Challenging NY's Ban on Air Travel with Guns

[ELB]

I have recommended before that you visit Dave Hardy's blog, Of Arms and the Law. Today he has a post of particular interest. I am going to copy it verbatim, but you have to go to his blog to get the links. I recommend you do so.

http://armsandthelaw.com/archives/2009/ ... p#comments" onclick="window.open(this.href);return false;

Guide to interstate transport of firearms
Posted by David Hardy · 25 August 2009 11:53 AM

NRA has just released the latest edition of its comprehensive Guide to the Interstate Transportation of Firearms [link].

It includes a section on the suit brought against the NY Port Authority, which is in the habit of violating the protections given by the Firearm Owners Protection Act. Here are links to the opening brief[link] and here's the reply.[link]

I recommend going to Hardy's post, hitting the link, and reading at least the first brief. The NRA is assisting two men in suing the NY Port Authority and individual officers who prevented these men from legally flying with their guns (and arresting one of them). The brief pretty well lays out that the NY Port Authority, and a certain federal lower court, explicitly disregard the FOPA and believe that NY state law on guns pre-empts any federal law. Indeed, if the brief is correct, in the opinion of the lower court if you have a gun, you are a suspect -- no other evidence is needed. Basically, if you bring a gun to the airport to check in your bags, you will be arrested unless you have a NY permit for the gun, in which case you will be denied boarding.

Here's a couple quotes from one of the airport police involved, to whet your appetite. I added some explanatory notes in [square brackets].

Torraco [the traveler, who was subsequently arrested along with his wife] urged [Port Authority Police Sergeant] Goldberg to call the state prosecutor or other person who would know about § 926A [the FOPA statute]. Goldberg “told me federal law does not apply in the State of New York. He told me very condescendingly that he ain’t calling nobody and that I was in his jurisdiction.”

[Counsel for the Port Authority PD] Ms. Miller: I just want to say on the record, with respect to this
particular statute, 18 U.S.C. 926(A) [the FOPA Statute], the Port Authority has responded
in writing that we don’t specifically train to this statute.

Remember, these are not regular beat cops in the city -- these are airport police, at large airports that have thousands and thousands of travelers..why should they be familiar with any pre-emptive federal law on travel...

Another quote from the lower court, citing the good sergeant's testimony...

“Sgt. Goldberg testified that he makes about 50 firearms arrests a year at LaGuardia, and in about half of those, the suspects [my emphasis] assert some claim of legal entitlement . . . .”

A TSA supervisor turns out the be the only clued in official on the scene, but the locals ignored him...

[jimlongley]

TSA has no responsibility to enforce the state's laws.

That said, and I have included it in part of my presentation in October, mostly as a warning, the DAs of Albany NY and NY City have stated, on the record, that they will prosecute, as felons, anyone violating NY's laws, Gun Owner Protection Act notwithstanding.

[dicion]

Oh man, I read through the entire thing, which is normally hard to do, but this was SO Interesting!
This was blatent disregard of the law by the officers that arrested this guy. The guy, AND the TSA even informed them of the Federal Preemption, and they ignored them.

Whether you agree with the Federal Government's laws preempting the states, or not, the fact is, this is the law at the time, and they completely ignored it.
This guy has a killer case, and it appears theyre going for blood, meaning neglegence against the officers themselves as well.

I sincerely hope the appeal succeeds and they throw the book at the Port Authority on this one.

[ELB]

... the DAs of Albany NY and NY City have stated, on the record, that they will prosecute, as felons, anyone violating NY's laws, Gun Owner Protection Act notwithstanding.

As the brief points out, the FOPA means in fact that travelers with firearms are NOT violating NY's laws. As statement like above from a DA means that the DA is the criminal, and a far worse criminal than any other. As I indicated above, the federal DOJ needs to be investigating guys like these.

elb

p.s. JimLongley, do you have an original source for the DA's statements? I would find it helpful to have.

elb

[jimlongley]

... the DAs of Albany NY and NY City have stated, on the record, that they will prosecute, as felons, anyone violating NY's laws, Gun Owner Protection Act notwithstanding.

As the brief points out, the FOPA means in fact that travelers with firearms are NOT violating NY's laws. As statement like above from a DA means that the DA is the criminal, and a far worse criminal than any other. As I indicated above, the federal DOJ needs to be investigating guys like these.

elb

p.s. JimLongley, do you have an original source for the DA's statements? I would find it helpful to have.

elb

I do, but it will take me a little while to locate it, it's on the other computer with the presentation.

[ELB]

...

I do, but it will take me a little while to locate it, it's on the other computer with the presentation.

Thanks! No hurry, whenever you get to it.

[davidtx]

jimlongley: Sorry to resurrect this thread, but did you ever find the original source? Do you know if Albany is still taking this position? (I can't find anything via Google)

[ELB]

I was just thinking of resurrecting this thread. Unfortunately, a panel of the Second Circuit Court ruled against the plaintiffs, basically saying in practical effect if not words, the local cops can ignore the FOPA. I do not know anyone will try to carry this forward to the SCOTUS or not, in light of other recent rulings.

This is a link to the decision:
http://www.ca2.uscourts.gov/decisions/i ... /8/hilite/" onclick="window.open(this.href);return false;

I have not read it in detail, but again, the practical effect is that if you are found trying to check a gun at an airport in NY or NJ (and most probably, if found with a gun while traveling thru NY or NJ), the police have no obligation to obey the federal preemption law. If you have a NY license for the gun, the best you can hope for is they will simply not let you board the aircraft (versus arresting you). If you do not have a NY license, because you are an out-of-state traveler, the police can, and most likely will, simply arrest you, confiscate your gun(s), and let the courts sort it out. You may get released and charges dismissed, and maybe get your gun back months down the road, but it will of course cost you big time.

