¢

recognized that when the

however true, could not raise a claim of entitlement

relief, ‘this basic deficiency should be expo ed at th

point of minimum expenditure of time and money by th

parties and the court.” /d. at 558 citing 5 Wright &

Miller § 1216 at 233-234

At the summary judgment Stag this Court has held

function is not to weigh the evidence ti

but tO determi! f

j

that the judge’s

letermine the truth of the ma

vhether ther or trial i derso?

Liberty Lobby, 477 U.S. 242 (1986). As this Court stated

in Anderson: “|t]he mere existence of a scintilla of

evidence in support of the plaintiff's position will be

insufficient; there must be evidence on which a jury

or

could reasonably find for a plaintiff.” /d. at 252. “[A]

party opposing a properly supported motion for

summary may not rest upon mere allegation or denials

of his pleading, but must set forth specific facts showing

there is a genuine issue for trial.” /d. at 256

C) Dismissal of Revell’s Claim Based On 18

U.S.C. § 926A Was Proper Since The

Complaint Stated Facts Which Took Revell

Outside The Protection of 18 U.S.C. § 926A

The federal statute involved here, 18 U.S.C. § 926A.

which was enacted in 1986 as part of the FOPA to enabl

individuals to transport firearms through a state ever

if possession in that state would otherwise be illegal

provides in relevant part

Notwith: tanding any other provision Of an

law or any rule or regulation of a State or ar

political subdivision thereof, any person

shall be entitled to transporta firearm for a!

lawful purpose from any place where he ma

lawfully possess and carry such firearm to an)

other place where he may lawfully possess and

carry such firearm, if during uc]

transportation the firearm is unloaded, an

neither the firearm nor any ammunition beins

transported is readily accessible or is direct!

accessible from the passenger compartment

of such transporting vehicle: Provided. that

in the case of a vehicle without a compartment

eparate from the driver’s compartment thi

firearm and ammunition shall be contained in

a locked container other than the glov:

compartment or console

As the district court’s comprehen: ive review oI tn

legislative history of this bill discloses, the debate in th

U.S. Senate focused on the right of law-abiding citizen

to travel interstate with their firearms as long as they

were not accessible. During the debate, Senator Jim

MeClure discussed the need for law abiding individual

to travel interstate with their firearm

| believe that the Second Amendment mea!

exactly what it says. I believe that o

forefathers intended for all honest citizer

be able to arm then selve ‘| hi l at

privilege meted out by the Government

a sovereign right, belonging to the per

themselve Under present law, there |

legal way for a person to transport firearn

through ome state kor exampl

from South Carolina has no way o

through the State of New York

hunting in Maine. The Firearm Ow

Protection Act would allow an individu

transport a firearm through the Stat

firearm inltoaded and not

accessible The po ession of the firearm m

be legal both in the State of residence and

the State of final destination

transportation does not hinde

:

ransportation jach year thousands ol

abiding citizens travel on interstate trips wit!

firearms for hunting purposes, competition

matches, moving residences, and personal

protection upon arrival. There must be som

Way for law abiding American Lo exercise the

right to interstate travel with personal!

owned firearm

iZ ( OnY Re + S55 1)4 f | VI ‘ 1Uss

empha is added) (App Ya

‘ ‘ : ’ ; ‘ ; | : .

hus, the language in thi atute whi ondition

the lawful transportation of a firearm on its being

: aoe

inloaded”, and on its being not “readi iccesslil

Lne person transporting it

Here, Revell alleged in his complaint that du

istakes by the airline consisting of a missed flight

connection from Newark. New Jersey to Allentowr

Pennsylvania’ and the failure to check his luggag:

through to Allentown, he spent the night at an airport

I

hotel. It 1 undisputed that Revell alleged in the

complaint that at Newark Liberty International Airport

Newark’), he took possession of the two lock

ntaine? arryving his firearm and at

me! i ervlor na f iaWtTuUli pe f I

the State of Pennsylvania. Revell testified at his dey

it he did not check Ps lvania law to ascertain whethe1

ld car 1 weay there gd ne n| ’ med hi

ise iL rus I ealied tire per 1 Lif

transported them to a hotel at tne al rt wnere |!

pent the night (App. 17a). Revell further alleged that

he returned to the airport the next day with the locked

containers and that after his luggage passed through

.

