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Newark Airport Sued for Abuse of Person Lawfully Transporting a Firearm:

The Port Authority of New York and New Jersey (which operates Newark Airport) has been sued by the Association of New Jersey Rifle & Pistol Clubs. The facts are these:

The Utah man, Gregg Revell, a real estate broker and family man with no criminal record and a Utah firearms permit, was flying alone from Salt Lake City, UT to Allentown, PA to retrieve a car he bought and drive it home. He was travelling with a firearm for personal protection. As required by Federal law, the firearm was unloaded, cased, locked and inside his luggage when he declared it at check-in in Salt Lake City on March 31, 2005.

Due to an airline-caused baggage error, Mr. Revell missed his connection from Newark to Allentown and had to stay overnight in New Jersey. When he checked in at Newark Airport the next morning to complete his travels, he again declared his firearm, as required by FAA regulations. He was then arrested for possession of a firearm without a New Jersey state license, and imprisoned in Essex County jail for five days until his family arranged bail, which had been initially set unusually high at $15,000 cash (no bond).

But Mr. Revell’s travels were protected by the Firearms Owner Protection Act, a Federal law passed in 1986 to protect law-abiding citizens who travel with firearms. (See 18 U.S.C. § 926A.) That law trumps state and local gun laws and protects interstate travel with firearms under certain circumstances, all of which were present in Mr. Revell’s case. Several months after the arrest, all charges were withdrawn and the prosecutor’s case administratively dismissed.

You can read a press release about the case and the Complaint. The lead attorney is Richard Gardiner of Virginia, a fine lawyer and a long-time friend, with whom I co-authored a law review article arguing that courts should protect the Second Amendment by dismissing abusive lawsuits against firearms companies.

Juan Notwithstanding the Volokh:
Sounds like the system worked exactly as it should have. Thank god we have a strong federal government whose edicts trump those of states. Damn these liberal rights groups and their frivulous lawsuits clogging up our courts!
2.27.2006 6:01pm
Steve:
Well, Mr. Revell should certainly get his gun back, but I think he's going to find that the Warsaw Convention has something to say about the merits of his legal claims. Perhaps someone should write a law review article urging courts to protect the Treaty Clause.
2.27.2006 6:03pm
Gordo:
At last, a case where Mr. Kopel and I agree.
2.27.2006 6:13pm
alkali (mail) (www):
This abstracts from the gun issue just a bit, but it might be useful if the ACLU or some other civil rights/civil liberties-type organization kept some sort of systematic web database of what might be termed clearly legally deficient prosecutions. (I am thinking here of charges pressed where there is a clear legal bar to prosecution or where the facts alleged clearly do not support the charge, not a case where there is a dispute of fact.) It would be interesting to know what prosecutors make a habit of throwing their weight around by pressing charges when they have no reasonable basis for doing so.
2.27.2006 6:17pm
Paul Hirsch (mail) (www):
David: Thank you for the post, and especially for including the complaint. If possible, please link the answer and then the memoranda, etc., as motion practice begins.

Paul
2.27.2006 6:21pm
SimonD (www):
Steve,
Correct me if I'm wrong, but doesn't the Warsaw Convention apply to airlines - which the Port Authority of New York and New Jersey is not - and only to situations involving international transit, of which this is not one?
2.27.2006 6:31pm
Centerfire (mail):
Steve, my understanding of the Warsaw Convention is that it limits the liability of air carriers for accidents occurring during international flights. Given that no air carrier is a party to the suit, and given that it has absolutely nothing to do with an accident on an international flight, I'm mystified as to how the Warsaw Convention could apply.

