When the FOPA doesn't work

[Aguila Blanca]

"FOPA" being the federal Firearms Owners Protective Act -- the federal law that is supposed to make it possible for lawful gun owners to travel from one state to another with their firearm(s).

http://www.nydailynews.com/new-york...handguns-forgetting-permits-article-1.2656034

Here's yet another idjit who tried to travel through a New York airport (JFK, this time) with guns, and got herself arrested on a felony charge as a result. There are some lessons to be learned from this case, I think:

First, of course, is the basic NEVER take any firearm into New York State unless you are a NY citizen and have a NY permit. While it would be nice to think that all states would honor the federal law -- NY and NJ don't. It doesn't help that the FOPA was clearly written around travel by personal automobile and, if we ignore the underlying intent, doesn't even begin to address travel by commercial carrier (train, bus, aircraft, taxi, or a combination of the above).

Beyond that, we need to know the law if we hope to benefit from it. The law, the federal laws for firearms on commercial aircraft, and the regulations of all the airlines, require that the firearm(s) be UNloaded. This woman was apparently transporting two loaded handguns, so even if the NYNJ Port Authority Police had been inclined to respect the FOPA -- she wasn't in compliance.

I have seen a couple of different articles on this case. Most of them make prominent mention of the "fact" that she didn't have a permit "for those guns." They don't seem to be aware that, although NY lists on the permit the specific firearms you are licensed to carry, most states (including Connecticut) do not. Of course, assuming that she does have a Connecticut permit, she didn't have it with her, which is probably a violation of Connecticut law. But New York doesn't recognize the CT permit anyway, so it's a matter of speculation whether or not having her permit with her might or might not have saved her from being arrested.

I guess we can assume that she missed her flight?

 

[44 AMP]

No, I don't think her having her CT papers with her would have made any difference.

She broke the law, in a way not covered by FOPA the moment she crossed the NY state border with the guns physically in her possession.

The report also says they had loaded magazines in the case with them. Violation of shipping regulations right there. Not sure about NY, but many places consider a loaded magazine, not in the gun, but in the same container as the gun to be legally a "loaded gun".

The FOPA protects us (to an extent) as long as the guns are legal at the starting point of the trip and at the ending point of the trip. As long as we are just "passing through" restrictive areas (certain specified stops are allowed) we are covered under the law.

But other than "pit stops" the trip through the restrictive area must be direct.
When the guns are in you physical possession. But there is a catch, if you have the guns in your possession and are not covered under FOPA (or local authorities don't recognize that you are) you can and will be arrested if you are in violation of local law.

For example, if you are flying and your plane lands you in NY or NJ, and you are forced to spend the night due to airplane trouble, pick up your travel case, but DO NOT pick up your guns. Leave them in the possession of the airline. Otherwise, you are breaking local law, and will spend time and a lot of money proving to the state that you are covered under FOPA.

If that woman had begun her travel at Harford, checked her guns at the airport there, complied with all rules (like UNLOADED etc.) then she would not have been arrested in NY.

I'm not entirely sure FOPA applies here, I can see where an argument can be made either way.

 

[Aguila Blanca]

Well, of course, FOPA should apply, but as I mentioned, the way the law is written just doesn't make it at all clear that it applies to situations like checking into an airline at an airport.

And, as I mentioned and you confirmed, she wasn't in compliance with the FOPA requirements anyway. The FOPA requires that the firearm(s) be unloaded -- hers were loaded. So she wasn't covered by the FOPA even if the Port Authority cops had been inclined to recognize the law.

That's why I posted this -- if we're going to attempt travel under the (dubious) protection of the FOPA, we have to begin by understanding what it says, and be sure we are in compliance.

 

[44 AMP]

The link says there were loaded magazines with the pistols. Doesn't say if they were in the pistols or just in the same case. Either way it doesn't matter, gun + ammo in the same case = loaded gun for DOT transport requirements.

One could argue that her "trip" began when she left home, and here guns were legal in her home state. I have no idea if they would be legal in CA, which was her destination. IF not, FOPA can't apply. FOPA requires your guns to be legally possessed at your destination, as well as at the beginning of your trip. BUT even if they are legal in CA, the issue is that she took them into NYC, (where they are not legal), AND took personal possession of them there (carried them into the airport). The guns being "loaded" just adds to the issue.

IF she had the guns, properly stored for transport (unloaded, ammo in a separate container) in the trunk of her car, and was driving THROUGH NYC to CA, THEN, FOPA could apply, provided her trip was planned to be straight through NYC and onwards.

