Accidentally Bringing a Gun to the Airport, the Arrest and TSA Civil Penalty

What happens if you accidentally bring a knife or a gun in your carry-on bag? If you don't realize the mistake until you go through the screening process then under Florida law you can face criminal charges for:

• carrying a concealed weapon (other than a firearm) without a permit (a first degree misdemeanor); or

• carrying a concealed weapon with a permit in a restricted area (a second degree misdemeanor); or 

• carrying a concealed firearm (a third degree felony). 

• carrying a firearm into an airport terminal, in violation of section 790.06(12), Florida Statutes, a second degree misdemeanor under § 790.06(12)(d), Fla. Stat. (2011).

All three of these offenses have a knowledge or "mens rea" element that requires the prosecutor for the State of Florida 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.

For an arrest at the Tampa International Airport in Hillsborough County, bringing a weapon or firearm to the airport will usually result in an arrest even if it is clear the person did it on accident. In other words, in many of these cases, the evidence is overwhelming that the individual did NOT realize that the weapon was in the luggage. Although such arrests are common, that individual may have a valid defense to any criminal charge if he or she did not "KNOW" that the firearm was in the luggage.

Over the years, we have represented dozens of clients charged with carrying a concealed weapon or firearm at Tampa International Airport. We fight these cases aggressively. If our client didn't know that the weapon or firearm was in the carry on luggage, then we take depositions of all witnesses and file motions to dismiss the criminal charges. Call us at 813-250-0500 for a free consultation to discuss your case.

TSA Notice of Violation and Civil Penalty Assessment Order

Not only will you face the criminal charges, but 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 take the appropriate action as specified in the notice which might include:

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; or
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 appropriate 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 mail 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.

Look at your notice carefully and talk with an attorney in order to determine what the options might be in your particular case. For many individuals, the proposed penalty is excessive given their economic circumstances. It might be possible to negotiate with the NOV Program Office for 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

B. Security Violations by Individuals for Prohibited Items Discovered in Checked Baggage - 

Applicable TSA Regulation: 49 C.F.R. § 1540.111(c)

Weapons

• Firearms

1. Loaded (or accessible ammunition) - $1,000 - $2,000 Plus Criminal Referral
2. Unloaded - and undeclared/not properly packaged - $500 - $1,000

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

• Explosives

• Blasting Caps, Dynamite, Hand grenades, Plastic explosives and all other “high explosives- $6,000 - $10,000 Plus Criminal Referral
• "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

C. Other Security Violations by Individuals or Persons

1. Interference With Screening (49 C.F.R. § 1540.109 )

a. Physical contact - $1,500 - $5,000
b. Non-physical contact - $500 - $1,500
c. False Threats- $1,000 - $2,000

2. Entering Sterile Area Without Submitting To Screening (49 C.F.R. § 1540.107) - $1,000 - $3,000

3. Tampering or interfering with, compromising, modifying, attempting to circumvent, or causing a person to tamper or interfere with, compromise, modify or attempt to circumvent any security system, measure, or procedure. (49 C.F.R. § 1540.105(a)) - $1,000-$3,000

4. Entering or being present within a secured area, AOA, SIDA, or sterile area without complying with the systems measures or procedures being applied to control access to, or presence or movement in, such areas. (49 C.F.R. § 1540.105(a)(2)) - $2,500-$6,000

5. Improper use of airport access medium. (49 CF.R. § 1540.105(a)(3)) - $1,000-$3,000

6. Fraud and Intentional Falsification (49 C.F.R. § 1540.103) - $2,500-$6,000 Plus Criminal Referral

7. Failure to allow inspection of airman certificate, Authorization, or FAA license. (49 C.F.R. § 1540.113) - $1,000-$3,000

Conclusion

If you have been arrested or given a notice to appear after being accused of a weapon or firearm charge at Tampa International Airport, then contact an experienced criminal defense attorney at the Sammis Law Firm. Call us at 813-250-0500 to discuss fighting the criminal charge and resolving the TSA's notice of violation and civil penalty assessment order that will follow.

