Flying with a handgun from New York City

[swinokur]

In Revell vs PA NY and NJ the 3rd circuit denied his appeal because they said he
had "access" to his firearm when his flight was cancelled and he took his luggage and went to a hotel, thereby losing FOPA protection. They said nothing about flying with his firearm locked in a case inside his luggage and absent a ruling or prohibition, it's still legal. That case has no bearing on leaving on a flight out of an airport following FOPA rules and the DOJ opinion. I'm not saying you wouldn't get hassled, but the Revell case did not address a departure from an airport when coming directly to the airport or changing planes in compliance with FOPA

If I get stuck in an airport in NY or NJ I will make arrangements for securing the luggage in the airport. I have flown from JFK and Laguardia with no issues. I think that they have improved the training of the NYPD and PA cops as far as FOPA goes.

Sad that you have to decide on whether to do something legal because of
ignorance and arrogance on the part of LEO. I'm going to take my chances. My life is worth it IMO.

IANAL

 

[swinokur]

I read the Torraco case and the reason they lost their appeal was they claimed their civil rights were violated under USC 42 ss 1983. The charges against them were originally dropped. Their mistake was claiming a civil rights violation.Bad move. They were initially exonerated.

Neither of these cases really apply to the situation in the OP. In the Torraco case, the charges were dropped. In Revell, he got his weapon back, albeit 2 years later and in fact had no FOPA protection because of his hotel stay.

Absent the specific conditions in those cases ie claiming USC 42 SS1983 violations and going to a hotel, I still feel comfortable continuing to fly in and out of those airports under FOPA and in fact have done so without issues.

Others will disagree. That's fine as well.

IANAL

 

[NavyLCDR]

Neither of these cases really apply to the situation in the OP. In the Torraco case, the charges were dropped. In Revell, he got his weapon back, albeit 2 years later and in fact had no FOPA protection because of his hotel stay.

I think it has everything to do with the OP, because in a state like New York you never know what is going to happen. The gun laws are so insane it is very difficult for anyone to know exactly what is legal and what is illegal and, more importantly, how the judge you are standing before is going to interpret them. It's way too easy for a situation like Revell to happen to anyone in a state like New York or New Jersey or D.C.

I'm going to take my chances. My life is worth it IMO.

I agree with you, my life is worth it. As well as the two or three years and thousands of dollars it would take to straighten out a mess like Revell. That's why I wouldn't fly out of New York or New Jersey if any reasonable alternative was available.

 

[swinokur]

I guess my point was under the exact circumstances in those 2 cases we know what would happen. In the OP situation you are right we have no clue. My point was citing those 2 cases as the reason for the OP not to carry wasn't really germane to his situation as far as his existing carry situation for his trip. . One was an appeal under USC 42 ss 1983 and the other was decided because of what the defendant did after a cancellation of his flight.

The other thing I noted was these cases are now several years old and I can only hope there has been some improvement in the interpretation of the legality of travel in these airports. But who can say?

I have not been hassled but I guess I'm only 1 flight away from finding out if things have improved.

 

[NavyLCDR]

I have not been hassled but I guess I'm only 1 flight away from finding out if things have improved.

And we also have our own levels of comfort, as well. I open carry everyday, just about everywhere. Many gun owners would say exactly the same thing about open carry that I say about taking a handgun into New York or New Jersey.

If any of my past posts on this subject seem to read like, "Don't do it", what I should have said was, "I wouldn't do it myself."

And in reality, I feel the way that I do simply from perception. Having not actually carried a handgun into New York or New Jersey (but having visited both places), I can't speak from experience. So I am guilty there too, just like some people commenting on open carry who have never done it.

 

[swinokur]

Sometimes I don't have an option when it's business travel. My employer is not gun friendly and creating a more expensive itinerary to accommodate my interest in self defense is not an option.

For me anyway my life is worth it. YMMV.

But I agree with your sentiments

 

[xcgates]

I must say that I moved out of NY, and with the exception of returning once to gather what I had left with my parents, I have no intentions of returning to that place.

What the law says, what case law says, is one thing. What the officer booking you says is another, and I do not feel like enduring the BS that goes on in NY. The law may be on your side, but violate ONE small technicality, and you are hosed. Even if you don't, NYC is bad enough they will try their hardest to get you.

Just not worth the effort. If Uncle Sam makes me go to NY, that is one thing, but I will avoid it like the plague. That does, as a matter of fact, go for Upstate as well.

