Impact of Firearms Laws on Airports (2016)

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52 XIV. FEDERAL STATUTES APPLICABLE TO THE POSSESSION OF FIREARMS IN AIRPORTS OR ON AIRPORT PROPERTY A. Federal Regulations Prohibiting Firearms at a Screening Checkpoint and in the Sterile Area of an Airport Under federal law, the Under Secretary of Trans- portation for Security is responsible “for the screen- ing of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a pas- senger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation.”538 For flights and flight segments that originate in the United States, screening must take place before boarding and be carried out by a federal government employee.539 TSA’s regulations provide that an individual may not have a firearm or other weapon when an inspection of the individual or his or her accessible property has begun prior to entering the sterile area of an airport or prior to boarding an aircraft for which screening is conducted; when an individ- ual is entering or is in the sterile airport area; or when an individual is attempting to board or is on board an aircraft.540 The interplay between federal and state law is illustrated by an Idaho case in which the court rejected the defendant’s argument that because the State had not introduced the “actual certification document,” there was no evidence at trial that the airport was “federally certified.”541 The court held that there was other, sufficient evidence of federal certification and affirmed the defendant’s conviction for carrying a concealed weapon into the sterile area of Boise Airport.542 As for the nature and scope of searches, it has been held that they are administrative searches that when the person is in a public building to ascertain whether the firearm is loaded.531 Some states authorize a law enforcement officer to take other action. California authorizes a peace officer who is acting in his or her official capacity to disarm an individual when the officer reasonably believes it is necessary for the protection of the offi- cer or another individual.532 Unless an officer arrests an individual or seizes a firearm as evi- dence in the investigation of a crime, however, the officer must return the firearm before discharging the individual.533 Missouri law requires a person who is openly carrying a firearm to present his or her permit on the demand of a law enforcement officer.534 A person may be disarmed or physically restrained only if the person is under arrest.535 In Ohio, when a person is stopped “for any…law enforcement purpose” and the person has surren- dered his or firearm but is not charged or arrested for any offense, the officer must return the firearm at the termination of the stop unless there is another legal basis for not returning the firearm.536 A law enforcement officer in Tennessee may “dis- arm a permit holder at any time when the officer reasonably believes it is necessary for the protec- tion of the permit holder, officer or other individual or individuals.”537 In brief, the research for the digest did not dis- close any exceptions to the above rules for licensees who are carrying a firearm in an airport. Whenever a law enforcement officer observes someone carry- ing a firearm or suspects that someone is carrying a firearm, the officer may make reasonable inqui- ries, including verifying a person’s identity and his or her license to carry a firearm or a concealed fire- arm. Depending on the circumstances, an officer also may disarm an individual who is carrying a firearm. 531 or. rev. stAt. § 166.380(1) (2015). 532 CAl. penAl Code § 8571.5 (Deering 2015). 533 Id. 534 mo. rev. stAt. § 21.750(3)(2)(b) (2015). 535 mo. rev. stAt. § 21.750(3)(2)(c) (2015). 536 ohio rev. Code Ann. § 2923.12(G) (LexisNexis 2015). See also S.C. Code Ann. § 23-31-215(K) (2015) (requiring a permit holder who is carrying a concealable weapon to inform a police officer that the person is a permit holder and present his or her permit identification card when an officer identifies himself or herself as a police officer and “requests identification or a driver’s license” from the per- mit holder). 537 tenn. Code Ann. § 39-17-1351(t) (2015). 538 49 U.S.C. § 44901(a) (2015). 539 Id. (stating that “except for identifying passengers and baggage for screening under the CAPPS and known shipper programs and conducting positive bag-match pro- grams”). The term “federal government employee” is defined in 5 U.S.C. § 2105. 540 49 C.F.R. § 1540.111(a)(1)-(3) (2015). The regulations do not apply to law enforcement officers and other indi- viduals authorized to carry a firearm by TSA regulations. 49 C.F.R. § 1540.111(b) (2015). 541 Idaho v. Howell, No. 41417, 2014 Ida. App. Unpub. LEXIS 470, at *5, *10 (Idaho Ct. App. Oct. 15, 2014). 542 Id. at *7.

