New York and CCW

[Aguila Blanca]

In this and your post immediately preceding, you are injecting your opinions on matters that have not been adjudicated and which have no legal precedent that you can cite. I agree that what you propose is what the FOPA should mean, but until there is binding legal precedent I can point to I'm not willing to take the risk of testing (or chumming) the waters.

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.

I understand what the FOPA says. And if it means what it says AND IF stopping for the night in Kansas doesn't make Kansas into a "destination," then there is nothing to be "met" at the border of each state. However, in more than two previous discussions of the FOPA on this (and other) forums, people who know more about the law than I do have posited that the FOPA requires you to remain continuously in motion, with no overnight stops. This is clearly illogical and IMHO does not comport with the intent of the FOPA, but the Third Circuit's holding that the FOPA does not apply to travel by anything other than automobile also doesn't comport with what I believe the intent of the FOPA is. But ... they're judges, and I'm not, so at least within the states that comprise the Third Circuit their rules apply and what I think doesn't matter.

We need to be careful in these discussions. There's another thread running parallel to this one that's a general discussion about the Constitution. We can be as theoretical as we want in that one. This thread was opened for an individual to ask specific advice on a specific situation. I think it is dangerous in such a thread to delve into theoretical, "this is what we think it should mean" statements without being VERY clear that there is no legal precedent to back up those statements. I, for one, try very diligently not to offer anything that might be mistaken as advice that could get someone in legal trouble.

It's also important to understand what constitutes precedent, and what it says. For example, you posted that the NJ Association of Rifle and Pistol Clubs' case was decided against them because they didn't have standing. The citation you provided a link to clearly stated that they DID have standing, and clearly stated that the court held that the FOPA only applies to travel by automobile. So citing that case to imply that the OP might be safe bringing his gun to an airport in Buffalo, NY, is giving advice that could (and likely would) create a rather large kerfluffle for the OP. I don't think that was your intention, but we need to be aware that actions have consequences, and that in the real world it can be hazardous to proceed based on the way we think things should be rather than the way things are.

 

[davidsog]

I understand what the FOPA says. And if it means what it says AND IF stopping for the night in Kansas doesn't make Kansas into a "destination," then there is nothing to be "met" at the border of each state.

It was a joke.

clearly stated that the court held that the FOPA only applies to travel by automobile.

But they did not conclude that. While they did dismiss the NJ gun club as not being covered by the statute and they did have a thorough discussion...

It is obvious that the Federal Department of Justice is crystal clear and even the state of NJ realize:

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

Nothing about a "just a car" despite the plain language interpretation.

I agree that what you propose is what the FOPA should mean, but until there is binding legal precedent I can point to I'm not willing to take the risk of testing (or chumming) the waters.

This thread was opened for an individual to ask specific advice on a specific situation. I think it is dangerous in such a thread to delve into theoretical, "this is what we think it should mean" statements without being VERY clear that there is no legal precedent to back up those statements. I, for one, try very diligently not to offer anything that might be mistaken as advice that could get someone in legal trouble.

I agree and some modicum of a reasonable man standard as well as some common sense should be applied.

Nobody is offering legal advice nor is there any legal relationship.

I don't think that was your intention, but we need to be aware that actions have consequences, and that in the real world it can be hazardous to proceed based on the way we think things should be rather than the way things are.

I agree. The way things are is the Department of Justice has directed the Port Authority that administers Newark to comply with FOPA to travellers moving thru KEWR.

That is a fact and in theory the State of New Jersey must comply with Federal Law as per our Civil War. As a traveller, you are taking a risk they might decide to test the waters.

 

[mete]

I wish you all would separate NY city and NY state !! Two different worlds !
Take your pistol to a dealer at the beginning of the trip and send the gun to a dealer at the end of your trip and pick it up.

 

[davidsog]

I wish you all would separate NY city and NY state !!

I work in NYC. That place should be separated from the rest of the planet. Where else do they think it is normal to pay 16 bucks to cross a rusty dilapidated bridge or have tourist paying cab drivers to take then out to watch the rats cross road?

