Torraco v. PORT AUTHORITY OF NY. AND NJ.

08-1768-cv; 08-1895-cv
Torraco v. Port Authority of New York & New Jersey; Weasner v. Suffolk County, New York

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________

August Term, 2008

(Argued: April 29, 2009 Decided: June 30, 2010)

Docket Nos. 08-1768-cv, 08-1895-cv

_____________________

John Torraco, William Winstanley,

Plaintiffs-Appellants,

v. No. 08-1768-cv

Port Authority of New York and New Jersey, Port Authority of NY & NJ Board of
Commissioners, Kenneth J. Ringler Jr., Executive Director, Port Authority of NY & NJ, Port
Authority Police Department, Samuel J. Plumeri Jr., Director of Public Safety/Superintendent of
Police, Port Authority Police Department, Christopher Trucillo, Chief, Port Authority Police
Department, Sergeant Goldberg, Port Authority Police, Anthony Espinal, Port Authority Police
Officer, Paulsen, Port Authority Police Officer, Port Authority Police Officer, Lieutenant, Port
Authority Police, unknown at present, Port Authority Police Sergeant, unknown at present, John
Doe I, Port Authority Police Officer, unknown at present, John Doe II, Port Authority Police
Officer, unknown at present,

Defendants-Appellees,

_____________________

consolidated for disposition with

_____________________

Matthew R. Weasner,

Plaintiff-Appellant,

v. No. 08-1895-cv
Anthony Passalaqua (#174), Long Island MacArthur Airport Police Officer, Town of Islip, New
York, Pete McGowan, Town of Islip Supervisor, Long Island MacArthur Airport Police
Department, and Greg Decanio, Chief of Patrol, Long Island MacArthur Airport Police
Department,

Defendants-Appellees,

Suffolk County, New York, Steve Levy, Suffolk County Executive, Suffolk County Police
Department, Richard Dormer, Suffolk County Police Department Commissioner, Kevin M.
Henry (# 5105), Suffolk County Police Officer, Suffolk County Police Officer, unknown at
present (John Doe), Peter Quinn, Inspector, 5th Precinct, Suffolk County Police Department,

Defendants.

____________________________________

Before: POOLER, PARKER, WESLEY, Circuit Judges.
____________________________________

Appellee police officers delayed and in some instances arrested appellants for violating

New York’s gun laws when they attempted to transport unloaded firearms in checked baggage

through various New York airports, in reliance upon 18 U.S.C. § 926A, a statute which, under

certain circumstances, allows gun owners to transport firearms interstate without incurring

criminal liability under local gun laws. Upon review, we agree with Judge Cogan of the United

States District Court of the Eastern District of New York that: (1) Section 926A is not

enforceable through 42 U.S.C. § 1983, (2) appellants Torraco’s and Weasner’s rights to be free

from false arrest were not violated, and (3) appellants’ rights to travel were not infringed.

Accordingly, we AFFIRM. Judge Wesley concurs in the judgment and in Parts I and II-B & C of

the opinion of the Court, and files a separate concurring opinion.

Torraco v. Port Authority of New York & New Jersey,

Stephen P. Halbrook, Fairfax, Virginia, for Plaintiffs-Appellants.

2
 Kathleen Gill Miller (Milton H. Pachter , Joan F. Bennett, on the brief),

New York, N.Y., for Defendants-Appellees.

Weasner v. Suffolk County, New York

Richard E. Gardiner, Fairfax, Virginia, for Plaintiff-Appellant.

Richard Carl Imbrogno, New York, N.Y., for Defendants-Appellees.

_________________________________

POOLER, Circuit Judge:

In these cases, which we heard in tandem and now consolidate for disposition, plaintiffs-

appellants John Torraco and William Winstanley appeal from a March 24, 2008 judgment of the

United States District Court for the Eastern District of New York (Cogan, J.) dismissing their

claims against Sergeant Lawrence Goldberg, police officers Anthony Espinal and Paulsen, and

other appellees. Plaintiff-appellant Matthew Weasner appeals from an April 17, 2008 judgment,

also of the Eastern District of New York, dismissing his claims against police officer Anthony

Passalaqua and other appellees. The district court resolved both cases through summary

judgment.

All three appellants complain of the actions taken by appellee police officers when

appellants attempted to transport unloaded firearms in checked baggage through various New

York airports. Appellants followed Transportation Safety Administration (“TSA”) regulations,

see 49 C.F.R. § 1540.111(c)(2),1 and relied upon 18 U.S.C. § 926A (“Section 926A”), a statute`

1
Section 1540.111(c)(2) of the Title 49 of the Code of Federal Regulations provides that
a passenger may not transport or offer for transport in checked baggage any unloaded firearm,
unless:

(i) The passenger declares to the aircraft operator, either orally or in

3
which allows individuals to transport firearms from one state in which they are legal, through

another state in which they are illegal, to a third state in which they are legal, provided that

several conditions are met, without incurring criminal liability under local gun laws. All three

appellants were interviewed and delayed from traveling, and two – Torraco and Weasner – were

arrested by officers seeking to enforce New York gun laws criminalizing the possession of a

firearm without a New York firearm license. See N.Y. Penal Law §§ 265.01(1), 265.20(3); see

also Bach v. Pataki, 408 F.3d 75, 78-82 (2d Cir. 2005) (describing New York’s gun laws in

detail).2 Torraco and Weasner do not possess New York firearm licenses, and are precluded from

writing, before checking the baggage, that the passenger has a
firearm in his or her bag and that it is unloaded;
(ii) The firearm is unloaded;
(iii) The firearm is carried in a hard-sided container; and
(iv) The container in which it is carried is locked, and only the
passenger retains the key or combination.
2
As we explained in Bach,

New York regulates handguns primarily though Articles 265 and 400 of
the Penal Law. Article 265 creates a general ban on handgun possession,
see, e.g., N.Y. Penal Law §§ 265.01(1), 265.02(4), with specific
exemptions thereto, see N.Y. Penal Law § 265.20. The exemption at issue
here is a licensed use exemption defined in Article 400: “[the p]ossession
of a pistol or revolver by a person to whom a license therefor has been
issued.” N.Y. Penal Law §§ 265.20(3) (referencing sections 400.00 and
400.01).
Article 400 of the Penal Law “is the exclusive statutory mechanism for the
licensing of firearms in New York State.” O’Connor v. Scarpino, 83
N.Y.2d 919, 920, 615 N.Y.S.2d 305, 638 N.E.2d 950 (1994). Licenses are
limited to persons over twenty-one, of good moral character, without a
history of crime or mental illness, and “concerning whom no good cause
exists for the denial of the license.” N.Y. Penal Law § 400.00(1).

408 F.3d at 78-79.

4
acquiring such licenses because they neither reside nor work in New York State. See N.Y. Penal

Law § 400.00(3)(a).

In this suit, all appellants seek to enforce Section 926A through 42 U.S.C. § 1983, all

appellants allege infringements of their constitutional rights to travel, and Torraco and Weasner

complain of false arrest. The district court rejected these claims, and upon review, we affirm.

Before explaining our reasons for doing so, however, we first describe the relevant individual

circumstances of each case, stating them, as we must, in the light most favorable to appellants.

See Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009).

I. Factual Background

A. John Torraco

On October 15, 2004, Torraco, who is a citizen and resident of the state of Florida, and

his wife, who is not a party to this action, flew from Florida into LaGuardia Airport

(“LaGuardia”), New York, from which they went to Franklin Lakes, New Jersey, to stay with

Torraco’s mother. Two days later, the couple set out for LaGuardia to return to Florida.

Torraco’s mother first drove them to a friend’s house in Queens, New York.3 Following a brief

visit, the friend drove the couple to the airport. During this time, Torraco’s unloaded,

disassembled gun was in a carrying case kept in the car trunk.

Upon arrival at LaGuardia, Torraco informed the airline ticket agent that he had a gun in

a carrying case, which he wanted to check through. The agent tagged the firearm with an orange

firearms declaration tag, and advised Torraco that it was standard operating procedure to notify

3
Contradicting his deposition testimony, Torraco’s complaint asserts that he and his wife
“left New Jersey and drove directly to [LaGuardia Airport].”

