Flight delay = criminal prosecution

[Rex B]

This is from the excellent blog Volokh Conspiracy.

http://volokh.com/2010/03/30/unexpected ... ossession/" onclick="window.open(this.href);return false;

I don't normally copy a post in it's entirety, but this one is worth making an exception for:

Unexpected Flight Delay => Hotel Stay => Criminal Prosecution for Gun Possession

An unfortunate story, detailed in Revell v. Port Authority (3d Cir. 2010): Gregg C. Revell was flying from Salt Lake City to Allentown, Pennsylvania, via Minneapolis and Newark. He had an unloaded gun legally checked in his luggage, which was supposed to meet him at Allentown.

Supposed to. In fact, the flight to Newark was late, so Revell missed his connection. He booked himself on the next flight, but the airline changed those plans. He was supposed to get on a bus, but his luggage didn’t get on the bus with him. He found the luggage, but the bus had left, so he had to stay overnight at the hotel, with his luggage.

Aha! That’s where the crime came in. The Firearms Owners’ Protection Act protected Revell on the plane, and would have protected him on the bus. But the moment the luggage came into his hands or otherwise became “readily accessible” to him outside a car — here, when he got the luggage to go to the hotel, but it would have also happened if he had gotten the luggage to put it into the trunk of a rental car — he violated New Jersey law, which requires a permit to possess a handgun (and which bans the hollow-point ammunition that Revell also had in a separate locked container in his luggage). Revell was arrested when he checked in with the luggage at Newark Airport, and said (as he was supposed to) that he had an unloaded gun in a locked case in his luggage; he then spent four days in jail until he was released on bail. Eventually the New Jersey prosecutor dropped the charges against him, but Revell didn’t get the gun and his other property back until almost three years later.

Revell sued, and lost; the Third Circuit concluded that once he took the luggage in hand in New Jersey, it became “readily accessible,” and the FOPA immunity was lost. And this is indeed a sensible reading of the statutory text:

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 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.

So what do you if this happens to you?

Stranded gun 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.[18]

[Footnote 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 in that way.

Hope does spring eternal, but I suspect that airport police and airport staff aren’t going to be willing to hold people’s luggage for them overnight, especially when it contains a gun. And of course the airport police or staff would then have to personally check in the luggage for the owner, since the owner can’t take it in hand without losing the FOPA immunity.

So watch out when you travel with your gun in checked luggage. If your flight gets routed to a different city, or you have to stay overnight at one of the stops, you could be arrested. Or if you drive across country but your car breaks down, and you need to move the luggage to another car, you could likewise be violating the law (though you’d be less likely to be caught, since you have no obligation declare your gun when you switch cars the way you do when you get on a plane). FOPA gives you a good deal of protection on your travels — but, as Mr. Revell learned, not complete protection.

[driver8]

New Jersey is one of those counties in NE Texas that I won't go near unless it's a dire emergency.

[Rex B]

I agree, but this guy wound up there though no intention of his own.

[txmatt]

The one time I got stuck overnight I never saw my checked bag until the next day at my final destination. Wonder if he asked to have his bags or whether he could have asked the airline to just put them on the plane the next day. While flights can be rerouted after the fact, I don't think I would book a connection through somewhere like NYC or NJ if I knew I were going to be traveling with a handgun. Better to pay a bit more and minimize this risk.

[ELB]

If you are interested in FOPA and situations like the above, you might find this of interest: http://texaschlforum.com/viewtopic.php?f=4&t=27334" onclick="window.open(this.href);return false;

[davidtx]

Just don't pick up your luggage. They will take it to the luggage office and it will eventually show up at your final destination. Carry your essentials with you.

Thanks for posting, I've been wondering about this situation. I used to fly in and out of Manchester, NH and it was routine to be re-routed to Boston Logan in the winter time. An hour and a half apart, but very, very different gun laws.

Both of my children are engaged and getting married this summer/fall in NH and I've been pondering how best to get from here to there and back with my gun.

[C-dub]

I don't understand how this happened. The Provision stated said that he could transport it to and from a place he was legally able to possess it as long as it was unloaded and locked in a container not readily accessible while in the vehicle. If he put it in the trunk, while it was inside his bag, while it was in a locked container he was complying with the law. I don't see how he could have been in violation while carrying the luggage to and from the car either. How else do you get the weapon to and from the vehicle?

What am I not understanding here?

[C-dub]

Let me rephrase. I don't understand how he lost his suit!

[SwimFan85]

Let me rephrase. I don't understand how he lost his suit!

Heller doesn't apply in New Jersey. Even if it did they would ignore it like they ignore the second amendment. That will keep happening until people in NJ do some yard work and fertilize the liberty tree.

[srothstein]

C-dub. The problem is that the FOPA specifies while in transit and legal at both ends. When he drove to the hotel (or took a cab) he had an intermediate destination (not his plan) where the firearm was illegal. When he left the hotel again in the morning, he was beginning a new trip (in the eyes of the court) and FOPA did not apply because it was not legal in the jurisdiction at the start of the trip. When he checked the gun in, he effectively confessed to TSA that he was in violation of local law with no federal protection overriding it.

