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55 Although the court held that Â§ 926A applies to transportation of firearms in vehicles, the case may be distinguishable in that it did not involve trans- portation by air directly. E. Undetectable Firearms Act of 1988 Congress enacted the Undetectable Firearms Act of 1988 (UFA)581 in 1988 and extended the UFA in December 2013 for another 10 years. The UFA was necessary because of the use by firearms manufac- turers of plastic components in firearms and the removal of major components of firearms so that air- port scanners would not detect a firearm.582 It is unlawful for any person to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm that does not actually appear as a firearm on an X-ray scanner.583 XV. LIABILITY FOR PROHIBITING THE CARRYING OF A FIREARM IN AN AIRPORT TERMINAL OR ON OTHER AIRPORT PROPERTY A. Whether Airports and Airport Authorities Have Sovereign Immunity Ten airports that participated in the survey reported that as government-owned entities, they are not liable under state law for a claim that pro- hibits the carrying of a firearm in an airport termi- nal or on other airport property because of sovereign immunity, a tort claims or governmental immunity act, or other legislation specific to airports or airport authorities.584 Twelve airports reported that they do stay at a hotel in New Jersey, thus giving him ready access to the gun during that period. The Court also explained that âÂ§ 926A does not address anything but vehicular travel; it does not encompass keeping the weaponâlocked in a case or notâin an airport hotel overnight.â572 The Third Circuit affirmed because âa person transporting a firearm across state lines must ensure that the firearm and any ammunition being transported is not âreadily accessible orâ¦ directly accessible from the passenger compart- ment of [the] transporting vehicle.ââ573 Revellâs own complaint revealed that the firearm was accessible to him while he was in the hotel; thus, he was subject to arrest for violating New Jerseyâs gun laws. Revellâs due process claim also failed because he had failed to take advantage of New Jersey procedures to recover wrongfully seized property574 or to show that New Jerseyâs proce- dures were inadequate.575 An apparently unresolved issue is whether Â§ 926A even applies to the transportation of a firearm by air. Assân of New Jersey Rifle and Pistol Clubs v. Port Authority of New York and New Jersey,576 decided after Revell, seems to hold that Â§ 926A only applies to transport by vehicle.577 In Assân of New Jersey Rifle and Pistol Clubs, the plaintiff sought to enjoin the Port Authority from enforcing New Jersey stat- utes that prohibited the possession of a firearm and ammunition without a permit. The complaint alleged that the New Jersey statutes violated 18 U.S.C. Â§ 926A.578 The Third Circuit held, however, that because Â§ 926A did not apply under the cir- cumstances of the case, Â§ 926A did not create an enforceable right under 42 U.S.C. Â§ 1983.579 In light of the plain meaning of the statute, fully corrobo- rated by the legislative history, we hold that section 926A benefits only those who wish to transport firearms in vehi- clesâand not, therefore, any of the kinds of âtransportationâ that, by necessity, would be involved should a person like those represented by the Association wish to transport a firearm by foot through an airport terminal or Port Author- ity site.580 572 Id. at 134 (citation omitted). 573 Id. at 135â36. 574 Id. at 139. 575 Id. 576 730 F.3d 252 (3d Cir. 2013). 577 Assân of N.J. Rifle & Pistol Clubs, 730 F.3d at 253â55, 257 (3d Cir. 2013). 578 Id. at 253â54. Under 42 U.S.C. Â§ 1983, a person may be held liable âwho, under the color of the state law, deprives a person âof any rights, privileges, or immunities secured by the Constitution and lawsâ of the United States.â Id. at 254. 579 Id. at 253â55, 257. 580 Id. at 257 (emphasis added). 581 18 U.S.C. Â§Â§ 922(p)(1)(A), (B) (2015). 582 Katie Curtis, A Wiki Weapon Solution: Firearm Reg- ulation for the Management of 3d Printing in the Ameri- can Household, 41 rutgers Computer & teCh. L.J. 74, 85 (2015). 583 Id. at 85. 584 Responses of Albuquerque International Sunport Airport, N.M.; Casper/Natrona County International Air- port, Wyo. (citing Wyoming Governmental Claims Act, Wyo. stAt. Ann. Â§ 1-39-101); Clinton National/Adams Field Airport, Little Rock, Ark. (citing Ark. Code Ann. Â§ 21-9-301); Dallas Fort Worth International Airport, Tex. (citing tex. Civ. prAC. & rem. Code Ann. Â§Â§ 101.101- 101.109); Eppley Airfield Airport (Omaha), Neb. (citing neB. rev. stAt. Ann. Â§ 13-901); General Mitchell Interna- tional Airport, Milwaukee, Wisc.; George Bush Interconti- nental/Houston Airport, Tex.; Huntsville International- Carl T. Jones Field, Ala. (citing AlA. Code Â§ 4-3-50 that provides âlimited immunityâ); Louisville International InternationalâStandiford Field, Ky.; Memphis Interna- tional Airport, Tenn. (citing Tennessee Governmental Tort Liability Act, tenn. Code Ann. Â§Â§ 29-20-101 to 29-20-112.).