5
the Port Authority Police when a passenger declares a weapon, which she did. Appellee Officer

Espinal responded and asked Torraco whether he had a New York license for the firearm.

Torraco, who, as noted above, does not, informed Officer Espinal that he was traveling from

New Jersey to Florida, and that Section 926A preempted local licensing requirements. Being

unfamiliar with Section 926A, Officer Espinal called his superior, appellee Sergeant Goldberg.

Upon joining the group, Sergeant Goldberg was informed that Torraco had voluntarily declared

his gun at the ticket counter, was coming from New Jersey where he had a residence, and was

going to Florida where, in Torraco’s view, he was legally authorized to carry the gun without a

license. Sergeant Goldberg asked Torraco for paperwork that would establish that he was

lawfully in possession of the gun. A TSA supervisor arrived and took the position that Torraco

was permitted to transport the weapon without regard to local law. Sergeant Goldberg took the

position that Torraco needed to first establish that his possession of the gun was lawful, before

the question of whether he could legally possess the gun in New Jersey or Florida became

relevant. He and Officer Espinal arrested Torraco for violating New York Penal Law §

265.01(1), which provides that “[a] person is guilty of criminal possession of a weapon in the

fourth degree when . . . [h]e possesses any firearm” without a license.4 Torraco was held for

twenty-eight hours, when he was arraigned in Queens County Criminal Court on that charge, and

subsequently released on recognizance. His attorney moved to dismiss on the ground of federal

preemption, and though the district attorney did not respond to the motion, he cross-moved to

4
There is conflicting testimony in the record as to what happened to Torrraco’s then-wife.
Torraco testified that she was arrested but released soon after, while Sergeant Goldberg testified
that she was not arrested but voluntarily came to the police station. This factual dispute is not
relevant to our analysis, however, because she did not join in bringing this suit.

6
dismiss in the interests of justice. The court denied the district attorney’s motion and granted

Torraco’s motion, finding that the State’s failure to respond to Torraco’s motion was a

concession on the merits.

Torraco subsequently brought this suit in federal court alleging that appellees violated: (a)

his right to carry firearms under Section 926A, and (b) his Fourth Amendment right to be free

from unreasonable searches and seizures. He sought to enforce both of these claimed rights

under Section 1983.

B. William Winstanley

Approximately six months later, on April 1, 2005, Winstanley, a citizen and resident of

the State of New York, and who, unlike Torraco, has a New York firearm license, underwent a

somewhat similar experience at John F. Kennedy International Airport (“JFK”), New York, from

where Winstanley was scheduled to fly to Phoenix, Arizona. Winstanley was traveling with

more than one unloaded firearm, packed in accordance with TSA regulations. Upon arrival,

Winstanley declared his firearms to the ticket agent who, in accordance with protocol, contacted

the Port Authority Police. Appellee Officer Paulsen arrived, asked Winstanley for his New York

firearm license, which Winstanley presented, asked Winstanley where he was going, to which

Winstanley responded – Tucson, Arizona, and asked Winstanley for his concealed weapons

permit for Arizona, to which Winstanley responded that he did not have one, nor did he need one

because he had a Florida concealed weapons permit, which allowed him to carry a concealed

weapon in Arizona. Officer Paulsen disagreed, stating that Winstanley needed a concealed

weapons permit for Arizona and when Winstanley asked for a supervisor, threatened to place him

7
under arrest and informed him that he could not board the aircraft.5 As the airline with which he

was traveling apparently only had one flight a day to Tucson, Winstanley changed his flight to

the next day, anticipating that the delay would cause him to miss his flight. He then proceeded to

the Port Authority Police headquarters at JFK and spoke to a lieutenant who agreed that

Winstanley did not need a permit to openly carry a weapon in Arizona. When the lieutenant left

the room, Winstanley also spoke to a sergeant, who, he testified, showed him, but would not let

him examine, a matrix in a folder entitled “Gun Laws of the United States.” The next day,

Winstanley returned to JFK, and again declared his firearms at the ticket counter. As with the

previous day, the agent gave him a declaration tag and contacted the Port Authority Police. An

unidentified officer asked him for his New York gun license, which Winstanley produced. The

officer then inspected the gun case and told Winstanley that he had the wrong type of carrying

case. When Winstanley responded that he had transported firearms in that carrying case multiple

times from JFK, the officer informed Winstanley that he was free to travel, just not with the

carrying case. Winstanley then purchased a compliant gun case from the airline and would have

made the flight, except that it was canceled due to weather. On April 4, 2005, Winstanley called

the Port Authority headquarters before heading to JFK, recounted the incidents of his previous

two attempts to an officer, and after some back and forth was told that he could travel with his

firearms. Upon arrival at JFK, Winstanley was permitted to board the flight to Arizona.

5
Officer Paulsen provides a somewhat different account of this discussion, stating that he
called his lieutenant because he was not sure that Winstanley would be permitted to carry the
firearms in Arizona, and that after he got off the phone with his lieutenant, and informed
Winstanley that his lieutenant asked him to send Winstanley to see him, Winstanley got “irate
and screamed at [him]” after which he instructed Winstanley that “if he kept on yelling, he was
going to be arrested for disorderly conduct.” As noted, however, we take the facts in the light
most favorable to appellants.

8
 Together with Torraco, Winstanley subsequently brought this suit in federal court

alleging that: (a) Section 926A creates an independent right to transport firearms, and (b) his

right to travel was infringed. Like Torraco, he contends that both of these rights are enforceable

by an action for damages under Section 1983.

C. Matthew R. Weasner

Weasner describes himself as a citizen and resident of the State of Ohio. In early June

2004, however, he was employed by a defense contractor and was staying at a hotel in New

Jersey. He had recently traveled to California and Arizona while awaiting a military transport to

Iraq.

Almost immediately upon checking into the New Jersey hotel, Weasner received a call

notifying him of a family emergency. He purchased the cheapest plane ticket he could find,

which departed from Long Island MacArthur Airport (“LIMA”), New York in route to Ohio, and,

with all of his property, drove straight from New Jersey to the airport in New York. Included in

this property was a Ruger pistol, purchased by his grandfather and given to him by his father,

properly unloaded and packaged according to TSA regulations. Weasner had carried that firearm,

apparently without incident, on his various trips to or from Ohio and California.

When Weasner arrived at the airport ninety minutes before his flight, he informed the

agent at the airline ticket counter that he had a firearm to declare. The agent made a call and soon

after appellee Officer Passalaqua arrived and asked Weasner to accompany him to a TSA office,

which Weasner did. Weasner explained to Officer Passalacqua that he was passing through New

York on his way from New Jersey to his home state, Ohio, and showed Officer Passalaqua his

plane ticket. Officer Passalacqua left for about thirty minutes, and when he returned told Weasner

9
that there was no record of the firearm in the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“BATF”) database. Weasner stated that the gun had been purchased by his

grandfather before record keeping rules were in effect and thus would only show up in the

database if he had used it to commit a crime. During the course of these interactions, Weasner

did not alert Officer Passalaqua to Section 926A, though he did tell him that he had complied

with the packaging regulations for transporting a firearm and had traveled with it frequently,

noting that his gun case included a check tag from the TSA in California. At some point, Officer

Passalaqua handcuffed Weasner and led him to a back room, where he was kept, handcuffed, for

about twenty minutes. He was then taken to the police station, where he was fingerprinted, and

subsequently charged with illegal possession of a firearm under New York Penal Law § 265.01.

Weasner made bail that day and flew home to Ohio without his gun. The charges against

Weasner were subsequently dismissed.6

Weasner later filed suit, alleging that appellees violated: (a) his right to carry firearms

under Section 926A, and (b) his Fourth Amendment right to be free from unreasonable searches

and seizures. Weasner also seeks to hold the Town of Islip liable under a failure to train or

deliberate indifference theory.

II. Discussion

A. Claims under Section 926A

As we have explained, all three appellants filed suit under Section 1983 premised on

violations of Section 926A. The district court concluded that a violation of Section 926A cannot

6
Weasner had to retain and pay an attorney and return to court in New York on several
occasions, however, he was subsequently reimbursed.

10
be enforced though Section 1983, and we affirm.

