Revell v. Port Authority of New York & New Jersey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 09-2029
_____________

GREGG C. REVELL;
ASSOCIATION OF NEW JERSEY RIFLE & PISTOL
CLUBS INC.

v.

PORT AUTHORITY OF NEW YORK AND NEW JERSEY;
SCOTT ERICKSON

v.

PORT AUTHORITY OF NEW YORK AND NEW JERSEY,

Third Party Plaintiff

v.

CONTINENTAL AIRLINES; COUNTY OF ESSEX;
ESSEX COUNTY JAIL; ESSEX COUNTY PROSECUTOR;
JOHN DOES 1-10,

Third Party Defendants
 Gregg C. Revell,

Appellant.
______________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 06-cv-402)
District Judge: Honorable Katharine S. Hayden
_______________

Argued
January 26, 2010

Before: RENDELL and JORDAN, Circuit Judges,
and PADOVA * , District Court Senior Judge

(Filed: March 22, 2010)
_______________

Richard E. Gardiner [ARGUED]
3925 Chain Bridge Rd. - #403
Fairfax, VA 22030

*
Honorable John R. Padova, United States District Court
Senior Judge, for the Eastern District of Pennsylvania, sitting by
designation.

2
Richard V. Gilbert
Evan F. Nappen
21 Throckmorton Ave.
Eatontown, NJ 07724
Counsel for Appellant

Donald F. Burke, Sr. [ARGUED]
Port Authority of New York & New Jersey
One PATH Plaza
Jersey City, NJ 07306

Shirley J. Spira
Sharon K. McGahee
Port Authority of New York & New Jersey
Law Dept., Opinions & Appeals Div.
225 Park Avenue South
13 th Floor, Room 1324
New York, NY 10003
Counsel for Appellees
_______________

OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

Gregg C. Revell appeals from the dismissal of his claims,
brought pursuant to 42 U.S.C. § 1983, seeking to impose
liability upon the Port Authority of New York and New Jersey
(“Port Authority”) and Port Authority Police Officer Scott
Erickson for arresting him under New Jersey’s gun laws and

3
seizing his firearm and ammunition. According to Revell, his
arrest was unlawful because he was in compliance with a
provision of the Firearm Owners’ Protection Act (“FOPA”), 18
U.S.C. § 926A, which allows gun owners licensed in one state
to carry firearms through another state under certain
circumstances. Because we conclude that, at the time of his
arrest, Revell's conduct did not bring him within the protection
of that statute, we will affirm both the dismissal of his § 926A-
based claim and the grant of summary judgment to the Port
Authority and Erickson on Revell’s closely related Fourth
Amendment claim. We will likewise affirm the grant of
summary judgment against Revell on his due process claim
under the Fourteenth Amendment.

I. Background

A. Revell’s Arrest

On March 31, 2005, Revell, a resident of Utah, embarked
on a flight from Salt Lake City to Allentown, Pennsylvania, via
Minneapolis/St. Paul and Newark, New Jersey. When he
arrived at the Northwest Airlines counter 1 in the Salt Lake City
Airport, he checked his luggage through to his final destination
and declared that, in the luggage, he was carrying an unloaded
firearm contained in a locked hard case and ammunition in a
separate locked hard case. He signed an orange firearm

1
While the record is not entirely clear, it appears that
Northwest and Continental Airlines had some shared
responsibility for transporting Revell to Allentown.

4
declaration tag, which was placed inside the locked hard case
containing the firearm. That was apparently the last thing on the
trip that went as expected. The several mishaps that followed
ultimately relate to the accessibility of the firearm and
ammunition and are thus key to this dispute.

Because his flight into Newark was late, Revell missed
his connection from Newark to Allentown. He booked the next
flight to Allentown, which was scheduled to leave Newark at 8
p.m. that evening, but, after the airline changed arrangements,
the passengers scheduled for that flight were asked to board a
bus, instead of a plane, headed for Allentown. Revell got on the
bus; however, when he learned that his luggage was not on
board, he got off to locate it.2 By the time he retrieved his
luggage, he had missed the bus, and no other connections to
Allentown were available. He then went directly to the Newark
Airport Sheraton Hotel in a hotel shuttle, taking his luggage with
him. The driver of the shuttle van placed Revell’s luggage,
which contained the locked hard case containers, in the rear
storage area of the van, which was not immediately accessible
from the passenger compartment where Revell was seated.
Revell stayed at the hotel overnight but did not open either of
the locked containers during his stay.