56 not apply to federal civil rights actions, which could arise from deprivation of constitutional rights.â Although there are cases holding that some air- ports have sovereign immunity for tort actions, except for one case discussed in the next part of the digest, no cases against airports were located for the digest that arose out of an individualâs possession of a firearm in an airport terminal or on other airport property.590 B. State Laws Applicable to Whether an Airport Is Liable for Allowing or Prohibiting a Firearm in the Airport Terminal or on Other Airport Property Some state statutes provide that airports or air- port authorities are immune from claims by persons that arise out of the carrying (or for prohibiting the carrying) of firearms at airports or on other airport property, or from claims by ticketed individuals who refused to be searched prior to boarding and thus were not allowed to board a flight.591 Regarding immunity for claims by persons carry- ing a firearm, a political subdivision in Ohio is âimmune from liability in a civil actionâ¦for any injury, death, or loss to person or property that alleg- edly was caused by or related to a licensee bringing a handgun onto any premises or property owned, leased, or otherwise under the control of the political subdivision.â592 A Tennessee statute appears to be sufficiently broad to apply to an airport. The statute states that a business entity, public or private employer, or the owner, manager, or legal possessor of property may not be held liable in any civil action for damages, injuries or death resulting from or arising out of anotherâs actions involving a not have immunity.585 Six airports did not know whether they had immunity or did not respond to the question.586 Although a few airports reported a legal action against the airport in connection with an individual possessing a firearm in an airport, none indicated having been held liable for damages.587 George Bush Intercontinental Airport in Houston, Texas, stated that the City of Houston has immu- nity under the Texas Tort Claims Act.588 Clinton National Airport/Adams Field in Little Rock, Arkansas, cited Section 21-9-301 of the Arkansas Code, which provides: (a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other politi- cal subdivisions of the state and any of their boards, com- missions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance. (b) No tort action shall lie against any such political subdivi- sion because of the acts of its agents and employees.589 MinneapolisâSt. Paul International Airport explained that â[t]he airport authority is established as a government entity with the same ability as other governmental entities to argue immunity for dam- ages.â Portsmouth International Airport in New Hampshire stated that general sovereign immunity applied as there was ânothing specific to firearm use.â Albuquerque International Sunport Airportâs answer was that â[t]he New Mexico Tort Claims Act, section 41-4-1 to section 41-4-30 of the New Mexico Statutes, waives immunity for airports generally but provides liability caps for bodily injury or death ranging from $400,000 to $1,050,000. The caps do 585 Responses of Bangor International Airport, Me.; Blue Grass Airport, Lexington, Ky.; Bismarck Municipal Airport, N.D. (stating, however, that political subdivisions have limited immunity by statute); Columbia Metropoli- tan Airport, S.C.; Detroit Metropolitan Wayne County Air- port, Mich.; Gerald R. Ford International Airport, Grand Rapids, Mich.; LaGuardia Airport, N.Y.; Lincoln Airportâ Lincoln Airport Authority, Neb.; Nashville International Airport, Tenn.; Theodore Francis Green State Airportâ Rhode Island Airport Corp.; Tucson International Air- portâTucson Airport Authority, Ariz. 586 Responses of Austin-Bergstrom International Air- port, Tex.; Grand Forks International Airport, N.D. (âunknownâ); MinneapolisâSt. Paul International/World- Chamberlain Airport, Minn.; Portsmouth International Airport, N.H.; San Francisco International Airport, Cal.; Joe Foss Field, Sioux Falls, S.D. 587 See Appendix CâSummary of Responses to the Sur- vey by Airport and Airport Authorities. 