the TSA’s x-ray screening, he gave the key to both

containers to the TSA agent who opened the cases (App

17a). The TSA agent then notified the Port Authority

police and Police Officer Erickson responded. After

questioning Revell, Police Officer Erickson arrested him

for possession of a handgun without a permit in violation

of N. J. Stat. Ann. § 2C:39-5(b)* and for possession

hollow-point ammunition in violation of N.J. Stat. Ar

2U:39-5(bD)

This Court has long

nstrued according to their

effectuate the intent

inmerican Truck

1940): Ardestant IN

Petitioner's contentio:

misconstrue (| the term

firearm and ammunition

nside his luggage ignore he plain meaning of

anguayve and the legislative p » as articulate

nator McClure. Once Revell wa

th hij

'e)

not have ready access to the firearm and ammunition

as he had the key to open the containers (App. 17a).

Moreover, it is immaterial that Revell had the containers

in his luggage, since he was spending the night at the

hotel and it stands to reason that he opened his luggage

to change clothes. The fact that he alleges that he did

not open the locked containers is irrelevant to the

question of whether they were readily accessible. The

gun and the ammunition were readily accessible if Revell

had the key and the locked containers with him at the

hotel so that within seconds he could open the containers

and load the firearm. The petitioner’s reliance on

Thornton v. United States, 541 U.S. 615 (2004) is

misplaced since that case involves a firearm recovered

during the search of an automobile which was incident

to an arrest for possession of drugs that took place after

the arrestee had exited his vehicle. In Thornton, this

Court held that the Fourth Amendment did not require

an officer to risk the suspects’ accessing the vehicle to

obtain a weapon or to destroy evidence merely because

the critical contact had taken place outside the vehicle.

State v. Williams, 636 P2d 1092 (Utah 1981), which is

also cited by petitioner is equally inapposite, as that case

involved the appeal of a conviction for violating Utah’s

state statute prohibiting carrying a concealed weapon.

In State v. Williams, supra, the Supreme Court of Utah

affirmed the conviction for carrying a concealed weapon

based on the fact that the defendant had a loaded

handgun in a satchel on the passenger’s front seat of

his ear. Nor is the Florida Statute § 790.001 (16)

applicable here as petitioner argues, since that is a

criminal statute where the defined term is “readily

accessible for immediate use” as distinguished from

merely “readily accessible” as used in FOPA.

9

As the Third Circuit recognized 18 U.S.C. § 926A

“clearly requires a 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.” (App. 20a). The Third Circuit

suggested that owners in Revell’s situation go to law

enforcement officials at the airport or airport personnel

before retrieving their luggage and ask them to take

custody of the firearm and ammunition until he can

resume travel. Petitioner’s rejection of this proposed

solution on the ground that it might be a waiver of his

Fifth Amendment rights is unfounded since air travelers

with firearms in their check-in luggage are required

under Transportation Security Administration (“TSA”)

regulation in any event to declare it to the airline

personnel pursuant to 49 C.F.R. 1540.111(C)(2)*. Further,

petitioner’s contention that law enforcement would be

forbidden from returning the firearm is based on a

41. 49 C.E-R. 1540.111 (C)(2) provides as follows:

(i) The passenger declares to the aircraft operator,

either orally or in writing before checking the

baggage that any firearm carried in the baggage is

unloaded;

(ii) The firearm is carried in a hard-sided container;

(iii) The container in which it is carried is locked,

and only the individual checking the bagyage

retains the key or combination; and

(iv) The checked baggage containing the firearm is

carried in an area that is inaccessible to passengers,

and is not carried in the flighterew compartment.

10

misreading of N.J. Stat. Ann. § 2C:39-12° which provides

for voluntary surrender of firearms and other prohibited

items by residents for the purpose of avoiding

prosecution for unlawful possession. Section 2C:58-3,°

which petitioner also cites as prohibiting airport police

from returning Revell’s firearm and ammunition after

taking custody of them addresses the purchase of

firearms in New Jersey not the surrendering temporary

custody. There is nothing in New Jersey’s laws which

would have prevented Revell from surrendering custody

of his firearm on atemporary basis to the Port Authority

Police or the TASA to remedy his predicament.