 

[Prince Yamato]

The thing about NYC threads that drives me nuts as that people who have no experience with the city, let alone the state, crawl out of the woodwork and just regurgitate horror stories that they read on the internet. Do people honestly think that JFK and La Guardia- two of the biggest airports to serve the NY Metropolitan area and the US in general- never see people traveling with guns legally- both for domestic or international travel? Aside from a couple cases, where are the mountains of arrests?

I'm not defending NYC as a haven for gun ownership, but it's not like there are no legally owned guns in the city or transported through the city per FOPA.

 

[xcgates]

Well I've had some not-so-good experiences with law enforcement. Mostly in upstate, and only one in the city, but that's because I stayed out of the city for the most part.

Not everything is unfounded.

 

[NavyLCDR]

The thing about NYC threads that drives me nuts as that people who have no experience with the city, let alone the state, crawl out of the woodwork and just regurgitate horror stories that they read on the internet. Do people honestly think that JFK and La Guardia- two of the biggest airports to serve the NY Metropolitan area and the US in general- never see people traveling with guns legally- both for domestic or international travel? Aside from a couple cases, where are the mountains of arrests?

I'm not defending NYC as a haven for gun ownership, but it's not like there are no legally owned guns in the city or transported through the city per FOPA.

From Texas?!? My invitation still stands to give it a try...

 

[Sebastian the Ibis]

I read the Torraco case and the reason they lost their appeal was they claimed their civil rights were violated under USC 42 ss 1983. The charges against them were originally dropped. Their mistake was claiming a civil rights violation.Bad move. They were initially exonerated.

Your understanding is off a little bit. 42 U.S.C. 1983 allows individuals to sue the government for violating their civil rights. After the criminal case was over Torraco sued the Port Authority for violating his civil rights for falsely arresting him. Both the District Court and Appellate Court found that you can never sue the police for falsely arresting you for violating FOPA since its unreasonable to expect the police to know the law:

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.

Based upon this the port authority can NEVER be punished for falsely arresting people. Therefore they will NEVER give their officers this or expect them to read it, and responsible law abiding gun owners will continue to be thrown in jail for following the law. If you would like to be one of them, please be my guest. However I would rather give money to SADF and whatever organization Gura is working with.

 

[tkaction]

I am in NY once a week for 30 years. Visit NYC about once a year. I drive in, ride the subway, take the train to long island. I would love to hear what the 1st hand what happens to the "handgun in NY" flyin group has for an experience. I ain"t gonna until the AG of NY, who I have asked, changes his mind.

 

[swinokur]

Your understanding is off a little bit. 42 U.S.C. 1983 allows individuals to sue the government for violating their civil rights. After the criminal case was over Torraco sued the Port Authority for violating his civil rights for falsely arresting him. Both the District Court and Appellate Court found that you can never sue the police for falsely arresting you for violating FOPA since its unreasonable to expect the police to know the law

Read my post again. I said the original criminal charge was dropped.The prosecutor knew he did not have a good case under FOPA. I did say the appellants made the mistake of then claiming the SS 1983 violation and I said it was a huge mistake..They had basically gotten off until they appealed.I never claimed you'd have ironclad protection but with the charge dropped that establishes in my mind that the prosecutor decided he was not going to charge under FOPA. Good enough for me.As I said, I have flown through all 3 airports JFK. Laguardia and Trenton with my Glock and never had a single problem. Losing a civil case is not the issue with me. It was the criminal charges being dropped.

I have no beef with anyone who decides the risk outweighs the benefit.

 

[swinokur]

Does anyone know how many gun owners have actually been charged in these states?

Considering the thousands who fly through these terminals, one would think these incidents would be frequent. From what I can discern, that's not the case.

 

[GRIZ22]

Does anyone know how many gun owners have actually been charged in these states?


I have lived in the NY area most of my life and have only heard of the two mentioned.

 

[swinokur]

Your understanding is off a little bit. 42 U.S.C. 1983 allows individuals to sue the government for violating their civil rights. After the criminal case was over Torraco sued the Port Authority for violating his civil rights for falsely arresting him. Both the District Court and Appellate Court found that you can never sue the police for falsely arresting you for violating FOPA since its unreasonable to expect the police to know the law:

What the court said was you cannot sue for a violation of FOPA under SS 1983. Thats all they said.It did not address the legality of FOPA.In my mind that was decided when the criminal charges were dropped. Make what you will from that.

 

[swinokur]

Does anyone know how many gun owners have actually been charged in these states?


I have lived in the NY area most of my life and have only heard of the two mentioned.

I can live with those odds even if there were a few more. My experiences have been fine.

 

[brboyer]

What the court said was you cannot sue for a violation of FOPA under SS 1983. Thats all they said.It did not address the legality of FOPA.In my mind that was decided when the criminal charges were dropped. Make what you will from that.