588 tex. Civ. prAC. & rem. Code Â§ 101.021 (2015). 589 Emphasis added. 590 Carricker v. City of Denver, No. 12-cv-2365-WJM- KLM, 2013 U.S. Dist. Lexis 75991, at *7 (D. Colo. May 30, 2013) (holding in a tort action that under the facts of the case the Denver International Airport had immunity under the Colorado Premises Liability Act, Colo. rev. stAt. Â§ 13-21-115); Tompkins v. Crown Corr, Inc., 726 F.3d 830, 838 (6th Cir. 2013) (holding in a tort action against the Wayne County Airport Authority (WCAA) that owns and adminis- ters the Detroit Metropolitan Airport that the WCAA had immunity under the Michigan Governmental Tort Liability Act, miCh. Comp. lAWs serv. Â§ 691.1406, because the nature of the claim âshieldedâ WCAA from liability). 591 See kAn. stAt. Ann. Â§ 75-7c10(c)(3) (2015) (stating in relation to concealed handguns on private property that â[n]othing in this act shall be deemed to increase the lia- bility of any private entity where liability would have existed under the personal and family protection act prior to the effective date of this actâ); Wis. stAt. Â§ 175.60(21)(a) (2015) (immunity of Department of Transportation for any act or omission under this section that applies to the issuance of concealed weapons permits). 592 ohio rev. Code Ann. Â§ 2923.126(C)(2)(b) (LexisNexis 2015) (stating to the extent and in the manner provided in Chapter 2744 of the Code).
57 In Monzo v. American Airlines,600 Monzo was arrested and charged for possessing a loaded fire- arm after he informed a security officer at a check-in point at LaGuardia Airport in New York City that he was carrying a loaded firearm. Monzo brought a claim against the Port Authority under 42 U.S.C. Â§ 1983 for false imprisonment and/or malicious prosecution and also sued American Airlines for allegedly giving him false information. The court held that the Port Authority was not liable because there had been probable cause to arrest Monzo.601 The court dismissed the claim against American Airlines because Monzo failed to demonstrate that the information the airline representative gave him was incorrect or that Monzo had a right to rely on any information that was provided to him.602 C. Whether There Is a Bivens or Â§ 1983 Claim for Prohibiting an Individual from Carrying a Firearm in an Airport 1. Whether There Is an Implied Constitutional Claim Against a Federal Official It may be more likely that an airport or airport authority or airport official or employee rather than a federal official or employee would be the subject of a claim for violating an individualâs constitutional rights in an airport. The digest discusses first, how- ever, implied constitutional claims against federal officials and employees and, second, claims under 42 U.S.C. Â§ 1983 against state and local officials or employees for alleged violations of federal constitu- tional or statutory rights. The question of whether there is an implied claim against a federal official for an alleged violation of an individualâs Second Amendment right to carry a firearm in an airport must begin with a discussion of the United States Supreme Courtâs decision in 1971 in Bivens v. Six Unknown Named Agents of the Fed- eral Bureau of Narcotics.603 An implied constitu- tional claim under Bivens âis the âfederal analog to suits brought against state officials underâ¦42 U.S.C. Â§ 1983.ââ604 firearm or ammunition transported or stored by the holder of a valid handgun carry permit in the permit holderâs motor vehicle unless the business entity, public or private employer, or the owner, manager, or legal possessor of the property commits an offense involving the use of the stored firearm or ammunition or intentionally solicits or procures the conduct resulting in the damage, injury or death.593 The statute further provides that â[n]othing in this section shall be construed to alter, reduce or eliminate any civil or criminal liability that a prop- erty owner or manager may have for injuries arising on their property.