 

[davidsog]

This is what the NRA's legal advice for traveling by air under FOPA:

Finally, the United States Department of Justice has issued a written opinion that federal law protects airline travelers with firearms, assuming: (1) the person is traveling from somewhere he or she may lawfully possess and carry a firearm; (2) en route to the airport the firearm is unloaded and inaccessible from the passenger compartment of the person’s vehicle; (3) the person transports the firearm directly from his vehicle to the airline check-in desk without any interruption in the transportation, and (4) the firearm is carried to the check-in desk unloaded and in a locked container.

Special advisory for New York & New Jersey airports: Despite federal law that protects travelers, authorities at JFK, La Guardia, Newark, and Albany airports have been known to enforce state and local firearm laws against airline travelers who are passing through their jurisdictions.
In some cases, even persons traveling in full compliance with federal law have been arrested or threatened with arrest. FOPA's protections have been substantially narrowed by court decisions in certain parts of the country, particularly in the Northeast. Persons traveling through New York and New Jersey airports may want to consider shipping their firearms to their final destinations rather than bringing them through airports in these jurisdictions.

https://www.nraila.org/articles/20150101/guide-to-the-interstate-transportation

It looks like NYC and NJ are hellbent on turning law abiding citizens innocently traveling to other places into criminals.

 

[Aguila Blanca]

clearly stated that the court held that the FOPA only applies to travel by automobile.

But they did not conclude that. While they did dismiss the NJ gun club as not being covered by the statute and they did have a thorough discussion...

They most certainly DID conclude that. Page 13 of the decision:

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. Here, the Association seeks injunctive relief that would permit its nonresident members to travel “unmolested” through Port Authority sites such as airports. Self-evidently, such travel must occur outside a vehicle, and thus will, in every instance, bring the Association’s members outside the particular class of persons to whom Congress intended to confer a right under section 926A. Consequently, the Association has no federal right to invoke and thus cannot avail itself of section 1983.

Maybe we're both correct. The Association has no standing because they came before the court on behalf of people who want to travel by other than automobile, and the court found that the law only protects those who travel in automobiles. Early in the decision, though, the question of standing was specifically addressed. It was noted that the Association's original suit did not clearly establish standing, they were allowed to resubmit, and that the question of standing had been resolved satisfactorily. So it wasn't that they were tossed for lack of standing, it was a case of being denied relief because the relief they requested wasn't (according to the Court) available to them under the Court's interpretation of the statute.

I agree and some modicum of a reasonable man standard as well as some common sense should be applied.

The reasonable man standard is what juries are instructed to consider after a trial. The goal of most travelers is to avoid being arrested in the first place, not to pin their hopes on what a jury of 12 people they have never met may consider to be what a hypothetical reasonable man might have done in like circumstances.

I agree. The way things are is the Department of Justice has directed the Port Authority that administers Newark to comply with FOPA to travellers moving thru KEWR.

Yes - five-plus years BEFORE Greg Revell was busted. Not much help.

 

[davidsog]

Maybe we're both correct.

Yes. The issue was not decided.

The reasonable man standard is what juries are instructed to consider after a trial.

Which does not prevent one from using it daily when the "this might be a problem" warning light comes on.

Yes - five-plus years BEFORE Greg Revell was busted. Not much help.

Again, Greg Revell gave up his protections under FOPA. As much as I do not agree with these liberal gun grabbers in the Northeast, the people who live there have elected and lawfully constructed their own solutions whether we agree or disagree. That is a part of being a free people.

The issue that FOPA remedies is when they unlawfully push their viewpoint upon someone who is legally compliant in their home, traveling to a destination in which they are still legally compliant, exercising their right to freedom of movement to travel thru without fear.

I do not understand why it is so hard to understand Greg Revell denied his means of transport and violated a key clause of the FOPA....

"uninterrupted travel"....


Up until he chose to miss that airline provided alternate transport, despite the weather delays and cancellation resulting in alternate travel, he was still in an "uninterrupted" travel status.

Skipping that bus and going to get a hotel room with your guns/ammunition accessible is a clear violation of FOPA. You are literally in compliance with none of the requirements by turning New Jersey into a "destination" while having your guns as well as ammunition accessible.