Upon further research:

The FOPA is an affirmative defense to local charges, not an essential element of the crime necessary for the prosecution to prove was violated. (Therefore the arrest was lawful.)
This means the individual must submit evidence, in court (or to the satisfaction of the local LEO on scene) that the FOPA says, it's OK. The LEO/State is not required to take the FOPA into account before making an arrest/prosecution on a valid local law.

If the NY law was written something like:
1) The provisions of this section do not apply to those individuals possessing firearms in accordance with 18 USC 926.
2)[Guns are icky bla, bla, bla]
. . .

Instead of
1)[Guns are icky bla, bla, bla]

Then one might have an unlawful arrest case, because the LEO would be required to articulate his reasonable suspicion of exactly what aspects of the FOPA you did not follow.

 

[swinokur]

I agree with this. The appellate court held that the police could not establish legal possession as FOPA required and to comply with FOPA because they could not know what constitutes legal possession in every state. They did not say the police did not need to know FOPA. That wasn't the claim. The travelers said their civil rights were violated after arrest. Since the police could not establish legal possession in the originating state they then had PC to arrest under NY law. That is correct.Therefore until it was established that the travelers legally possesed so FOPA protection could be claimed, they were arrested.

No problemo with this either. Of course the cop cannot know what constitutes legal possession in every state and they did their job under NY law. Because they had PC to arrest because of a possible violation of NY law, the court held they violated no ones rights. That is totally true and no beef here.

It is important to note that the court never said a cop doesn't need to know FOPA. In my mind it's a bit of a stretch to now think they will run amok because the court said they do not need to know the Possession law in every state.

 

[Sebastian the Ibis]

I did say the appellants made the mistake of then claiming the SS 1983 violation and I said it was a huge mistake..They had basically gotten off until they appealed.

There are two cases. The criminal case, then the civil case suing for false arrest. The appeal was in the civil case. They were off before and after they appealed, but wanted to punish the port authority for the false arrest. The prosecutor dropped the charges, but Toracco still spent the night in jail - that is what Toracco was suing for.

Of course the cop cannot know what constitutes legal possession in every state and they did their job under NY law. Because they had PC to arrest because of a possible violation of NY law, the court held they violated no ones rights.

I disagree for two reasons: (1) The ATF publishes a handy little book of ALL state and local firearms laws, for this very reason. It is not unreasonable to think that a police officer at a major airport attends a 15 minute briefing explaining FOPA and telling them to check the handy little book. Unless the Port Authority is/can be sanctioned then this will never happen; (2) The Second Amendment is a fundamental right, therefore you should not have to spend the night in jail to exercise it, nor should the burden be on you to prove that you are following the law. The D.C. Circuit got it right in Herrington v. United States when they held that the government cannot outlaw firearm possession and then make the Defendant prove that he falls into an exception.

Does anyone know how many gun owners have actually been charged in these states?

Toracco has at least 3 plaintiffs.

 

[swinokur]

If I read the appeals court decision correctly they stated the police could not know the possession law in every state, so why would any cop carry the pamphlet if they are effectively protected from civil suits? Even with a booklet at least in one case one guy could not prove legal possession because he weapon was a gift and in many states there is no registration anyway. How can you prove it's legally yours.?Lawful possession would still be in question even if the cop knew the law. The court said they don't have to as far as the arrest is concerned so why bother?When both the cops and the DA get tired of seeing defendantsbrought in who continueto get off after a FOPA defense, much of this crap will cease.

A agree your 2A rights are being violated but until there is some sort of resolution for one type of carry or the other after McDonald, NY will continue this. Gura and SAF have sued MD because their may issue license restrictions prevent practice of a fundamental right. I am sure it will go to the Circuit level but after one win I believe the dominoes will start falling. Just as a note, rulings from the DC Circuit or any circuit have no bearing on any other circuit, but may be considered NY falls in the 3rd circuit.

If we can only find 4 instances of arrest under any statute versus all the travelers who go thru the three airports, that's a pretty insignificant number. Of course we don't know what the airline counter staff will do when you check a firearm So far I've been ok. I don't want to be hassled, arrested, jailed or anything else, but I refuse to be bullied and I'll take my chances

I have 3 handguns and today I went and xeroxed my BOS for all 3 which include serial numbers and I put it in my travel safe along with my FOPA and TSA paperwork. Maybe this will help establish legal ownership

YMMV

 

[tkaction]

I agree that it appears that the number of cases we can quote is quite small. I hope it is the case. The thing that causes me to hesitate the most is that NY looks at stopping at the airport is not traveling though the state and therefore not cover under the fed. defense. I will let you guys tests it a while longer.