2
In a triple-whammy for Revell, not only had the airline made
him miss his connection and then put him on a bus instead of a
plane, a Northwest employee had mistakenly checked his
luggage to Newark, instead of Allentown, as his final
destination.

5
 The next morning, he took the hotel’s airport shuttle back
to the Newark Airport and, again, his luggage was placed out of
his reach in the rear of the shuttle. Upon arriving at the airport
around 8:30 a.m., he proceeded to the ticket counter to check his
luggage and declared that he was carrying an unloaded firearm
in a locked hard case and ammunition in a separate locked hard
case. Revell was told to take his luggage to the Transportation
Security Administration (“TSA”) area so that it could be x-
rayed. After the luggage went through the x-ray machine, the
TSA agent at the other end of the machine took the hard cases
out and asked Revell for the key to them, which Revell
provided. The TSA agent opened the cases using Revell’s key
and removed the firearm and ammunition. The orange
declaration sheet from Salt Lake City was still in the case with
the firearm.

About twenty minutes later, several Port Authority
officers, including Officer Erickson, escorted Revell to an area
away from other passengers where they questioned him about
the firearm and ammunition. Revell explained that he had
declared his weapon and ammunition, and that he was merely
passing through New Jersey en route to Allentown,
Pennsylvania. He also showed the officers his Utah concealed
firearm permit and his driver’s license. When Erickson
questioned Revell about why he had the firearm, Revell
explained that he was traveling to Pennsylvania to pick up a car
to bring back to Utah and that “he was going to need the weapon
for protection” as he drove the car home. (App. at 33.) Revell
also informed Erickson that, upon missing his flight the day
before, he had taken possession of his bag with the firearm in it
and had gone to a hotel in Newark to stay for the night.

6
Erickson asked Revell whether he had authority to carry the
firearm in Pennsylvania, but Revell did not respond.3

Erickson arrested Revell for possession of a handgun
without a permit in violation of N.J. Stat. Ann. § 2C:39-5(b) and
for possession of hollow-point ammunition in violation of N.J.
Stat. Ann. § 2C:39-3(f).4 Revell was handcuffed, held overnight
at the Port Authority jail, and then transferred to the Essex
County, New Jersey, Jail, where he was incarcerated for three
days until he was released on bond. Four months later, on
August 2, 2005, the Essex County prosecutor administratively
dismissed all of the charges against him. However, Revell’s
firearm, ammunition, holster, locks, and hard cases, which were
seized at the time of his arrest, were not returned until July 24,
2008, more than two years after the ill-fated trip and

3
At his deposition, Revell stated that he did not check to make
sure that he could carry his firearm in Pennsylvania prior to
traveling there, but believed that it was legal for him to carry a
weapon there because the instructor for his concealed firearm
permit class did not mention that he could not do so.
4
Section 2C:39-5(b) provides that “[a]ny person who
knowingly has in his possession any handgun, ... without first
having obtained a permit to carry the same as provided in
N.J.S.2C:58-4, is guilty of a crime” of the second or third degree
depending on the nature of the handgun. Section 2C:39-3(f)
provides that “[a]ny person, ... who knowingly has in his
possession any hollow nose or dum-dum bullet, ... is guilty of a
crime of the fourth degree.”

7
approximately a year after he filed his amended complaint in
this action.

B. Revell’s Complaint

Understandably troubled about his and his property’s
treatment, Revell brought the present § 1983 case, alleging that
the Port Authority and Erickson had violated his rights under §
926A of FOPA.5 In essence, § 926A allows a person to
transport a firearm and ammunition from one state through a
second state to a third state, without regard to the second state’s
gun laws, provided that the traveler is licensed to carry a firearm
in both the state of origin and the state of destination and that
the firearm is not readily accessible during the transportation.6
18 U.S.C. § 926A. Revell also alleged that the appellees
violated his Fourteenth Amendment rights by retaining his

5
Additionally, the Association of New Jersey Rifle & Pistol
Clubs, Inc. brought a § 1983 claim based on 18 U.S.C. § 926A,
seeking to enjoin the Port Authority from enforcing against the
Association’s non-resident members the New Jersey statutes
under which Revell was arrested. The District Court found that
the Association lacked standing and dismissed its claim. The
Association appealed that ruling to our Court and we reversed,
holding that the Association did, in fact, have standing to pursue
its claim on behalf of its members. Revell v. Port Auth. of N.Y.
& N.J., 321 F. App’x 113, 117 (3d Cir. 2009). The
Association’s lawsuit is not at issue in this appeal.
6
The text of § 926A is set forth in section III.A, infra.