It doesn't say, but we will assume she drove to the NYC airport, but it doesn't really matter, if she drove her own car, or took the bus, train, or taxi. The moment she picked up the gun cases she was in physical possession, without the required permits, and so, in violation of NY law.

I last dealt with a version of this in 2003. My father passed away in northern NY and I wound up with some of his guns. Two rifles, I brought back with me, after contacting the airlines for their requirements. I was legal to possess the rifles under NY law, so I just carried them (Cased, unloaded) into Albany airport, and checked them under the rules of the day (cases had to be unlocked for check in, so they could verify there was no ammo, etc).

3 handguns, had to be handled differently. I could not legally possess them in NY, because I no longer had a valid permit for them. My brother, who did have a valid permit for them had to take them to an FFL dealer, and have them shipped to my FFL dealer, something I had anticipated, and had already informed my home state FFL dealer was going to happen. After the NY dealer got a signed copy of my home state dealer's FFL, he shipped the pistols, and I picked them up from my dealer, in total compliance with state and federal laws.

yes, this woman was a fool, and she will pay for it. Even though it wouldn't have mattered in NY, not having her CT permit with her is just icing on the cake, so to speak.

I do not think FOPA protects you if you take guns where you are not legal to have them, and THEN try to check them with an airline for further travel.

 

[62coltnavy]

There is no regulation under FOPA or the TSA requiring ammunition to be in a separate container from a firearm. Rather, a magazine, for reasons no one can fathom, a magazine is not an "approved container" for airline travel. One is required to have the boolits in either the original packaging in which it was sold or an ammunition tray, and it is perfectly acceptable to have that container locked up with the firearm. Moreover, under FOPA, a fully enclosed trunk of a car is a "locked container" for the purposes of both ammo and firearms. Finally, although I am not aware of all of the laws of all of the states, the majority have no laws at all requiring ammunition to be stored in a locked container, and in fact, ammunition can be carried in the passenger compartment. Which means that if you go to your LGS or WalMart and buy ammo, there is no prohibition of throwing it in the back seat on your way home. Or the front seat. Or in your lap. Instead, all of the laws are worried about the firearm itself, and separation of the arm from the occupants (absent a valid CCW).

 

[62coltnavy]

By the by, this is the applicable DOT regulation:

Title 18 U.S.C. 926a: Interstate transportation of firearms

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, 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: 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.

Please note that the last clause says "in a locked container", not "in separate locked containers."

 

[Lohman446]

I believe that a magazine, being a component of the firearm, is classified as the firearm being loaded if it is in fact loaded.

 

[press1280]

FOPA basically has no protection with regard to airline travel due to two cases(from the 2nd and 3rd circuits).
National reciprocity would be a good fix.

 

[Aguila Blanca]

Finally, although I am not aware of all of the laws of all of the states, the majority have no laws at all requiring ammunition to be stored in a locked container, and in fact, ammunition can be carried in the passenger compartment.

Be careful with that. While "the majority" of states may not have regulations addressing the transport of ammunition, some do -- and they don't always follow the FOPA. As I've commented on other occasions, New Jersey (for example) does recognize the basic principle of the FOPA. However, as the NJ version appears on their state police web site, where the end of the FOPA says the firearm "or" the ammunition must be in a locked case, NJ says "and". Although you may be technically correct that locking both the gun and ammo in the same case satisfies that requirement, NJ being NJ I have always interpreted it to mean separate locked cases. When I have driven the length of the NJ Turnpike on my way to New England, I locked the guns in gun cases and I tossed the ammo into an old Sears toolbox and put a cheap padlock on that.

http://www.njsp.org/firearms/transport-firearm.shtml

All firearms transported through the State of New Jersey:

The following guidelines are provided in order to assist law enforcement officers in applying New Jersey's firearms laws to persons who are transporting firearms through the State of New Jersey.

I. New Jersey laws governing firearms permits, purchaser identification cards, registration and licenses do not apply to a person who is transporting the firearm through this State if that person is transporting the firearm in a manner permitted by federal law, 18 U.S.C.A. 926A.
II. This federal law permitting interstate transportation of a firearm applies only if all of the following requirements are met:

A. The person's possession of the firearm was lawful in the state in which the journey began;
B. The person's possession of the firearm will be lawful in the state in which the journey will end;
C. The person is transporting the firearm for lawful purpose
D. The firearm is unloaded
E. The firearm is not directly accessible from the passenger compartment of the vehicle
F. The ammunition is not directly accessible from the passenger compartment of the vehicle
G. If the vehicle does not have a compartment separate from the passenger compartment, the firearm and ammunition must be in a locked container other than the vehicle's glove compartment or console;
H. The person is not