Section 1983 imposes liability on anyone who, under color of state law, deprives a person

“of any rights, privileges, or immunities secured by the Constitution and laws,” 42 U.S.C. §

1983, and allows parties to seek damages against state actors for alleged violations of federal

rights. It is enforceable only for violations of federal rights, not merely violations of federal

laws. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283-90 (2002); Golden State Transit Corp. v.

City of Los Angeles, 493 U.S. 103, 106 (1989). The three “Blessing factors” enumerated by the

Supreme Court in Blessing v. Freestone are traditionally used to determine the existence of a

federal right enforceable under Section 1983:

First, Congress must have intended that the provision in question benefit the
plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected
by the statute is not so “vague and amorphous” that its enforcement would strain
judicial competence. Third, the statute must unambiguously impose a binding
obligation on the States. In other words, the provision giving rise to the asserted
right must be couched in mandatory rather than precatory terms.

520 U.S. 329, 340-41 (1997) (citations omitted). This Court, however, has cautioned against

applying these factors too strictly, explaining that: “courts should not find a federal right based

on a rigid or superficial application of the Blessing factors where other considerations show that

Congress did not intend to create federal rights actionable under § 1983.” Wachovia Bank, N.A.

v. Burke, 414 F.3d 305, 322 (2d Cir. 2005); see also Gonzaga Univ., 536 U.S. at 291 (“[S]tatute

books are too many, the laws too diverse, and their purposes too complex, for any single formula

to offer more than general guidance.”) (Breyer, J., concurring).

With these guidelines in mind, we turn to the firearm law implicated in this case. Section

926A states:

Notwithstanding any other provision of any law or any rule or regulation of a

11
 State or any political subdivision thereof, any person who is not otherwise
prohibited by this chapter [18 U.S.C.S. §§ 921 et seq.] 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.

18 U.S.C. § 926A. The district court determined Section 926A satisfies the first Blessing factor

because it is “phrased in terms of the persons benefitted,” and we agree. See Gonzaga Univ., 536

U.S. at 284. Indeed, Congress explicitly “entitle[d]” persons to transport firearms under the

terms of Section 926A.

The district court concluded, however, that Section 926A failed to meet the second

Blessing factor - that the right protected by the statute is not so “vague and amorphous” that its

enforcement would strain judicial competence:

In authorizing interstate transport of firearms “for any lawful purpose from any
place where [a traveler] may lawfully possess and carry such firearm,” [Section
926A] offers no standard by which an officer can determine whether the interstate
transport is lawful. It would require a local officer, faced with clear evidence of a
gun carried in violation under local law, to know the law of all 50 states and their
localities to evaluate whether firearms possession in the departure and destination
states is lawful and thus preempts local law, an unworkable requirement.

Appellants argue that this analysis erroneously focused on the “practical problems” involved for

police officers complying with Section 926A instead of the competency of the judiciary.

Appellants are correct that the language of the second factor focuses on whether the rights

conferred would be difficult for the judiciary, as opposed to law enforcement officials, to identify

and enforce. This “rigid and superficial” application of the Blessing factors, however, is

12
insufficient. See Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 432 (1987)

(stating that the “benefits Congress intended to confer on tenants are sufficiently specific and

definite to qualify as enforceable rights” which were not “beyond the competence of the judiciary

to enforce”) (emphasis added). These practical problems, and the accompanying possibility that

the fear of increased liability could chill enforcement of firearm regulations, undermine the

argument that Congress granted a benefit that was intended to be a individual right. We find no

evidence either in the text or structure of Section 926A that would indicate that Congress

intended that police officers tasked with enforcing state gun laws should be liable for damages

when they fail to correctly apply Section 926A. See Gonzaga Univ., 536 U.S. at 286 (“[W]here

the text and structure of a statute provide no indication that Congress intends to create new

individual rights, there is no basis for a private suit . . . under § 1983.”). Appellees explain this

point well:

[I]f, as Blessing teaches, the Supreme Court believes that judicial difficulty in
applying a federal statute in the courthouse is a strong indicator that Congress did
not intend to create a damages remedy for violation of that statute, then certainly it
is reasonable to presume that a statute such as §926A, which requires a police
officer to know the applicable firearm laws of at least two states in each encounter
and apply them at the airport ticket counter, was not intended by Congress to
create a damages remedy for its violation, especially given the absence of any
indication in the statute’s text, structure, or legislative history that such a remedy
was necessary or desired.

Applying Section 926A to Weasner’s and Torraco’s claims illustrates the difficulties,

faced by judiciary and law enforcement officers, inherent its application. Prong one of Section

926A asks whether a person “is not otherwise prohibited by [the Firearms Chapter] from

transporting, shipping, or receiving a firearm.” 18 U.S.C. § 926A. Section 922(g) describes

various categories of individuals – including felons, fugitives from justice, and unlawful aliens,

13
among others – who are not permitted under the Firearms Chapter to “ship or transport in

interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition;

or to receive any firearm or ammunition which has been shipped or transported in interstate or

foreign commerce.” 18 U.S.C. § 922(g). Problematically, however, Section 926A is silent as to

how a police officer encountering an unlicensed person with a firearm is to ascertain that this

prong of the statute is met, i.e., that said person is not prohibited by the Firearms Chapter from

transporting the firearm. Both Weasner and Torraco claim that the laws of their states of

residence, Ohio and Florida, do not require a license for gun possession and that their possession

was not prohibited by the Firearms Chapter. Asked to produce documentation of lawful

possession, however, neither could. Appellants would have us conclude that Congress intended

that a police officer faced with this factual scenario must mutely accept appellants’ assurances

that their possession is lawful, or potentially be subject to suit for damages.

Similarly, whether Weasner and Torraco satisfied factor three of Section 926A, that the

guns were lawful in the state of origin, is, contrary to what one might expect, no simple matter.

Because both Weasner and Torraco began the pertinent legs of their travels in New Jersey, their

possession and carriage of the firearms in that state needed to be lawful. The New Jersey Code

of Criminal Justice makes it unlawful to carry a handgun without a permit. See N.J.S.A.

2C:39-5. The code provides certain narrow exceptions to the permit requirements including that

a person may keep a firearm in his “residence, premises or other land owned or possessed by

him” without a permit, or may carry said firearm between “one . . . residence and another when

moving.” N.J.S.A. 2C:39-6(e). That law further provides that guns being carried under

subsection (e) “in the course of travel shall include only such deviations as are reasonably

14
necessary under the circumstances.” N.J.S.A. 2C:39-6(g). Thus, in Weasner’s case, a police

officer’s liability could turn on the correctness of his on-the-spot determination about whether

Weasner’s hotel in New Jersey constituted a residence, and whether his trip to Ohio constituted a

move. In Torraco’s case, a police officer would be obligated to speculate whether Torraco’s brief

stop in New York prior to proceeding to the airport was “reasonably necessary under the

circumstances.”

And of course this complexity, though illustrated by, is not limited to the facts of this

case. As the district court astutely observed,

Multiply the fluidity of that scenario by 50 jurisdictions (putting aside issues that
might arise as a result of international travel with interim domestic stopovers), and
nearly a billion passengers moving through U.S. airports per year, and it becomes
apparent that providing a damage remedy under § 1983 for a failure to adequately
apply § 926A would be unworkable.

Torraco v. Port Auth., 539 F. Supp. 2d 632, 646 (E.D.N.Y. 2008). Given this complexity and

uncertainty, we conclude that Congress did not intend to create federal rights in Section 926A

actionable under Section 1983.

We are unconvinced by appellants’ response that Section 926A creates a presumption of

lawfulness, and is therefore quite simply applied, making a damages remedy under Section 1983

workable. They contend that “Congress intended a per se rule that such travel is lawful under §

926A unless probable cause exists to believe” otherwise. Appellants seem to suggest that

officers encountering an individual checking a gun at the airport in a state that does not permit

unlicensed gun possession should not even inquire as to whether possession is lawful so long as

the individual complied with the “carrying case” and “unload” requirements. Section 926A does

not state that it is creating any such presumption- it merely provides that gun owners may travel

15
interstate with their guns unloaded and in carrying cases, as long as a number of other conditions

are met – and we decline to read a presumption into the statute. Moreover, the Firearms Chapter

explicitly cautions against finding that Congress intended Section 926A to operate at the

exclusion of state gun laws:

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.