D) The Third Circuit Correctly Affirmed The

Granting of Summary Judgment Dismissing

The Claim For Violation Of Revell’s Fourth

Amendment Rights On The Ground That

There Was Probable Cause For His Arrest

It is well settled that a warrantless arrest by a law

officer is reasonable under the Fourth Amendment

where there is probable cause to believe a criminal

5. N.J. State Ann. 2C:39-12 titled Voluntary Surrender

provides in relevant part “|Njo person shall be convicted of an

offense under this chapter for possessing any firearms, weapons

. if after giving written notice of his intention to do so,

including the proposed date and time of surrender, he

voluntarily surrendered the weapon .. . to the chief of police in

the municipality in which he resides.”

6. N.J. State Ann. 2C:58-3, titled Purchase of Firearms

provides in relevant part that [NJo person shall sell, give,

transfer, assign or otherwise dispose of, nor receive, purchase

or otherwise acquire a handgun unless the purchaser .. . has

first secured a permit.

offense has been or is being committed. See United

States v. Watson, 423 U.S. 411, 417-424 (1976),

Devenpeck v. Alford, 543 U.S. 146, 152 (2004), Whether

probable cause exists depends upon the reasonable

conclusions to be drawn from the facts known to the

arresting officer at the time of the arrest. Maryland v.

Pringle, 540 U.S. 366 (2003).

Revell testified at his own deposition that upon

missing his connecting flight to Allentown, he retrieved

his luggage and took it to a nearby hotel (App. 18b).

When he returned to Newark Airport the next day with

his luggage containing the firearm and ammunition, they

were revealed on the x-ray scanner to the TASA agent

who summoned the Port Authority police. Police Officer

Scott Erickson, who responded to the scene, testified

that Revell acknowledged that he “had the firearm with

him when he left for Newark, |and] that he had packed

up the bag and taken it with him” (App. 18a). Police

Officer Erickson was told by Revell that he had taken

the bag with the firearm and ammunition to his hotel.’

It was therefore undisputed that Revell had access to

7. The Third Circuit specifically noted that Erickson

testified as follows:

Q. He told you that he picked up the bag at Newark

beeause 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. (App LSau)

his firearm and ammunition in a New Jersey hotel where

he stayed for the night and that he communicated this

fact to Police Officer Erickson before his arrest.

Moreover, Police Officer Erickson observed Revell in

possession of the firearm without New Jersey permit

and hollow-point ammunition in violation of New Jersey

Law. Since Revell was not within the protection afforded

by § 926A®% beeause his firearm and ammunition were

readily accessible during his overnight stay at the hotel,

Officer Erickson had probable cause to arrest him for

unlawful possession of a firearm and hollow-point

ammunition.

EK) There Is No Substantial Question Presented

For This Court As The Third Circuit’s Ruling

Does Not Impair Revell’s Second Amendment

Rights.

This Court in McDonald v. Chicago, et al., No 08.

1521 (June 28, 2010) held the Second Amendment

applied to the states through the due process clause of

the Fourteenth Amendment, and struck down a Chicago

law banning handguns in the home. Petitioner’s

8. The Third Cireuit did not consider the question of

whether 18 U.S.C. § 926 A vives rise toa right of action under 42

U.S.C. § 1983, and affirmed the district court’s dismissal of this

claim on the pleadings on the ground that Revell did not fall

within the protection of § 926 A. While the district court ruled

that § 926 A did not give rise to a cause of action because this

Court ruled in Graham v. Connor, 490 U.S. 386 (1989) that all

unlawful seizure claims must be brought pursuant to the Fourth

Amendment, The Second Circuit in Torraco v. The Port

Authority of New York and New Jersey, 615 F.8d 129 (2d Cir.

2010) held that § 926 A did not create a separate right because

of the enormous practical problems it imposed on police officers

in determining compliance.

Ls

contention that the Third Circuit’s ruling infringes on

Revell’s Second Amendent rights is unfounded. Revell

ran afoul of a New Jersey law, which with some

exceptions, requires a person in possession of a gun to

have a permit. He could only avoid prosecution under

this law by complying with 18 U.S.C. § 926 A. Section

926A offers protection to the interstate traveler with a

firearm who is passing through a state with restricted

gun laws, but its protection is contingent upon

compliance with the requirement that the firearm be

kept so that it was not readily accessible. Revell failed

to adhere to the conditions set forth in the statute, and

thus is not entitled to maintain this action.

Moreover, Revell did not raise a Second Amendment

issue below and should be precluded from raising it at

this time. See Nelson v. Adams USA, Inc., 529 U.S. 460,

469 (2000).

