                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-1-2009

Revell v. Port Auth NY & NJ
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3655




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Recommended Citation
"Revell v. Port Auth NY & NJ" (2009). 2009 Decisions. Paper 1607.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1607


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                                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 07-3655


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

                               v.

   PORT AUTHORITY OF NEW YORK AND NEW JERSEY;
                SCOTT ERICKSON

                               v.

   PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
                             Third Party Plaintiff

                               v.

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


      Association of New Jersey Rifle & Pistol Clubs, Inc.,
                                        Appellant


  APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE DISTRICT OF NEW JERSEY
                  (D.C. Civil No. 06-cv-00402)
      District Judge: The Honorable Katharine S. Hayden


          Submitted Under Third Circuit LAR 34.1(a)
                     November 19, 2008
    Before: BARRY, CHAGARES, Circuit Judges, and COHILL, Jr.,* District Judge

                               (Opinion Filed: April 1, 2009)


                                         OPINION




COHILL, Senior District Judge

       The Association of New Jersey Rifle & Pistol Clubs, Inc. (“the Association”) has

filed an interlocutory appeal from an order of the United States District Court for the

District of New Jersey dismissing the complaint of the Association for lack of Article III

standing and denying the Association’s motion for leave to amend the complaint to

correct the defect. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and will

reverse.

                                             I.

       “When reviewing an order of dismissal for lack of standing, we accept as true all

material allegations of the complaint and construe them in favor of the plaintiff.” Conte

Bros. Auto., Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 224 (3d Cir.1998). We

therefore relate the facts as alleged in the Plaintiffs' complaint, although we will assume



*
 Honorable Maurice B. Cohill, Jr., Senior United States District Judge for the Western
District of Pennsylvania, sitting by designation.

                                             2
the parties’ familiarity with the underlying allegations and procedural history, and so will

not recount them in full detail.

       This case arose from the arrest of Gregg Revell, an out-of-state traveler, by an

officer of the Port Authority of New York and New Jersey (“Port Authority”). Mr. Revell

was carrying a firearm and hollow-point bullets in luggage that was detected as the bag

passed through an X-ray machine at Newark Liberty International Airport. New Jersey

law prohibits unlicensed possession of handguns and hollow-point bullets. N.J. Stat.

Ann. §§ 2C:39-5(b) (possession of a handgun without a permit) and 2C:39-3(f)

(possession of hollow point ammunition). In contrast, the federal law, 18 U.S.C. § 926A,

permits the transportation of firearms and ammunition through a state, even if possession

of the firearms in that state would otherwise be illegal, so long as: 1) the firearms and

ammunition are lawful in both the states of embarkation and destination; and 2) neither

the firearms nor ammunition are readily accessible during transportation.     All charges

against Revell were ultimately dismissed.

       Revell sued the Port Authority and arresting officer in federal court to recover

damages for the alleged wrongful arrest pursuant to 42 U.S.C. § 1983. The Association, a

non-profit membership corporation, also filed a complaint seeking an injunction enjoining

the Port Authority from enforcing the New Jersey statutes against the Association’s non-

resident members who desire to travel through New Jersey with their firearms and




                                              3
ammunition in compliance with the provisions of §926A.1       The Association alleged that

it “represents its members” and that there “exists a credible threat of prosecution for

violation . . . [of these laws] for non-resident members of the Association who intend to

transport firearms and hollow point ammunition through New Jersey.” Complaint ¶ 52.

The complaint alleges that the Port Authority should be enjoined from enforcing §§

2C:39-5(b) and 2C:39-3(f) against its nonresident members because it claims that the Port

Authority has a policy of ignoring a federal law that protects these members from

prosecution.

       The complaint of the Association was dismissed sua sponte for failure to establish

a case or controversy between the parties as required by Article III of the Constitution.

The District Court later denied a motion to amend the complaint. The Association sought

to amend by adding an allegation that non-resident members of the Association who are

entitled to transport firearms and ammunition through New Jersey pursuant to 18 U.S.C. §

926(A), and “intend to do so,” are “refraining” from doing so because they are subject to

arrest by the Port Authority pursuant to New Jersey law, and that it is Port Authority

“policy to arrest” such persons. The District Court found that even with the proposed

amendments, the Association lacked standing.

                                                 II.




   1
    The Association does not argue that the Port Authority must be enjoined from
enforcing the New Jersey statutes because the statutes are unconstitutional.

                                             4
       We exercise plenary review over the District Court's dismissal of the complaint for

lack of standing. See Goode v. City of Phila., 539 F.3d 311, 316 (3d Cir. 2008);

ACLU-NJ v. Twp. of Wall, 246 F.3d 258, 261 (3d Cir. 2001). We review the District

Court's denial of the Association’s request for leave to file an amended complaint for

abuse of discretion. Winer Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir. 2007).

                                                  III.

       Article III of the Constitution limits federal judicial power to the adjudication of

cases or controversies. U.S. Const. art. III, § 2. Standing is one of several doctrines which

“cluster about Article III.” Allen v. Wright, 468 U.S. 737, 750 (1984) (citation omitted).

       We start our inquiry by quoting Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992), in which the Supreme Court described the elements necessary for establishing

“the irreducible constitutional minimum of standing” under Article III of the Constitution

as follows:

       First, the plaintiff must have suffered an injury in fact – an invasion of a
       legally protected interest which is (a) concrete and particularized, ... and (b)
       actual or imminent, not conjectural or hypothetical.... Second, there must be
       a causal connection between the injury and the conduct complained of – the
       injury has to be fairly ... trace[able] to the challenged action of the
       defendant, and not ... th[e] result [of] the independent action of some third
       party not before the court. Third, it must be likely, as opposed to merely
       speculative, that the injury will be redressed by a favorable decision.