18 U.S.C. § 927.

As both the district court and this court conclude that the second Blessing factor prevents

the plaintiffs from showing the existence of an individual right, we need not discuss the third

factor.

B. False Arrest

We now turn to Torraco’s and Weasner’s claims that they were the victims of false arrest

when they were arrested for possession of a firearm without a license under New York Penal

Law §§ 265.01(1), 265.20(3). Appellees respond that there was probable cause to execute the

arrests, and that in any event, the officers are entitled to qualified immunity. The district court

agreed with appellees, as do we.

The Fourth Amendment right to be free from unreasonable seizures “includes the right to

be free from arrest absent probable cause.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006).

Thus, “the existence of probable cause is an absolute defense to a false arrest claim,” id. at 152,

and the question with which we are presented is not whether Torraco and Weasner were in fact

guilty of violation of the New York statute, but rather whether there was probable cause to

16
believe that they were. “Probable cause to arrest exists when the arresting officer has knowledge

or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a

person of reasonable caution in the belief that the person to be arrested has committed or is

committing a crime.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation

marks omitted). “[T]he probable cause inquiry is based upon whether the facts known by the

arresting officer at the time of the arrest objectively provided probable cause to arrest,” Jaegly,

439 F.3d at 153, i.e., it is “objective rather than subjective.” Id. at 154.

With these points in mind, we conclude that the officers had probable cause to believe

that Weasner and Torraco were in violation of New York Penal Law § 265.01(1), even assuming

that they were aware of the terms of Section 926A. It is undisputed that neither Torraco nor

Weasner had a New York license for their weapons. Thus, absent Section 926A, they would be

in clear violation of New York law. Moreover, there was also probable cause to believe that

appellants did not satisfy Section 926A.

We look to the facts of Weasner’s arrest to flesh out these points.7 At the time of his

arrest, Officer Passalaqua knew that Weasner: (1) possessed an unloaded firearm in a carrying

case, (2) did not have a license or some other documentation of lawful possession such as a

receipt of purchase, and (3) declared that he was flying through New York on his way from New

Jersey to Ohio. Officer Passalaqua took the extra step of searching the BATF database to

ascertain whether the gun was lawfully possessed, and failing to see Weasner’s name, he had

7
We need not go through the specifics of Torraco’s arrest because they are largely similar
to those of Weasner and compel the same conclusions. Having failed to provide documentation
of legal possession, Officer Espinal and Sergeant Goldberg had reason to believe that the first
prong of Section 926A was not met.

17
probable cause to believe that Weasner’s possession was not lawful under New York law.

Further, assuming the Officer knew about Section 926A, there was probable cause to believe that

Weasner did not meet its requirements. As noted supra in our discussion of the Section 1983

claim based on 926A, a person acting with reasonable caution could conclude that Weasner was

not in lawful possession of the firearm at his point of origin because he may have been in

violation of New Jersey’s gun laws when he kept a gun in his hotel and traveled with it to Ohio.

Officer Passalaqua had two options on these facts – take Weasner at his word and release him, or

arrest him. He justifiably choose the latter.

Given the facts and circumstances of the arrests, a person of reasonable caution would be

warranted in believing that New York Penal Law § 265.01(1) had been violated and that the

requirements of Section 926A were not met. Therefore, appellants were not subject to false

arrests.

In view of our conclusion that there was probable cause for the arrests, we also conclude

that Weasner’s claim against the Town of Islip cannot go forward. “[T]o hold a city liable under

§ 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove

three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3)

a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)

(quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)). We need not address the first

two prongs of this showing since Weasner cannot show that his constitutional rights were

violated.

C. Right to Travel

The appellants allege that their right to travel was violated. The right to travel is

18
implicated in three circumstances: (1) when a law or action deters such travel; (2) when impeding

travel is its primary objective; and (3) when a law uses any classification which serves to

penalize the exercise of that right. See Town of Southold v. Town of East Hampton, 477 F.3d

38, 53 (2d Cir. 2007). Categories two and three are clearly inapplicable here - New York’s

firearm laws are facially neutral and are not designed primarily to impede travel. Further, we

have made clear that “travelers do not have a constitutional right to the most convenient form of

travel, and minor restrictions on travel simply do not amount to the denial of a fundamental

right.” Id. at 54 (internal citation omitted). Assuming that the actions the defendants took did in

fact deter these plaintiffs under category 1, the most-inconvenienced plaintiff was delayed a little

over one day. This was a minor restriction that did not result in a denial of the right to travel.

III. Conclusion

For the reasons explained, we affirm the judgment of the district court.

19
08-1768-cv; 08-1895-cv
Torraco v. Port Auth. of N.Y. & N.J.; Weasner v. Suffolk County, N.Y.

WESLEY, Circuit Judge, concurring:

I join the majority’s holdings affirming the dismissal

of plaintiffs’ § 1983 claims based on their legal theories

of: (1) false arrest under the Fourth Amendment; (2)

municipal liability against the Town of Islip; and (3)

violations of the constitutional right to travel. I also

agree with the majority that the district court properly

granted summary judgment in favor of defendants with respect

to plaintiffs’ § 1983 claims based on 18 U.S.C. § 926A.

Nevertheless, I am unpersuaded by the path the majority

takes to reach that conclusion, and write to describe the

alternative basis upon which I would resolve the difficult

questions presented by this appeal.

The majority holds that § 926A does not create a

federal right. In doing so, it reasons that the second

factor from Blessing v. Freestone, 520 U.S. 329, 340-41

(1997) — which relates to the institutional competence of

the judiciary to adjudicate a § 1983 claim — “prevents the

plaintiffs from showing the existence of an individual

federal right” under § 926A. Op. at 16. I disagree. In my

view, a review of the text of § 926A leads to the
inescapable conclusion that Congress created an individual

federal right by enacting this provision. Specifically, the

statute provides a limited right to a safe harbor from

state-law convictions based on charges relating to the

unlawful possession of firearms. The right arising out of §

926A is available if, and only if, the statutory

prerequisites to its application are satisfied. The right

is therefore qualified and narrow, but not, as the majority

holds, non-existent. And, of course, individuals

transporting firearms are not without other legal

protections; their interactions with law enforcement are

subject to a number of well-established constitutional

rights, the violation of which may be redressed through

several long-recognized theories brought pursuant to § 1983.

But remedies under § 1983 are not available for the

violation of every federal right. In my view, the right

created by § 926A provides an example of this principle.

Consequently, my disagreement with the majority does not

necessitate a dissent. Two of the statute’s features are

central to this analysis: (1) § 926A creates a right to a

defense that may be raised to avoid a criminal conviction,

which must be analyzed against the backdrop of remedies

2
available through direct appeals, writs of habeas corpus and

other collateral attacks, and § 1983 claims based on

constitutional violations; and (2) the prerequisites to the

availability of the right arising out of § 926A are legal in

nature, and raise the sort of questions that are rarely, if

ever, foisted upon officers in the field. I agree with the

majority that potential liability for police officers under

§ 1983 based on violations of § 926A would unduly hamstring

law enforcement and pose troubling practical problems.

These concerns, however, do not allow us to ignore the text

of § 926A. Accordingly, for the reasons set forth below, I

am of the view that § 926A creates an individual federal

right, but that violations of this right are not redressable

in a private action pursuant to § 1983.

I. The Analytical Framework

The issue of whether § 1983 is available as a means of

redressing violations of § 926A presents, at bottom, a

question of statutory interpretation. The basic tools at

our disposal for engaging in such an inquiry are well-

established. See, e.g., SEC v. Dorozhko, 574 F.3d 42, 46

(2d Cir. 2009). In undertaking this task, however, the

majority declines to fully explain the legal framework that

3
guides our analysis.

The majority focuses on the principle that a § 1983

claim will lie only where an individual federal right — not

merely a federal law — is alleged to have been violated.

See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 279-82

(2002). In determining whether a statute creates such a

right, the three factors identified in Blessing provide

“general guidance.” Id. at 291 (Breyer, J., concurring).

