Interstate transportation of a firearm in your airplane or car

[alaskaflyer]

Some new case law recently released affects your rights to transport firearms pursuant to FOPA, or the "Firearm Owner's Protection Act."

Note that this is from the Third Circuit Court of Appeals and so is only legally controlling within the circuit, but it gives insight into what could happen elsewhere if one wanted to be a test case.

This is what FOPA states in part:

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: [FONT=TimesNewRoman,Italic]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.

[/FONT]

http://caselaw.lp.findlaw.com/data2/circs/3rd/092029p.pdf

I won't regurgitate the opinion too much. Basically a guy was transporting his handgun from Utah (OK) to Pennsylvania (case is silent on the law there) through New Jersey (uh oh) in checked baggage, complying with all the usual requirements to declare it and store it properly. Due to airline screw ups he found himself stranded overnight in a Newark hotel, with his luggage. When he went back to the airport to check in for his replacement flight to Pennsylvania he declared his firearm and was intercepted and arrested for violating New Jersey laws prohibiting possession and carry of a firearm. The case was eventually dismissed but the gentleman brought a 1983 claim (a federal civil claim) against the New Jersey officer and department claiming among other things no probable cause for arrest because FOPA preempts state law.

Skipping a bunch of procedural steps and rulings...the Circuit Court found he did not comply with FOPA because once he had the luggage with him instead of in "a vehicle" he did not comply with the law.

Of course only a few states are this strict about possession but it is something to think about as you are traveling through different states in your airplane or vehicle. Are you going to keep the firearm inaccessible in the vehicle if you spend the night somewhere?

Also, the case doesn't directly deal with the issue but they noted the requirement of FOPA that the posession must be legal at your origin and destination before it protects you in-between.

Read the case for more details...

 

[EdFred]

What was he supposed to do when stranded overnight as he has no vehicle to put it in?

 

[alaskaflyer]

What was he supposed to do when stranded overnight as he has no vehicle to put it in?

I don't want to turn this into Spin Zone material because I think it is useful to a greater audience, but...I suppose it depends on New Jersey law and if there are any exceptions. I would guess not since the Third Circuit has dismissed his claim against the officer and department.

So...one is left with the impression that you should ship it to Pennsylvania separately

 

[EdFred]

I don't want to turn this into Spin Zone material because I think it is useful to a greater audience, but...I suppose it depends on New Jersey law and if there are any exceptions. I would guess not since the Third Circuit has dismissed his claim against the officer and department.

So...one is left with the impression that you should ship it to Pennsylvania separately

Which is hard to do, because many shipping companies have restrictions on what can be shipped. He should have connected through DTW instead.

 

[gkainz]

"Avis? I need to rent a gun case. Yeah, a sub-compact with unlimited miles will work just fine."

 

[Obi Heed Kenobi]

I don't want to turn this into Spin Zone material because I think it is useful to a greater audience, but...I suppose it depends on New Jersey law and if there are any exceptions. I would guess not since the Third Circuit has dismissed his claim against the officer and department.

So...one is left with the impression that you should ship it to Pennsylvania separately

I haven't read the opinion, but just to elaborate a little bit (you already pointed it out), this wasn't an appeal from a criminal case. Instead, this was an appeal from a civil lawsuit the traveler/passenger/gunowner filed against (I assume) the police department.

This is a civil lawsuit, not a criminal case.

So, the 3rd Circuit has not said that you're not free to travel through NJ with a firearm per the FOPA. What it did say is that in whatever circumstances were present in this case, the plaintiff can't recover damages for the arrest.

For what that's worth.

 

[LearDriver]

So do only criminals and cops in New Jersey have the right to carry a firearm in public?

 

[alaskaflyer]

I haven't read the opinion, but just to elaborate a little bit (you already pointed it out), this wasn't an appeal from a criminal case. Instead, this was an appeal from a civil lawsuit the traveler/passenger/gunowner filed against (I assume) the police department.

This is a civil lawsuit, not a criminal case.

So, the 3rd Circuit has not said that you're not free to travel through NJ with a firearm per the FOPA. What it did say is that in whatever circumstances were present in this case, the plaintiff can't recover damages for the arrest.

For what that's worth.

