# Opposition Brief — Revell v. Port Authority of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2370%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1178 ## Text 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 er(a pi / at 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 = IABLE OF CITEDAUTHORITIES ) > ‘ ‘ ) 4 1QQY | ‘ad f i | if (04 i \ P.4 \ ‘ j | 1. 4t ; ; | 4 ‘ i ' | ity | 160 (2000 fi. Mar sla) at P 294 (1967 94 US STATE ST EEDERAL STATUTES TREATISES & OTHER AUTHORITIES Wright & fg an ro] Pras spep eyed bed -Gedtd | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2370%3A3. Public record. Not legal advice.