â594 As for the liability of private establishments for either allowing or prohibiting a firearm to be carried on the premises, an Ohio law immunizes a private employer from liability in a civil action for any injury, death, or loss to person or property that allegedly was caused by or related to a licensee bringing a handgun onto the premises or prop- erty of the private employer, including motor vehicles owned by the private employer, unless the private employer acted with malicious purpose.595 In Wisconsin, when a private property owner or one who occupies private property does not prohibit the carrying of concealed weapons on the ownerâs or occupantâs property, the owner or occupant is immune from liability arising out of the decision not to prohibit concealed weapons.596 In regard to claims against airline companies, in Idaho [n]o action, either at law or equity, shall be brought against any commercial or charter airline company or airport oper- ating in this state for the refusal of said company or airport to permit a person to board said aircraft where said person has refused to be searched as set out in subsections (5) and (6) of this section.597 In Illinois, by virtue of a personâs purchase of a ticket to board a commercial or charter aircraft, the purchaser consents âto a search of his or her person or personal belongings by the company selling the ticket to him or her.â598 A commercial or charter air- line company operating in Illinois, however, may not be sued for refusing to board a person who refused to submit to a search prior to boarding.599 593 tenn. Code Ann. Â§ 39-17-1313(b) (2015). 594 tenn. Code Ann. Â§ 39-17-1359(d) (2015). 595 ohio rev. Code Ann. Â§ 2923.126(C)(2)(a) (LexisNexis 2015). 596 Wis. stAt. Â§ 175.60(21)(b) (2015). The term âpersonâ is not defined in the statute. 597 idAho Code Ann. Â§ 18-7503(18) (2015). 598 720 ill. Comp. stAt. Ann. 5/29D-35.1(a), (b) (LexisNexis 2015). 599 720 ill. Comp. stAt. Ann. 5/29D-35.1(e) (LexisNexis 2015). 600 No. 81 Civ. 2320, 1984 U.S. Dist. LEXIS 19142, at *1 (S.D.N.Y. 1984). 601 Id. *11â12. 602 Id. *7. 603 403 U.S. 388 (1971) (holding that the plaintiff was enti- tled to redress for his injuries caused by the federal agentsâ violation of his Fourth Amendment rights), revâd & remanded, 456 F.2d 1339 (2d Cir. N.Y. 1972) (holding that the federal agents were not immune from damage suits based upon alle- gations of constitutional violations, but that the defenses of good faith and reasonable belief were available). 604 Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (citation omitted).
58 imprisonment, false arrest, abuse of process, or malicious prosecution caused by acts or omissions of United States investigative or law enforcement officers. The amendment, together with 28 U.S.C. Â§ 2679(b)(2)(A), âspecifically preserves and ratifies the Bivens remedy.â611 The Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act) has more rel- evance to the digest.612 In the Westfall Act, Congress âvirtuallyâ immunized federal government officials from liability under state common law by âsubstitut- ing the government as a defendant under the FTCA for these claims,â while âpreserving the right of indi- viduals to pursue Bivens actions for a âviolation of the Constitution of the United States.ââ613 Under 28 U.S.C. Â§ 2679(d)(1), if the Attorney General certifies that a defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. Nevertheless, a âplaintiff must still allege and prove an actionable constitutional violation and overcome any qualified immunity defense.â614 In addition, the availability of alternative federal rem- edies could preclude a Bivens claim.615 The prevailing view on the viability of Bivens claims is that, first, âthe Westfall Act changed the nature of the Bivens questionâ by immunizing fed- eral employees from private lawsuits based on acts performed within the scope of their employment and converting them into FTCA suits against the United States.616 Second, âthe Westfall Actâ¦explicitly In Bivens, the Court held that an implied cause of action exists for a violation of an individualâs rights under the Fourth Amendment.605 Without a warrant for a search or for an arrest, Federal Bureau of Narcotics agents entered the petitionerâs apartment, arrested him in front of his family, and searched the apartment for narcotics.606 The Supreme Court held that the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And âwhere feder- ally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.â607 The Bivens Court held that an implied cause of action exists under the Fourth Amendment when a petitioner âcan demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rightsâ and that the petitioner may âredress his injuryâ¦in the federal courts.