New York and CCW

[Troop362]

Aguila Blanca... Thank you and all the others for all the good info. I'm staying the hell out of New York State. I fear it won't be long before California ends up the same way.

 

[Aguila Blanca]

Ass'n of NJ Rifle & Pistol Clubs, Inc. v.Port Auth. of NY & NJ , No. 12-3621 (3d Cir. 2013)

https://law.justia.com/cases/federal...013-09-13.html

You can even walk thru JFK, LGA, or EWR with you weapon in your locked box and suitcase on the way to check your luggage in without fear of being hassled by the Port Authority.

The citation you linked does not appear to support your position.

Justia Opinion Summary

The Association of New Jersey Rifle and Pistol Clubs alleged that the Port Authority enforced state gun laws against its non-resident members at Newark Airport. The district court held that 18 U.S.C. 926A does not create a right enforceable under 42 U.S.C. 1983. The Third Circuit affirmed, holding that, in enacting the amended section 926A, Congress did not intend to confer the right upon the plaintiff. Section 926A confers protection upon those who wish to engage in the interstate transportation of firearms: Notwithstanding any other … law … any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle…. The court concluded that Congress did not intend the amended section 926A to benefit those who wish to transport firearms outside of vehicles.

In post #15, above, I wrote:

His case ultimately didn't go to trial, so that aspect of the FOPA has not been clarified by the courts. If you read the language, it basically describes travel in an automobile. I think everyone on this forum probably agrees that the intent was to cover airline travel -- but it doesn't say so. You're treading into uncharted territory.

I was not aware of the case cited by davidsog. Apparently at least one court has addressed the issue of whether or not the FOPA applies to travel other than by automobile ... and the court's determination was that it does NOT apply. We can disagree all we want, but this is the district and circuit that covers the NY and NJ airports, so unless/until the Supreme Court says otherwise, in NY and NJ (and other states within the same federal circuit) the FOPA doesn't protect you unless you travel by automobile.

I should add that, under federal law, aircraft other than ultralites are not "vehicles" -- they are "aircraft." (Ultralites, curiously, are "vehicles.")

 

[davidsog]

and the court's determination was that it does NOT apply.

Yes but not because you cannot travel from your car to the luggage check in at EWR with a properly stowed weapon / ammunition IAW FOPA.


The court's decision was that New Jersey Gun Owners Club cannot sue the state of New Jersey because they are residents and not travelers.

Congress did not intend to confer the right upon the plaintiff.

Because the Plaintiff lives in New Jersey!!!

Rather than wrestle with grammar, I believe, as discussed below, that we should focus on the one thing that is clear about § 926A: it does not permit § 1983 liability.

The court most certainly determined that carrying you gun in your luggage to be checked was protected under FOPA. The New Jersey Gun Club cannot sue the state of New Jersey as they are by definition....residents of New Jersey and not travellers under the FOPA.

Awkwardly worded though the statute may be, it can reasonably be construed as a comprehensive defense for people traveling with firearms.

https://law.justia.com/cases/federal/appellate-courts/ca3/12-3621/12-3621-2013-09-13.html

Once more, the New Jersey courts acknowledge that congress has put some pretty strong teeth in the FOPA that directs the State to compensate should they violate that Federal Law.

What you are confusing is a single case where the traveller's flight was cancelled and they missed their airline scheduled alternate transportation because they chose to get their luggage themselves instead of allowing the airline to transport it.

He missed the bus thru his own choice and had to stay overnight in a hotel in NJ. They brought their firearm/ammunition to the hotel with them.

That traveller lost FOPA protection when he ditched his travel and stayed overnight with this gun and ammunition accessible in the hotel.

That has nothing to do with the fact you can travel thru EWR with a weapon/ammunition IAW FOPA even from your car to the luggage check in.

You cannot decide you are going to stay in New Jersey for a few days and bring your gun/ammunition with you. You are no longer "travelling" IAW the FOPA.

 

[davidsog]

Understand New Jersey and New York's POV on FOPA.