That's true. But they said if you don't follow the FOPA to the letter, state law isn't preempted, and in a case that is precedential, they said:

"Revell thus had access to his firearm and ammunition
during his stay at the New Jersey hotel, whether or not he in fact
accessed them and regardless of whether they were accessible
while he was traveling by plane or van. That crucial fact takes
Revell outside the scope of § 926A’s protection, as the District​

Court correctly noted."

and

"We do,
however, note our concern with the implications of Revell’s
argument that § 926A requires an officer to “investigate the laws
of the jurisdiction from which the traveler was traveling and the
laws of the jurisdiction to which the traveler was going” prior to
making an arrest. (Appellant’s Reply Br. at 13.) It seems
doubtful that, in passing § 926A, Congress intended to impose upon police officers such a potentially burdensome requirement."​

In other words, the burden is on you.

 

[flav8r]

"We do, however, note our concern with the implications of Revell’s
argument that § 926A requires an officer to investigate the laws
of the jurisdiction from which the traveler was traveling and the
laws of the jurisdiction to which the traveler was going prior to
making an arrest. (Appellant’s Reply Br. at 13.) It seems
doubtful that, in passing § 926A, Congress intended to impose upon police officers such a potentially burdensome requirement."

So the LEO that is employed to enforce the law is not required to know the law due to the burden that it would create but the citizen is required.
Interesting....


Sent from my iPhone using Tapatalk

 

[Anthony]

I agree with David's opinion.

Now can you LEGALLY drive through NJ from one residence to another with hollow point ammunition?

 

[alaskaflyer]

So the LEO that is employed to enforce the law is not required to know the law due to the burden that it would create but the citizen is required.
Interesting....

Well, that is one way to look at it. On the other hand, if I'm a police officer employed by xxxx municipality in xxxx state how/why should I know the law in some other municipality in a completely different state? IOW, it is a poorly thought out and worded law passed by Congress. Imagine.

 

[maddog52]

Well, that is one way to look at it. On the other hand, if I'm a police officer employed by xxxx municipality in xxxx state how/why should I know the law in some other municipality in a completely different state? IOW, it is a poorly thought out and worded law passed by Congress. Imagine.

It's actually the poorly thought out and worded law in New Jersey prohibiting the carriage of the weapon that is the root cause of the problem.

 

[alaskaflyer]

It's actually the poorly thought out and worded law in New Jersey prohibiting the carriage of the weapon that is the root cause of the problem.

I'm not sure the people of New Jersey care too much about the dilemmas folks from Utah, Georgia or Alaska face when trying to circumvent their laws.

 

[Anthony]

I'm not sure the people of New Jersey care too much about the dilemmas folks from Utah, Georgia or Alaska face when trying to circumvent their laws.

Their law is unconstitutional as it prohibits the legal transportation of a firearm protected under Federal law.

 

[Obi Heed Kenobi]

Their law is unconstitutional as it prohibits the legal transportation of a firearm protected under Federal law.

I'm not sure it does - it would seem that the guy in this case wasn't in compliance with Federal law....

 

[Anthony]

I'm not sure it does - it would seem that the guy in this case wasn't in compliance with Federal law....

So I guess what you are saying David is........

It depends.

 

[Obi Heed Kenobi]

So I guess what you are saying David is........

It depends.

Yup.

 

[alaskaflyer]

Their law is unconstitutional as it prohibits the legal transportation of a firearm protected under Federal law.

States' rights! States' rights!

 

[JeffDG]

I'm not sure it does - it would seem that the guy in this case wasn't in compliance with Federal law....

I read another analysis of this somewhere that was quite good.

Here's what the court suggested:

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.

http://volokh.com/2010/03/30/unexpe...stay-criminal-prosecution-for-gun-possession/

 

[JeffDG]

States' rights! States' rights!

Not to get this kicked to SZ...but legitimate interstate transportation of items is well within federal jurisdiction...unlike some other items that the feds like to regulate under the ICC.

 

[Obi Heed Kenobi]

I read another analysis of this somewhere that was quite good.

Here's what the court suggested:



http://volokh.com/2010/03/30/unexpe...stay-criminal-prosecution-for-gun-possession/
[/font][/font][/color]

Yeah, I saw that.

I'll put it like this: it seems that the 3rd Circuit construed the terms of the FOPA as they are written. The problem is on Congress' end - the law should probably be rewritten.

Let it be a lesson to all of you who might fly with a firearm, or who even might transport one between states. There are, at the absolute minimum, four sets of law you need to be familiar with: 1) your home state's; 2) your destination's; 3) Federal law; and 4) the laws of any state through which you might pass and in which you might stop or be stranded (which is why it's >4).

It's easy to say "it won't happen to me and I'll be careful," but you'll sure be wishing you had that required trigger lock, or that you hadn't brought a certain kind of prohibited ammunition, or that you'd had the gun in the trunk instead of under the back seat, when you're sitting in a jail cell looking at serious charges.