8
firearm, holster, locks, containers and ammunition, thereby
depriving him of his property without due process. He sought
damages and an injunction requiring the Port Authority to return
his property.

C. The District Court’s Dismissal of Revell’s
Complaint

Erickson moved to dismiss Revell’s claims and the Port
Authority moved for judgment on the pleadings.7 They argued,
among other things, that probable cause existed for the arrest
because § 926A was inapplicable, given Revell’s overnight stay
in New Jersey. They also argued that Erickson was entitled to
qualified immunity.

The District Court noted that its first task was to
“determine whether 18 U.S.C. § 926A created an enforceable
personal right,” an issue of first impression. (App. at 44.) The
Court answered that question by holding that, pursuant to the
Supreme Court’s decision in Graham v. Connor, 490 U.S. 386
(1989), Revell was required to frame his § 1983 claim in terms
of the Fourth Amendment, as opposed to § 926A, because he
sought damages for an allegedly improper arrest. In other
words, the Court concluded that, “[b]ecause individuals already

7
Since the Port Authority had already answered Revell’s
complaint, it moved for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c), while Erickson, who had
not answered the complaint, moved to dismiss for failure to state
a claim under Rule 12(b)(6).

9
have a method of recovering damages pursuant to § 1983 if they
are arrested or charged without probable cause, [i.e., a claim
under the Fourth Amendment,] it is unnecessary and, indeed,
improper ... to conclude that § 1983 provides a separate or
alternative remedy for a violation of § 926A.” (App. at 49.)
The Court thus dismissed Revell’s § 1983 claim for the alleged
violation of § 926A, but it granted him leave to file an amended
complaint stating a Fourth Amendment claim.

The Court also dismissed Revell’s procedural due process
claims for damages and injunctive relief.8 The Court, relying on
Parratt v. Taylor, 451 U.S. 527 (1981), explained that, if
constitutionally adequate state procedures were available to
remedy the deprivation of Revell’s property, he could not
succeed on his due process claim. Since Revell neither availed
himself of state law remedies nor explained why those remedies
would be futile or constitutionally inadequate, the Court
dismissed that claim. However, it granted Revell leave to
amend his complaint to allege that “the Port Authority’s
postdeprivation remedies for the return of seized property are
constitutionally inadequate.” (App. at 53.)

On June 29, 2007, the District Court entered an order
dismissing Revell’s complaint and allowing him leave to amend
pursuant to the memorandum opinion.

8
The District Court analyzed Revell’s due process claims to
determine whether he had also pled a substantive due process
violation and concluded that he had not. That issue is not on
appeal.

10
 D. Revell’s Amended Complaint

Not long after, on July 13, 2007, Revell filed an amended
complaint against the Port Authority and Erickson. In the first
count, he asserted that his arrest and the seizure of his property
violated his Fourth Amendment rights because, pursuant to §
926A, he was legally entitled to carry the firearm and
ammunition in his luggage, notwithstanding New Jersey law.
Revell also asserted two procedural due process claims – one for
damages and one for injunctive relief requiring the return of his
property – based on allegations that the Port Authority “has no
post-deprivation procedure for Revell to recover the [property]
seized from him” and that the defendants “did not provide him
notice of the basis for the retention of the property and of an
opportunity for a post-deprivation hearing.” (App. at 64.) He
later voluntarily dismissed his due process claim for injunctive
relief, after his property was returned to him.

E. The District Court Grants Summary Judgment on
Revell’s Claims

Following discovery, the Port Authority and Erickson
moved for summary judgment, arguing that probable cause
supported Revell’s arrest and that Erickson is protected by
qualified immunity. They asserted that § 926A did not
immunize Revell from arrest for violating New Jersey’s gun
laws because, contrary to an express requirement of § 926A,
Revell’s weapon was readily accessible to him during his stay in
New Jersey. They also moved for summary judgment on
Revell’s due process claim, arguing that New Jersey has in place
adequate post-deprivation procedures for those who seek the

11
return of property seized upon arrest, including state tort
remedies, and that Revell failed to avail himself of any of those
procedures.