The statute protects travellers moving thru the state. It does not apply if NJ or NY is your final destination or becomes a destination.

The FOPA does not give you any protections at the destination but rather only for travel THRU to get to your final destination.

If you select a destination where having a firearm is illegal and you are not in compliance with local laws....get a lawyer but you will lose.

 

[Aguila Blanca]

The court most certainly determined that carrying you gun in your luggage to be checked was protected under FOPA. The New Jersey Gun Club cannot sue the state of New Jersey as they are by definition....residents of New Jersey and not travellers under the FOPA.

I think you're missing something. From pages 6 and 7 of the decision:

Although the unwieldy sentence that comprises section 926A is drafted in a roundabout way, on a careful reading its language is clear and unambiguous. It begins by establishing a clear positive entitlement: a person who meets its requirements “shall be entitled ”to transport firearms in certain circumstances. Cf. Gonzaga, 536 U.S. at 287 (contrasting the rights-creating language of “no person ... shall be ... subjected” with language typical of spending clause statutes, e.g., “no funds shall be made available.”). But the part of the sentence that immediately follows expressly conditions this entitlement as only being operative “if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle.” 18 U.S.C. §926A (emphasis supplied).

It is plain from the latter condition that the statute protects only transportation of a firearm in a vehicle, and requires that the firearm and ammunition be neither readily nor directly accessible from the passenger compartment of such vehicle. In particular, the word “such,” in “such transporting vehicle,” by definition refers back to earlier part(s) of the sentence, and the only parts it could possibly refer to are the parts referring to the transportation of a firearm or ammunition. The use of “such” therefore makes clear that the transportation the statute protects must occur in a “transporting vehicle.”

Moreover, if there were any doubt about the statute’s vehicular limitation, the final part of the sentence that follows -- the “Provided” clause -- again makes clear that only vehicular transportation is included in the statutory grant. It states: “Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.” 18 U.S.C. §926A (emphasis supplied). This clause, on its face, presupposes transportation of the firearm in a vehicle.

It follows from this plain meaning that an ambulatory plaintiff who intends to transit through Newark Airport is outside the coverage of the statute. But it is precisely such people whose alleged rights under section 926A the Association seeks here to vindicate.

I could go on at length about what I perceive to be significant flaws in the reasoning underlying the above, but the fact remains that the Third Circuit has determined that the protections of the FOPA do not apply to a passenger who walks into an airport with a firearm in his/her suitcase.


{Edit to add}The case was not decided on the basis that the Association did not have standing. From the footnote on page 4:

In a prior non-precedential decision, another panel of this Court reversed the District Court’s dismissal of this case on standing grounds and directed the District Court to permit the Association to amend its complaint to allege facts sufficient to demonstrate standing. See Revell v. Port Auth. of N.Y. and N.J., 321 F. App’x 113 (3d Cir. 2009). The Association did so by properly asserting the rights of its non-resident members.

So, lack of standing was not the determiner.

From page 13:

In light of the plain meaning of the statute, fully corroborated by the legislative history, we hold that section 926A benefits only those who wish to
transport firearms in vehicles — and not, therefore, any of the kinds of “transportation” that, by necessity, would be involved should a person like those represented by the Association wish to transport a firearm by foot through an airport terminal or Port Authority site.

This would also suggest that, in the case of a person traveling by automobile through the Third Circuit states who stop for the night at a roadside hotel, the firearm(s) and ammunition must remain in the vehicle during the time the traveler is at the hotel for eating and sleeping.

 

[mikejonestkd]

The upstate newspapers regularly run stories about out of state travelers that try to fly out of Buffalo, Rochester, or Syracuse with handguns.

They are regularly arrested and charged with a felony. So, in this case the OP would most likely make the Buffalo News...….and not in a good way.

As a side bar, many times non NYS residents try to get entrance into Canada through NY, but are turned away if they bring a handgun ( even when they declare it to the Canadian customs agents. ) The Canadians alert the US border patrol when the travelers try to reenter the US, and they are always charged.