As the majority notes rather emphatically, “courts should

not find a federal right based on a rigid or superficial

application of the Blessing factors.” Wachovia Bank, N.A.

v. Burke, 414 F.3d 305, 322 (2d Cir. 2005). We must also be

mindful, though, that § 1983 “‘means what it says’ and

authorizes suits to enforce individual rights under federal

statutes as well as the Constitution.” City of Rancho Palos

Verdes, Cal. v. Abrams, 544 U.S. 113, 119 (2005) (quoting

Maine v. Thiboutot, 448 U.S. 1, 4 (1980)). “In the usual

case, if the words of a statute are unambiguous, judicial

inquiry should end, and the law is interpreted according to

the plain meaning of its words.” Devine v. United States,

202 F.3d 547, 551 (2d Cir. 2000). Thus, we may not

interpret the Blessing Court’s “general guidance” as a

4
license to disregard unambiguous statutory text in order to

avoid the implications of its plain meaning.

But a finding that Congress has created an individual

federal right marks the beginning, not the end, of any

inquiry into the availability of § 1983 claims. E.g.,

Abrams, 544 U.S. at 120. Under the second step of the

Blessing framework, “[e]ven if a plaintiff demonstrates that

a federal statute creates an individual right, there is only

a rebuttable presumption that the right is enforceable under

§ 1983.” Blessing, 520 U.S. at 341; see also Doe, 536 U.S.

at 284-85 & n.4; Morris-Hayes v. Bd. of Educ. of Chester

Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005). In

this second step, the issue is whether Congress “‘foreclosed

a remedy under § 1983.’” Blessing, 520 U.S. at 341 (quoting

Smith v. Robinson, 468 U.S. 992, 1005 n.9 (1984)). I would

resolve the issues presented by plaintiffs’ claims based on

§ 926A under this second step, and hold that Congress has

impliedly foreclosed § 1983 claims based on alleged

violations of this statute.

II. § 926A Creates an Individual Federal Right

Does § 926A create an individual federal right? The

Blessing Court identified a non-exhaustive list of three

5
factors to consider: (1) whether the § 1983 plaintiffs fit

within the statute’s intended class of beneficiaries; (2)

whether the entitlement arising out of the statute is so

“vague and amorphous” that its enforcement in a § 1983 claim

would “strain judicial competence”; and (3) whether the

statute “impose[s] a binding obligation on the States.”

Blessing, 520 U.S. at 340-41; see also Burke, 414 F.3d at

321-22. In holding that § 926A does not confer an

individual federal right, the majority takes an overly broad

view of the second Blessing factor.

Congress enacted § 926A as part of the Firearms Owners’

Protection Act (“FOPA”), Pub. L. No. 99-308, § 107(a), 100

Stat. 449 (May 19, 1986), amended by Pub. L. No. 99-360, §

1(a), 100 Stat. 766 (July 8, 1986). The statute is the

product of a tortured legislative history, which, as one

scholar said, gives “meaning to the expression . . . that

those who care for the law or for sausages should not watch

either being made.” David T. Hardy, The Firearms Owners’

Protection Act: A Historical and Legal Perspective, 17

Cumb. L. Rev. 585, 627 n.229 (1987). Section 926A

originated in a bill proposed by Senator Robert Dole in the

6
98th Congress. 1 The record from the Senate debate regarding

this provision contains a memorandum stating that the

language of Senator Dole’s proposal was “unambiguous in

[its] creation of a federal right,” but “far too vague to

serve as the basis for preempting state laws coming into

conflict with that right.” 131 Cong. Rec. S9101-05 (July 9,

1985). In light of that concern, the Senate revised the

bill, see id., which was ultimately enacted as part of FOPA,

Pub. L. No. 99-308, § 107(a). 2 Just months after its

1
Section 107 of Senator Dole’s proposal would have
amended 18 U.S.C. § 927 to add the following proviso:

[A]ny provision of any legislation enacted, or of
any rule or regulation promulgated, by any State
or a political subdivision which prohibits or has
the effect of prohibiting the transportation of a
firearm or ammunition in interstate commerce
through such State, when such firearm is unloaded
and not readily accessible, shall be null and
void.

131 Cong. Rec. S23-03 (Jan. 3, 1985).
2
The original version of § 926A stated:

Any person not prohibited by this chapter from
transporting, shipping, or receiving a firearm
shall be entitled to transport an unloaded, not
readily accessible firearm in interstate commerce
notwithstanding any provision of any legislation
enacted, or any rule or regulation prescribed by
any State or political subdivision thereof.

Pub. L. No. 99-308, § 107(a).

7
enactment, § 926A was amended to its current form. 3

The present version of § 926A remains as unambiguous as

its predecessors with regard to whether the statute creates

a federal right. Subject to a series of prerequisites that

limit the manner and circumstances in which a firearm may be

transported, § 926A states that “any person . . . shall be

entitled to transport a firearm” through certain

jurisdictions, “[n]otwithstanding any other provision of any

law . . . of a State.” 18 U.S.C. § 926A (emphasis added).

Thus, when the statutory prerequisites are satisfied, § 926A

3
Section 926A, as amended, now states:

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 44 of Title
18] 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.

18 U.S.C. § 926A.

8
allows individuals to transfer a firearm without being

convicted for unlawfully possessing the weapon under the

laws of any state through which they pass, or any “political

subdivision thereof,” between the origin and destination of

the transfer (hereinafter, “pass-through” jurisdictions).

Id.

Based on this text, two of the Blessing factors plainly

weigh against the majority’s conclusion that § 926A does not

create a federal right. First, as the majority

acknowledges, plaintiffs fall within the class of intended

beneficiaries referenced in the text of § 926A. See Op. at

12. The statute also employs strong rights-creating

language: “[A]ny person . . . shall” be entitled to invoke

the entitlement the statute creates. See Doe, 536 U.S. at

284 n.3 (providing examples of “right- or duty-creating

language”). Therefore, the first Blessing factor militates

in favor of the conclusion that § 926A confers an individual

federal right. 4

4
Although there were disputes about the scope of §
926A during the congressional debates regarding this
provision, several legislators referred to the statute as
creating a “right.” See, e.g., 132 Cong. Rec. H1649-03
(Apr. 9, 1986) (statement of Rep. Fish); 132 Cong. Rec.
H1689-03 (Apr. 9, 1986) (statement of Rep. Thomas).

9
 Second, there can be no question that this statute is

“couched in mandatory, rather than precatory, terms.”

Blessing, 520 U.S. at 341; cf. Muscarello v. United States,

524 U.S. 125, 134 (1998) (observing, in dicta, that Ҥ 926A

specifically ‘entitle[s]’ a person ‘not otherwise prohibited

. . . from transporting, shipping, or receiving a firearm’

to ‘transport a firearm . . . from any place where he may

lawfully possess and carry’ it to ‘any other place’ where he

may do so” (emphasis added, alteration in original) (quoting

18 U.S.C. § 926A)). Section 926A therefore “unambiguously

impose[s] a binding obligation on the States.” Blessing,

520 U.S. at 341. Thus, the first and third Blessing factors

support the conclusion that the statute creates an

individual federal right.

The principal source of my disagreement with the

majority relates to its application of the second Blessing

factor — the competence of the judiciary to ascertain

whether the would-be right has been violated. See Blessing,

520 U.S. at 340. In holding that “the second Blessing

factor prevents the plaintiffs from showing the existence of

an individual right,” see Op. at 16, the majority refers

almost exclusively to concerns that would arise out of

10
requiring law enforcement to apply the statute under pain of

liability pursuant to § 1983. See Op. at 16. I share these

concerns. I am also aware that Blessing is not to be

applied in a “rigid or superficial” manner. Burke, 414 F.3d

at 322. However, in my view, the issues identified by the

majority are not relevant to the second Blessing factor,

irregardless of the manner of its application.

When the Blessing Court articulated this factor, the

basis for its concern was that, if the “right assertedly

protected by the statute” is “vague and amorphous,” then a

trial court may lack the tools in the context of an

individual § 1983 claim to determine whether the putative

right has been violated. See, e.g., Livadas v. Bradshaw,

512 U.S. 107, 132-33 (1994) (“A particular statutory

provision . . . may be so vague and amorphous that

determining whether a deprivation might have occurred would

strain judicial competence.” (internal citations and

quotation marks omitted)); Suter v. Artist M., 503 U.S. 347,

363 (1992) (holding that no federal right arises out of a

statutory provision stating that “reasonable efforts will be

made” to prevent removal of children from their homes). In

my view, § 926A raises no such concerns.

