FOPA protections for travelers
He's flying from Salt Lake City to Allentown, PA, with a firearm properly stowed in his checked-in baggage. The flight connects in Newark. But his flight's arrival is delayed, and he missed the connection. He booked on the next flight, then the airline announced it would bus the passengers to Allentown. But it didn't get his baggage on the bus, and the bus left while he was looking for the baggage. He finally caught a courtesy bus to a local hotel, and returned to the airport the next morning; upon checking in, he was questioned and arrested. He wound up spending three days in jail before charges were dropped, and then sued under §1983.
He invoked the protections of 18 USC §926A, added by the Firearm Owners' Protection Act of 1986 -- I helped draft that section, many years ago. 926A generally protects a person who is taking a gun from a State where its possession is allowed, to a State where its possession is allowed, provided the firearm inaccessible during the transport. The Third Circuit holds that Revell's stay in the hotel, where the firearm was accessible to him, takes him outside the protections of the statute.
With Heller and (I hope) McDonald coming into play I can see state laws being invalidated if they prevent a non-resident from keeping an operable handgun in his or her temporary home (i.e. hotel room) for self-defense.
Posted by: Ted at March 31, 2010 02:27 PM
I find Eugene's assessment of the ruling as a reasonable interpretation of the language of the law less than convincing. If I have a gun in a locked case in my vehicle, then any time I stop for gas, meals or rest, all I would have to do would be to unlock the case to access the firearm. How is this in any way different from Revell's situation? Are we to believe that the statute was only intended to protect those traveling a distance that can be covered on a single tank of gas? Even then, all I need do to access the firearm is to stop the car and open either the locked trunk or case. Since there never was any evidence or allegation that Revell (unlawfully) opened the case containing the gun, the ruling would seem to conclude that the section protects absolutely nothing.
Posted by: Ken at March 31, 2010 02:42 PM
I kind of wonder if it wasn't a problem to push this issue in the context of a civil rights lawsuit rather than a criminal prosecution. That kind of flips the tables on what the Courts want to do, don't you think? Courts seem reluctant to pierce the shield of qualified immunity to make an officer personally liable, whereas in a criminal case, they might have interpreted the statute favorably for the defendant.
Not that you really have much choice in these matters. The Port Authority dropped the charges against Mr. Revelle, and it hardly seems fair to ask him not to seek justice because it might set bad precedent. It's a damned shame McDonald didn't win before this happened though. This is exactly the kind of case I'd like to see for going after licensing.
Posted by: Sebastian at March 31, 2010 03:30 PM
The Port Authority Police are supposed to be protecting our rights AND the Constitution. What happened to them?
Posted by: Robert at March 31, 2010 08:44 PM
wasn't the NJ Sportsman's Group filing suit against the Port Authority directly concerning this???
Posted by: randy at March 31, 2010 09:26 PM
The good thing is now that the 3rd Circuit has issued an indefensible decision, another case with a very sympathetic defendant is ripe for the Supreme Court to decide.
Posted by: Kman at April 1, 2010 10:03 PM
Ken, you should plan your passage through gun hostile territory using the Admiralty Right of Innocent Passage used by ships to traverse the territorial waters of other states as a guide. Ships may pass unmolested if they do so by the most direct route and do not stop, conduct operations, or anything other than navigation.
Obviously, fuel could be an issue for the innocent passage of a firearm. Obviously, it would require an argument but if you stopped solely and for the shortest amount of time to refuel, you might win. You should not stop to eat, you should not stop to overnight, you should not stop to visit businesses, friends, relatives or the scenic sites of Newark. You should also not speed or violate traffic laws so as to avoid being stopped by the agents of the hostile power thus placing yourself at the mercy of their lack of knowledge of FOPA.
Posted by: JKB at April 2, 2010 12:28 AM
I t looks like re-enactors will have to go back to shipping their firearms ahead addressed to themselves-general delivery again, until this crap is sorted out.
Posted by: Kristopher at April 2, 2010 12:47 PM
@JKB: Is it OK to stop to pee? There are some jurisdictions in which that would be the only reason to stop. I might even save it up a bit for the opportunity.
Posted by: Justthisguy at April 5, 2010 01:00 PM