53 fails to respond to the notice or to attend an informal conference that was requested by the individual, TSA issues a final notice. The final notice converts to an order that assesses a civil penalty when the per- son charged either pays the penalty or fails to respond to the final notice.549 TSA also may serve a notice of violation when a person presents a weapon, explosive, or incendiary for screening at an airport or in checked baggage, but the amount of the proposed civil penalty is less than $5,000.550 In such a case, the individual who is charged may pay the penalty, submit information showing that the violation did not occur or request a reduction in the proposed civil penalty, or request a hearing before an administrative law judge.551 TSA may issue a final notice and order if the indi- vidual fails to respond to a notice of violation, or fails to attend an informal conference that was requested by the individual, or if the parties did not reach an agreement during a conference.552 The final notice and order will convert to an order assessing a civil penalty either when the individual pays the penalty or fails to respond to the final notice and order.553 C. Federal Flight Deck Officer Program In 2002, Congress established the Federal Flight Deck Officer Program (FFDOP) in response to the terrorist attacks of September 11, 2001.554 Under the FFDOP, the Under Secretary of Transportation for Security is authorized to deputize pilots as fed- eral law enforcement officers and “to provide the training, supervision, and equipment necessary for a pilot to be a Federal flight deck officer.”555 Federal flight deck officers are not charged for their training or compensated for their participation in the pro- gram. Air carriers are prohibited from retaliating against pilots who choose to participate in the pro- gram.556 The FFDOP permits deputized officers to carry authorized firearms aboard both domestic and do not require a warrant under the Fourth Amend- ment.543 Furthermore, “when an airline passenger consents to a search of his or her effects at an airport security checkpoint, the scope of the search reason- ably extends to those receptacles, the contents of which cannot be identified, contained in luggage.”544 There is also “implied consent” to an airport security search because of notices posted at an airport.545 B. Administrative Penalties Imposed by TSA for Firearm Possession at Security Checkpoints and in the Sterile Area of an Airport Federal regulations prohibit an individual from carrying on his or her person or in his or her acces- sible property “a weapon, explosive, or incendiary… when performance has begun of the inspection of the individual’s person or accessible property before entering a sterile area, or before boarding an air- craft for which screening is conducted under this subchapter.”546 When an individual attempts to board an aircraft with a firearm or other weapon, the individual is liable for a civil penalty of not more than $10,000 per violation.547 When an individual is charged with a violation, TSA provides a notice to the individual with a state- ment of the alleged facts; the statute, regulation, or order that the individual allegedly violated; the amount of the proposed civil penalty; and a certifi- cate of service.548 If the individual who is charged 543 Hawai’i v. Hanson, 34 P.3d 1, 7 (Haw. 2001). 544 Id. at 2. 545 Id. at 5. See also Illinois v. Salgado, 404 N.E.2d 432, 434 (Ill. Ct. App. 1980) (holding that Salgado had con- sented to a search of his luggage independent of the board- ing aircraft statute). 546 49 C.F.R. § 1540.111(a)(1) (2015). 547 49 U.S.C. § 46303(a) (2015) (“An individual who, when on, or attempting to board, an aircraft in, or intended for operation in, air transportation or intrastate air trans- portation, has on or about the individual or the property of the individual a concealed dangerous weapon that is or would be accessible to the individual in flight is liable to the United States Government for a civil penalty of not more than $10,000 for each violation”) (emphasis added)). See Moira Bergin, Comment, Packing Heat? Defining the Scope of the Transportation Security Administration’s Authority to Protect America’s Airports, 59 CAth. u. l. rev. 201 (2009); Daniel S. Harawa, The Post-TSA Airport: A Constitution Free Zone?, 41 pepp. l. rev. 1 (2013). 548 49 C.F.R. §§ 1503.413(a)-(b) (2015). See 49 C.F.R. § 1503.401(c) (2015) (stating that if there is a violation of “46303, or a regulation prescribed or order issued under any of those provisions, TSA may impose a civil penalty in the following amounts…(1) $10,000 per violation, up to a total of $50,000 per civil penalty action, in the case of an individual….”). 549 49 C.F.R. §§ 1503.417, 1503.419 (2015). 550 49 C.F.R. § 1503.421 (2015). 551 49 C.F.R. §§ 1503.421(c)(1)-(2) (2015). 552 49 C.F.R. §§ 1503.421(d)(1)-(3) (2015). 553 49 C.F.R. § 1503.421(e) (2015). 554 49 U.S.C. § 44921 (2015). 555 49 U.S.C. §§ 44921(a), (c)(1) (2015). 556 49 U.S.C. § 44921(j) (2015).

