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October 27, 2013, 07:50 AM | #1 |
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NYC Arrest of "defaced" guns?
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.
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October 27, 2013, 08:04 AM | #2 | |
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October 27, 2013, 09:25 AM | #3 | |
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October 27, 2013, 09:30 AM | #4 | |
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"Our contract called for 16 cases of rifles and ammunition for $10,000 dollars, not a machine gun...........That is our present to the General"-Pike Bishop “When fascism comes to America, it will be wrapped in the flag and carrying a cross.” |
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October 27, 2013, 09:53 AM | #5 | |
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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! into NY state. |
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October 27, 2013, 10:38 AM | #6 |
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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.
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October 27, 2013, 10:44 AM | #7 | ||
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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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October 27, 2013, 10:54 AM | #8 |
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NYC Arrest of "defaced" guns?
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. |
October 27, 2013, 12:08 PM | #9 | |
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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.
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October 27, 2013, 12:34 PM | #10 | ||
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U.S. v. Adams, 305 F.3d 30 (Fed. 1st Cir., 2002, emphasis added):
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October 27, 2013, 12:53 PM | #11 | |
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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: Quote:
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October 27, 2013, 01:03 PM | #12 |
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NYC Arrest of "defaced" guns?
Well it seems anyone in NY state better not cerakote, hydrographic, home camo, or in any other way modify the finish of their firearm.
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October 27, 2013, 01:33 PM | #13 | |
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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. Quote:
The decision was published on Sept. 13, 2013. You can read that decision here: http://www2.ca3.uscourts.gov/opinarch/123621p.pdf |
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October 27, 2013, 02:08 PM | #14 | ||
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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? Quote:
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.
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October 27, 2013, 02:41 PM | #15 |
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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.
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October 27, 2013, 02:58 PM | #16 | ||
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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... Quote:
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October 27, 2013, 03:08 PM | #17 |
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NYC Arrest of "defaced" guns?
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. |
October 27, 2013, 06:29 PM | #18 | |
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Al Norris, thanks for the information!
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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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October 28, 2013, 12:10 AM | #19 | |
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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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October 28, 2013, 07:40 AM | #20 |
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From the court decision in Al Norris's post above:
"It is plain from the latter condition that the statute protects only transportation of a firearm in a vehicle,..." Since when is an aiplane not a type of vehicle? From Wiki: http://en.wikipedia.org/wiki/Vehicle |
October 28, 2013, 08:14 AM | #21 | |||
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As a final note, at least this circuit is being consistent in its judgments. |
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October 28, 2013, 09:15 AM | #22 |
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So the moral of all this is for us not to travel with firearms in the 3rd District if we might have to rely on the FOPA ...
Great. It's a wonderful thing that we're all subject to the same laws, everywhere in the country. |
October 29, 2013, 11:30 AM | #23 | |
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The rulings point out a crucial difference between our general understanding of what FOPA does, and what it actually does. We say FOPA protects us from the "bad" gun laws while we travel, if it is legal where we start, and legal where we are going, and generally that is accurate, if imprecise. What the rulings have shown is that while FOPA "protects" us, it only does so if we do not have possession of the weapon in an area where it is illegal to do so. It is a defense against conviction when the state accuses you of illegal possession, and you actually are not in possession. Otherwise, basically, you are toast. So, FOPA protection hinges on possession. And possession is defined by whether or not you have access to your firearm, not on whether or not you actually do have it in your hands. FOPA was intended to also cover us in those situations where you could have legal possession, but not physical possession. Fuel/rest stops, for instance, where the gun (cased) is in the trunk and you have access to the trunk (legal possession) yet do not take physical possession (remove it from the case, or the case from, the trunk). Regardless of the intent of FOPA, the interpretation of what was actually written as law appears to be that if you have the gun in your possession, where it is illegal, you will be charged (and likely convicted). Carrying the gun into the airport to check it as baggage is clearly in your possession. Both in legal and physical terms.
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October 31, 2013, 11:34 AM | #24 | |
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Here in FLA CCW in an ariport terminal is a no-no regardless of were you are in the building
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October 31, 2013, 11:47 AM | #25 |
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NY State law makes no distinction for airports or almost all other buildings. Typically, the only prohibited areas are the federal restrictions, the state equivalents and universities/schools. It's one of those areas where "anti-gun NY" is actually better than most supposed "gun friendly" states. There are a few weird ones but not like people would assume.
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