â608 The jurisprudence since Bivens on whether par- ticular conduct supports a specific constitutional claim for which there is an implied right of action has been inconsistent with the courts recognizing some claims while dismissing others.609 A decision on whether to recognize a Bivens claim has depended in part on an evaluation of the particular constitu- tional claim and on whether there were âavailable alternative remedies.â610 Legislation enacted in 1974 and 1988 has affected potential Bivens claims. The Federal Tort Claims Act (FTCA) precludes claims for certain intentional torts against the United States under 28 U.S.C. Â§ 1346(a)(2). In 1974, however, Congress amended the FTCA to allow claims for assault, battery, false 605 Bivens, 403 U.S. at 389. 606 Id. 607 Id. at 392 (citation omitted). 608 Id. at 397. See Yorinsk v. Imbert, No. 13-cv-01029, 2014 U.S. Dist. LEXIS 108849, at *2 (D. Conn. 2014) (holding that constitutional tort claims brought pursuant to Bivens do not authorize injunctive relief); Dorwart v. Caraway, 58 P.3d 128, 136 (Mont. 2002) (holding that âthe Bivens line of authority buttressed by Â§ 874A of the Restatement (Second) of Torts are sound reasons for applying a cause of action for money dam- ages for violations of those self-executing provisions of the Montana Constitutionâ). See also Wood v. Moss, 134 S. Ct. 2056, 2066 (2014) (holding that the âimplied right of action for damages against federal officersâ extends to First Amend- ment claims). 609 James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 geo. L.J. 117, 118 (2009). 610 Id. at 121, 126. 611 Id. at 131. 612 Federal Employees Liability Reform and Tort Com- pensation Act of 1988 (Westfall Act), 28 U.S.C. Â§ 2679 (2015). 613 Pfander & Baltmanis, supra note 609, at 131. See also Henry Cohen & Vivian S. Chu, Federal Tort Claims Act, Cong. reseArCh serv. 16 (Apr. 27, 2009) (stating that the Westfall Act immunizes a federal employee from liability under state law, but that a federal employee may be sued for violating the Constitution or for violating a federal statute that authorizes suit against an individual). 614 Pfander & Baltmanis, supra note 609, at 132. 615 Id. 616 Carlos M. Vazquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Ques- tion, 161 U. pA. l. rev. 509, 517 (2013) (citing 28 U.S.C. Â§ 2679(b)); 28 U.S.C. Â§ 2679(b) (2015) states: (1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omis- sion of any employee of the Government while acting within the scope of his office or employment is exclusive
59 new category of defendants.ââ625 A 2009 Government Accountability Office report concluded that even when Bivens claims have been allowed, the likeli- hood of an eventual monetary recovery in a Bivens case is quite rare.626 A second obstacle to Bivens claims is that â[g]over- nment officials may not be held liable for the uncon- stitutional conduct of their subordinates under a theory of respondeat superior.â627 Because vicarious liability does not apply in a Bivens case (or in Â§ 1983 actions), each government official who is a defendant in a Bivens case must be shown to have violated the Constitution; otherwise, a plaintiff does not have a legally cognizable claim against that defendant.628 Third, a particularly difficult obstacle to a Bivens claim is the defense of qualified immunity, discussed in the next subsection.629 Finally, a threshold, and likely dispositive issue that would preclude a Bivens claim, as well as a Â§ 1983 claim, is that there is no case holding that prohibiting a person from possessing a firearm in an airport violates the Constitution. 2. Whether Airports and Airport Authorities Are Subject to Â§ 1983 Actions Section 1983 states in part that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the juris- diction thereof to the deprivation of any rights, privileges, or preserves actions âbrought for a violation of the Con- stitution of the United States.ââ617 At least one com- mentator argues that in 2012, the Supreme Court in Minneci v. Pollard618 âendorsed the prevailing read- ing of the Westfall Act as preempting state law rem- edies against federal officials, even for conduct that violates the Constitution.â619 Thus, â[a] federal offi- cial who commits a constitutional tort is not subject to liability under state law (because of the Westfall Act), and no statute similar to Â§ 1983 makes federal officials liable under federal law for violating another personâs constitutional rights.