Id. at 560-61 (internal quotation marks and citations omitted). The latter two elements

are not in dispute here; rather, we focus on whether the Association pled a valid injury in

fact. Moreover, in determining whether the Association has standing, we must consider

                                              5
its specific allegations and the relief which it seeks. See City of Los Angeles v. Lyons,

461 U.S. 95, 105-06 (1983). The Association bears the burden of proving standing.

Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003).

       The doctrine of standing requires “that the party seeking review be himself among

the injured.” Sierra Club v. Morton, 405 U.S. 727, 735 (1972). This rule applies with

special force to organizations, which are unable to establish standing solely on the basis

of institutional interest in a legal issue. Id. at 739 (“[A] mere ‘interest in a problem,’ no

matter how longstanding the interest and no matter how qualified the organization is in

evaluating the problem, is not sufficient by itself.”). An organization or association may

have standing to bring suit under two circumstances. First, an organization may be

granted “standing in its own right to seek judicial relief from injury to itself and to

vindicate whatever rights and immunities the [organization or] association itself may

enjoy.” Warth v. Seldin, 422 U.S. 490, 511 (1975). This is not the argument relied upon

herein. Alternatively, an association may assert claims on behalf of its members, but only

where the record shows that the organization's individual members themselves have

standing to bring those claims. See Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S.

333, 343 (1977); NAACP v. Button, 371 U.S. 415, 428 (1963); Pub. Interest Research

Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 70 (3d Cir. 1990).

       The Association alleges injury in the form of its non-resident members currently

refraining from transporting a firearm and ammunition through New Jersey pursuant to 18



                                               6
U.S.C. § 926A due to a fear of arrest and prosecution by the Port Authority pursuant to

Port Authority policy. The relevant precedent, relied upon by the District Court in

dismissing the complaint, is the seminal Supreme Court case City of Los Angeles v.

Lyons, 461 U.S. 95 (1983), which involved a suit to enjoin as unconstitutional a policy of

the Los Angeles Police Department permitting the use of choke holds in instances where

the police were not threatened with death or serious bodily injury. Though Lyons could

seek damages for his injuries as a result of the alleged policy, the Court held that he had

no standing to seek injunctive relief because he could not demonstrate a sufficient

likelihood that he, personally, would be choked again in the future: “Lyons' standing to

seek the injunction requested depended on whether he was likely to suffer future injury

from the use of the chokeholds by police officers.” Id. at 105. The Court elaborated:

       Absent a sufficient likelihood that he will again be wronged in a similar
       way, Lyons is no more entitled to an injunction than any other citizen of Los
       Angeles; and a federal court may not entertain a claim by any or all citizens
       who no more than assert that certain practices of law enforcement officers
       are unconstitutional.

Id. at 111; see also Defenders of Wildlife, 504 U.S. at 564 (expressly applying Lyons to

uphold dismissal of a complaint on the basis of “plaintiff's failure to show that he will

soon expose himself to the injury”).

       In contrast, the Association sought leave to plead an immediate injury insofar as its

non-resident members are currently refraining from engaging in legal conduct due to fear

of prosecution. Because this action involves threatened action by the government, the law



                                              7
does not "require a plaintiff to expose himself to liability before bringing suit to challenge

the basis for the threat . . . ." MedImmune, Inc. v. Genentech, Inc., 549 U.S.118, 128-29

(2007). The actual or threatened injury necessary to establish standing is that the

Association's non-resident members suffered as a result of the alleged violation of a legal

right created by a statute. See Warth, 422 U.S. at 500. If it is Port Authority policy to

arrest persons who are entitled to transport a firearm and ammunition through New Jersey

pursuant to 18 U.S.C. § 926A, and the Association’s members are currently refraining

from so transporting due to that policy, standing under Lyons exists. As explained in

MedImmune, Inc., “[t]he plaintiff’s own action (or inaction) in failing to violate the law

eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article

III jurisdiction.” 549 U.S. at 129 (emphasis added). The Court then reviewed its prior

cases involving Article III jurisdiction, stating:

       In each of these cases, the plaintiff had eliminated the imminent threat of
       harm by simply not doing what he claimed the right to do (enter into a lease,
       or distribute handbills at the shopping center). That did not preclude
       subject matter jurisdiction because the threat-eliminating behavior was
       effectively coerced.

Id. (citations omitted).

       We find that at this stage of the litigation, in which the allegations of the complaint

are assumed to be true, the Association's allegations are sufficiently specific to support

the notion that its members have suffered injury. So pled, there is a sufficient likelihood

that its members will be wronged as the threat of arrest meets the requirement that the



                                               8
injury be actual or imminent.2

       Federal Rule of Civil Procedure 15(a) states that the court “should freely give

leave when justice so requires.” The Association requested that the District Court permit

it to amend its complaint to comply with Lyons. We find that the District Court’s failure

to grant the Association a reasonable opportunity to amend was an abuse of discretion.

Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).

                                            IV.

       We will reverse the District Court’s dismissal of the Association’s claim without

leave to amend and direct the District Court to grant the Association leave to amend the

complaint to allege facts sufficient to demonstrate standing.




   2
      We think it is worth noting that plaintiffs continue to carry their burden to show
standing; they cannot rest on their pleadings. The Association claims that it has non-
resident members who are currently refraining from traveling through New Jersey with
firearms and ammunition due to the alleged Port Authority policy. It may turn out,
through the course of discovery, that the Association cannot identify actual members who
are so refraining. If this is the case, the Association’s standing will evaporate quickly.

                                             9
