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More on the New Jersey FOPA Case

There’s probably some things I should clear up on the FOPA case in the Third Circuit. This was not a criminal prosecution. This was a civil rights lawsuit filed under 42 USC Section 1983, part of the Civil Rights Act of 1871. That changes things considerably from a criminal prosecution. The criminal charges against Mr. Revell were dropped.

In order to sue a police officer in his personal capacity, you have to overcome qualified immunity. To do that you have to show the officer acted under color of law in violation of clearly established precedent. That’s a tough nut to crack. The plaintiff here, Mr. Revell, argued that FOPA’s peaceable journey language in 926A created an enforceable personal right. The Circuit Court upheld the District Court’s ruling that it could not, and that the plaintiff had to proceed with the suit on Fourth Amendment grounds. That means arguing the officer did not have probable cause to make the arrest. Since the Circuit Court found the arresting officer’s interpretation of the statute correct, they ruled that he had probable cause to make the arrest and retained his immunity against suit.

I should note that based on the courts interpretation of the FOPA safe harbor provision, it would even be unlawful if, traveling by car, you stopped in a hostile jurisdiction for an overnight stay. Ironically, if you left the gun in the trunk of the vehicle, where it could be stolen, you’d actually have a better case that you were still protected by FOPA than if you took the locked case into the hotel room for safe keeping. This is an absurd result, but the safe harbor provision is unfortunately narrow in its wording. This would be one of the provisions that the National Reciprocity Act would fix.

2 Responses to “More on the New Jersey FOPA Case”

  1. Ian Argent says:

    Though if I *had* to overnight in NJ I would claim the “reasonably necessary” defense to illegal possession; it’s at least potentially legal for an out-of-state resident to possess a firearm as long as he complies with the exceptions (unlike in New York). Make sure to have it in a locked case with ammo stored separately – NJ’s state laws do not require the firearm be inaccessible, only that it be locked or securely tied and unloaded if it isn’t in a trunk. Won’t help you if it’s an “assault weapon” or you happen to have a regular-capacity magazine on you (but FOPA won’t help with the second one anyway).

    I jest, a little – I would try like hell to avoid having to overnight in NJ as an out-of-stater.

  2. Ian Argent says:

    Come to think – I wonder if that’s why the Essex Co. prosecutor dropped the charges. It’s either that or argue to a jury that the possession wasn’t “reasonably necessary under the circumstances.”

    (I’m not saying that’s the explanation, necessarily. But I can’t imagine the Essex Co’s prosecutors office being a hotbed of pro-gun-rights lawyers, either. My personal “most likely” theory would be a turf dispute between Essex Co and PANYNJ).

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