We also represent clients after their money or other property is seized for forfeiture by an agent with the Department of Homeland Security in Tampa, FL, and the surrounding areas.

Call an attorney at the Sammis Law Firm at 813-250-0500 to discuss your case today. 

Fifth DCA Rejects Shelton Case: Finds Florida Drug Laws Constitutional

In Carreras v. State issued on March 2, 2012, Florida's Fifth District Court of Appeals rejected a challenge to the facial constitutionality of Florida's drug statutes under the reasoning used by a federal judge in Shelton v. Secretary, Department of Corrections, 23 Fla. L. Weekly Fed. D11 (M.D. Fla. July 27, 2011).  In the Shelton decision, a federal judge found Florida's drug laws to be unconstitutional because they did not contain a mens rea element. Florida's First District Court of Appeals reached a similar conclusion in Flagg v. State, 74 So. 3d 138 (Fla. 1st DCA 2011).

The same issue raised in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So. 3d 117 (Fla. 2011). Now we wait for the decision from the Florida Supreme Court. A the federal level, the Shelton case is currently on appeal to the Eleventh District Court of Appeals.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2012

ARTHUR CARRERAS,
      Appellant,
v.                                                            Case No. 5D11-1777

STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed March 2, 2012

Appeal from the Circuit Court
for Osceola County,
Scott Polodna, Judge.

James S. Purdy, Public Defender, and
Nancy Ryan, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Megan Saillant,
Assistant Attorney General, Daytona
Beach, for Appellee.

PER CURIAM.

Arthur Carreras ["Carreras"] appeals his judgment and sentence for tampering with physical evidence, possession of twenty grams or less of cannabis, and possession of drug paraphernalia.  He argues that his conviction for possession of twenty grams or less of cannabis, and for possession of drug paraphernalia, should be vacated because section 893.101, Florida Statutes (2009) has been held to be facially unconstitutional in Shelton v. Secretary, Dep’t of Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011).

Testimony was presented during the trial that on November 5, 2010, a pick-up
truck took a turn too close, causing the driver's side exterior mirror of the pick-up truck to hit the driver's side exterior mirror of a patrol vehicle.  The law enforcement officer driving the patrol vehicle observed a white male with a beanie cap in the driver's seat of the pick-up truck, and a black male in the passenger's seat of the pick-up truck. The officer followed the pick-up truck and observed the pick-up straddling two lanes. When the officer put on the patrol vehicle's emergency lights to effect a traffic stop, the pick-up truck began to erratically brake and swerve. The officer observed objects simultaneously being thrown out of the driver's side and passenger's side window. The object thrown out of the driver's side window appeared to be larger than that thrown out of the passenger's side window, and was released by a white hand. A second law enforcement officer, who was following the first officer, observed an object being thrown out of the driver's side and passenger's side window of the pick-up truck. While the first officer was effecting a traffic stop, the second officer immediately stopped and retrieved the thrown objects, which were two bags. The second officer took the bags to the site of the traffic stop and gave them to the first officer who, upon visual inspection of the bags, recognized the substance in each to be cannabis. The contents of each bag field tested positive for cannabis. The first officer identified Carreras as the driver of the pickup truck.

At trial, Carreras raised lack of knowledge of the illicit nature of the controlled substance as an affirmative defense to the charge of possession of twenty grams or less of cannabis and the charge of possession of drug paraphernalia. The trial court instructed the jury on the affirmative defense with respect to each of the said charges. The jury returned a verdict of guilty on each of the counts.  We do not credit Carreras' claim that the statute under which he was convicted is facially unconstitutional. To the contrary, this case is an illustration of the logic and propriety of section 893.101, Florida Statutes. We have already rejected the reasoning of the Shelton case.  See Flagg v. 
State, 74 So. 3d 138 (Fla. 1st DCA 2011).
1
We find no merit on the other issues raised by Carreras and decline to address them.

AFFIRMED.

GRIFFIN, TORPY and LAWSON, JJ., concur.