According to a recent post on The TSA Blog, at least two passengers a day are caught at security checkpoints with a gun in their carry-on luggage. According to the post, when the passengers are caught, the most common response is “I didn’t know it was in the bag.” Unfortunately, that excuse works for the TSA just about as well as “the dog ate my homework” works for a high school teacher.
Once caught, a passenger potentially faces a number of consequences. First, the subsequent interaction with and interrogation by local law enforcement will quite often result in the passenger missing his or her flight. Next, the passenger could face criminal prosecution for violation of 49 U.S.C. 46505 which prohibits carriage of a firearm on an aircraft where the firearm is accessible to the passenger during the flight. The passenger may also be prosecuted under other local statutes that prohibit possession of a handgun at a checkpoint or in the secured area of an airport.
Alternatively, the government could initiate a civil penalty action seeking to impose a civil penalty/monetary fine against the passenger for violation of 49 C.F.R. 1540.111 which prohibits carriage of a weapon on your person or accessible carry-on luggage if security screening was required before boarding of the aircraft. The penalty could range in amount from $1,500 to $7,500, depending upon whether or not the firearm was loaded. The civil penalty action does not provide as many constitutional rights and protections as a passenger would have in a criminal proceeding. However, the action does not result in a criminal conviction.
How does the government decide between criminal prosecution and civil penalty? Well, the DOJ publishes a Criminal Resource Manual that addresses the situation. Section 9-63.161 divides the cases into two categories: “aggravated” cases, which are criminally prosecuted; and cases involving “mitigating factors,” which may be referred for civil penalty action.
Aggravated cases include situations where:
- The individual has endeavored by obvious and deliberate measures to preclude detection of a concealed weapon on his/her person or in his/her carry-on baggage; or
- Evidence available indicates that the subject intended to use the weapon in the commission of an offense;
Cases with mitigating factors involve:
- Individuals who are not law enforcement officers, but who nevertheless possess valid permits to carry a weapon;
- Individuals who have no serious criminal records, and the circumstances surrounding the offense are clearly extenuating in nature; or
- Individuals who possess items which are normally and acceptably used for a noncriminal purpose and which are only marginally of a deadly or dangerous character.
According to the Manual, all un-aggravated weapons violations are referred initially to State and local authorities for disposition. If they are unwilling or unable to prosecute a weapons offense involving a firearm, then the case will be referred to the nearest FAA Civil Aviation Security Field Office for civil penalty action under 49 U.S.C. § 46303
The TSA recommends, and I concur, that all passengers double check their carry-on baggage BEFORE arriving at the security checkpoint to confirm that they do not have a handgun or other prohibited item(s) in their luggage. Seems like a “no-brainer” to me. But, if you are caught “packing” at a checkpoint or in the secured area of an airport, hire an aviation attorney to help protect your rights.
For more information on the restrictions placed upon firearms at airports and in aircraft, please read my article on the topic: Carrying Firearms On Aircraft.