NYC Arrest of "defaced" guns?

B

Beretta686

New member
I found this article about a bonehead who tried to check loaded weapons getting arrested in NYC for "defaced" guns because he painted them silly colors. What's that about?

Plus I thought you could transit through places like NYC with prohibited items, as long as you're just passing through.
 
not the color but hiding the serial numbers.
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The article implies that, but paint won't (and shouldn't) deface or obscure the serial numbers. There's a 0.003" minimum depth for engraving. Paints, dirt, or wear shouldn't be enought to obscure the number.
 
The article implies that, but paint won't (and shouldn't) deface or obscure the serial numbers.
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That's what I'm thinking. Is there some crazy law in NYC that you can't paint a firearm? What looks like an AK seems to purple in the picture.
 
"It's unusual, but it's not remarkable," Pentangelo told CNN about the case. "Luckily, no one got hurt."
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What a ridiculous statement. Of course no one got hurt -- the guy was there to travel on an airplane, not to shoot up the airport.

What the article doesn't happen to mention is where the guy was coming from before he arrived at the airport, and that's what would determine whether or not the FOPA would apply to his trip. If he was coming from somewhere that the firearms are legal, FOPA would apply. However, the obvious choices are NY, NJ and CT, and right now I don't think most of those firearms would be legal for him to possess in any of those states.

I hope he can afford a good lawyer, because I think he's well and thoroughly screwed. I am periodically amazed at how many people DON'T seem to know that one simply does not take GUNZ! :eek: into NY state.
 
The fellow is young, and not from NY. While this might explain why he did what he did, it does not excuse it.

FOPA offers legal protection during travel through restrictive area, provided you are legal where you start your trip, and where it ends.

However, you must meet the all conditions of the law in order to be covered. On the face of it, this case may not qualify.

He carried the guns into the airport in NYC. The moment he crossed the NY state border, he was breaking NY law. Unless he qualified to be covered by the FOPA then (and we do not have that information), he's not protected at the NYC airport.

In addition, one of the rifles was loaded. This was an absolutely stupid mistake, and one from which there is very little explanation, and NO justification. ("loaded" in this case does not necessarily mean a round in the chamber. It can also mean rounds in the magazine, chamber empty. And in some jurisdictions, loaded can also be any ammunition within the same container. I would expect NY to be one of those places.)

As to defaced?, by paint? Perhaps, depending on the specific wording of the particular statute. If the law says "serial # obscured" in some fashion, then they have a case. It will be up to the court to decide if the condition of the firearm actually meets the legal standard, or not.

Its a sad thing to see but basically, the guy (apparently) broke several NY laws. And possibly some Federal laws, as well.

FOPA might protect him on some of the counts (like the illegal magazine/rifles possession charge) or it might not, that will be very detail specific, and we don't have those details.

NOTHING is going to protect him from the taking a loaded gun into an airport charge.

And nothing should.
 
"loaded" in this case does not necessarily mean a round in the chamber. It can also mean rounds in the magazine, chamber empty. And in some jurisdictions, loaded can also be any ammunition within the same container. I would expect NY to be one of those places.
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NOTHING is going to protect him from the taking a loaded gun into an airport charge.

And nothing should.
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And there we differ.

If he placed no one in danger and wasn't reckless or negligent, then it's just another case of malum prohibitum that furthers the meme that guns are a danger to society.
 
By TSA rules, loaded magazines are not loaded firearms. In fact, loaded magazines are specifically accepted as "containers designed to hold ammunition" acceptable for transport if the final round is somehow protected/held in place. When I was with TSA, even a piece of cardboard taped over the end of the magazine was enough.

It's also not illegal to go to an airport (outside the "sterile area") with a loaded firearm, as in concealed carry.
 
The article implies that, but paint won't (and shouldn't) deface or obscure the serial numbers.
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It depends on how the paint was applied & how many coats were done. I've seen some "home painted" efforts that could hide all the cracks in death valley & the Grand Canyon.:eek::)

We bought a processing machine years back & had a heck of a time getting parts because the stampings with the variant, model number & serial number was utterly buried in powdercoat. We literally had to get a steel brush & scrape the multiple layers off to read, or even find the info.
 