 

[44 AMP]

You can even walk thru JFK, LGA, or EWR with you weapon in your locked box and suitcase on the way to check your luggage in without fear of being hassled by the Port Authority.

Well, that's kind of obvious, isn't it? With your weapon "concealed" in your luggage, they don't know you have it, until you declare it at the airline counter.

However, if you are not a in legal possession of the weapon, according to the law of the state you are standing in when you walk through the airport, you ARE breaking the law. Which is why you will get a "hassle" from Port Authority, TSA, and any other law enforcement agencies with jurisdiction, once they learn you have an illegal weapon.

My personal experience with this dates from 2003, and while there may have been changes since then, I doubt any changes made have been less restrictive...

My family lived in upper NY state. I grew up there, even got a NY pistol permit (at age 18!!). Moved to the Pacific NW after getting out of the Army. When my father passed in 2003, I returned to NY for the funeral, and to help settle his affairs. I wound up with 3 of his pistols and 2 of his deer rifles. My brother (living in the same house) kept 2 of his pistols and a the rest of his long arms.

The rifles, I could, and did, carry to the Albany airport, cased, declared, inspected by the authorities, then secured (with an approved lock) and checked as baggage.

I could not legally do this with the pistols. I did not have a valid NY pistol permit, with those pistols on it. I had had such a permit, with those pistols on it, since 1975, but since I was no longer a NY resident, my old NY permit was invalid. So I could not legally possess them in NY. My brother did have a valid permit for those pistols, so we took them to an FFL in NY and had them shipped to an FFL near my home.

The point here is that I did not have a valid permit for the pistols in NY. Therefore, I could not legally possess them in NY. Therefore, I could not legally carry them into any airport (or anywhere else) to declare and check them for shipment. The RIFLES, I could. NY did not require a permit for them (at that time). So, while I flew home with a couple of Dad's deer rifles, I could not take his pistols.

IF I had been driving home, the law would have been the same. I could have put the rifles in my car and driven home, but not the pistols, because inside the borders of the state of New York, I could not legally possess them, and that included empty, cased, and locked in the trunk of my car. And, FOPA would not have covered me driving home with them, either.


Let me say this one more time to be clear, it does not matter to NY who issued or how may other states permits you have. If you do not have a valid NY permit for the pistol, you are breaking NY law. Period.

I strongly recommend you do not break the law.

Good Luck!

 

[davidsog]

Third Circuit has determined that the protections of the FOPA do not apply to a passenger who walks into an airport with a firearm in his/her suitcase.

They do go thru a rather verbose explaination of how the plain language does not cover foot traffic.

However they also correctly conclude:

Awkwardly worded though the statute may be, it can reasonably be construed as a comprehensive defense for people traveling with firearms.

 

[davidsog]

Well, that's kind of obvious, isn't it? With your weapon "concealed" in your luggage, they don't know you have it, until you declare it at the airline counter.

However, if you are not a in legal possession of the weapon, according to the law of the state you are standing in when you walk through the airport, you ARE breaking the law. Which is why you will get a "hassle" from Port Authority, TSA, and any other law enforcement agencies with jurisdiction, once they learn you have an illegal weapon.

My personal experience with this dates from 2003, and while there may have been changes since then, I doubt any changes made have been less restrictive...

My family lived in upper NY state. I grew up there, even got a NY pistol permit (at age 18!!). Moved to the Pacific NW after getting out of the Army. When my father passed in 2003, I returned to NY for the funeral, and to help settle his affairs. I wound up with 3 of his pistols and 2 of his deer rifles. My brother (living in the same house) kept 2 of his pistols and a the rest of his long arms.

The rifles, I could, and did, carry to the Albany airport, cased, declared, inspected by the authorities, then secured (with an approved lock) and checked as baggage.

I could not legally do this with the pistols. I did not have a valid NY pistol permit, with those pistols on it. I had had such a permit, with those pistols on it, since 1975, but since I was no longer a NY resident, my old NY permit was invalid. So I could not legally possess them in NY. My brother did have a valid permit for those pistols, so we took them to an FFL in NY and had them shipped to an FFL near my home.