54 Revell v. Port Authority of New York566 demon- strates how an owner of a firearm may violate state law when traveling interstate by air with a firearm even when the firearm is properly encased for ship- ment. The civil case arose out of Revell’s arrest in New Jersey for alleged violations of New Jersey’s gun laws and for the seizure of his firearm and ammuni- tion.567 Revell alleged that his arrest by the Port Authority of New York and New Jersey (Port Author- ity) and a Port Authority police officer was unlawful because he had complied with 18 U.S.C. § 926A.568 Revell, a resident of Utah who had a Utah permit to carry a concealed firearm, was traveling from Salt Lake City to Allentown, Pennsylvania, via Minneapolis–St. Paul and Newark, New Jersey. When checking in at Salt Lake City, Revell declared that he was carrying an unloaded firearm in a locked case and ammunition in a separate locked case. When his flight to Newark was delayed, Revell missed his connection to Allentown. He booked a flight for the next day, but the passengers were asked to board a bus for Allentown. Because Revell had to locate his missing luggage, he missed the bus. He took his luggage with him to an airport hotel in Newark but did not open the containers with the firearm and ammunition. The next day Revell returned to the Newark Air- port by airport shuttle. When he went to check his luggage, he declared that he was carrying a firearm and ammunition in separate locked containers. After TSA inspected his luggage, however, Revell was arrested for possession of a handgun without a New Jersey permit in violation of Section 2C:39-5(b) of the New Jersey Statutes and for possession of hollow- point ammunition in violation of Section 2C:39-3(f) of the New Jersey Statutes.569 Although the charges were dismissed for reasons not stated in the opinion, Revell’s firearm, ammunition, holster, locks, and hard cases were not returned for more than 2 years.570 Revell’s amended complaint alleged “that his arrest and the seizure of his property violated his Fourth Amendment rights because, pursuant to 18 U.S.C. § 926A, he was legally entitled to carry the firearm and ammunition in his luggage, notwith- standing New Jersey law.”571 In granting a summary judgment for the defendants, the District Court held that § 926A did not apply: Revell’s conduct fell outside § 926A since it is undisputed that Revell left the airport with his luggage for an overnight international flights,557 but a federal flight deck offi- cer’s firearm is not permitted to leave the cockpit under current law.558 Congress has limited the liability of both air carri- ers and federal flight deck officers for claims arising out of an officer’s use or failure to use a firearm.559 Under 49 U.S.C. § 44921(h)(1), air carriers are not “lia- ble for damages in any action brought in a Federal or State court arising out of a Federal flight deck officer’s use of or failure to use a firearm.” A federal flight deck officer is liable only for gross negligence or willful mis- conduct.560 If a federal flight deck officer is negligent in accidently injuring or killing someone, the officer is no longer authorized to participate in the FFDOP.561 For any claim made against the United States arising out of an officer’s act or omission in defending the flight deck of an aircraft, 28 U.S.C. § 2671, which is applica- ble to tort claims against the United States, applies because a federal flight deck officer is “treated as an employee of the Federal Government….”562 The Arm All Pilots Act of 2015, if enacted, would have amended the FFDOP, inter alia, to permit fed- eral flight deck officers to carry a firearm outside a locked container when the cockpit door is open.563 D. Interstate Transportation of Firearms Eighteen U.S.C. § 926A permits individuals to transport a firearm by vehicle from a location where the person is authorized to possess a firearm to another location where the person is authorized to possess a firearm.564 The statute requires that the firearm be unloaded during transport and that “neither the fire- arm nor any ammunition being transported [be] read- ily accessible or…directly accessible from the passenger compartment of such transporting vehicle.”565 557 49 U.S.C. §§ 44921(f)(1)-(3) (2015). 558 49 U.S.C. § 44921(b)(3)(G) (2015). 559 49 U.S.C. § 44921(h) (2015). 560 49 U.S.C. §§ 44921(h)(1)-(2) (2015). 561 49 U.S.C. § 44921(i)(1) (2015). 562 49 U.S.C. § 44921(h)(3) (2015). 563 Arm All Pilots Act of 2015, S.B. 1594, 114th Cong. § (3)(c)(1)(l) (2015), available at http://thomas.loc.gov/cgi- bin/thomas. 564 18 U.S.C. § 926A (2015). 565 Id. See, e.g., State v. Waters, 107 A.3d 693, 701 (N.J. Super. Ct. 2015), in which the defendant was convicted of second-degree unlawful possession of a handgun after an officer stopped him and found a handgun under the front seat of the defendant’s car. The defendant was from Georgia, but because his Georgia firearms license had expired he could not possess a firearm lawfully in Pennsylvania or New York, the two states to which he was traveling. In People v. Selyukov, 854 N.Y.S.2d 298, 299 (N.Y. J. Ct., Westchester Cnty. 2008), the defendant, who was traveling from Florida to Massachusetts, stopped in New York to meet with a client. Because the defendant could only possess a firearm lawfully in Florida and Massachusetts, the stop in New York was not protected by § 926A. 566 598 F.3d 128 (3d Cir. 2010). 567 Id. at 130. 568 Id. 569 Id. at 130–32. 570 Id. at 132. 571 Id.