It is a bad example for us to fall upon our swords over.

 

[davidsog]

So it wasn't that they were tossed for lack of standing, it was a case of being denied relief because the relief they requested wasn't (according to the Court) available to them under the Court's interpretation of the statute.

That is what I understood. In layman's terms, They lost on a technicality because they asked for the wrong thing for the right reasons, LOL.

It is clear in the brief that although the plain language clearly only covers automobiles, the NJ court recognizes that is not the intent nor is that a majority interpretation of the statute.

The statute can reasonably be interpreted as:

comprehensive defense for people traveling with firearms.

And that is how the majority of states have interpreted it. The NJ court systems recognizes a narrow interpretation of of "just automobiles" is a de facto nullification of the freedom of movement Congress meant to secure. While they may win inside the state court system, it is highly unlikely their ruling will stand once it leaves their narrow interpretation.

Only thru Political Activism from the Bench will NJ win.

 

[Aguila Blanca]

The reasonable man standard is what juries are instructed to consider after a trial.

Which does not prevent one from using it daily when the "this might be a problem" warning light comes on.

The goal here is to avoid being arrested. Maybe I'm a tad more risk-aversive than you, but I prefer not to pin my hopes of having a future on what a group of unknown people might decide that a hypothetical reasonable man would do when faced with a law that he knows is, at best, murky.

Yes - five-plus years BEFORE Greg Revell was busted. Not much help.

Again, Greg Revell gave up his protections under FOPA. As much as I do not agree with these liberal gun grabbers in the Northeast, the people who live there have elected and lawfully constructed their own solutions whether we agree or disagree. That is a part of being a free people.

Do you seriously think the Port Authority cop who made the arrest was so cognizant of the intricacies of the FOPA that he understood that Revell had [allegedly] given up his FOPA protections by claiming his luggage? I don't. He saw a guy in an airport with a gun and no NJ permit. Done.

Assuming your take could be correct -- since Revell knew about the FOPA, wouldn't your "reasonable man" hypothesis have suggested to him that he would be safe? In fact, didn't you state in a previous post that people ARE safe dragging guns through airports in New York State?

I do not understand why it is so hard to understand Greg Revell denied his means of transport and violated a key clause of the FOPA....

"uninterrupted travel"....


Up until he chose to miss that airline provided alternate transport, despite the weather delays and cancellation resulting in alternate travel, he was still in an "uninterrupted" travel status.

Skipping that bus and going to get a hotel room with your guns/ammunition accessible is a clear violation of FOPA. You are literally in compliance with none of the requirements by turning New Jersey into a "destination" while having your guns as well as ammunition accessible.

Again, none of this was known to the cop who made the arrest, and I'm fairly certain in my own mind that Greg Revell did not think he had taken himself out of the realm of FOPA protection by spending a night in a hotel at the airport. He was, after all, still in transit. He was from Utah, and he was en route to Pennsylvania. He was legal to possess the handgun in both Utah and Pennsylvania.

If I'm driving from New York to California (or let's say Arizona, to be sure I'm legal to possess at the terminus of my trip), I'm going to need to stop for sleep several times in the course of my trip. I don't think I'm "interrupting my travel" each time I get off the interstate and find the first motel that has a vacancy so I can grab some shuteye. By your interpretation, I would have to drive straight through all the way from NYC to Phoenix. Am I allowed to stop for gasoline, a rest room break, and to buy a sandwich to eat in the car? I assume I'm not allowed to sit down for lunch or dinner in a McDonald's, because that would be interrupting my travel.

All these nuances you're bringing in now are after-the-fact Monday morning quarterbacking. The fact that we are discussing them at all should tell us that the FOPA is not at all clear. In fact, there is currently a circuit split as to whether or not the FOPA covers travel by other than automobile. The fact of a circuit split is proof that the law is not clear.

 

[davidsog]

since Revell knew about the FOPA, wouldn't your "reasonable man" hypothesis have suggested to him that he would be safe?

No.

Not after turning down his scheduled transport (bus the airline arranged).

