Traveling with Weapons: Federal Statutes and Regulations
By Colin McKibbin, Esq., and Dan Rhoads
In 2000, 66-year-old Betty Jean Smith checked some luggage at Portland International Airport and boarded an Alaska Airlines flight to Anchorage. When a baggage handler tossed Betty’s luggage into the cargo hold, her loaded .357-caliber Ruger, one of two guns in the bag, discharged. The bullet pierced the floor of the passenger cabin and lodged in a diaper bag beneath someone’s seat, but no one was hurt.
Smith was charged with reckless endangerment and with concealing a weapon without a permit. She faced only state misdemeanor charges; however, under current federal law, Betty could have faced up to 10 years in federal prison.
A person who places, or attempts to place, a loaded firearm on an aircraft “in property not accessible to passengers in flight,” such as the cargo hold, commits a federal felony. 49 U.S.C. 46505(b)(2). Loaded firearms include starter pistols or cap guns. 49 U.S.C. 46505(a). A person convicted under this section can be fined and imprisoned for up to 10 years. 49 U.S.C. 46505(b).
It is also a federal felony to be on, or attempt to get on, an aircraft while having on one’s person or property “a concealed dangerous weapon that is or would be accessible to the individual in flight.” 49 U.S.C. 46505(b)(1). Since it would be impossible to list everything that could constitute a dangerous weapon, the legislature has left it to the courts to define the term on a case-by-case basis. U.S. v. Dishman, 486 F.2d 727, 730 (9th Cir. 1973). Therefore, it would be wise to contact an attorney familiar with federal laws involving this type of conduct before one goes on an airline flight. When in doubt as to whether an item is a permissible one, caution should be the rule of the day.
At least one court has provided some guidance. The dangerous character of an object “is determined by its capacity to inflict death or injury,” Id., or by the fact that it can easily and quickly be made likely to inflict such injury. Dishman, supra, 486 F.2d at 732.
Unloaded guns are considered dangerous weapons. When flight attendant Barbara Waddell submitted her carry-on bag for inspection, she had forgotten that, because of a recent move, she had packed an unloaded revolver into the bag. The gun was antique, at least 70 years old, and could neither be fired nor restored to firing condition. The judge held that an antique gun could be a dangerous weapon on board an aircraft because “[e] ven an inoperative gun could be used to threaten a passenger or flight crewmember.” In re Waddell, 1990 WL 656289, 3 (F.A.A. 1990). However, if the defendant presents evidence that the gun is not dangerous, the government must prove at least that the gun so appeared. Id. at 4.
A BB gun is also a dangerous weapon. Erik Clark, a 19-year-old man, tried to sneak a loaded BB gun onto a plane, apparently to impress his friends. He was arrested and sentenced to five years’ probation and fined $1,000. Other objects that have been considered dangerous weapons by the courts include: a tear gas gun with one or more tear gas cartridges, U.S. v. Brown, 508 F.2d 427, 430 (8th Cir. 1974); a belt-buckle knife, U.S. v. Hedrick, 207 F. Supp. 2d 710, 714 (S.D. Oh. 2002); and a stun gun or taser, U.S. v. Wallace, 800 F.2d 1509 (9th Cir. 1986).
A passenger who gets onto or attempts to get onto an airplane with a concealed dangerous weapon breaks the law. A concealed weapon is “one which is hidden from ordinary observation.” U.S. v. Flum, 518 F.2d 39 (8th Cir. 1975). It does not matter whether or not the passenger intended to conceal the weapon. Further, “concealment can occur even though an airline passenger tenders his hand luggage for inspection.” U.S. v. Brown, 508 F.2d 427, 432 (8th Cir. 1974). To put it plainly, a weapon may be considered concealed unless the passenger first declares his possession of it.
Attempting to Get On Aircraft with a Weapon
As Delores Wilkinson walked from the ticket counter to the departure gate, she passed numerous signs stating that attempting to board a commercial aircraft is a federal crime. Unaware that she had her husband’s loaded pistol in her carry-on bag, Wilkinson put the bag through the X-ray machine. Airport security found the pistol, and Wilkinson was charged with attempting to board a plane with a concealed dangerous weapon. Wilkinson argued that she was too far from the plane to be considered attempting to board it, but the court rejected her argument. The fact that she purchased a ticket and proceeded toward the gate for the purpose of boarding her flight constituted an attempt. U.S. v. Wilkinson, 389 F. Supp. 465, 467 (W.D. Pa. 1975).
Explosive or Incendiary Device
Finally, no one may have on his person, nor may anyone place, attempt to place, or “attemp [t] to have placed an explosive or incendiary device” on an aircraft. 49 U.S.C. 46505(b)(3). Even if the device does not work, its possession can be found to be unlawful. U.S. v. Mena, 933 F.2d 19, 27 (1st Cir. 1991).
Hours before leaving for the airport, Martin Bradley secretly placed a bomb into his wife’s packed, locked suitcase. Mrs. Bradley did not discover the bomb until after she had arrived at her destination and unpacked the suitcase. Mr. Bradley was charged with placing an explosive device on an airplane; however, the court ruled that he had to be tried in Virginia, where the airport was located, as opposed to Maryland, where he put the bomb into the suitcase. U.S. v. Martin, 540 F. Supp. 690 (D. Md. 1982).
Traveling with Weapons
Only authorized officials may board planes while carrying weapons. However, passengers whose gun rights are intact may transport unloaded firearms in checked baggage. The federal regulations require that:
“(i) the passenger declares to the aircraft operator . . . before checking the baggage that the passenger has a firearm in his or her bag and that it is unloaded; (ii) the firearm is unloaded; (iii) the firearm is carried in a hard-sided container; and (iv) the container in which it is carried is locked, and only the passenger retains the key or combination.” 49 C.F.R. 1540.111(c).
Inevitably, post-9/11 regulation of the skies has tightened the rules concerning the carrying of weapons onto an aircraft. The new laws have broadened the scope of punishable conduct, and one can expect courts to err on the side of the prosecution, especially in current times when Western democracies are fighting enemies that use the instrumentalities of transportation as weapons. However, we are advised that constitutional freedoms remain intact and that the airlines do allow law-abiding citizens to travel with weapons, pursuant to predetermined guidelines. We would caution anyone traveling by airplane to consult an attorney familiar with the relevant laws before bringing any weapon or weapon-like item onto an airplane. As we have seen from our discussion in this article, mistakes do happen, and sometimes people are exploited. Ask Barbara Waddell, Delores Wilkinson, and poor Mrs. Bradley. Mistake and lack of intent do not protect the accused in court. Only an attorney experienced and knowledgeable in the federal criminal law can properly defend the unwitting carrier of a weapon from the governments prosecution. Given the potential consequence of ten or more years in federal prison, not having a seasoned advocate at your side could prove devastating.
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