11
 Plaintiffs’ claims based on § 926A, had they proceeded,

would have required the district court to simply apply

Chapter 44 of Title 18 and several states’ firearms laws to

the facts of these cases. I am confident that the district

court, and any other court charged with such a task, would

be capable of making those legal determinations. It seems

to me that this observation resolves the application of the

second Blessing factor, which is at best neutral as to the

question of whether § 926A creates an individual federal

right. Therefore, the text of the statute demonstrates that

Congress created an individual federal right, a result

confirmed by reference to the Blessing factors.

Of course, that the application of § 926A may be

expeditiously resolved from an ex post perspective in a

courtroom does nothing to obviate the difficulties that may

arise out of requiring officers to apply this statute in the

field on a real-time basis. However, the issues of whether

local law enforcement officers are capable of readily

enforcing a federal statute, and whether placing such a

burden on those officers is advisable as a policy matter,

are distinct from any of the concerns raised by the Blessing

Court that might militate against a finding that § 926A

12
creates an individual federal right. It cannot be a defense

to a § 1983 claim for a state actor to appear in court and

assert that, because a federal right is difficult to enforce

or apply, it is no right at all. 5 If Congress has created a

right that strains state actors’ resources or competence to

enforce, the remedy lies with the political branches.

Courts “are not at liberty to second-guess congressional

determinations and policy judgments of this order, however

debatable or arguably unwise they may be.” Eldred v.

Ashcroft, 537 U.S. 186, 208 (2003). Thus, I do not find the

practical concerns relied upon by the majority to provide an

adequate basis for holding that § 926A does not create a

federal right.

In reaching the opposite conclusion, the majority seems

to rely on the “canon” that we should avoid endorsing

5
This is particularly true where, as here, the statute
is unambiguous with respect to whether it creates an
individual right. By the same token, the Supreme Court has
held that there is a defense to a § 1983 claim where the
source of the federal right in question expressly or
impliedly forecloses recourse to § 1983. See Middlesex
County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S.
1, 14-15 (1981). As discussed in more detail below, see
infra Part IV, § 926A is ambiguous with respect to this
distinct interpretive question regarding the availability of
§ 1983 claims. I would resolve that ambiguity, in part, by
relying on the same practical concerns that the majority
emphasizes.

13
statutory interpretations that would lead to absurd results.

E.g., Corley v. United States, 129 S. Ct. 1558, 1568 & n.6

(2009). In essence, the majority reasons that, whatever the

text of § 926A, it would be absurd to interpret the statute

to confer an individual federal right because of the

“complexity and uncertainty” attendant in the application of

§ 926A by local law enforcement. See Op. at 15-16.

However, even if courts are empowered to employ such

reasoning, but see, e.g., Hamilton v. Lanning, No. 08-998,

--- S. Ct. ----, 2010 WL 2243704, at *16-19 (U.S. June 7,

2010) (Scalia, J., dissenting), my view that § 926A confers

an individual federal right does not necessarily lead to the

absurd result that the majority seeks to avoid. Rather, my

conclusion requires only that the analysis of plaintiffs’

claims based on § 926A proceed to the second step of the

Blessing framework.

In sum, I am loath to imply from the fact that § 926A

presents front-line enforcement difficulties that Congress

mistakenly, or inartfully, used specific rights-creating

terms when crafting this statute. “[C]ourts must presume

that a legislature says in a statute what it means and means

in a statute what it says there. . . . When the words of a

14
statute are unambiguous, then, this first canon is also the

last: ‘judicial inquiry is complete.’” Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253-54 (1992) (quoting Rubin v.

United States, 449 U.S. 424, 430 (1981)) (internal citations

omitted). We lack the authority to ignore the words chosen

by Congress in § 926A, which, in my view, create an

individual federal right.

III. The Nature of the Right Arising out of § 926A

In Blessing, the Supreme Court criticized the

plaintiffs for “paint[ing] with too broad a brush” by

failing to specifically describe the rights they sought to

vindicate through their § 1983 claims. 520 U.S. at 342.

It was incumbent upon [the plaintiffs] to identify
with particularity the rights they claimed, since
it is impossible to determine whether [the
statute], as an undifferentiated whole, gives rise
to undefined “rights.” Only when the complaint is
broken down into manageable analytic bites can a
court ascertain whether each separate claim
satisfies the various criteria we have set forth
for determining whether a federal statute creates
rights.

Id. Thus, under Blessing, a discussion of the nature of the

individual right arising out of § 926A is in order.

I agree with the majority that, like the Blessing

plaintiffs, plaintiffs here have framed their claims around

an overly broad reading of § 926A. In each of their

15
pleadings, they refer without specification to a “right to

travel in compliance with 18 U.S.C. § 926A.” However, the

text of § 926A does not create an individual right to

transport a firearm at any time of the transporter’s

choosing, free from regulatory investigation or delays.

Nor, as the majority points out, does the statute require

local law enforcement to apply a “presumption” that an

individual’s possession of a firearm is lawful,

notwithstanding the lack of a permit from the jurisdiction

in question or some other form of proof. See Op. at 15-16.

Rather, § 926A creates a “negative” right to avoid

convictions and related sanctions in pass-through

jurisdictions between the origin and destination of a

firearm transfer. 6 This limited right is qualified by five

6
“[T]hat a right is a . . . ‘negative right’ does not
diminish its status as a right.” Croll v. Croll, 229 F.3d
133, 148 n.3 (2d Cir. 2000) (Sotomayor, J., dissenting),
abrogated on other grounds by Abbott v. Abbott, 130 S. Ct.
1983 (2010). “The distinction between affirmative and
negative rights, though its legitimacy has been much
disputed in academic circles, continues to find favor with
the Supreme Court.” Yniguez v. Arizonans for Official
English, 69 F.3d 920, 937 n.22 (9th Cir. 1995), vacated on
other grounds, 520 U.S. 43 (1997); see also, e.g., DeShaney
v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195
(1989) (“The [Due Process] Clause is phrased as a limitation
on the State’s power to act, not as a guarantee of certain
minimal levels of safety and security.”); Alfred Bell & Co.
v. Catalda Fine Arts, 191 F.2d 99, 103 n.16 (2d Cir. 1951)
(“Copyright is, in fact, only a negative right to prevent
16
prerequisites that must be satisfied before the transferor

may invoke the statute’s protection:

(1) the firearm transfer must not be “otherwise
prohibited” by Chapter 44 of Title 18, which
relates to federal firearms offenses;

(2) the “purpose” of the transfer must be
“lawful”;

(3) the origin of the transfer must be a “place
where [the individual] may lawfully possess and
carry such firearm”;

(4) the destination of the transfer must also be a
place where the transferor “may lawfully possess
and carry such firearm”; and

(5) the firearm must be unloaded during the
transfer, and “neither the firearm nor any
ammunition being transported [may be] readily
accessible or . . . directly accessible from the
passenger compartment of [the] transporting
vehicle.”

18 U.S.C. § 926A. The first four of these prerequisites

require applications of state and federal law, and the right

only attaches where all five prerequisites are established

to the satisfaction of either local law enforcement or a

court.

When the right does attach, it functions as a criminal

defense that may be employed to avoid a conviction based on

state-law charges of illegal gun possession. In addition to

the appropriation of the labours of an author by another.”).
17
its text, this interpretation of the statute is supported by

the references to § 926A as a “safe harbor” in the

congressional debates that led to its enactment. For

example, in the words of Representative Betty McCollum:

This provision is designed to be a “safe harbor”
for interstate travelers. No one is required to
follow the procedures set forth in section 926A,
but any traveler who does cannot be convicted of
violating a more restrictive State or local law in
any jurisdiction through which he travels.

132 Cong. Rec. H4102-03 (June 24, 1986) (emphasis added);

see also 132 Cong. Rec. S8215-01 (June 24, 1986) (statement

of Sen. Thurmond). 7 A “safe harbor” is “[a] provision . . .

in a statute or regulation . . . that affords protection

from liability or penalty.” Black’s Law Dictionary 1453

(9th ed. 2009) (emphasis added). In my view, that is

precisely how § 926A operates — it provides a right to

protection against a conviction on state-law weapon-

possession charges.