Certainly not after spending the night in a hotel with full access to his gun and ammunition which is the major contention the state of NJ makes against Mr Revell. Nowhere in FOPA does it say have your gun/ammunition readily accessible. So no matter what, that particular point must be overcome.

Do I think NJ is being petty and excessive? YES. The intent of FOPA is allow lawful freedom of movement. Clearly the state of NJ violates that intent in the zeal to grab guns.

A few basic questions would establish a possible litmus test for NJ LEO's.

1. Are there any hits in LEDS/NCIS when running Mr Revells info?

2. Is he a legal resident of NJ?

3. Is he legal to own a firearm in his state of residency?

3. Is he legal to have a firearm in his destination?

NO-NO-YES-YES = release

While I understand for some reason the NJ justices felt requiring NJ law enforcement to answer those simple question was somehow difficult...

Facts are it is not very hard at all. With today's communication speeds and availability of data it takes far less time and taxpayer money to answer those questions than it did to process the arrest paperwork.

I think that route is more productive than trying to avail Mr Revell of all culpability in a situation of his creation.

All these nuances you're bringing in now are after-the-fact Monday morning quarterbacking. The fact that we are discussing them at all should tell us that the FOPA is not at all clear. In fact, there is currently a circuit split as to whether or not the FOPA covers travel by other than automobile. The fact of a circuit split is proof that the law is not clear.

Exactly. That is why it is a discussion!

 

[Aguila Blanca]

since Revell knew about the FOPA, wouldn't your "reasonable man" hypothesis have suggested to him that he would be safe?

No.

Not after turning down his scheduled transport (bus the airline arranged).

Certainly not after spending the night in a hotel with full access to his gun and ammunition which is the major contention the state of NJ makes against Mr Revell. Nowhere in FOPA does it say have your gun/ammunition readily accessible. So no matter what, that particular point must be overcome.

So your contention is that a layman should have known that a law -- which even federal appeals courts can't agree on the meaning of -- meant that declining one mode of transportation mid-journey in favor of waiting for another mode of transportation to become available the next day automatically terminated his original journey in Newark, NJ, rather than leaving him in transit between Utah and Pennsylvania.

That, IMHO, does not pass any sort of "reasonable man" test.

What about the question of someone traveling by car and stopping for the night? Is he/she allowed to bring his/her firearms into the hotel room overnight so they can't be stolen from the car? If the gun(s) is/are brought indoors for the night, can the traveler uncase one for protection during the time he/she is in the hotel room, or do you contend that the gun(s) must remain locked up to satisfy the FOPA requirement that firearms not be readily accessible to the driver?

If the gun's being in a locked case is sufficient to satisfy the FOPA when traveling in a car that doesn't have a separate trunk ... why isn't having the gun in a locked case sufficiently UNready access for walking from curbside to the ticket counter of an airport where the gun(s) will be checked?

Does each night's stop constitute the end of that day's journey, making that hotel a "destination" and resulting in the next day's leg being a separate journey? That would mean having to plan a road trip to be certain any overnight stops are in states where your possession of a firearm is legal. Is that what the FOPA intended?

 

[44 AMP]

Until this thread, I always assumed that the FOPA covered all manner of travel, and I'm sure there are allowances for normal needed stops (refuel, comfort stops, etc.) without the journey being "interrupted" in the legal sense. I believe a clear obvious departure from the normal "least time" travel route IS enough to break you out of FOPA boundaries.

For example, if you're crossing NY state, east to west or west to east, and you head significantly north or south to visit someplace far outside the normal route of travel, by choice, it would be considered a destination within NY.

We don't have any kind of rule saying X miles off the least time route = leaving FOPA travel protected status, nor should we have. It should be evaluated for every individual case as needed. We can't say for certain what is, and isn't outside FOPA without clarifying court rulings, but I think we can operate on the general principle that if you need your car towed 30 miles to get it fixed, is one thing, driving 30 miles to deliver Grandma's tea service to Aunt Martha and spending the night is another.