Could you elaborate?
2.27.2006 6:32pm
JohnAnnArbor:
Read the complaint. If it is anywhere near accurate, the police were WAY out of line.
2.27.2006 6:33pm
Robert Cote (mail) (www):
Were the charges for illegal possessition and transporting weapons dismissed against the airline? What? They weren't charged? You mean Mr. Revell was caharged with the crime of not having a legal weapon not on his person?
2.27.2006 6:34pm
ray_g:
This type of case illustrates why many gun owners (including me) are a little paranoid. How does that saying go? Just because your paranoid doesn't mean they are NOT out to get you.
2.27.2006 6:43pm
ray_g:
I think alkali is on to something. Forget how you feel about guns. I have personally witnessed, and have read of way too many cases of prosecutors pressing charges with no reasonable basis is the area of alleged illegal drugs. Not to mention alleged child abuse cases. This is a general problem with our (sometimes I say so-called) justice system. (BTW alkali - LOL on "legally deficient prosecutions").
2.27.2006 6:50pm
ray_g:
I promise - last post for today. The problem with "legally deficient prosecutions" is that even if you are acquitted, and are a honest, law abiding person, both your reputation and your bank account can be ruined. That's why I sometimes refer to it as the "so-called justice system."
2.27.2006 6:54pm
Brett Bellmore (mail):
It's a problem with even legally non-deficient prosecutions, which happen to end in aquittals. The legal system doesn't even TRY to make the innocent whole again, after finishing with them.

The rain may fall equally on the just and unjust, but the rain is an inanimate force. There's no excuse for a "justice" system to leave this trail of ruin in it's wake, in profound indifference to the harms it causes those it finds "not guilty".
2.27.2006 7:12pm
Jim Rhoads (mail):
What happened to our Warsaw Convention advocate?
2.27.2006 7:14pm
WB:
Just read the complaint. Ugh. God forbid a police officer ever thinks I look like a criminal.
2.27.2006 7:16pm
Enoch:
Brett, is it your view that when a defendant is acquitted, the state should pay his legal costs? Just trying to get a handle on what you think "justice" would be...
2.27.2006 7:50pm
Brett Bellmore (mail):
Exactly. It is my position that an aquitted defendant's reasonable legal costs, and other costs resulting from arrest and prosecution, (Such as repairing the destruction which commonly accompanies police searches, and compensating for lost wages.) should be paid by the government if the prosecution does not end in a conviction. There's no good reason that the government should be imposing these costs on those it finds to be innocent.

Suppose that Congress passed a law authorizing prosecutors to simply fine anybody they wanted, to the tune of the cost of an average legal defense, without bothering to levy charges, or hold a trial? How would this differ functionally from the current system? Save in that your reputation might survive?

The power to prosecute is the power to destroy, the innocent even as much as the guilty.
2.27.2006 8:07pm
Anony Mous Coward:
"The law is basically so convoluted that you'd need an attorney and
a hundred grand to determine what you actually have the right to do. So, to be on the safe side, you cower in fear and hope you're not prosecuted."

-PeenieWallie
2.27.2006 8:15pm
Frank Drackmann (mail):
Sometime back in the 90's one of the high placed law enforcement officials in NJ said that they were not going to honor the right to pass through NJ with legally carried firearms under the FOPA. There attitude was basically they had better lawyers than the average citizen would. I always avoided NJ in my travels through the NE.
2.27.2006 8:22pm
Charlie (Colorado) (mail):
Could someone (read "the NRA") file suit under the federal civil rights statutes? It would seem that prosecution under these NJ laws would contitute an abridgement of one's civil rights.
2.27.2006 9:35pm
jj:
The problem with your position Brett is that not guilty is not the same thing as innocent. Case by case lawsuits under existing law should provide enough of a disincentive without systematic changes with far reaching unintended consequences.
2.27.2006 11:16pm
Kazinski:
In this case the prosecution and police knew or should have known that the facts they were alleging did not constitute a crime. That is why they should be liable for his false arrest and imprisonment. In a more run of the mill case where someone is found innocent, the prosecution is at least alleging facts that if true do constitute a crime. And in those circumstances, the only way there should be any liability is if they knew or should have known the facts they are alleging were false.
2.27.2006 11:50pm
Gene Vilensky (mail) (www):
I think the solution to this problem is to revoke prosecutorial immunity. That should make prosecutors think twice before engaging in stupidity.

On a related note, you know how ignorance of the law is not an excuse for breaking it, then if that is the case, I think that Congress should pass a law requiring every year for the executive brance to print the full US Code and all regulations. The printing costs alone will bankrupt the feds. Actually, can the full USC and all agency regulations even be found online (without Lexis or WestLaw)? I think that at this point, the government has made us into their servants.