44 AMP said:
...As to defaced?, by paint? Perhaps, depending on the specific wording of the particular statute. If the law says "serial # obscured" in some fashion, then they have a case. It will be up to the court to decide if the condition of the firearm actually meets the legal standard, or not...
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Here's the standard applied by one federal court of appeal in affirming a conviction for violation of 18 USC 922(k) (possession of a gun on which the manufacturer’s serial number has been removed, obliterated, or altered):

U.S. v. Adams, 305 F.3d 30 (Fed. 1st Cir., 2002, emphasis added):
...As for the evidence, that was clearly sufficient once it is understood that any alteration that works against legibility is enough; ...The pistol was presented to the jury. The case agent testified at trial that he could read the six digits of the serial number but with difficulty. At oral argument, Adams's counsel asked that this court examine the original pistol, and we now report the results.

...

Of course, judgment as to the degree of impairment was for the jury. But a reasonable jury could easily conclude that this pistol had been altered so as to make it appreciably more difficult to read the serial number. Indeed, a reasonable jury could hardly reach any other conclusion...
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Despite repeated warnings, out of state passengers continue to bring guns to JFK, LaGuardia and Newark airports. It's a fine way to get charged with a felony or three.

This guy is in serious trouble. From the link:

Draughon faces two counts of criminal possession of a weapon, two counts of criminal possession of a defaced rifle and two counts of criminal possession of large-capacity magazine.

Draughon was in custody Saturday. CNN was unable to identify or reach an attorney.
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Well it seems anyone in NY state better not cerakote, hydrographic, home camo, or in any other way modify the finish of their firearm.
 
Over and above anything else, the CA3 issued an opinion that is binding, not only within the 3rd Circuit, but in any place wherein the Port Authority of New York and New Jersey operates. Such as the following airports: John F. Kennedy; Stewart; LaGuardia; Teterboro; Newark Liberty and Atlantic City.

The decision states that FOPA travel is limited to vehicular (automobiles) travel only.

In our view, plaintiff here has failed to satisfy even the first requirement of the first step of the process, i.e., that Congress intended that section 926A benefit this particular plaintiff. This is evident from the plain meaning of the statute. 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 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.”

...

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.
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Accordingly, within the 3rd Circuit (and especially within Port Authority jurisdiction), if you are not traveling by car, you have no FOPA protections. As such, you cannot exit a vehicle and take your firearms (however encased) by foot, and check them into a Port Authority facility (in this case, an airport).

The decision was published on Sept. 13, 2013. You can read that decision here: http://www2.ca3.uscourts.gov/opinarch/123621p.pdf
 
NOTHING is going to protect him from the taking a loaded gun into an airport charge.

And nothing should.

And there we differ.

If he placed no one in danger and wasn't reckless or negligent, then it's just another case of malum prohibitum that furthers the meme that guns are a danger to society.
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I'm sorry, but we are going to differ on this one. First off, our world is full of things that place no one in danger, but are illegal anyway. Second, I consider him negligent, for not unloading the gun in the first place.

We all have our own feelings on the rightness, or wrongness of the law, but that does nothing to change the fact that it is the law.

I'm not going to argue the issue that the law furthers the meme that guns are dangerous to society. I believe it does. HOWEVER, that is immaterial. The law is what it is, and he broke the law.

Would you think it right to give a pass to anyone else, with any other illegal item? Even if they were not putting anyone in danger, and were not reckless or negligent?

It's also not illegal to go to an airport (outside the "sterile area") with a loaded firearm, as in concealed carry.
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Ok, so that's not illegal. There is a world of difference between concealed carry and attempting to check a loaded gun as luggage. Its also ok to carry the unloaded firearms (outside the "sterile" area). Again, so what?

Multiple laws and airline rules prohibit loaded guns as baggage. And they have done so for a long time, not just since the national security panic that began 9/11/2001.

Now. I'm inclined to believe that this guy just made a stupid mistake. There is no indication he intended harm to anyone. I'm not saying he should be locked up and the key thrown away. I consider this a breach of administrative rules, which are also law. I feel the proper punishment ought to be a fine (because stupid should hurt). I also think that the state of New York will think something different from what I do. I am sure someone will seek the maximum penalty allowed by law for what they will see as a "heinous crime".