 

[davidsog]

So your contention is that a layman should have known that a law -- which even federal appeals courts can't agree on the meaning of -- meant that declining one mode of transportation mid-journey in favor of waiting for another mode of transportation to become available the next day automatically terminated his original journey in Newark, NJ, rather than leaving him in transit between Utah and Pennsylvania.

That, IMHO, does not pass any sort of "reasonable man" test.

If you understand a contract of carriage it does pass a reasonable man standard. As long as Revell was covered by that contract of carriage with the airline, he was covered by FOPA.

When he missed his bus by his own choice, he nullified that contract of carriage. I am sure given the weather delays, customer service hooked him up with further travel but to be clear the airline was not under any obligation to rebook him nor does that negate the fact he legally forfeited his contract of carriage.

 

[davidsog]

Until this thread, I always assumed that the FOPA covered all manner of travel, and I'm sure there are allowances for normal needed stops (refuel, comfort stops, etc.) without the journey being "interrupted" in the legal sense. I believe a clear obvious departure from the normal "least time" travel route IS enough to break you out of FOPA boundaries.

For example, if you're crossing NY state, east to west or west to east, and you head significantly north or south to visit someplace far outside the normal route of travel, by choice, it would be considered a destination within NY.

We don't have any kind of rule saying X miles off the least time route = leaving FOPA travel protected status, nor should we have. It should be evaluated for every individual case as needed. We can't say for certain what is, and isn't outside FOPA without clarifying court rulings, but I think we can operate on the general principle that if you need your car towed 30 miles to get it fixed, is one thing, driving 30 miles to deliver Grandma's tea service to Aunt Martha and spending the night is another.
________________

I think you are absolutely right and exhibit some good common "reasonable man standard" sense.

 

[davidsog]

AB I think we can all agree on some things.

Mr Revell is not a criminal or someone who is a threat to society. That is the tragedy of New York and New Jersey's draconian gun laws.

In spirit they violate the 2nd Amendment, IMHO. The laws seek to limit firearms in general instead of accomplishing their set goal of reducing violent crime.

The state of New Jersey is trying to turned Mr Revell, a law abiding citizen into in a criminal. I do not believe there was any malice or intent on Mr Revell's part. Most likely he was just sick and tired of dealing with New York/Newark air travel delays and wanted to protect his property. He was ignorant of the specifics. That is no excuse under the law.

To prove criminality though, once must have means, motive, and opportunity. He had the means and opportunity to violate FOPA. He even had a motive to violate the law because he needed some sleep. He did violate FOPA.

The guns laws of states like California, New York, New Jersey, and Chicago are not stopping criminals but rather ensnaring law abiding citizens creating criminals.

Simple comparison of a State without restrictive gun laws vs draconian gun laws of New Jersey.

Miami FL has just over twice the population of Newark New Jersey. You have a 1 in 114 chance of being a victim of violent crime in Miami. In Newark New Jersey, you have a 1 in 105 chance of being a victim.

It is obvious that the draconian gun laws are not working to deter violence.

Congress was very specific and in prosecution of FOPA violations:

Criminal prosecution would require proof of a willful violation.

https://foac-pac.org/uploads/Hardy-FOPA.pdf

Wilful intent is a very high standard that must be proven in order to prosecute a violation.

That means:

A party’s intention to knowingly and deliberately act or refrain from acting in a particular manner or to achieve a particular result.

While Mr Revell most certainly violated FOPA, I do not think he did it "knowingly and deliberately". There was no willful intent.

While it does pass a reasonable man standard that Mr Revell broke the law. You cannot argue that he did not.

It is very difficult for a reasonable person to conclude under the higher standard of willful intent that his violation should be prosecuted.

The State of New Jersey would have to prove that Mr Revell:

knowing it’s wrong to do so and intentionally ignoring the consequences of those acts.

So I would ask the State of New Jersey where is the evidence of Mr Revell willful intent?

In otherwords, the Justices invalidate Mr Revells claim that he kept his guns and ammunition locked up in this hotel stay. Under the standards for prosecution Congress clearly lays out, Mr Revell does not have to prove that he kept his guns locked up.....the State of New Jersey has to have definitive proof he did not keep them locked up.