The District Court held that the Port Authority and
Erickson were entitled to summary judgment on the Fourth
Amendment claim, “because probable cause [for the arrest and
property seizure] developed during ... [Erickson’s] questioning
concerning Revell’s transportation of a handgun and
ammunition through New Jersey.” (App. at 78.) The Court
found persuasive the defense argument that Revell’s conduct fell
outside § 926A since it is undisputed that Revell left the airport
with his luggage for an overnight stay at a hotel in New Jersey,
thus giving him ready access to the gun during that period. The
Court also explained that Ҥ 926A does not address anything but
vehicular travel; it does not encompass keeping the weapon –
locked in a case or not – in an airport hotel overnight.” (App. at
77.) Alternatively, the Court held that Erickson was entitled to
qualified immunity because probable cause existed for Revell’s
arrest and, therefore, no constitutional right was violated. The
District Court also concluded that summary judgment against
Revell on his due process claim was proper because he had
failed to take advantage of available state remedies for the return
of his property, namely, a state court lawsuit.9

9
The Court noted that Revell’s property was apparently
returned to him after he made “a simple request to Essex
County.” (App. at 81.)

12
 In a March 31, 2009 order, the District Court granted the
summary judgment motion in accordance with its memorandum
opinion. Revell timely appealed both the summary judgment
order and the order dismissing his original complaint.

II. Standard of Review 10

Our review of the District Court’s decision to grant the
Port Authority’s motion for judgment on the pleadings and
Erickson’s motion to dismiss is plenary. See E.I. DuPont de
Nemours & Co. v. United States, 508 F.3d 126, 131 (3d Cir.
2007); DeHart v. Horn, 390 F.3d 262, 272 (3d Cir. 2004). A
court confronted with a Rule 12(b)(6) motion must accept the
truth of all factual allegations in the complaint and must draw all
reasonable inferences in favor of the non-movant. Gross v.
German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir.
2008). A motion for judgment on the pleadings based on the
defense that the plaintiff has failed to state a claim is analyzed
under the same standards that apply to a Rule 12(b)(6) motion.
Turbe v. Gov’t of the V.I., 938 F.2d 427, 428 (3d Cir. 1991).

We also exercise plenary review over an appeal from a
grant of summary judgment. Jacobs Constructors, Inc. v. NPS
Energy Servs., Inc., 264 F.3d 365, 369 (3d Cir. 2001). Summary
judgment is appropriate if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of

10
The District Court had jurisdiction over Revell’s claims
pursuant to 28 U.S.C. §§ 1331 and 1343. Our jurisdiction is
based upon 28 U.S.C. § 1291.

13
law. Id. (citing F ED. R. C IV. P. 56(c)). “In making this
determination, we must consider the evidence in the record in
the light most favorable to the nonmoving party.” Id.

III. Discussion

“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988). There is no question that the
defendants in Revell’s suit were acting under color of state law
when effecting his arrest. The issue is whether Revell has
alleged a violation of any right under federal law. Revell’s §
1983 claims seek to remedy perceived violations of his alleged
statutory right under § 926A, his Fourth Amendment rights, and
his Fourteenth Amendment due process rights.11 We will first
address the § 926A claim and the Fourth Amendment claim,
before turning to the due process claim.

A. Section 926A and the Fourth Amendment

Revell challenges both the District Court’s dismissal of
his § 926A claim and the Court’s grant of summary judgment on
his Fourth Amendment claim. He asserts that he never should
have been required to re-frame his § 926A claim in terms of the

11
For ease of reference, we will refer to those § 1983 claims
as Revell’s § 926A claim, his Fourth Amendment claim, and his
due process claim.

14
Fourth Amendment, since, as he sees it, § 926A provides a
federal right that may be remedied by way of § 1983,
independent of the Fourth Amendment. As to his Fourth
Amendment claim, Revell asserts that the District Court erred in
concluding that probable cause existed for his arrest. More
specifically, and returning to the same § 926A theme, he says
that the District Court incorrectly determined that he did not fall
within the protection provided by that statute. Revell does not
dispute that his conduct violated New Jersey law but instead
claims that he was not subject to arrest because he complied
with § 926A and that § 926A preempts New Jersey’s gun laws
under the circumstances presented here.12 He also challenges
the District Court’s conclusion that Erickson was entitled to
qualified immunity against the Fourth Amendment claim.