â620 The Westfall Act âleaves the federal Bivens action as the sole remedy against [a federal] officialâ;621 however, âthe Court has essentially abandoned the practice of recogniz- ing implied rights of action to enforce federal statu- tory rights.â622 Another scholar writing on privacy law and post- Bivens cases who argues that the Supreme Court is unlikely to create new Bivens claims highlights sev- eral obstacles to a Bivens claim against a federal official.623 First, in 2009 in Ashcraft v. Iqbal,624 Jus- tice Kennedy stated that â[b]ecause implied causes of action are disfavored, the Court has been reluc- tant to extend Bivens liability âto any new context or of any other civil action or proceeding for money dam- ages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employeeâs estate is precluded without regard to when the act or omission occurred. (2) Paragraph (1) does not extend or apply to a civil action against an employee of the Governmentâ (A) which is brought for a violation of the Constitu- tion of the United States, or (B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized. (Emphasis added). 617 Vazquez & Vladeck, supra note 616, at 517 (quoting 28 U.S.C. Â§ 2679(b)(2)(A), which is quoted in the preceding footnote). 618 132 S. Ct. 617 (2012). 619 Vazquez & Vladeck, supra note 616, at 517 (citing Minneci, 132 S. Ct. at 623). 620 Cohen & Chu, supra note 613, at 18. 621 Vazquez & Vladeck, supra note 616, at 517. See also Pfander & Baltmanis, supra note 609, at 123 (stating that â[t]oday, Bivens provides the only generally available basis on which individuals can seek an award of damages for federal violations of constitutional rightsâ). 622 Pfander & Baltmanis, supra note 609, at 126 (citing Wilkie v. Robbins, 551 U.S. 537 (2007)). 623 Michael A. Froomkin, Symposium: Security Breach Notification Six Years Later: Government Data Breaches, 24 Berkeley teCh. L.J. 1019, 1055 (2009). 624 556 U.S. 662 (2009). 625 Id. at 675 (citations omitted) (internal quotation marks omitted). 626 Cohen & Chu, supra note 613, at 21. 627 Ashcroft, 556 U.S. at 676 (citing Monell v. Depât of Soc. Servs., 436 U.S. 658, 691 (1978) (finding no vicarious liability for a municipal âpersonâ under 42 U.S.C. Â§ 1983)); Dunlop v. Munroe, 11 U.S. 242 (1812) (A federal officialâs liability âwill only result from his own neglect in not prop- erly superintending the dischargeâ of his subordinatesâ duties.); Robertson v. Sichel, 127 U.S. 507, 515â516 (1888) (âA public officer or agent is not responsible for the misfea- sances or positive wrongs, or for the nonfeasances, or neg- ligences, or omissions of duty, of the sub-agents or ser- vants or other persons properly employed by or under him, in the discharge of his official duties.â)). 628 Ashcroft, 556 U.S. at 676. The Court further stated that: Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of a clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities. Id. at 677 (emphasis added). 629 Cohen & Chu, supra note 613, at 21.
60 3. Whether There Is a Â§ 1983 Claim for Prohibiting an Individual from Carrying a Firearm in an Airport It does not appear that a complaint against an airport or airport authority, its officers, or employees would state a claim under Â§ 1983 based on prohibit- ing an individual from carrying a firearm; for exam- ple, in the nonsterile area of an airport. As Justice Scalia stated in Heller, there are sensitive places where firearms may be regulated, even prohibited. First, a State and state officials acting in their offi- cial capacities are not âpersonsâ within the meaning of Â§ 1983 actions for money damages,639 but they are con- sidered persons for Â§ 1983 purposes when they are sued for injunctive relief.640 Second, state officials may be held liable under Â§ 1983 for damages when they are sued in their individual capacities.641 When a state official is sued for an alleged violation of Â§ 1983 but the defendant was following state policy rather than mis- judging state policy, however, it has been held that such a claim is one substantially against the State and is barred by sovereign immunity.642 Third, when state officials are sued in their individual capacities, the defense of qualified immunity will shield them from personal liability, unless it is shown that they have caused an injury by violating a known, clearly estab- lished federal constitutional or statutory right.643 Thus, in a Â§ 1983 action, the âplaintiff must allege deprivation of a right secured by the Constitution and laws of the United States and must show that the deprivation was committed by a person acting under color of state law.