Under FOPA Mr Revell is allowed to move his bags from his car to the airport in the same condition he had them in his hotel. New Jersey cannot deal in conjecture on this point or speculation. They must prove he took them out of that transportable condition.

Once more, they must prove he left the airport with a deliberate intent to violate the law.

 

[Aguila Blanca]

Once more, they must prove he left the airport with a deliberate intent to violate the law.

Which may be why they ultimately decided not to prosecute. They may have thought they would lose, and they didn't want to set a precedent by suffering an acquittal in a very public trial.

Which means, once again, that the issue has not been adjudicated, even at the trial court level. But Greg Revell still spent a weekend in jail, with a number of rather unseemly companions, was forced to receive inoculations that may or may not have been in his best interest but which were S.O.P. for that jail system, and spent many thousands of dollars on defense attorneys and related expenses. All to result in no trial. This brings us back to something I posted early in this thread: "You may beat the rap, but you can't beat the ride."

This discussion began with a gentleman asking specifically if he would be safe transporting a handgun from Pennsylvania through the airport in Buffalo, NY, on his way back home from Pennsylvania. Despite the D.O.J. letter of 2005 you produced a copy of, at least two people native to upstate NY report -- in this discussion -- that the police in Buffalo routinely bust people for traveling with a handgun if they don't have a NY permit. And NY does not issue non-resident permits.

Ergo: regardless of whether I agree with your view on the FOPA or you agree with my view on the FOPA, the consensus seems to be that the OP is not safe flying through Buffalo with a handgun. IMHO, the rest of this discussion belongs in the parallel discussion on constitutional issues -- which has now been closed by the moderators.

 

[spacemanspiff]

How did the OP go from being 'licensed to carry concealed in 46 states' to: "I currently have eleven CCW permits and plan to travel to Pennsylvania to get my twelfth"?

 

[davidsog]

How did the OP go from being 'licensed to carry concealed in 46 states' to: "I currently have eleven CCW permits and plan to travel to Pennsylvania to get my twelfth"?

I was wondering where he is traveling too. It looks like his question is can he travel to Buffalo NY as a destination from Pennsylvania.

 

[44 AMP]

I understood the OP to ask "can I legally drive from Penn, with the pistol properly stored for transport, to the Buffalo NY airport, and fly out from there?"

TO which, I believe the answer is no.

Because he does not possess a valid NY permit for the pistol. NY LEO's need look no further than this. Without the valid permit, the gun is not legal, a law has been broken, an arrest can (and almost certainly WILL) be made, and everything else is for the DA, lawyers and the courts to figure out.

No state that requires a permit or license wants unpermitted people wandering about their state with pistols. Some states enforcement of this is "on the harsh side of strict"...

FOPA essentially suspends the state's definition of "possession" as long as you are travelling through a state, however as this thread shows, there are a lot of possible situations where one person's idea of "through" is at odds with the governments definitions.

The "contract carrier" was brought up. When flying, taking the bus, or train, They are the possessor of the pistol (checked baggage) so the owner is not violating state laws when passing through, as he doesn't "possess" the pistol within the state. UNLESS he does, buy obtaining the pistol back from the carrier.

When driving through, you are the contract carrier, under FOPA, as long as the gun meets FOPA standards for transportation (not accessible to you) and you don't do anything not required to travel THROUGH the state.


However, if you do something that removes you from FOPA rules, then the laws of the state you are physically in take over.

These are GENERAL principles and individual cases may test or even overturn some things. A good practice is that if you are considering an action and someone can make a reasonable case that doing so could violate some laws, its probably a good idea not to do it.

I think driving from out of state to the Buffalo airport with an unpermitted pistol would break NY law.

I wouldn't do it, but if you want to be the test case, go right ahead. We'll watch...

 

[Aguila Blanca]

I was wondering where he is traveling too. It looks like his question is can he travel to Buffalo NY as a destination from Pennsylvania.

That isn't the question at all.

Post #14:

When I leave Pennsylvania I plan to drive to Buffalo NY to fly home. I will be carrying a licensed Sig P239 that I would like to return to San Diego with at the end of my trip.