Debating the merits is SZ material, but the bottom line is that, like it or not, you gots to follow the law.

 

[jesse]

Yeah, I saw that.

I'll put it like this: it seems that the 3rd Circuit construed the terms of the FOPA as they are written. The problem is on Congress' end - the law should probably be rewritten.

Let it be a lesson to all of you who might fly with a firearm, or who even might transport one between states. There are, at the absolute minimum, four sets of law you need to be familiar with: 1) your home state's; 2) your destination's; 3) Federal law; and 4) the laws of any state through which you might pass and in which you might stop or be stranded (which is why it's >4).

It's easy to say "it won't happen to me and I'll be careful," but you'll sure be wishing you had that required trigger lock, or that you hadn't brought a certain kind of prohibited ammunition, or that you'd had the gun in the trunk instead of under the back seat, when you're sitting in a jail cell looking at serious charges.

Debating the merits is SZ material, but the bottom line is that, like it or not, you gots to follow the law.

As someone that often travels with a firearm, sometimes through the airliners, it's an interesting case.

Things get really tricky too because you really need to be familiar with the local CITY ordinances in all of those locations too. It's nearly impossible to know you're going to fully comply with the law everywhere while traveling with a firearm.

There are cities in Nebraska that have ordinances that are in conflict with the state's conceal and carry laws. The state's attorney general publically says so and some of the cities fix it while others continue to ignore it. The likelyhood that someone from another state would be aware of all the little gotchas is pretty slim.

 

[Anthony]

States' rights! States' rights!

Yep. You're singing my song, but when the states themselves violate Constitutional rights, then that is why the Feds exist. (One of the few reasons, mind you.)

I think I've only traveled on a commercial airline once with a firearm, and it was thankfully a non-event. Didn't land, nor get shopt down in occupied, Communist territory though.

Send in the Sandies!

 

[Obi Heed Kenobi]

As someone that often travels with a firearm, sometimes through the airliners, it's an interesting case.

Things get really tricky too because you really need to be familiar with the local CITY ordinances in all of those locations too. It's nearly impossible to know you're going to fully comply with the law everywhere while traveling with a firearm.

There are cities in Nebraska that have ordinances that are in conflict with the state's conceal and carry laws. The state's attorney general publically says so and some of the cities fix it while others continue to ignore it. The likelyhood that someone from another state would be aware of all the little gotchas is pretty slim.

Those, too. Blech - that noise should summarize the situation.

Simply put, it's a problem. And I don't see it going anywhere. If anything, it will likely get worse (I'm not going to discuss the "whys" of that here).

Fortunately for the guy in this particular case, it seems that the prosecutor was a pretty fair-minded person. But that result can hardly be expected all of the time.

 

[JeffDG]

Those, too. Blech - that noise should summarize the situation.

Simply put, it's a problem. And I don't see it going anywhere. If anything, it will likely get worse (I'm not going to discuss the "whys" of that here).

Fortunately for the guy in this particular case, it seems that the prosecutor was a pretty fair-minded person. But that result can hardly be expected all of the time.

The feds just need to pass a law permitting concealed carry for any firearm that has been involved in interstate commerce, with a clear preemption. Then let the individual states pass whatever laws they like!

(For those who know me in SZ, I think I just threw up a little there...)

 

[Obi Heed Kenobi]

The feds just need to pass a law permitting concealed carry for any firearm that has been involved in interstate commerce, with a clear preemption. Then let the individual states pass whatever laws they like!

(For those who know me in SZ, I think I just threw up a little there...)

I'm going to keep my cakehole shut as to potential solutions to the issue.

If for no other reason than I don't think anyone wants to be exposed to a discussion of the 14th Amendment!

 

[Dave Siciliano]

The case was eventually dismissed but the gentleman brought a 1983 claim (a federal civil claim) against the New Jersey officer and department claiming among other things no probable cause for arrest because FOPA preempts state law.

Did the fact that the case was dismissed have any bearing on the decision? I can't stop and read it right now. Why would the fella sue and was he damaged if the case had been dismissed? Sounds like there was another agenda.

Best,

Dave

 

[alaskaflyer]

Did the fact that the case was dismissed have any bearing on the decision? I can't stop and read it right now. Why would the fella sue and was he damaged if the case had been dismissed? Sounds like there was another agenda.

Best,

Dave

42 USC 1983:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

It matters not that the case was dismissed before court...he claimed that his rights were violated by being arrested without requisite probable cause. Though there was no injunctive relief to be had at that point he can ask for actual and punitive damages.