â644 It is not enough that a general right exists, âotherwise âplaintiffs would be able to convert the rule of qualified immunityâ¦into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.ââ645 In Harlow v. Fitzgerald,646 a Â§ 1983 action, the Supreme Court held that government officials who immunities secured by the Constitution and laws, shall be liable to the party injuredâ¦.630 As noted in Section V.A, there are 552 commercial service airports in the United States, all of which are owned by some form of governmental unit or organization.631 Thus, airports and airport authorities are government-owned, either by a state, a state entity, a political subdivision of a state, or a munici- pal government. In Monell v. Department of Social Services,632 the Supreme Court overruled prior prec- edent and held that âCongress did intend municipal- ities and other local government units to be included among those persons to whom Â§ 1983 applies.â633 The Monell Court explained that: Local governing bodies, therefore, can be sued directly under Â§ 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional imple- ments or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that bodyâs offi- cers. Moreover, although the touchstone of the Â§ 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Con- stitution, local governments, like every other Â§ 1983 âperson,â by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental âcustomâ even though such a custom has not received formal approval through the bodyâs official decisionmaking channels.634 The Court further explained that âCongress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.â635 A municipality, how- ever, may not be held liable under a respondeat superior theory.636 Thus, âa local government may not be sued under Â§ 1983 for an injury inflicted solely by its employ- ees or agents.â637 The Court did not address at that time whether local governments have qualified immunity.638 630 42 U.S.C. Â§ 1983 (2015). 631 One scholar notes, however, that [a]irports in the United States are among the most privatized in the world, despite [the] fact that all the major commercial airports are owned by government entities. Compared to airports elsewhere in the world, compared even to the airports in the countries that have recently privatized their airports, the major U.S. airports involve an extensive degree of private control over virtu- ally all aspects of airport planning, design, finance, oper- ations, pricing and access. Richard de Neufville, Airport Privatization Issues for the United States, MIT 8 (1999), http://ardent.mit.edu/airports/ ASP_papers/airport%20privatization%20issues%20 for%20US.PDF. 632 436 U.S. 658 (1978). 633 Id. at 690. 634 Id. at 690â91 (footnote omitted) (emphasis supplied). 635 Id. at 691. 636 Id. 637 Id. at 694. 638 Id. at 701. 639 Toomer v. Garrett, 574 S.E.2d 76, 86 (N.C. Ct. App. 2002) (citation omitted). 640 Id. at 86. 641 Id. 642 See Kraege v. Busalacchi, 687 F. Supp. 2d 834, 835, 836 (W.D. Wis. 2009) in which the court held that the alleged claims were âsubstantially against the State of Wisconsin.â The defendants did not misread or misjudge a state policy but simply did not follow the policy. Thus, the crux of the plaintiffâs complaint had to do with the policy, not with the defendantsâ choices. 643 Toomer, 574 S.E.2d at 86 (citing Andrews v. Crump, 547 S.E.2d 117, 122 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))). 644 Kiminski v. Hunt, No. 13-185, 2013 U.S. Dist. LEXIS 157829, at *1, *25 (D. Minn. 2013) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). 645 Borucki v. Ryan, 827 F.2d 836, 838 (1st Cir. 1987) (citations omitted). 646 457 U.S. 800, 814 (1982).
61 agreement between Gibbsâs lawyer and the assis- tant district attorney, Gibbs brought a Â§ 1983 action against Officer Lomas on the basis that there was neither probable cause for his arrest nor a warrant for the search of his car. In Wisconsin, unless there are circumstances that indicate a criminal or malicious intent, âloading, car- rying, or going armed with a firearmâ is excluded under Wisconsinâs statute on disorderly conduct.656 The court discussed the basis for a Â§ 1983 action and what must be shown for a defendant to have quali- fied immunity. First, Â§ 1983 ââallows citizens whose constitutional rights have been violated by public officials to sue those officials in their individual capacities.ââ657 Second, â[q]ualified immunity âpro- tects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.