PRECEDENTIAL UNITED STATES CO URT OF APPEALS FOR …

1 PRECEDENTIALUNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT_____No. 09-2029_____GREGG C. REVELL; ASSOCIATION OF NEW JERSEY RIFLE & PISTOLCLUBS INC. authority OF NEW YORK AND NEW JERSEY;SCOTT authority OF NEW YORK AND NEW JERSEY, Third Party AIRLINES; COUNTY OF ESSEX;ESSEX COUNTY JAIL; ESSEX COUNTY PROSECUTOR;JOHN DOES 1-10, Third Party Defendants Honorable John R. Padova, UNITED STATES District Court*Senior Judge, for the Eastern District of Pennsylvania, sitting bydesignation. 2 Gregg C. Revell, Appeal from the UNITED STATES District Courtfor the District of New Jersey( No. 06-cv-402)District Judge: Honorable Katharine S. Hayden_____ArguedJanuary 26, 2010 Before: RENDELL and JORDAN, Circuit Judges,and PADOVA, District Court Senior Judge*(Filed: March 22, 2010)_____Richard E.

2 Gardiner [ARGUED]3925 Chain Bridge Rd. - #403 Fairfax, VA 220303 Richard V. GilbertEvan F. Nappen21 Throckmorton , NJ 07724 Counsel for AppellantDonald F. Burke, Sr. [ARGUED]Port authority of New York & New JerseyOne PATH PlazaJersey City, NJ 07306 Shirley J. SpiraSharon K. McGaheePort authority of New York & New JerseyLaw Dept., Opinions & APPEALS Park Avenue South13 Floor, Room 1324thNew York, NY 10003 Counsel for Appellees_____OPINION OF THE COURT_____JORDAN, Circuit C. Revell APPEALS from the dismissal of his claims,brought pursuant to 42 1983, seeking to imposeliability upon the Port authority of New York and New Jersey( Port authority ) and Port authority Police Officer ScottErickson for arresting him under New Jersey s gun laws and While the record is not entirely clear, it appears that1 Northwest and Continental Airlines had some sharedresponsibility for transporting Revell to his firearm and ammunition.

3 According to Revell, hisarrest was unlawful because he was in compliance with aprovision of the Firearm Owners Protection Act ( FOPA ), 926A, which allows gun owners licensed in one stateto carry firearms through another state under certaincircumstances. Because we conclude that, at the time of hisarrest, Revell's conduct did not bring him within the protectionof that statute, we will affirm both the dismissal of his 926A-based claim and the grant of summary judgment to the PortAuthority and Erickson on Revell s closely related FourthAmendment claim. We will likewise affirm the grant ofsummary judgment against Revell on his due process claimunder the Fourteenth Amendment. s ArrestOn March 31, 2005, Revell, a resident of Utah, embarkedon a flight from Salt Lake City to Allentown, Pennsylvania, viaMinneapolis/St.

4 Paul and Newark, New Jersey. When hearrived at the Northwest Airlines counter in the Salt Lake City1 Airport, he checked his luggage through to his final destinationand declared that, in the luggage, he was carrying an unloadedfirearm contained in a locked hard case and ammunition in aseparate locked hard case. He signed an orange firearm In a triple-whammy for Revell, not only had the airline made2him miss his connection and then put him on a bus instead of aplane, a Northwest employee had mistakenly checked hisluggage to Newark, instead of Allentown, as his finaldestination. 5declaration tag, which was placed inside the locked hard casecontaining the firearm. That was apparently the last thing on thetrip that went as expected. The several mishaps that followedultimately relate to the accessibility of the firearm andammunition and are thus key to this his flight into Newark was late, Revell missedhis connection from Newark to Allentown.

5 He booked the nextflight to Allentown, which was scheduled to leave Newark at that evening, but, after the airline changed arrangements,the passengers scheduled for that flight were asked to board abus, instead of a plane, headed for Allentown. Revell got on thebus; however, when he learned that his luggage was not onboard, he got off to locate it. By the time he retrieved his2luggage, he had missed the bus, and no other connections toAllentown were available. He then went directly to the NewarkAirport Sheraton Hotel in a hotel shuttle, taking his luggage withhim. The driver of the shuttle van placed Revell s luggage,which contained the locked hard case containers, in the rearstorage area of the van, which was not immediately accessiblefrom the passenger compartment where Revell was stayed at the hotel overnight but did not open either ofthe locked containers during his stay.

