Follow Up to We All Make Mistakes

The information that follows was provided by a knowledgeable source, however, this should not be taken as legal advice or cited as such.  It is however, excellent information and good advice.

The outcome can vary state to state. From a civil, not criminal monetary fine, a summary citation for disorderly conduct to a third degree felony. In several states, concealed weapon with a permit in a restricted area without intent is not a felony but only a second degree misdemeanor.

The TSA has no arrest authority, but when they call the local police the locals will only call in the FBI if there is an indication fo a federal crime, otherwise local laws apply. In some states, where you are allowed to carry and have a permit, the individual has been told to take it back to their car. but usually there is an arrest even if the law enforcement officer has substantial evidence that the individual had no knowledge that the firearm was in the carry-on luggage But even with the arrest, that individual is normally innocent of criminal charges if he or she did not "KNOW" that the firearm was in the luggage.

If you're in New York, though, you're likely to see jail time.

All misdemeanor or felony offenses in such scenarios have a knowledge or "mens rea" element that requires the prosecutor for the State to prove that you knew that you were in actual or constructive possession of the weapon. In many of these cases, the person immediately explains to the TSA official or airport security that he or she did not know the weapon was in the carry-on luggage.

The Transportation Security Administration (TSA) has also started issuing notices of violation and civil penalty assessment orders in such cases. Because the regulations are civil and not criminal in nature, no knowledge requirement generally exists as an element of the violation.

The TSA provides that not all alleged violations result in a civil penalty assessment order. Instead, some violations will trigger only a "warning notice" or "letter of correction" or "no action."

In many cases, the first correspondence from the TSA is Notice of Violation that advises the individual that the TSA proposes assessing a civil penalty in an amount which does not exceed $10,000.00 for a violation of the Transportation Security Regulations (hereinafter "TSR"). If the TSA is unable to resolve the Notice of Violation by reaching an agreement with the individual who allegedly violated the regulations then the TSA will propose a civil penalty amount after reviewing all of the relevant facts and evidence contained in the investigative file.

For cases involving bringing a gun through the security screening area, the regulation violation is 49 C.F.R. Section 1540.111(a) of the TSR which provides that an individual may not have a weapon, explosive or incendiary on or about the individual's person or accessible property 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.

Click here to read the Transportation Security Regulations and select Title 49, Section 1503.

Paying the Civil Penalty or Requesting a Formal Review Hearing

After the individual receives the Final Notice of Violation and Civil Penalty Assessment Order for a TSR violation such as 49 C.F.R. Section 1540.111(a) for bringing a gun, firearm or other weapon to the airport, the individual must take action within 15 calendar days of the date of that order.

The individual must either:

1. Pay the full civil penalty amount proposed in the Final Notice of Violation and Assessment Order that states the amount of the civil penalty;
2. Submit a civil penalty amount that is otherwise agreed upon by the U.S. Department of Homeland Security NOV Program Office (TSA-801) as documented in a separate Order Assessing Civil Penalty; or
3. Request, in writing, a Formal Hearing to seek review of the basis for, or amount of the civil penalty.
• The individual must file a typewritten or legible handwritten "Request for Hearing" with the Enforcement Docket Clerk which is dated and signed by the individual in accordance with 49 C.F.R. Section 1503.16 of the TSR;
• The individual must mail the request for a hearing to the ALJ Docketing Center, Attn: Enforcement Docket Clerk, U.S. Coast Guard, 40 S. Gay Street - Room 412, Baltimore, MD 21202-4022;
• The individual must also main a copy of the "Request for Hearing" to the United States Department of Homeland Security, Transportation Security Administration (TSA), NOV Program Office (TSA-801), 601 S. 12th Street, Arlington, VA 20598-6801.

For many individuals, the proposed penalty is excessive given their economic circumstances. Negotiating with the NOV Program Office may result in a substantially lower penalty. Other direct and indirect consequences attach, including enhanced penalties for a subsequent violation.

TSA's Enforcement Sanction Guidance for Bring Weapon to Airport

In determining the amount of the civil penalty, the TSA will consider certain aggravating factors including:

1. Artful concealment;
2. Number of weapons, or volume of explosives and incendiaries;
3. Type of weapon, explosive or incendiary;
4. Display or use of weapon, explosive or incendiary;
5. Past violation history of violator;
6. Experience level of violator (e.g., airport/air carrier employees are trained and experienced).;
7. Evidence of intent to interfere with operations (e.g., testing the system with a prohibited item, attempting to enter sterile area with prohibited item after previously being allowed to leave in order to divest); and
8. Attitude of violator.

The TSA will also consider certain mitigating factors such as:

1. Disclosure by violator;
2. Inexperienced flyer;
3. Violator is a juvenile; and
4. Other penalties assessed by federal, state, or local law enforcement.

A. Security Violations by Individuals for Prohibited Items Discovered at Checkpoint/Sterile Area/Onboard Aircraft - Applicable TSA Regulation: 49 C.F.R. § 1540.111(a)

Weapons

• Firearms

i. Loaded (or accessible ammunition) - $3,000 - $7,500 Plus Criminal Referral

ii. Unloaded - $1,500 - $3,000 Plus Criminal Referral

• Other weapons (this category includes sharp objects, club-like items, and other prohibited items, other than firearms, that may be used as a weapon. - $250 - $1,500

• Disabling chemicals - General penalty range - $250 - $1,500

• Incendiaries - General penalty range - $250 - $1,500

• Explosives

1. Blasting Caps, Dynamite, Hand grenades, Plastic explosives & All other “high explosives” - $6,000 - $10,000 Plus Criminal Referral
2. Ammunition (note: See exception for ammunition in Checked Baggage, 49 C.F.R. § 1540.111(d)), Fireworks, Flares in any form, Gunpowder (note: volume over 10 ounces standard package justifies use of Penalty Range A.)- $250 - $1,500