7
Additionally, Senator Howard Metzenbaum described the
language of the original version of § 926A, Pub. L. No. 99-
308, § 107(a), as “mak[ing] clear that it is the intention
of Congress that State and local statutes and regulations
shall remain in effect except that in certain narrow
circumstances involving travel through one or more States
other than the State of residence, a defense is available to
prosecutions under State and local gun control laws.” 131
Cong. Rec. S9101-05 (July 9, 1985) (statement of Sen.
Metzenbaum) (emphasis added).
18
 The “teeth” of this negative statutory right and the

criminal defense that it makes available come from the

Supremacy Clause. In other words, when the right arising

out of § 926A applies, the state law in question must yield

to the federal law that Congress enacted to create this safe

harbor. 8 This characteristic of the statute was

acknowledged, and its efficacy as a policy decision was

debated, throughout the legislative history of § 926A. See,

e.g., H. Rep. No. 99-495, at 5, 20 (Mar. 14, 1986),

reprinted in 1986 U.S.C.C.A.N. 1327, 1334, 1354; see also

131 Cong. Rec. E5359-02 (Dec. 3, 1985) (memorandum from the

staff of the House Judiciary Committee); 131 Cong. Rec.

S8686-01 (June 24, 1985) (statement of Sen. Hatch). Indeed,

one of the most noticeable differences between the original

8
I am mindful that § 926A’s neighbor in the criminal
code, 18 U.S.C. § 927, warns against interpreting any
provision of the firearms chapter, Chapter 44 of Title 18,
“as indicating an intent on the part of the Congress to
occupy the field in which such provision operates.” Id.
However, section 926A was originally conceptualized as a
proviso to § 927. See 131 Cong. Rec. S23-03 (Jan. 3, 1985)
(describing S.49, § 107 “Amendments to Section 927”); see
also supra note 1. And, when § 926A applies, it gives rise
to precisely the sort of “direct and positive conflict”
between state and federal law that compels the conclusion
“that the two cannot be reconciled or consistently stand
together.” 18 U.S.C. § 927. When such a conflict exists,
federal law — here, § 926A — governs. Therefore, there is
no tension between my construction of § 926A and the terms
of § 927.
19
and amended versions of § 926A is that Congress moved the

preemption language — “[n]otwithstanding any other provision

of any law . . . of a State” — to the beginning of the

provision. Compare Pub. L. No. 99-308, § 107(a) (May 19,

1986), with Pub. L. No. 99-360, § 1(a) (July 8, 1986).

Finally, applying § 926A would not “strain” judicial

competence, Blessing, 520 U.S. at 341; instead, the statute

calls for judicial intervention. Four of the prerequisites

to the attachment of the right present the sort of legal

questions that we rarely, if ever, require officers in the

field to resolve on the spot. In the majority’s words, the

statute is “silent as to how a police officer encountering

an unlicensed person with a firearm” is to determine whether

these prerequisites are satisfied. Op. at 14. I agree. I

also infer from this silence that, if the application of the

prerequisites to the § 926A safe harbor are unclear in a

given case, then the ambiguities are to be resolved by

judges in courts instead of by police officers at busy

airport terminals. If a judge determines that the

prerequisites were satisfied at the time of the firearm

transfer, then the right attaches and the transferor may not

be convicted of a state-law offense relating to the unlawful

possession of the weapon.
20
 Therefore, having conducted the inquiry called for by

the Blessing Court relating to the specific nature of the

federal right upon which plaintiffs’ claims are premised, I

am of the view that § 926A provides a negative right to a

safe harbor — in the form of a preemption-based criminal

defense — against state-law weapons-possession convictions

in pass-through jurisdictions. This right is only available

where the statutory prerequisites are satisfied, and the

application of the right will often have to be resolved in

courts in the context of criminal cases brought under the

laws of pass-through jurisdictions.

This right is qualified and narrow. Contrary to

plaintiffs’ assertions, nothing in § 926A affords private

citizens a right to immediately check a firearm as part of

their luggage and board an airplane. Nor does the text of

the statute provide a right to avoid delays that may result

from law enforcement’s efforts to determine whether a

firearm is lawfully possessed, so long as the investigation

is consistent with the federal Constitution and the laws of

the jurisdiction in question. However, to the extent my

construction of this federal right appears to be exceedingly

narrow, nothing about my interpretation of § 926A would

limit citizens’ access to the full panoply of constitutional
21
claims that may be brought pursuant to § 1983 based on

allegations of unlawful searches, seizures, detentions, or

prosecutions. Claims for, inter alia, false arrest,

excessive force, and malicious prosecution remain available

as means for seeking redress where a state actor goes too

far.

IV. The District Court Properly Granted Summary Judgment in
Favor of Defendants

Once the scope of the right arising out of § 926A is

properly framed, two insights emerge. First, because § 926A

is only violated when an individual is convicted of

unlawfully possessing a weapon in a pass-through

jurisdiction despite complying with the five prerequisites

of the statute, plaintiffs’ rights under the statute were

not abridged. 9 Torraco successfully relied on § 926A as a

defense to the New York State criminal charge against him.

9
The Third Circuit recently reasoned in an analogous
fashion in Revell v. Port Authority of New York & New
Jersey, 598 F.3d 128 (3d Cir. 2010). There, the court
(impliedly) assumed that § 926A created a federal right that
could support a § 1983 claim, but held that the plaintiff
had not alleged that § 926A was violated because the fifth
statutory prerequisite was not satisfied; that is, the
firearm in question was “readily accessible,” 18 U.S.C. §
926A, during the transfer. Id. at 136; cf. Torraco v. Port
Auth. of N.Y. & N.J., 539 F. Supp. 2d 632, 645 n.8 (E.D.N.Y.
2008) (reasoning that Torraco “was not entitled to the
protection of § 926A” because he stopped at a friend’s house
in Queens while en route to the airport).
22
Similarly, although the record is unclear as to the basis

for the dismissal, there is no dispute that the gun-

possession charge against Weasner was also dismissed.

Finally, while the travel delays experienced by Winstanely

were unfortunate, the inconvenience that resulted did not

violate the terms of § 926A. Therefore, as no plaintiff

established that the federal right arising out of § 926A was

violated, defendants were entitled to summary judgment.

The second insight yielded by careful attention to the

contours of § 926A applies more broadly. In my view, even

if plaintiffs’ rights under this statute were violated,

Congress has impliedly foreclosed access to § 1983 as a

means of seeking redress for such harms. The Supreme Court

has not often reached this conclusion. See Fitzgerald v.

Barnstable Sch. Comm., 129 S. Ct. 788, 793 (2009). However,

this holding is the sounder way to resolve the vexing issues

arising out of the interaction between § 926A and § 1983.

In the three instances in which the Supreme Court has

held that Congress impliedly foreclosed recourse to § 1983,

“the statutes at issue required plaintiffs to comply with

particular procedures and/or to exhaust particular

administrative remedies prior to filing suit.” Id. at 795

(citing Rancho Palos Verdes, 544 U.S. at 122, Smith, 468
23
U.S. at 1011-12, and Sea Clammers, 453 U.S. at 6). The

alternative remedial schemes created by the statutes under

consideration in Sea Clammers, Smith, and Ranchos Palos

Verdes were “unusually elaborate, carefully tailored, and

restrictive.” Id. (internal quotation marks omitted). In

Fitzgerald, the Court reasoned that allowing § 1983 claims

to coexist with such procedures would permit § 1983

plaintiffs to “‘circumvent’ the statutes’ provisions” in a

manner that “would have been ‘inconsistent with Congress’

carefully tailored [remedial] scheme[s].’” Id. (quoting

Smith, 468 U.S. at 1012). By contrast, the Fitzgerald Court

concluded that the remedies available for a violation of §

901(a) of Title IX, 20 U.S.C. § 1681(a) — i.e., the

withdrawal of federal funding from the violating entity and

an implied private cause of action for the aggrieved — were

no more elaborate or carefully tailored than the remedies

and procedures created by § 1983. Fitzgerald, 129 S. Ct. at

795-96. Therefore, the Court held, the plaintiffs’ § 1983

claims based on alleged violations of Title IX could

proceed. Id. at 797.