The point here is that I did not have a valid permit for the pistols in NY. Therefore, I could not legally possess them in NY. Therefore, I could not legally carry them into any airport (or anywhere else) to declare and check them for shipment. The RIFLES, I could. NY did not require a permit for them (at that time). So, while I flew home with a couple of Dad's deer rifles, I could not take his pistols.

IF I had been driving home, the law would have been the same. I could have put the rifles in my car and driven home, but not the pistols, because inside the borders of the state of New York, I could not legally possess them, and that included empty, cased, and locked in the trunk of my car. And, FOPA would not have covered me driving home with them, either.


Let me say this one more time to be clear, it does not matter to NY who issued or how may other states permits you have. If you do not have a valid NY permit for the pistol, you are breaking NY law. Period.

I strongly recommend you do not break the law.

New York is your destination and you are correct. YOU are NOT covered by FOPA.

 

[Aguila Blanca]

However they also correctly conclude:

Awkwardly worded though the statute may be, it can reasonably be construed as a comprehensive defense for people traveling with firearms.

For people traveling by car.

You can't cherry pick the sentence you like and ignore the multiple sentences that don't support your position.

 

[davidsog]

Transporting Firearms Through New York
The best way to travel through NY or any state that has restriction is to carry a copy of Title 18-Part 1- Chapter 44 926A of the federal code with you.

Some law enforcement may not know the law.

DO keep the firearm in a locked box. Keep ammo in another locked box. No ammo in Magazines or speed loaders in the trunk or if no trunk as far back in the vehicle as possible in a locked box. By NY Law if you are traveling
across the state and can legally possess the firearm where you started and where you are going you can transport it as above.

NYC is known to arrest those without a valid NYC permit to possess firearms while traveling through the New York Airports. Even trying to board an airplane with a properly cased and declared firearm can get you arrested without a valid NYC Permit to possess that firearm. See “Letter” from the United States Attorney General on the application of United States Code Title 18 - Part I - Chapter 44 § 926A. on the Interstate transportation of firearms. This should be straightened out but never forget they can arrest you any time and give you your day in court.

New York State Attorney General Office response to Congressional Inquiry on this issue:

http://www.handgunlaw.us/documents/doj_doc_nyc_air.pdf

As for Newark....

I think I am going to join a shooting range in Pennsylvania just so I travel thru EWR with my pistols. Hopefully some overzealous and ignorant Port Authority Officer will arrest me.

I need a new boat!!!

 

[rickyrick]

You usually don’t profit by getting arrested. You can beat the charges but you still get a ride in the police car and you still get to pay your legal fees, haven’t seen many people profit from getting arrested you may have to sell some things, but I doubt you’ll get a boat out of the deal.

 

[Aguila Blanca]

^^^ That's not from the NY Attorney General's office, it's from the U.S. Department of Justice.

I was not aware that this was out there. It's very much in our favor but it was written in 2005, which was about 5 years before Greg Revell was arrested at Newark. So either this opinion was rescinded or superseded, or the DOJ did not follow through with the promise in the letter that they would "inform the applicable law enforcement authorities of [their] interpretation of section 926A."

This letter is now 13 years old, yet mikejonestkd reports that flyers with guns are regularly being busted at the Buffalo airport.

 

[davidsog]

hich was about 5 years before Greg Revell was arrested at Newark.

Had he not turned New Jersey in a "destination" by voluntarily missing his scheduled transportation and staying overnight with access to his firearms....

He would have been protected under FOPA.

 

[davidsog]

You usually don’t profit by getting arrested.

That comes thru the civil suit not Title 1983 color of law as the NJ Gun club attempted.

There is some legal wrangling on the part of the NJ Justices to try and diminish ones capacity to be compensated but there is quite a bit of room for a savvy lawyer to burn the State of New Jersey and the Federal Gov't over EWR's actions should they EVER arrest someone traveling lawfully under the FOPA.