Thanks Mr. Kopel for reminding me why I am a libertarian.
2.28.2006 12:50am
Gene Vilensky (mail) (www):
brance=branch in last post
2.28.2006 12:50am
Brett Bellmore (mail):
"Not guilty" isn't the same thing as "innocent"? Maybe in a philosophical sense, sure, but "Not guilty" certainly entitles you to be treated by the government as "innocent".

The costs to defend against a prosecution, repairs after a search, lost wages while imprisoned, all these things are externalities of the legal system, and it's not exactly a foreign concept that society runs better if externalities can be internalized.

But all you should need to understand this concept, is to imagine YOU, genuinely innocent, rendered bankrupt due to a mistaken prosecution, your future blighted.

Is THAT 'justice'?
2.28.2006 6:23am
Enoch:
It is my position that an aquitted defendant's reasonable legal costs, and other costs resulting from arrest and prosecution.... should be paid by the government if the prosecution does not end in a conviction.

Alrighty then... I'm definitely hiring the most expensive lawyer I can find. =)

Do we have any way to measure the scope of injustice? Can we possibly know how many innocent people are prosecuted, and how many found guilty? One definietly hears stories of clearly guilty people being acquitted (classically, "on a technicality").
2.28.2006 6:31am
PersonFromPorlock:
Since someone is bound to make the 'expense' argument against restitution for the cost of a successful defense, let me point out that the net expense to society is the same, it just comes out of many pockets instead of one.
2.28.2006 7:06am
CWuestefeld (mail):
The description of the offense seems incorrect. In NJ (where I reside), a license is NOT required for possession of a firearm. It looks like that on the surface, but when you read through all the laws, there are enough special cases that the NJ Firearms ID Card is effectively a license to take possession of firearms.

In particular, if you -- as a non-NJ citizen -- already possess a handgun and move into the state, there is no requirement to obtain a "permit". Also, obtaining a firearm via inheritance does not obligate you to obtain a "permit".

More to the point, there are plenty of exceptions carved out for transporting weapons.

That said, though, all firearms are technically illegal in NJ, and their possession is allowed by lists of exceptions. Thus, one is presumed guilty of a firearm crime here until able to demonstrate the exceptions that would legalize the action.

More info here:
http://www.nraila.org/GunLaws/StateLaws.aspx?ST=NJ
2.28.2006 10:02am
Paul Hirsch (mail) (www):
As to attorney fees for those found not guilty, a court would use the lodestar rule: multiply the number of hours expended by the prevailing local hourly fee for similar work. It's done every day by courts. (So, Enoch would end up having to cover the overage of his "most expensive lawyer"!) Consequential damages, e.g., loss of reputation, would be more of a problem.

Gene Vilensky: Re online availability of the USC and the Code of Federal Regulations (CFR): see http://www.law.cornell.edu/ , the Cornell Law School's 'free' site. I know it has all of the USC, and I think it has all of the CFR. It's a great site. Actually, the feds are pretty good at getting things out online.
2.28.2006 11:46am
TDPerkins (mail):
PersonFromPorlock wrote:

Since someone is bound to make the 'expense' argument against restitution for the cost of a successful defense, let me point out that the net expense to society is the same, it just comes out of many pockets instead of one.


And with more emphasis, it comes out of the pockets of the people who are voting for the government which causes the expense. Should be a nice feedback system keeping prosecutor's in line.

Yours, TDP, ml, msl, &pfpp
2.28.2006 11:49am
TDPerkins (mail):
This may be found relevant. The Psycology of Self Defense.

Yours, TDP, ml, msl, &pfpp
2.28.2006 2:37pm
gs (mail):
If NJ is violating--perhaps flouting--a national law, you'd think the feds should get involved. (Not that I retain any confidence in the current administration.)
2.28.2006 3:24pm
denton bramwell (mail):
Actually, FOPA does allow recovery of attorney fees if someone procedes with a baseless prosecution or a civil action, and you are acquitted or the charges are dismissed. Too bad that applies only to violations of the Gun Control Act.
3.1.2006 9:43pm
WB:
Brett Bellmore,

I don't think that would go over well with the voters. Maybe an acquitted defendant should be able to sue, prove his innocence, and recover his money.

The idea that the money should be given away to criminals who were able to convince twelve people of a "reasonable doubt" is just too much, I think. Should California have paid O.J. Simpson's legal bills?
3.1.2006 10:47pm