In order for Revell to prevail either on the theory that he
had a right under § 926A that can be remedied through § 1983
or on the theory that the Fourth Amendment should have

12
Section 927 of Title 18, captioned “Effect on State law,”
provides:

No provision of this chapter shall be construed as
indicating an intent on the part of the Congress to
occupy the field in which such provision operates
to the exclusion of the law of any State on the
same subject matter, unless there is a direct and
positive conflict between such provision and the
law of the State so that the two cannot be
reconciled or consistently stand together.

15
protected him from arrest because § 926A gave him a right to
transport his gun, he must first establish that he complied with
the conditions set forth in § 926A so as to be entitled to its
protection. Accordingly, we begin our analysis with the
question of whether Revell was in compliance with § 926A
when he was arrested in New Jersey.

Section 926A of FOPA, entitled “Interstate transportation
of firearms,” provides:

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.

16
18 U.S.C. § 926A. It is clear from the statute that a person
transporting a firearm across state lines must ensure that the
firearm and any ammunition being transported is not “readily
accessible or ... directly accessible from the passenger
compartment of [the] transporting vehicle.” Id. Looking solely
at the allegations of Revell’s original complaint, it is also clear
that what happened here does not fall within § 926A’s scope
because his firearm and ammunition were readily accessible to
him during his overnight stay in New Jersey.

Revell attempts to invoke the protection of the statute by
alleging that “[d]uring the transportation of the firearm, neither
the firearm nor the ammunition were readily accessible or
directly accessible from the passenger compartment of the
aircraft or the bus [that he took to the hotel].” (App. at 25.) But
only the most strained reading of the statute could lead to the
conclusion that having the firearm and ammunition inaccessible
while in a vehicle means that, during the owner’s travels, they
can be freely accessible for hours at a time as long as they are
not in a vehicle. The complaint reveals that Revell’s luggage
containing the firearm was, in fact, available to him while he
was at the hotel. He alleged that, “[a]fter retrieving his bag,
because there were no more connections to Allentown until 9:45
a.m. the following morning ... , [he] went directly to, and stayed
the night at, the Airport Sheraton Hotel.” (App. at 23.) He
further alleged that he returned with his luggage directly to the
airport the next day and that a TSA agent, after x-raying the
luggage, opened it with a key that Revell gave him. Taking
those facts as true, it is clear that the gun and ammunition were
readily accessible to Revell during his stay in New Jersey and,
thus, by the allegations of his own complaint, he was not within

17
the scope of § 926A. Dismissal of the § 926A claim was
therefore proper.13

Turning to the summary judgment motion on Revell’s
Fourth Amendment claim, the depositions filed in support of
that motion serve to confirm the conclusion that Revell had
access to his gun and ammunition, contrary to § 926A’s
requirement.14 Erickson testified that, under questioning, Revell
said he had been forced to stay overnight at a hotel in Newark

13
The District Court dismissed Revell’s § 926A claim based
upon its conclusion that Revell was required to bring that claim
pursuant to the Fourth Amendment. But, we “may affirm a
result reached by the district court on reasons that differ so long
as the record supports the judgment.” Johnson v. Orr, 776 F.2d
75, 83 n.7 (3d Cir. 1985). Based solely on the allegations of the
complaint, it is clear that Revell did not comply with § 926A, so
we can affirm the District Court’s dismissal on that basis alone.
Given our disposition, we do not address the more difficult
question of whether, if he had complied with § 926A, Revell
would have been able to pursue a § 1983 claim based upon §
926A.
14
Revell’s amended complaint, which contains his Fourth
Amendment claim, alleges the same facts as his original
complaint, with the addition of one new allegation – that Revell
did not open either of the locked hard cases while he was in
New Jersey. The amended complaint also described in greater
detail the inaccessibility of the luggage during the shuttle ride to
and from the airport to the hotel.

18
because he had missed his flight. Erickson also testified that
Revell acknowledged he “had the firearm with him when he left
for Newark, that he had picked up the bag and taken it with
him.” (App. at 33.) Specifically, Erickson testified as follows:

Q: He told you that he picked up the bag at
Newark because he missed his flight, and
went out of the airport, correct?