6 6 The next morning, he took the hotel s airport shuttle backto the Newark Airport and, again, his luggage was placed out ofhis reach in the rear of the shuttle. Upon arriving at the airportaround 8:30 , he proceeded to the ticket counter to check hisluggage and declared that he was carrying an unloaded firearmin a locked hard case and ammunition in a separate locked hardcase. Revell was told to take his luggage to the TransportationSecurity Administration ( TSA ) area so that it could be x-rayed. After the luggage went through the x-ray machine, theTSA agent at the other end of the machine took the hard casesout and asked Revell for the key to them, which Revellprovided. The TSA agent opened the cases using Revell s keyand removed the firearm and ammunition. The orangedeclaration sheet from Salt Lake City was still in the case withthe firearm.

7 About twenty minutes later, several Port Authorityofficers, including Officer Erickson, escorted Revell to an areaaway from other passengers where they questioned him aboutthe firearm and ammunition. Revell explained that he haddeclared his weapon and ammunition, and that he was merelypassing through New Jersey en route to Allentown,Pennsylvania. He also showed the officers his Utah concealedfirearm permit and his driver s license. When Ericksonquestioned Revell about why he had the firearm, Revellexplained that he was traveling to Pennsylvania to pick up a carto bring back to Utah and that he was going to need the weaponfor protection as he drove the car home. (App. at 33.) Revellalso informed Erickson that, upon missing his flight the daybefore, he had taken possession of his bag with the firearm in itand had gone to a hotel in Newark to stay for the night.

8 At his deposition, Revell stated that he did not check to make3sure that he could carry his firearm in Pennsylvania prior totraveling there, but believed that it was legal for him to carry aweapon there because the instructor for his concealed firearmpermit class did not mention that he could not do so. Section 2C:39-5(b) provides that [a]ny person who4knowingly has in his possession any handgun, .. without firsthaving obtained a permit to carry the same as provided :58-4, is guilty of a crime of the second or third degreedepending on the nature of the handgun. Section 2C:39-3(f)provides that [a]ny person, .. who knowingly has in hispossession any hollow nose or dum-dum bullet, .. is guilty of acrime of the fourth degree. 7 Erickson asked Revell whether he had authority to carry thefirearm in Pennsylvania, but Revell did not respond.

9 3 Erickson arrested Revell for possession of a handgunwithout a permit in violation of Stat. Ann. 2C:39-5(b) andfor possession of hollow-point ammunition in violation of Ann. 2C:39-3(f). Revell was handcuffed, held overnight4at the Port authority jail, and then transferred to the EssexCounty, New Jersey, Jail, where he was incarcerated for threedays until he was released on bond. Four months later, onAugust 2, 2005, the Essex County prosecutor administrativelydismissed all of the charges against him. However, Revell sfirearm, ammunition, holster, locks, and hard cases, which wereseized at the time of his arrest, were not returned until July 24,2008, more than two years after the ill-fated trip and Additionally, the Association of New Jersey Rifle & Pistol5 Clubs, Inc.

10 Brought a 1983 claim based on 18 926A,seeking to enjoin the Port authority from enforcing against theAssociation s non-resident members the New Jersey statutesunder which Revell was arrested. The District Court found thatthe Association lacked standing and dismissed its claim. TheAssociation appealed that ruling to our Court and we reversed,holding that the Association did, in fact, have standing to pursueits claim on behalf of its members. Revell v. Port Auth. of , 321 F. App x 113, 117 (3d Cir. 2009). TheAssociation s lawsuit is not at issue in this appeal. The text of 926A is set forth in section , a year after he filed his amended complaint inthis action. s ComplaintUnderstandably troubled about his and his property streatment, Revell brought the present 1983 case, alleging thatthe Port authority and Erickson had violated his rights under 926A of FOPA.