As for people being arrested in BUF transporting firearms....

I see nothing that shows BUF Port Authority or LEO's violating anyone FOPA rights. They have arrested several passengers with LOADED firearms and several RESIDENTS attempting to travel.

None of the conditions give you protection under FOPA.

 

[davidsog]

Obviously you are all aware one cannot sue the Federal Government. You submit a lawsuit, it is dismissed (because you cannot sue the Federal Government), and as a condition of the Government immunity from lawsuits and part of the dismissal process........the Government is ordered into arbitration to satisfactorily solve the issue.

 

[davidsog]

^^^ That's not from the NY Attorney General's office, it's from the U.S. Department of Justice.

Even better.

 

[Aguila Blanca]

Had he not turned New Jersey in a "destination" by voluntarily missing his scheduled transportation and staying overnight with access to his firearms....

He would have been protected under FOPA.

This is why I made certain to mention that he spent the night in a hotel on the airport property. He didn't miss his connection voluntarily, he missed it because he missed it. Such things happen with air travel. I had it happen two years ago in Dallas, on my way to the SHOT Show. But I wasn't transporting a firearm, I didn't claim my luggage (I had no idea where it was), and I slept on a bench in the airport terminal itself. I didn't consider Dallas-Fort Worth to be a "destination," and I'm sure Greg Revell didn't consider Newark, NJ, to be a "destination."

I don't know if it has been tested in court but what happens if someone is driving from New York City to Los Angeles? That's about a five day drive, at best. If you get off the interstate in Kansas and take a room at the first motel you find by the interchange, and all you do is grab a bite to eat, a shower, and six hours of sleep, is Kansas a "destination" because you had to sleep? It isn't to me and I would hope that it isn't under the law, but how is that any different from Greg Revell's situation other than the fact that Revell was traveling by commercial aircraft rather than by private automobile?

 

[davidsog]

He didn't miss his connection voluntarily, he missed it because he missed it.

As I understand it, he missed it because he chose to go get his luggage instead of letting the Airline handle it like all the other passengers.

He got his luggage and missed his bus. That was his choice and he takes responsibility for the consequences. It is not reasonable to assume his fellow travellers must now wait for Mr Revell's luggage.

He missed his bus because of his choice.

I didn't claim my luggage (I had no idea where it was), and I slept on a bench in the airport terminal itself. I didn't consider Dallas-Fort Worth to be a "destination,"

In this case it is not a destination. You are in an "Awaiting Transportation" Status. The fact you did not claim your luggage but left it secured by the airline checked baggage procedures solidifies your protection under FOPA.

Had the Airline gotten you a hotel and returned your luggage until the next day, you still would have been under the reasonable man standard in an "Awaiting Transportation" status. The difference being you have no choice and are following the travel instructions of the airline which is your "transport". I would certainly bring it to the airlines attention that you checked a firearm and are concerned about the state firearm laws. If the airline could not offer a remedy the I would lock that firearm and ammunition up in the hotel safe and get a time stamped receipt from the manager.

Had Mr Revell been in that circumstance, the State of New Jersey would have a different problem on their hands. Mr Revell voluntarily giving up his mode of transportation to remain in NJ makes NJ a destination for the night. It is the same with TDY travel status in the Military.

Kansas a "destination" because you had to sleep?

If driving is your means of transportation...

No, it is prudent and reasonable that you have to sleep. Once more, it is unsafe to drive fatigued. Reasonable man standard would prevail.

Mr Revell gave up his means of transportation and chose to stay in NJ. He had a scheduled departure that would have brought him out of the state and kept him protected under FOPA.

 

[davidsog]

I don't know if it has been tested in court but what happens if someone is driving from New York City to Los Angeles?

You have to be legal to have a firearm in both home and at the destination. I think someone traveling from New York to LA that is legal to own a gun will probably be met at the border of each state.

They probably be stopped so the states can charge admission to see this oddity and very rare beast.