Do you ever wonder what happens to someone who attempts to clear a security checkpoint at an airport but is caught with a weapon or other prohibited item? Believe it or not, not all of the persons who are caught are prosecuted. According to the United States Attorney’s Manual(“USAM”), a large number of people have been caught attempting to board aircraft with deadly or dangerous weapons concealed on the individual’s person or contained in accessible property in violation of 49 U.S.C. § 46505. However, not all of these individuals have been prosecuted.
The USAM sets forth guidelines in Section 9-63.161 that are to be considered by a U.S. attorney in determining whether an offense will be prosecuted. “Aggravated” cases are to be “vigorously investigated and criminally prosecuted.” Examples of these cases include where an individual has used obvious and deliberate measures to preclude detection of a concealed weapon on his/her person or in his/her carry-on baggage; or where evidence available indicates that the individual intended to use the weapon in the commission of an offense; or where the weapon is any type of explosive or incendiary device.
In situations that are not “aggravated” and involve “mitigating factors”, the U.S. Attorney can decline federal criminal prosecution. These factors include when an individual who is not a law enforcement officer, but who nevertheless possesses a valid permit to carry a weapon; or when an individual has no serious criminal records, and the circumstances surrounding the offense are clearly extenuating in nature; or when an individual possesses items which are normally and acceptably used for a noncriminal purpose and which are only marginally of a deadly or dangerous character.
The U.S. attorney will refer “unaggravated” weapons violations to State or local authorities but, if they are unwilling or unable to prosecute a weapons offense involving a firearm, the U.S. Attorney can pursue a civil penalty pursuant to 49 U.S.C. § 46303. In this situation, the case is referred to the FAA for prosecution of a civil penalty action. This is similar to a certificate action except the penalty sought is a fine rather than a suspension or revocation of an FAA issued certificate. The amount of the fine will vary depending upon the circumstances of the violation.
It is important to understand that a civil penalty action is one of strict liability. This means that if you committed the act, your lack of improper motive or intent is not a defense. As with most prosecutions, whether or how a case is prosecuted still involves prosecutorial discretion. Thus, the likelihood of an individual caught carrying weapons or explosives being prosecuted will be subject to the U.S. Attorney’s view of the facts and circumstances taking into consideration the guidelines contained in the USAM.
Although the majority of cases are referred for civil penalties, at the end of the day, getting caught for this type of violation will cost you, one way or another. Better to be safe than sorry. If you are unclear about what types of items are prohibited, you can review a list of the items on the TSA’s website here.