The right arising out of § 926A, as well as the

remedies available for a violation thereof, are different

24
from the rights and remedies that have been examined by the

Supreme Court in this line of cases. Whereas Sea Clammers,

Smith, and Rancho Palos Verdes involved statutes that

created positive entitlements, § 926A creates a negative

right that restricts states from imposing convictions under

certain circumstances. Moreover, Congress wrote into § 926A

a series of prerequisites that will often require judicial

resolution before the application of the right can be

resolved. Recourse to the courts for resolution of the

application of this right provides, in my view, the first

step of the remedial scheme for addressing potential

violations of § 926A. Finally, the legal defense arising

from the statute’s preemptive function operates in an

entirely different context: state and federal criminal law.

We “can assume Congress legislated against [the relevant]

background of law, scholarship, and history . . . .” Nat'l

Archives & Records Admin. v. Favish, 541 U.S. 157, 169

(2004). Therefore, the backdrop provided by state and

federal criminal laws looms large in the analysis of the

rights and remedies arising out of the application of §

926A.

What, then, is the available remedy when a state-law

conviction is obtained in violation of § 926A? The most
25
directly available remedial mechanisms for those who are

convicted in violation of this statute under the color of

state law are direct appeals challenging the criminal

conviction in question, and habeas corpus proceedings in

both the state and federal courts. Additionally, in limited

circumstances, money damages may also be available based on

constitutional claims under § 1983 relating to wrongful

arrest, prosecution, or incarceration. 10 But the primary

remedy for a violation of § 926A is to vacate the state-law

conviction at issue. The remedial mechanisms available on

direct appeal, in habeas corpus proceedings, and in other

forms of collateral attacks are more than adequate to

achieve that end, where appropriate.

These remedies are subject to a detailed body of

procedural law that includes, but is not limited to, the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Similar to

the remedial mechanisms referenced in Fitzgerald, AEDPA

creates “particular procedures” — including exhaustion

10
Money damages were unavailable in the statutes at
issue in Sea Clammers, Smith, and Rancho Palos Verdes. See
Fitzgerald, 129 S. Ct. 795 n.1. Consequently, the limited
availability of money damages in the context of criminal
charges that conflict with § 926A is not problematic insofar
as the Blessing analysis is concerned.
26
requirements and a limitations period that is different from

the limitations period that governs § 1983 claims — that

must be followed before federal habeas relief is available.

See 28 U.S.C. §§ 2244(d), 2254(b)-(c). Moreover, under the

“favorable termination” doctrine of Heck v. Humphrey, an

incarcerated litigant may not circumvent the procedural

requirements of AEDPA by filing a § 1983 claim instead of a

federal habeas petition, if success on the merits of the §

1983 claim would “necessarily demonstrate[] the invalidity

of the conviction” in question. 512 U.S. 477, 481-82

(1994). We have reasoned that this doctrine is necessary

because, “if § 1983 were always available, the procedural

and the other like requirements of the federal habeas

statute would be rendered nugatory.” McKithen v. Brown, 481

F.3d 89, 100 (2d Cir. 2007) (emphasis in original).

Although the favorable termination doctrine would not always

bar § 1983 claims based on violations of § 926A, 11 the

11
For example, it seems unlikely that the favorable
termination doctrine would preclude a § 1983 claim based on
an alleged violation of § 926A in situations where: (1)
habeas relief had already been granted; or (2) the plaintiff
served his or her sentence of incarceration before
commencing the action pursuant to § 1983, in which case
habeas relief relating to the conviction itself would be
unavailable. In either instance, “success” in the § 1983
action would not “necessarily demonstrate the invalidity of
[the § 1983 plaintiff’s] confinement or its duration.”
27
concerns arising from the divergent procedures available

under AEDPA and in § 1983 claims are similar to the concerns

that led the Supreme Court in Sea Clammers, Smith, and

Ranchos Palos Verdes to hold that Congress had impliedly

foreclosed recourse to § 1983. For similar reasons, I would

conclude that Congress had done the same here.

I recognize that this analysis is not without its own

difficulties, and that applying this line of authority in

the manner I have posited would require an extension of

existing case law. However, I am persuaded that such an

extension is appropriate — and that § 1983 is not available

as a remedy for violations of § 926A — based on a second,

weightier consideration presented by these appeals. In the

instances in which the Supreme Court has held that a

statutory remedial scheme impliedly foreclosed actions under

§ 1983, the “crucial consideration” has been “what Congress

intended.” Fitzgerald, 129 S. Ct. at 793-94 (internal

quotation marks omitted); see also Rancho Palos Verdes, 544

U.S. at 120 (noting that a defendant may defeat the

presumptive availability of a § 1983 claim “by demonstrating

that Congress did not intend that remedy for a newly created

Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).
28
right”). While the text and legislative history of § 926A

indicate quite clearly that Congress intended to create an

individual federal right, these same sources of authority

are silent with respect to § 1983 claims. The text of §

926A is therefore ambiguous with respect to this

interpretive quandary. This ambiguity provides the only

acceptable opportunity, as a matter of statutory

interpretation, for courts to take into account the manner

in which § 1983 liability based on officers’ application of

§ 926A would lead to potentially crippling practical

problems.

In light of the practical concerns described by the

majority, it is difficult to imagine, in the absence of a

more direct manifestation of such an intent, that Congress

wished to subject law enforcement officers to liability

under § 1983 based on good-faith attempts to apply § 926A. 12

In other words, the text of the statute and its “legislative

12
Thus, although I would reach a different conclusion
than that of the majority, I rely in part on the same
practical concerns that weigh heavily in its analysis, see
Op. at 13-15, as well as the analysis of the other courts
that have grappled with these issues, see, e.g., Revell v.
Port Auth. of N.Y. & N.J., No. 06 Civ. 0402, 2009 WL 901855,
at *6-7 (D.N.J. Mar. 31, 2009); Russo v. Port Auth. of N.Y.
& N.J., 2008 WL 4508558, at *2 n.5 (E.D.N.Y. Sept. 30,
2008); Torraco, 539 F. Supp. 2d at 644-46.
29
history give[] no indication that Congress intended such a

result.” Smith, 468 U.S. at 1012. The inference that

Congress did not intend to permit § 1983 claims based on

violations of § 926A finds further support in the nature of

the prerequisites that must be satisfied before the

application of the right can be resolved. Determining

whether the statutory defense is available in a given

criminal case involves questions of federal and state law

that neither Congress nor the courts typically call upon

officers in the field to definitively address while they

conduct criminal investigations. This consideration is

insufficient to contravene the rights-creating language in

the text of § 926A, but it provides an adequate basis to

conclude from an otherwise-ambiguous statute that Congress

did not intend to create § 1983 liability where an officer

concludes, erroneously but in good faith, that an individual

without a gun permit is unlawfully possessing a firearm.

The Third Circuit has noted that “[i]t seems doubtful

that, in passing § 926A, Congress intended to impose upon

police officers such a potentially burdensome requirement.”

Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 137 n.15

(3d Cir. 2010). I would go one step further. It strains

credulity to read § 926A as suggesting that Congress wished
30
to: (1) require officers to obtain instant recall of, inter

alia, the federal firearms laws as well as the fifty states’

gun-permit regulations; and (2) subject officers to

liability under § 1983 each time they made an incorrect on-

the-spot determination about the lawfulness of an interstate

firearm transfer. Therefore, in my view, § 926A must be

interpreted as impliedly foreclosing recourse to § 1983 in

instances where the limited negative right created by the

statute is violated. Accordingly, although I disagree with

the majority to the extent it holds that § 926A does not

confer an individual federal right, I concur in the

disposition of plaintiffs’ § 1983 claims based on § 926A and

join the majority in all other respects. I do so because:

(1) plaintiffs’ rights under § 926A were not violated, as no

plaintiff was convicted of a state-law offense in

contravention of § 926A; and (2) even if there had been such

a conviction, I would hold that a violation of § 926A is not

redressable in an action pursuant to § 1983.

31