On the matter of having a loaded gun where it was prohibited to have a loaded gun, I have no real sympathy for this guy, other than that the hardships he will face are, I feel, worse than the danger his carelessness created.

No one travelling with a gun in the US today can afford to be ignorant of existing law, in everyplace they are going to be.
 
There is no evidence presented here that any weapons were actually loaded. There is an allegation made by a representative of the port authority that one of the rifles was loaded, but he doesn't say what exactly he means by that. It could easily be that there was a loaded magazine in the same luggage but not in the rifle.
 
44 AMP said:
On the matter of having a loaded gun where it was prohibited to have a loaded gun,
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My point was rather poorly made but what I intended to say is that there's a very good chance that the firearm was not loaded in the sense that any of us would ever define loaded.

For example, a NY court has held that the PRESENCE OF AMMUNITION accessible to the driver of the vehicle constitutes a "loaded firearm".

This is one of the issues brought up by the Tresmond Law team fighting the SAFE Act. Because of that decision and the wording of the SAFE Act (defining an "assault rifle" as a "firearm"), it became impossible to legally transport a firearm and ammunition in the same vehicle. (Firearm technically means something different in NY than it does everywhere else...
NY Penal Code 265.0 Definitions: said:
3. "Firearm" means (a) any pistol or revolver; or (b) a shotgun having
one or more barrels less than eighteen inches in length; or (c) a rifle
having one or more barrels less than sixteen inches in length; or (d)
any weapon made from a shotgun or rifle whether by alteration,
modification, or otherwise if such weapon as altered, modified, or
otherwise has an overall length of less than twenty-six inches; or (e)
an assault weapon. For the purpose of this subdivision the length of the
barrel on a shotgun or rifle shall be determined by measuring the
distance between the muzzle and the face of the bolt, breech, or
breechlock when closed and when the shotgun or rifle is cocked; the
overall length of a weapon made from a shotgun or rifle is the distance
between the extreme ends of the weapon measured along a line parallel to
the center line of the bore. Firearm does not include an antique
firearm.
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In other words, I have no idea if they are using common-sense definitions of "firearm" and "loaded" or ignorant NY State legal definitions, or a mixture.
 
What a shame. Someone who was ignorant is now going to be drawn and quartered by some of the most severe gun laws in the land.

As someone who travels regularly with firearms it's a stark reminder about how careful we all must be to preserve our own liberty and also to not serve as a catalyst or test case for increased regulations and restrictions.
 
Al Norris, thanks for the information!

Accordingly, within the 3rd Circuit (and especially within Port Authority jurisdiction), if you are not traveling by car, you have no FOPA protections. As such, you cannot exit a vehicle and take your firearms (however encased) by foot, and check them into a Port Authority facility (in this case, an airport).
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That's wild. I'd always assumed if you're clearly not trying to stay in NYC it wouldn't be an issue.

If you're merely connecting through NYC enroute to another location, with the guns checked in, would that set you up for a violation?
 
If you're merely connecting through NYC enroute to another location, with the guns checked in, would that set you up for a violation?
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No.

Because the guns are never in your possession.

HOWEVER, if you do take possession of those guns, in a state where they are prohibited, you ARE in violation.

(I'm sure some of the savy members can find the case, I'm ignorant of how or where to look)

There was a guy, not all that long ago, got arrested for just that. Some kind of airline problem, and the airline put him up in a hotel overnight (I think it was in NJ?) At some point, after picking up his bags (including checked guns) he was arrested, because the guns were not legal for him to have in that state. (NO FOID card, or something like that) I don't recall hearing how it turned out, other than after some time in jail, he was released and had to return later to go to court.

And yes, charged with having a loaded gun doesn't always mean the chamber had a live round in it. The charge would be for violation the legal definition of "loaded", what ever that happens to be in that locality.

I know one place that doesn't consider ammo in a box, a gun and you in the same compartment as a loaded weapon, but does consider ammo in a magazine, a gun, and you in the same compartment as a loaded weapon.

OR so it was explained to me by a very helpful young man in a grey suit....
 
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