ââ658 Third, the determination of âwhether a defendant state officer is entitled to qualified immunity involves two inquiries: â(1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right, and (2) whether that constitutional right was clearly established at the time of the alleged violation.ââ659 The question was whether under the amended disorderly conduct statute there was probable cause to arrest Gibbs. As for whether Gibbs had the right to go armed, the court held that ââthe alleged right at issue [was] not clearly establishedâ at the time Offi- cer Lomas actedâ; therefore, the doctrine of qualified immunity protects a public officer such as Lomas who must make a reasonable interpretation of an unclear statute that is open to interpretation.660 In sum, at present, if a plaintiff were to allege a violation of a constitutional right to carry a firearm in an airport, it appears that there is no clearly established federal constitutional (or statutory) right to carry a firearm in the nonsterile area of an airport. Thus, in the absence of such a clearly estab- lished federal constitutional or statutory right, a unit of local government or its officers or employees would appear to have qualified immunity.661 A claim based on âmere negligenceâ for refusing to allow an individual to carry a firearm in an airport ordinarily would be insufficient because âunder section 1983 there must be an intentional or are acting within their discretionary authority, but who are sued in their individual capacities, have qualified immunity as long as âtheir conduct does not violate clearly established statutory or constitu- tional rights of which a reasonable person would have known.â647 For government officials, to have acted within the scope of their discretionary author- ity means that their âactions were (1) undertaken pursuant to the performance of [their official] duties and (2) within the scope of [their] authority.â648 In Borucki v. Ryan,649 the First Circuit stated that âwhen the law requires a balancing of competing interests, it may be unfair to charge an official with knowledge of the law in the absence of a previously decided case with clearly analogous facts.â650 For a Â§ 1983 violation, a defendant must have had clear notice that he or she had violated a well-established federal constitutional or federal statutory right.651 A Â§ 1983 claim also may arise when there has been âarbitrary government action that is so egre- gious that it âshocks the conscienceâ or offends a âsense of justice.ââ652 In such a case, the defendants must have âacted with a high level of culpability, including deliberate indifference, malice, willfulness, and retaliation. âWhile intentional conduct is that most likely to meet the test, that alone will not suf- fice; the conduct must be intended to injure in some way unjustifiable by any government interest.ââ653 Such â[a]rbitrary acts that have an abusive pur- pose and lack legitimate justification violate due process.â654 In Gibbs v. Lomas,655 a Â§ 1983 action, a citizen reported seeing an individual driving in Madison, Wisconsin, holding an unholstered gun in view of other drivers. The investigating officer found Gibbs and issued him a misdemeanor citation for disor- derly conduct. When arrested, the handgun, actually a replica of a firearm, was visible in the vehicle. After the dismissal of the charge pursuant to an 647 Id. (citation omitted) (emphasis added). 648 Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995) (citations omitted) (internal quotation marks omitted). 649 Borucki, 827 F.2d at 837 (citations omitted). 650 Id. at 848 (footnote omitted) (citations omitted) (emphasis added). 651 Id. at 1312. 652 Toomer, 574 S.E.2d at 84 (citing United States v. Salerno, 481 U.S. 739, 746 (1987); Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998); State v. Guice, 541 S.E.2d 474 (2000)). 653 Toomer, 574 S.E.2d at 84 (citation omitted) (some internal quotation marks omitted). 654 Id. at 84. Under the circumstances of the Toomer case, the intentional disclosure also stated a Â§ 1983 claim for a violation of the Equal Protection Clause of the United States Constitution. Id. at 89. 655 755 F.3d 529 (7th Cir. 2014). 656 Id. at 535 (quoting Wis. stAt. Â§ 947.01(2)). 657 Id. at 536 (citation omitted). 658 Id. (citation omitted). 659 Id. at 537 (citation omitted). 660 Id. at 540, 543 (citation omitted). 661 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (cita- tion omitted).