Lastly, there is no substantial question for this Court

because, as petitioner concedes, there is no conflict

between the circuits with respect to the meaning of 18

U.S.C. § 926 A.

14

POINT Il

THE SEIZURE AND RETENTION OF REVELUS

PROPERTY DID NOT VIOLATE THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT

[It is well settled that law enforcement officers may

seize property and specifically weapons incident to a

lawful arrest without violating the Fourteenth

Amendment’s prohibition against depriving a person of

property without due process of law. Warden, Maryland

Penitentiary v. Hayden, 387 U.S. 294 (1967); Harris v.

U.S. 331 U.S. 145 (1947). The seizure of Revell’s firearm

and ammunition by the Port Authority police was lawful

since as discussed infra, there was probable cause for

his arrest.

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.” Logan v. Zimmerman Brush

Co., 455 U.S. 422 at 428 (1982). The second prong bars

a suit under 42 U.S.C. § 1983 if the deprivation was not

caused by conduct pursuant to established state

procedure and if there was an adequate available post-

deprivation remedy. Parratt v. Taylor, 451 U.S. 527

(1981), Hudson v. Palmer, 468 U.S. 517 (1984).

Revell’s due process claim, which is based on the

retention of his firearm and weapon by Essex County

for a period after the charges against him were

dismissed, is deficient in that he failed to show:: 1) that

there was an established procedure to retain property

under these cirecumstanees; and 2) that the post

deprivation remedy was inadequate. Revell’s reliance

on the allegation in his First Amended Complaint that

the Port Authority and Police Officer Erickson deprived

him of property without due process “pursuant to an

established policy” is misplaced (Petitioner’s brief p. 26).

The seizure of his property was lawful because it was

pursuant to a valid arrest. Moreover, on summary

judgment, Revell was required to identify a Port

Authority policy or procedure that effectively prevented

him from recovering his property, which he failed to do.

Further, Revell was unable to show that the process

provided by the state for recovering his property was

not constitutionally adequate. See Zinermon v. Burch,

494 U.S. 113, 126 (1990) (“it is necessary to ask what

process the state provided and whether it was

constitutionally adequate”). Here, as the Third Circuit

observed, Revell “failed to explain why New Jersey’s

state procedures to recover wrongfully seized property,

such as the ability to move in the criminal actions for

return of his property or the ability to file a separate

action for a writ of replevin are insufficient” citing State

v. One 1986 Subaru, 576 A.2d 859 (N.J. 1990) (the New

Jersey Supreme Court held that since the owner of a

property seized as evidence in a criminal proceeding can

file a replevin or move to retrieve the property, his

inaction weighs against a claim that his due process

rights were violated) (App. 28a-24a). Nor, as the Third

Circuit found, was Revell entitled to any special notice

of these legal remedies. See City of W. Covina v. Perkins,

525 U.S. 284 (1999) (App. 24a). In Covina, this Court

held that the 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

ite

property law fully seized but no longer needed for police

investigation or criminal prosecution.” /d. at 286 (App

24a).

Moreover, as the District Court pointed out, Revell

u'timately recovered his property through the simple

means of requesting its release from Essex County (App.

45a). Accordingly, there is no conflict between the Third

Circuit’s ruling in this case and the Court of Appeals

for the District of Columbia’s holding in Ford v. Turner,

531 A.2d 233 (D.C. 1987) because in that case, the

plaintiff and her attorney had sent written requests to

the Property Clerk to recover guns taken from her

deceased sister’s apartment which were not evidence

in her sister’s death but merely unregistered firearms

to which she was entitled as administratrix. In Ford, the

property clerk never notified plaintiff of the legal basis

for the forfeiture or the continued retention of the guns.

Even assuming Ford, supra, is good law in light of this

Court’s decision in City of W. Covina v. Perkins, supra,

it is readily distinguishable from the instant case on the

facts because Revell had no trouble recovering his

property when he requested it.

CONCLUSION

his Court Should Deny This Petition For A Writ Of

Certiorari To Review The Judgment Of The United

States Court of Appeals For the Third Circuit.

Respectfully submitted

KATHLEEN GILL MILLER

Counsel of Record

OFFICE OF JAMES M. BEGLE’

THE Port AuTuHority or NY & NJ

225 Park Avenue South

13th Floor

New York, NY 10003

(212) 435-3434

kmiller@panynj.gov

lttorney for Respondent