1. a convicted felon
2. a fugitive from justice an addict or unlawful user of drugs, or
3. an illegal alien​

I. The person has not

1. been adjudicated to be a mental defective
2. been committed to a mental institution
3. been dishonorably discharged from the armed forces, or
4. renounced his United States Citizenship​

III. A person who is transporting a firearm though the State of New Jersey in the manner permitted by person's possession 18 U.S.C.A. 926A, see Section II above, need not give notice.
IV. Procedures for Investigation of Conduct Involving the Possession or Transportation of Firearms

A. An officer who reasonably suspects that a person is transporting a firearm in violation of New Jersey law should make reasonable inquiries in order to confirm or dispel that suspicion.
B. In a case where circumstances reasonably indicate that the person's possession and transportation of the firearms my be permitted by 18 U.S.C.A. 926A, the officer should make reasonable inquiries in order to determine whether the person's possession is permitted by that federal law.
C. If reasonable inquiries lead an officer to conclude that the person's possession is lawful under either New Jersey law or 18 U.S.C.A. 926A, as described above in Section II, the officer should promptly allow the person to proceed.
D. Whenever an officer has probable cause to believe that a person's possession of a firearm is in violation of New Jersey law and not permitted by 18 U.S.C.A. 926A, as described above in Section II, then the officer should make an arrest.​

Connecticut does the same thing: https://www.cga.ct.gov/current/pub/chap_529.htm#sec_29-38d

(b) During the transportation of a firearm through this state as authorized in subsection (a) of this section, such firearm shall be unloaded and neither such firearm nor any ammunition being transported shall be readily accessible or directly accessible from the passenger compartment of the vehicle. If the vehicle does not have a compartment separate from the passenger compartment, such firearm shall be unloaded and such firearm and any ammunition being transported shall be contained in a locked container other than the glove compartment or console.

Finally, although I am not aware of all of the laws of all of the states, the majority have no laws at all requiring ammunition to be stored in a locked container, and in fact, ammunition can be carried in the passenger compartment. Which means that if you go to your LGS or WalMart and buy ammo, there is no prohibition of throwing it in the back seat on your way home. Or the front seat. Or in your lap.

I've just cited two states that DO prohibit transporting ammunition where it can be accessed from the passenger compartment. In fact, the FOPA itself addresses this -- but your example of buying ammo at Wal-Mart and bringing it home doesn't apply unless you shop at a Wal-Mart in a different state from where you live. Note:

... and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: ...

 

[62coltnavy]

Well, again, if you have a trunk, it constitutes a locked container. No trunk, then you need a locking case. And as you note, there is nothing in any of these statutes that require ammo to be separate from the firearm, only separate from passengers. There are many people who lock them in separate containers, but it is not required. Yes there are some weird states, including NJ which bans HPs except in the home, so there you will ALWAYS want your ammo secured in a locked container. The same for D.C., which last I knew defined "ammunition" as any component of a cartridge, including bullets, primers, and casings--even fired brass and spent shells, the possession of ANY of which, unless one has a firearm of the SAME CALIBER registered with the City, is illegal.

[Why the ammo should be separate from passengers doesn't make a lot of sense--it isn't any good without a matching gun. And it is a trap for anyone who has the misfortune of having a few loose rounds rolling around under the seat from a range or hunting trip. There was a lawyer in D.C. whose ex-wife retaliated against him and dropped a dime on him by telling the police he had guns in his home. One of the charges was for a spent casing from his last successful hunt (the matching rifle being stored and in Va.)

As to magazines, that is a sticky wicket. For some purposes they may constitute a "firearm" part, but may not for the purpose of transportation. The California statute has quite vague wording as to what constitutes a "loaded firearm", but has been interpreted to mean that the magazine (or round or shell) has to be inserted into the firearm for the firearm to be considered "loaded." A loaded magazine in the same case as a firearm is not a loaded weapon. Federal law is the same. As I said before, no one knows why TSA objects to loaded magazines; they are quite safe in there and not likely to discharge. Ever.

One last note: never EVER consent to a search of your vehicle. Force them to get a warrant (because in the vast majority of cases they do not have probable cause and will not be able to get one). Cops will go to great lengths to try to convince you to consent, and the harder they try, the less likely it is that they have probable cause. Without a warrant, they cannot open your trunk or look in your luggage--or your gun cases. And to be sure, there are any number of cops who will use any excuse they can think of, on some stretches of highway, to pull over vehicles with out of state plates, hoping to find something they can charge you with.