A smart lawyer might be able to have gotten the confession excluded since it was taken under duress. He was forced, against his will and by threat of federal law - including knowing a search was about to occur, to tell the airline and TSA about the weapon. This makes it duress and everything after it the fruit of the poisoned tree.

But his lawyer tried to argue the sensible thing instead. Lawyers should know better. Argue the weird applications of the law because the law does not allow for common sense.

[casingpoint]

When he left the hotel again in the morning, he was beginning a new trip (in the eyes of the court)

Then the court needs some new bifocals. Evidence must be considered in it's entirely, and not selectively. Totality of circumstances sort of thing. Of course, New Jersey is all about and only about New Jersey The rest of the United States just owes it. The guy was on a single trip, not a series of trips. If anybody was tripping out here, it was the judge, the prosecutor and the Jersey cops.

[ELB]

A correction or clarification: This is not a criminal case. The man was not prosecuted . His lawyer did not have to argue anything in court (altho maybe in the DA's office), and his "confession" did not need to be excluded. The DA dropped the charges; no reason given that I have seen, but I am guessing he or she realized this was absurd. Or so I hope. In any case, Revell's appeal is not for being convicted of anything, since he wasn't.

Revell is arguing that he should be allowed to sue, in civil court, the Port Authority (who controls the police force) and the officer who arrested him, because he was travelling under the protection of the FOPA and therefore the police had no cause to arrest him. He was further abused by the four day stint in jail, and the fact that his possesions were withheld from him for three years (this last point is particularly vile). The Third Circuit Court ruled that he lost his FOPA protection when he picked up his luggage and went to the hotel, ergo that ended his travel, therefore the police had probable cause to arrest him when he checked in at the airport the next day. In practice this is nonsense -- only a lawyer could think this sensible, when of course the man was clearly not traveling to a hotel in New Jersey, he was travelling to Pennsylvania and making every effort to comply with the law while exercising an right spelled out in the constitution. New York has in the past claimed that "travel" must be by a single mode, even though the law makes no such mention.

The smart thing to do in such a situation is clearly not ask the airport police to hold your luggage! Keep your mouth shut, rent a car, and drive to the nearest free state to grab the next airplane. Expensive, but not as expensive as dealing with legal thuggery.

[rdcrags]

It is scary. But I have found the inspection officers to be helpful at every U.S. airport I've been to. Of course, that does not include NY or NJ. But I would surely tell them what's going down and refuse to touch the bag.

TX CHL 1997
CO CHP 2005

[E.Marquez]

The smart thing to do in such a situation is clearly not ask the airport police to hold your luggage! Keep your mouth shut, rent a car, and drive to the nearest free state to grab the next airplane. Expensive, but not as expensive as dealing with legal thuggery.

I used to fly a LOT, delays are going to happen and flights canceled leaving you stranded are not uncommon ( happened last week in Dallas,, all flights canceled to my home Town,, we rented a car and drove.. of course this is in TX so I was not arrested)
On the many times i have been delayed overnight by an airline, I simply leave my bags in there control.. often because they will not return them,, but even when offered to retrieve the bags for a night I decline. Go hit the hotel with no worries of bags, use the hotel toiletries or at worst go spend a few $ and buy them and a fresh shirt... Money well spent so i do not have to lug my bags all over and back.

Works for me, YMMV

To the OP and the topic.. clearly the text of the law, it's application and reality are not aligned. But I'm biased of course... I know for a fact the safest place for my pistol regardless of local or federal law is to have my weapon with me.. Not only am I safer, but by some measurable margin, others around me are as well. We all know the law (law makers and those who control them) feel differently.

[jimlongley]

The problem with leaving your bag in possession of the airline is that they do not really secure the bag, they just stack it in a room somewhere in the airport, maybe a locked one. And your bag may not go with you when your trip resumes, it may sit in their unclaimed luggage area until you get back to that airport to claim it in person or badger them into sending it airfreight.

The NY City Port Authority, which covers Newark, does not care what Federal law says, most judges in the NY metroplex don't care what Federal law says, if you are in possession of a firearm and you are not on what they consider to be an unbroken trip from point A to point B, then as far as they are concerned you are in violation of their law and FOPA does not apply. They don't care if circumstances beyond your control forced you to stop where you had no intention to, intent is not their concern, only that you were there.

This is only one example of many arrests that have taken place in similar circumstances and that is not likely to change unless and until someone is able to get their case all the way up to SCOTUS. Getting it to SCOTUS is also problematic, because most of the cases have resulted in something similar to this one, eventually the case gets dropped for one reason or another, NOT FOPA, and then the years tick by as the unfortunate victim tries to get personal property returned.

And anyone traveling from our side of the country to New England has to pass through that choke point, you can't get there from here without going over or through NY, and you can't depend on the weather, or other circumstances, allowing your flight, bus, train, or car trip to continue unbroken, putting you in danger of having to violate your own Fourth Amendment rights.