Note that these were not people who were suspected of any other crime -- the police had no indication that anything they were doing was otherwise illegal, that they were in anyway criminals. It was simply about possession of a firearm while traveling.

[jester]

According to the Golden Rule, they're showing how they want to be treated if they carry a gun outside NY.

[jimlongley]

jimlongley: Sorry to resurrect this thread, but did you ever find the original source? Do you know if Albany is still taking this position? (I can't find anything via Google)

Sorry, got busy with other stuff back then. I don't know if Albany is still doing so, but the holding in Beach v Kelly certainly empowers them to do so. Maybe this will be the next SCOTUS test.

Note highlights added, according to NY, possession of a handgun is a privilege, not a right. There are a couple of other court cases and statements by DAs that I cannot find now, but they all say pretty much the same thing, NY law overrules federal.


Matter of Beach v Kelly
2008 NY Slip Op 05814 [52 AD3d 436] [52 AD3d 436]
June 26, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 13, 2008


In the Matter of David Beach, Respondent,
v
Raymond Kelly, as Statutorily Designated Handgun Licensing Officer and as Police Commissioner of the City of New York, Appellant.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for appellant.

The Law Offices of John S. Chambers, New York (John S. Chambers of counsel), for respondent.

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered May 30, 2007, annulling respondent's revocation of petitioner's pistol license and directing reinstatement of the license, unanimously reversed, on the law, without costs, the petition denied, respondent's determination reinstated and confirmed, and the proceeding dismissed.

Petitioner held a premises residence pistol permit that had been suspended on two prior occasions for violation of the license terms. This time, he took his handgun to Nevada to attend a gun convention, even though the license permitted him to carry the firearm only to small arms ranges/shooting clubs and authorized hunting areas.

Petitioner argues that notwithstanding any other provision of law, rule or regulation of any state, the Firearm Owners' Protection Act (FOPA) (18 USC § 926A) permits the transportation of firearms for any lawful purpose between two places where an individual may "lawfully possess and carry" the firearm. Since he was permitted to carry his gun in New York and held a license to carry a firearm in Nevada, he asserts the agency's determination was arbitrary and capricious.

Possession of a handgun is a privilege, not a right, and is subject to the broad discretion of the New York City Police Commissioner (Matter of Papaioannou v Kelly, 14 AD3d 459 [2005]). The power to issue a license for such purpose necessarily and inherently includes the authority to impose conditions and restrictions (People v Thompson, 92 NY2d 957, 959 [1998]). The fact that it was lawful for him to carry his firearm to a small arms range/shooting club or designated hunting area is beside the point. Petitioner violated the terms of his premises residence license when he carried his firearm to and from the airport for his trip to Nevada.

It is not necessary to permit holders of premises residence firearms licenses to transport guns to another state in order to harmonize the law of this State with the provisions of FOPA. Section 926A permits a licensee, in certain circumstances, to transport a firearm "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." Where the licensee is not permitted by the terms of the license to lawfully carry the firearm at the time he embarks on a trip to another state, FOPA is inapplicable. [*2]

Moreover, petitioner testified at the administrative hearing that he had been informed by personnel of the License Division that he was not permitted to take his gun to Nevada without written permission from the Division. He chose to disregard this advice and follow his own interpretation of the law. The agency's determination that petitioner violated the terms of his premises residence firearms license was not arbitrary and capricious. Concur—Saxe, J.P., Nardelli, Moskowitz, Acosta and DeGrasse, JJ. [See 16 Misc 3d 807.]

[Beiruty]

Maybe after last Month SCOTUS ruling, those rulings are void and null.

[jimlongley]

Maybe after last Month SCOTUS ruling, those rulings are void and null.

Maybe so, but I wouldn't bet on it.

[A-R]

Maybe after last Month SCOTUS ruling, those rulings are void and null.

Maybe so, but I wouldn't bet on it.

I see no way McDonald ruling on its own could render above null & void. But it could be the foundation of another legal challenge. Of course, IANAL so what do I know.

[ELB]

My two cents: The Heller and McDonald cases recognized that self-defense is a fundamental, individual right, but in terms of scope only dealt specifically with handguns for self-defense in the home. So in Beach vs Kelly, the Court's statement that handgun possession is a privilege, not a right, is obviously negated. But the rest of it, about transporting a handgun, is not directly addressed, so that remains to be brought to court.

[srothstein]

The interesting part in the decision is the logic for the ruling. I think it left the case open for further proceedings if refiled. Note that this is a civil case and has no bearing on the criminal charges (if any) that were filed (and dismissed) for illegal possession of firearms.

The problem with the case is the lawsuit against the officers was filed in federal court for civil rights violations. To sue an officer under the section used, there must be a RIGHTS violation and not just a violation of the law. The court very carefully examined, under prior SCOTUS standards, the federal pre-emption law for travelers and said that Congress never intended this to create a right. The other rights claims were doomed to begin with (right to travel was doomed because the plaintiffs were all allowed to travel after some delays and the right against false arrest was doomed because the arrest was lawful - there was a prima facie legal violation the officers could charge with - this has long been the problem with defenses instead of exceptions).

So, while Heller and McDonald have declared a pistol for self-defense a right, they are limited to pistols and the home. This case, if appealed to SCOTUS, could make basic traveling with a firearm a right, and I could see this coming as a logical conclusion. I can also see this case being kicked out of the federal court system (dropped now by the plaintiffs) and refiled in the state court system for false arrest/harassment/etc. civil liability. Personally, I hope they take it to SCOTUS who will make the 926A law a right also. I think it is a winner and not too hard for even the liberal justices to find for the plaintiffs. They should be upset at the state ignoring federal law.