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 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. 



      Carrying a Firearm into an Airport Terminal under Florida Statue 790.06(12)


      In State v. Hall, 22 Fla. L. Weekly Supp. 76a (June 9, 2014), the the court in Broward County, FL, found that Section 790.06(12), which provides that any person who “knowingly and willfully” violates prohibition on carrying firearm into airport terminal commits misdemeanor of second degree, is a general intent crime which does not require the state to prove that defendant specifically intended to carry firearm into the airport terminal.

      Instead, the court found that sufficient knowledge and intent may be inferred from facts, if proven, that defendant knowingly put firearm into bag and willfully brought bag into terminal. Therefore, it was an error for the trial court to grant the motion to dismiss.

      In the opinion, the appellate court found:

      THIS CAUSE, comes before the Court, sitting in its appellate capacity, on the State's timely appeal of the trial court's order granting Appellee's motion to dismiss. Having reviewed the appellate file, the record on appeal, and the applicable law, this Court hereby finds as follows:

      On April 18, 2011 Appellee was issued a notice to appear for carrying a firearm into an airport terminal, in violation of section 790.06(12), Florida Statutes. (R 1-2.)

      Section 790.06(12) states that “any person who knowingly and willfully violates any provision of this subsection commits a misdemeanor of the second degree.” § 790.06(12)(d), Fla. Stat. (2011) (emphasis added).

      On November 1, 2011 Appellee filed a sworn motion to dismiss, pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), alleging that he did not “knowingly, willfully or intentionally take a firearm into [the] airport.” (R 6-8.) The State did not file a response or traverse.

      On November 2, 2011 the trial court held a hearing on Appellee's motion to dismiss. (T 1-14.) The State argued that section 790.06(12) is a general intent crime (T 3-6) and “the fact that [Appellee] did put his bag through the x-ray machine is the actual intent that is required. He did not need to have the intent to break the law or to get the gun into airport security.

      He just needed to have the intent to put the bag in the x-ray machine, which he did. So, whether, or not it was an accident is really not up for discussion.” (T 4:9-16). Appellee argued that the State's case law to support its assertion that section 790.06(12) is a general intent crime was inapplicable because it was interpreting a previous version of the statute that used the word “intentionally” instead of the current language of “knowingly and willfully.” (T 7-8.)

      The State replied that the change in language did not matter; the statute still described a general intent crime. (T 9.) The trial court granted Appellee's motion (T 12) and rendered a written order on the same day, November 2, 2011 (R 9). This appeal follows, with the State's notice of appeal timely filed on November 17, 2011. (R 11-12.)

      On appeal, this Court reviews de novo the trial court's order granting Appellee's motion to dismiss. See State v. Flansbaum-Talabisco, 121 So.3d 568, 573 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D1600a]; Knipp v. State, 67 So.3d 376, 378 (Fla. 4th DCA 2011) [35 Fla. L. Weekly D2898a]. In filing a motion to dismiss pursuant to Rule 3.190(c)(4), a defendant bears the initial burden of demonstrating that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt; the burden then shifts to the State to demonstrate either that material facts are actually in dispute or that the undisputed facts amount to a prima facie case of guilt. See Fla. R. Crim. P. 3.190(c)(4); Flansbaum-Talabisco, 121 So.3d 568, 573; State v. Parrish, 567 So.2d 461, 464 (Fla. 1st DCA 1990).

       In considering a motion to dismiss, the court must resolve all inferences of the evidence against the defendant and in favor of the State, and should not make any determination as to the fact issues and witness credibility. See, e.g., State v. Feagle, 600 So.2d 1236 (Fla. 2d DCA 1992). The State need only show the barest prima facie case in order to defeat a motion to dismiss. See State v. Bailey, 508 So.2d 1268 (Fla. 4th DCA); rev. denied, 518 So.2d 1273 (Fla. 1987).

      Factual issues which may be inferred from circumstances such as intent, knowledge, state of mind, or constructive possession are not the proper subject of a motion to dismiss and should be left to the trier of fact to determine. See, e.g., Deters v. State, 741 So.2d 1158 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D1979a]; State v. Hart, 677 So.2d 385 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1638a].

      This Court finds the trial court erred in granting Appellee's motion to dismiss. As the State argued at the hearing on the motion to dismiss, section 790.06(12) is a general intent crime. See State v. Perez, 783 So.3d 1084, 1085 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D2691c] (holding that section 790.06(12) is not a specific intent crime).

      Although the Court in Perez was interpreting a previous version of the statute that used the word “intentionally” instead of the current language of “knowingly and willfully,” Florida courts have found those words to be similar in their effect of creating general intent crimes. See, e.g., Linehan v. State, 442 So.2d 244, 246-48 (Fla. 2d DCA 1983), approved, 476 So.2d 1262 (Fla. 1985) (a statute containing the words “willfully” or “intentionally” without requiring any subjective intent to accomplish a particular prohibited result describes a general intent crime; “[a] person's subjective intent to cause the particular result is irrelevant to general intent crimes because the law ascribes to him a presumption that he intended such a result”); see also Frey v. State, 708 So.2d 918, 919-20 (Fla. 1998) [23 Fla. L. Weekly S123a] (finding an offense to be a general intent crime where the statute requires no “heightened or particularized” intent and only a general intent to “knowingly and willfully” commit the offense).

      Because the offense charged is a general intent crime, it is not necessary for the State to prove that Appellee specifically intended to carry his firearm into the airport terminal. Sufficient knowledge and intent may be inferred from certain facts if proved, such as Appellee's actions of knowingly putting the gun in his bag and willfully bringing the bag into the airport terminal.

      The State has demonstrated that the undisputed facts may establish a prima facie case of guilt. The ultimate issue of whether Appellee knowingly and willfully carried the firearm into the airport is not the proper subject of a motion to dismiss and should be left to the trier of fact.

      Accordingly, it is hereby

      ORDERED AND ADJUDGED that the trial court's order granting Appellee's motion to dismiss is REVERSED and REMANDED for further proceedings consistent with this opinion.

      * * *
      This article was last updated on Wednesday, December 30, 2015.

      2 comments:

      Colleen M. Glenn said...

      Carrying a concealed firearm is a third degree felony, not a first degree misdeameanor.

      Kevin James said...

      Collen M. Glenn is you read the article and the statute carrying a concealed weapon (other than a firearm) without a permit is a first degree misdemeanor. So your statement about the article is correct. The misdemeanor is for a weapon other than a firearm and without a permit. The Third degree felony is carrying a concealed firearm. Two completely different crimes.

      Visit our office in Tampa, Florida
      Sammis Law Firm
      1005 N. Marion St.
      Tampa, FL 33602
      (813) 250-0500