A: Yes.

Q: And did he tell you that he went to a hotel that
night?

A: Yes.

(Id.) Revell’s own deposition further confirms that, upon
missing his flight to Allentown, he retrieved his luggage, took
a shuttle to a nearby hotel, and then returned to the airport the
following morning with his bags.

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.15 (App. at 77 (“[N]othing in the

15
With regard to whether probable cause existed for his arrest,
Revell attempts to raise factual disputes concerning what

19
pleadings or the record indicates that Revell’s handgun and
ammunition were anything but readily accessible to him during

Erickson knew at the time he arrested Revell, arguing that
Erickson did not know what Revell did with his bag when he
went to the hotel and that Erickson did not know whether he
stayed overnight. First, Revell mischaracterizes the record, as
Revell himself testified that he told the officers that he “had
been forced to stay in the hotel.” (App. at 37.) Second, even if
Erickson were required to consider § 926A’s impact in his
probable cause analysis, an issue on which we express no
holding, Revell told Erickson that he had picked up his luggage
from the airport and went to a hotel for the night. A reasonable
officer would be entitled to infer from Revell’s statements that
he had access to his firearm and ammunition while at the New
Jersey hotel. Whether Revell in fact accessed them is irrelevant.
Given our conclusion that Revell was not protected by § 926A
when he was arrested in New Jersey, we need not address the
interrelation between § 926A and probable cause. 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.
See Torraco v. Port Auth. of N.Y. & N.J., 539 F. Supp. 2d 632,
644 (E.D.N.Y. 2008) (“[I]t is simply too much to read into §
926A a Congressional intent to require local police to have
on-the-spot knowledge of the firearms laws of all 50 States.”).

20
his overnight stay in New Jersey.”).) Accordingly, Revell was
subject to arrest for violating New Jersey’s gun laws.16 We will
therefore affirm the District Court’s grant of summary judgment
on his Fourth Amendment claim.17

Although we conclude that Revell fell outside of §
926A’s protection during his stay in New Jersey, we recognize
that he had been placed in a difficult predicament through no
fault of his own. However, Section 926 clearly requires the
traveler to part ways with his weapon and ammunition during
travel; it does not address this type of interrupted journey or
what the traveler is to do in this situation. 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

16
To satisfy the Fourth Amendment, a warrantless arrest must
be based on probable cause that a crime has been or is being
committed. Devenpeck v. Alford, 543 U.S. 146, 152 (2004); see
also United States v. Stubbs, 281 F.3d 109, 122 (3d Cir. 2002).
There is no question that Erickson observed Revell in possession
of a firearm and hollow-point bullets in violation of New Jersey
law.
17
Because we conclude that Revell’s weapon and ammunition
were readily accessible to him, we need not address Revell’s
argument that § 926A should be broadly construed to
“immunize[] non-vehicular transportation if the firearm is not
readily accessible.” (Appellant’s Op. Br. at 32.) Nor do we
reach the issue of qualified immunity.

21
his situation, requesting that his firearm and ammunition be held
for him overnight.18 While this no doubt adds to the
inconvenience imposed upon the unfortunate traveler when his
transportation plans go awry, it offers a reasonable means for a
responsible gun owner to maintain the protection of Section 926
and prevent unexpected exposure to state and local gun
regulations.

B. Due Process

Revell also asserts that the District Court erroneously
granted summary judgment on his due process claim. In order
to determine whether an individual has been deprived of his
property without due process “it is necessary to ask what process
the State provided, and whether it was constitutionally
adequate.” Zinermon v. Burch, 494 U.S. 113, 126 (1990). “This
inquiry ... examine[s] the procedural safeguards built into the
statutory or administrative procedure of effecting the
deprivation, and any remedies for erroneous deprivations
provided by statute or tort law.” Id. Although a pre-deprivation
hearing is generally required before a state seizes a person’s
property, “[i]n some circumstances ... the Court has held that a
statutory provision for a postdeprivation hearing, or a
common-law tort remedy for erroneous deprivation, satisfies due
process.” Id. at 128.

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.

