Legal Commentary

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

By Eugene Volokh

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.

Full post as published by The Volokh Conspiracy on March 30, 2010 (boomark / email).