The carrying of long guns and handguns in and through an airport, and on an airplane, is regulated by both Texas and federal law. Although the list of prohibited items is exhaustive, TSA rarely sanctions violators unless the item is specifically a weapon.
Under Texas law, a person cannot intentionally, knowingly, or recklessly carry a handgun on or about his or her person, unless: 1) he is on his own premises or premises under such person’s control; or 2) inside of or directly en route to his motor vehicle or watercraft—which is owned by such person or under such person’s control. Tex. Penal Code § 46.02(a)(1)–(2). Still, any handgun that may be carried in a vehicle or watercraft cannot be in plain view. Tex. Penal Code § 46.02(a-1)(1).
Additionally, a person commits an offense if the person intentionally, knowingly, or recklessly possesses or “goes with a firearm,” among other places, “in or into the secured area of an airport.” §46.03(a)(5). Secured area under Texas law “means an area of an airport terminal building to which access is controlled by the inspection of persons and property under federal law.” § 46.03(c)(2). [Federal definition of ‘Secured Area,’ infra].
Under federal law, “an individual may not have a weapon . . . on or about the individual’s person or accessible property—(1) When performance has begun of the inspection of the individual’s person or accessible property before entering a sterile area, or before boarding an aircraft for which screening is conducted under this subchapter; (2) When the individual is entering or in a sterile area; or 3) When the individual is attempting to board or onboard an aircraft for which screening is conducted under §§ 1544.201, 1546.201, or 1562.23 of this chapter.” 49 CFR § 1540.111. NOTE: Unloaded firearms (both long guns and pistols) may be checked at the ticket counter if: 1) declared orally or in writing to the aircraft operator; and 2) stored in a hard case which is locked and to which only the ticket holder has the key. 49 CFR § 1540.111(c). NOTE: Ammunition may be carried either in checked baggage or in the same hard container as the gun. Also, full-time law enforcement officers who are commissioned to enforce criminal or immigration statutes are exempt if they have completed the training program “Law Enforcement Officers Flying Armed.” 49 CFR §§ 1540.111(b) & 1544.219
Federal law defines “sterile area” as that “portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA, or by an aircraft operator . . . or a foreign air carrier . . . through the screening of persons and property.” 49 CFR § 1540.5 The term “secured area” means “a portion of an airport, specified in the airport security program, in which certain security measures specified in . . . this chapter are carried out. This area is where aircraft operators and foreign air carriers that have a security program under . . . this chapter enplane and deplane passengers and sort and load baggage and any adjacent areas that are not separated by adequate security measures.” 49 CFR § 1540.5.
NOTE: Always check with the air carrier for specific policies and procedures before arriving at the terminal.
In the vast majority of cases where someone brings a gun into either a secure or sterile area, the individual “forgot” that the gun was in his or her luggage. This lack of culpability is a defense to prosecution—which at a minimum, requires reckless mens rea. Tex. Penal Code § 6.02(a)–(c). Texas law also requires that an act be voluntary and states, “Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” Tex. Penal Code § 6.01(a), (b). NOTE: After this article was submitted for publication, the Texas Legislature voted to reduce the penalty for licensed gun owners who accidentally bring a firearm into the secure area of an airport. This bill has not yet been reviewed by the author.
In cases where an individual “forgot” a handgun in luggage, some judges have granted and issued personal recognizance bonds by faxing such bond to the airport police (see form following). This is critical where someone is in danger of missing a scheduled flight. NOTE: At Dallas/Ft. Worth International Airport, the case is likely to be filed in Tarrant County, and therefore, any PR bond would be returnable to the Criminal District Court of Tarrant County. This is the case even where the bond is granted by a district court judge for Dallas County. Oftentimes, a grand jury presentation will be sufficient to resolve a case without further prosecution. Of course, the criminal law practitioner must educate the grand jury about both the facts and the law. While federal authorities usually defer prosecution of any criminal case to the states, this does not mean that the case goes away.
Often, if not always, the client receives a letter from TSA proposing to assess a civil penalty. The proposed civil penalty is usually recommended in a particular amount (for example, $3,000). The TSA will usually offer to accept half of the penalty if paid within 30 days from the receipt of such letter.
Alternately, a party may submit evidence for consideration demonstrating either: 1) that a violation did not occur; or 2) that the proposed penalty amount is not warranted by the circumstances (including the inability of the client to pay). An individual may also request an informal conference with a TSA representative (oftentimes an attorney). This is usually the best option to negotiate down a proposed civil penalty. Finally, an individual may request a formal hearing with an administrative law judge (which would cause the TSA to file a criminal complaint to proceed). The aggravating and mitigating factors TSA considers are as follows:
1) Significance or degree of the security risk created by the violation;
2) nature of the violation (whether the violation was inadvertent, deliberate, or the result of gross negligence);
3) past violation history;
4) violator’s level of experience;
5) attitude of violator, including the nature of any corrective action taken by the alleged violator;
6) economic impact of the civil penalty on the violator;
7) criminal sanctions already paid for the same incident;
8) disciplinary action by the violator’s employer for the same incident;
9) artful concealment; and
10) fraud and intentional falsification.
Obviously, TSA differentiates between the soccer mom, who has a concealed handgun permit and just forgot that her handgun was in her carry-on bag, and the international terrorist suspect who is found to be in possession of a handgun disassembled for concealment. The sooner an individual retains a lawyer, the more likely he or she is to have a positive outcome. It is imperative to be proactive in the representation of persons charged with offenses involving the possession of a firearm within the restricted area of an airport.