22
 For example, in Parratt v. Taylor, and thereafter in
Hudson v. Palmer, the Supreme Court held that, when a state
officer randomly and without authorization departs from
established state procedures, the state need only provide post-
deprivation procedures. Hudson, 468 U.S. 517, 533 (1984);
Parratt, 451 U.S. 527, 543 (1981), overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327 (1986) (overruling
Parratt to the extent it suggested that a constitutional injury
could be established based on negligence). The Supreme Court
held in Parratt that a state tort claim was an adequate remedy
for a prisoner aggrieved by prison officials’ negligent loss of his
property, and in Hudson the Court held the same with respect to
a prisoner whose property was intentionally destroyed by a
prison guard.

The District Court relied on Parratt in deciding that
Revell’s failure to take advantage of available remedies, namely
a state court lawsuit, warranted summary judgment on his due
process claim. Revell argues that, because his deprivation was
made pursuant to Port Authority policy as opposed to an
unauthorized act, a state tort remedy is insufficient and that,
instead, “there must be a statutory provision for a post-
deprivation hearing to satisfy due process.” (Appellant’s Op.
Br. at 25.) But, Revell’s due process claim is not based on
defendants’ initial seizure of the property. Instead, in his
opening brief, Revell clarified that his claim rests on the
defendants’ retention of his property after the charges against
him had been dismissed and on their failure to provide him
notice and an opportunity for a post-deprivation hearing.
(Appellant’s Op. Br. at 26 (“Revell should not have been
deprived of the property after August 2, 2005 without being

23
provided constitutionally adequate notice and an opportunity for
a post-deprivation hearing.”).) Revell has identified no policy
requiring officers of the Port Authority to retain property that is
no longer needed for a prosecution, and it is highly unlikely that
any such policy exists. Accordingly, the rationale of Parratt and
Hudson does apply. See Case v. Eslinger, 555 F.3d 1317, 1331
(11th Cir. 2009) (“We have recognized that a civil cause of
action for wrongful conversion of personal property under state
law is a sufficient postdeprivation remedy when it extends to
unauthorized seizures of personal property by state officers.”
(internal quotations omitted)).

Revell cannot prevail on his due process claim if the
state’s post-deprivation procedures, including state tort
remedies, are adequate. He has failed to explain why New
Jersey’s state procedures to recover wrongfully seized property,
such as the ability to move in the criminal action for return of
his property or the ability to file a separate action for a writ of
replevin, are insufficient. See State v. One 1986 Subaru, 576
A.2d 859, 318 (N.J. 1990) (explaining that owner of seized
property can file a replevin action or move to retrieve
improperly seized property and “[b]ecause of the availability of
[such] procedures ... , a claimant’s inaction may weigh against
a claim that his or her due-process rights have been violated”);
see also N.J. Rule 3:5-7 (motion for return of property)19 and

19
Although Rule 3:5-7 directly speaks to the ability of a
defendant to move for the return of property that was unlawfully
seized, which Revell could have done in light of his claim that
his arrest and the seizure of his property were unlawful, Revell

24
4:61-1 (replevin). Nor has Revell shown any entitlement to
special notice of those procedures. See City of W. Covina v.
Perkins, 525 U.S. 234, 236 (1999) (holding that due process
clause does not “require[] a State or its local entities to give
detailed and specific instructions or advice to owners who seek
return of property lawfully seized but no longer needed for
police investigation or criminal prosecution”). Thus, his due
process claim fails and summary judgment was warranted. Cf.
Mora v. City of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008)
(rejecting plaintiff’s procedural due process claim, when police
retained plaintiff’s weapons after seizing them because
“[plaintiff] has had, and continues to have, notice and an
opportunity to be heard in Maryland, and he cannot plausibly
claim that Maryland’s procedures are unfair when he has not
tried to avail himself of them.”).

IV. Conclusion

Section 926A does not apply to Revell because his
firearm and ammunition were readily accessible to him during
his stay in New Jersey. That conclusion is fatal to his § 926A
claim and the associated Fourth Amendment claim. We
accordingly affirm the District Court’s dismissal and grant of
summary judgment, respectively, on those claims. We also
affirm the District Court’s grant of summary judgment on

may well have found a New Jersey court sympathetic to a
motion under that Rule for the return of his property once the
charges against him were dropped.

25
Revell’s due process claim because he did not take advantage of
state procedures available to him for the return of his property.

26