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The Problem of Firearms at TSA Checkpoints

Posted on by Townsend Myers

tsa-logo copyOver the past few months I have been involved in litigation related to the possession of weapons or firearms at TSA airport screening checkpoints, and have received several phone calls regarding both criminal and civil penalties for knowingly, or more often accidentally, carrying a weapon or firearm through a TSA checkpoint.

As hard as it may be to believe, there are numbers of people who inadvertently carry weapons or firearm in their carry-on luggage. Most cases involve someone who forgot about a firearm or other contraband when they packed their bags, and placed it in the hands of a TSA agent for screening, discovering too late that the weapon was in the bag. What happens next depends on the severity of the situation and a number of other subjective factors.

Criminal Penalties for Violation of Federal and State Weapons Laws

Carrying a concealed weapon in an airport can be a crime under both Louisiana state law, as well as Federal Law. The Louisiana law prohibiting the possession of a concealed weapon is codified at La. R.S. 14:95, and prohibits the “intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person”. This is a misdemeanor offense in Louisiana, punishable by up to 6 months in the parish prison.

Federal law also makes it illegal to attempt to introduce a concealed weapon or firearm on to an aircraft. The law states that it is a crime for an individual who is on, or attempting to get on an aircraft to have on their person, or carry in such a way that it would be accessible to them a concealed dangerous weapon. Passing through a TSA security checkpoint with such a weapon in a carry-on bag certainly could be construed to be violative of this law. This is a very serious offense, carrying the possibility of up to 10 years in prison.

In the case of a state law violation, a person can be arrested or issued a summons to appear. In the case of a federal violation, the individual will certainly be arrested. In either case, an individual cited with a criminal violation of related to carrying a weapon or firearm through a TSA checkpoint should consult a criminal defense attorney. A criminal charge of carrying a concealed weapon or firearm requires that the person knew that he or she possessed the contraband. If the person did not know, then the person is not guilty of any criminal offense, and a good attorney can help present facts to support the lack of knowledge to a prosecutor and/or a judge, and help to have the criminal charges dismissed.

Civil Penalties: TSA Notice of Violation and Civil Penalty Assessment Order

In addition to the potential criminal penalties for carrying a weapon or firearm through a checkpoint, the Transportation Security Administration has also started issuing notices of violation and civil penalty assessment orders for violations of Transportation Security Regulations in such cases. For cases involving bringing a gun through the security screening area, the applicable regulation is 49 C.F.R. Section 1540.111(a) of the TSR, which provides that an individual may not have a weapon, explosive or incendiary on or about the individual’s person or accessible property when performance has begun of the inspection of the individual’s person or accessible property before entering a sterile area, or before boarding an aircraft.

Because the regulations are civil and not criminal in nature, no knowledge requirement exists as an element of the violation. In most cases, an individual will receive a letter from the TSA with a “Notice of Violation” that advises the individual that the TSA proposes assessing a civil penalty for a violation of its regulations. It is not mandatory that a civil penalty be imposed, rather some violations will trigger only a “warning notice” or “letter of correction” or “no action.”

If, after reviewing all of the relevant facts and evidence, the TSA believes that a civil penalty is warranted, they will issue a Final Notice of Violation and Civil Penalty Assessment Order, proposing a specific monetary fine assessment (not to exceed $10,000).

Options Available to Individuals After Receiving Final Notice of Violation and Civil Penalty Assessment Order

After the individual receives a Final Notice of Violation and Civil Penalty Assessment Order, the individual has 15 days to take some action, as described in he notice, including:

  1. Paying the full civil penalty amount proposed in the Final Notice of Violation and Assessment Order that states the amount of the civil penalty; or
  2. Negotiating a different civil penalty amount that is agreed upon by the U.S. Department of Homeland Security Special Enforcement Program Office; or
  3. Requesting a Formal Hearing to seek review of the basis for, or amount of the civil penalty.

In any event, an individual who receives a Civil Penalty Assessment Order should look at the notice carefully and talk with an attorney in order to determine what the options might be in your particular case. For many individuals, the proposed penalty is excessive given their economic circumstances. It might be possible to negotiate with the Special Enforcement Program Office attorneys for a substantially lower penalty.

The TSA has guidelines it uses to determine whether or not to waive of reduce a civil penalty, and an attorney who is familiar with these guidelines can help persuade the TSA which ones apply in a particular individual’s case. In determining the amount of the civil penalty, the TSA will consider certain aggravating factors including:

  1. Artful concealment;
  2. Number of weapons, or volume of explosives and incendiaries;
  3. Type of weapon, explosive or incendiary;
  4. Display or use of weapon, explosive or incendiary;
  5. Past violation history of violator;
  6. Experience level of violator (e.g., airport/air carrier employees are trained and experienced).;
  7. Evidence of intent to interfere with operations (e.g., testing the system with a prohibited item, attempting to enter sterile area with prohibited item after previously being allowed to leave in order to divest); and
  8. Attitude of violator.

The TSA will also consider certain mitigating factors such as:

  1. Disclosure by violator;
  2. Inexperienced flyer;
  3. Violator is a juvenile; and
  4. Other penalties assessed by federal, state, or local law enforcement.

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