Legal Issues

[warocker1]

My father-in-law brought back his Colt .45 home from world war II. He passed away last year and I recently found it in the attic of his house in CT. I was taking it to my home in FL following the disclosure rules of the TSA, when I was arrrested by the New York Port Authority Police and charged with be in the possession of stolen government property. I would have thought that some 60 years later that the government would have made peace with this issue. Please provide helpful information. Thanks!

[John]

I am no lawyer so I can't provide much help on this, but I am sorry to hear of your problems. I'll let others, more familiar with this issue to answer, but please keep us in the loop on this. One would think that just because it says "Government Property" on it, won't be a enough cause for such arrest, but Government organizations are not characterised by their sharp minds.

Get some good legal help, I am sure there should be a solution to this problem, which will set you free and have that gun returned to you.

[Hawkmoon]

This forum cannot provide legal information or advice. The only useful advice we can offer is to engage a good attorney.

[Sgt. Quincannon]

How do they know your father-in-law didn't buy it from a person who, in turn, bought it from the DCM? This is a very weak case.

[warocker1]

Forgive my ignorance. What is the DCM?

[Tom]

Director of Civilian Marksmanship, if I am correct, if which I am, has been replaced by the Civilian Marksmanship Program, or CMP.
http://www.odcmp.com/

If I am mistaken, I'll delete this post.

[Johnny Peppers]

NRA members could buy firearms through the DCM that had been declared surplus by the military. Most of these sales took place around the 1960 time period. The DCM was the agency that handled the paperwork, and the firearms were shipped from various military depots to the NRA member. The requirement that you be an NRA member was challenged, and eventually dropped. In 1968 LBJ stopped the sale of surplus military pistols to private citizens. Some of the more notable firearms sold through the DCM were the 1911 and 1911A1 pistols, the Springfield Armory National Match modified pistol, the M1 Carbine, the 03-A4 rifle, High Standard and Ruger .22 target pistols, and the Colt Officer's Model Match pistol. I believe the National Match pistol was the highest priced pistol available at approximately $100, with the standard pistols being under $20.

[Sgt. Quincannon]

OH, those were the days!!!

[warocker1]

You might assume that if the 1911s were being sold as surplus, that the government was saying it's okay to own these formerly government issued firearms. An extrapolation of this idea would suggest that a reasonable government would not want to punish World War II veterans for possession of these weapons. There should only be two possible positions, (1) Ask for compensation, and (2) allow them to be registered. You would that some 60 years later that this would have been resolved.

[John]

It has been resolved. All you have to do, is ask your lawyer.

[exitwounds]

How did you get stopped in the first place?

[warocker1]

In order to transport a firearm, the TSA says it can be checked as baggage as long as a declaration is signed attesting that the gun is empty and it is then put in a hard sided lockable container. They failed to mention that New York law says you can only have a gun in New York if you are licensed to carry a gun in New York.

[John]

Sorry, but I am not sure what to believe here. If that is the reason you were arrested, you certainly should not be charged only for possession of Government property. You would have been charged for illegal ownership and carrying of a firearm. And what's that TSA?

[Hawkmoon]

In order to transport a firearm, the TSA says it can be checked as baggage as long as a declaration is signed attesting that the gun is empty and it is then put in a hard sided lockable container. They failed to mention that New York law says you can only have a gun in New York if you are licensed to carry a gun in New York.
The Port Authority Police are now (or should be) fully aware that this is not the case. The gentleman who was arrested at Newark (NJ) airport (same Port Authority Police) was released and had all charges dropped, and has sued the Port Authority in Federal Court. It may still be in the process, but my recollection is that he won.

Either way, he was not charged with having stolen property, he was charged with possessing a handgun without a license.

As I have said, (a) this is a legal issue on which we cannot advise you; (b) since the Port Authority Police now know that it is legal to transport a firearm through their airports, I cannot imagine that they would have even responded to this call, or at most done more than ask you if the gun was unloaded; and (c) I still do not understand how the police came to be called, since both the airlines and the TSA are aware of the rules and regulations.

Warrocker, you need an attorney. If you have been arrested, you are going to appear in court. We cannot represent you, and we cannot advise you. It appears to me that you have not given us all the facts. However, it is possible that you think you have done so and just don't understand the process and/or the charges against you well enough to explain them to us. But it all comes down to the same thing -- YOU NEED AN ATTORNEY.

[bill may]

Warocker1: I am not going to offer any legal advice, either, but there are some really good lawyers that handle cases like yours. Mas Ayoob probably knows one or two that do excellent work if you can reach him. Try to contact him through the American Society for Law Enforcement Training or one of the gun magazines for which he writes regularly. Also, have you tried the NRA? They help in cases like this.

[warocker1]

The charge was crimianl possession of a firearm in the 4th degree, they declined to charge me with a charge of possession of stolen property in light of the circumstances. The FBI said the possession of government property was not of interest to them. In speaking with a TSA supervisor, he said that obviously it is not a federal issue but a New York issue. In fact he was a former deputy sheriff and said he was not aware of this happening other than in New York. Port Authority Police were called because of New York law, i.e., being able to carry a gun in New York only if you are licensed to carry a gun in New York. It would stand to reason that airlines are instructed to call Port Authority Police for license verification.

[John]

Get a good lawyer. And have a look here:

http://www.anjrpc.org/fopalawsuit.htm

[Hawkmoon]

The link John provided immediately above is the case to which I alluded. It is the same Port Authority Police -- the NY/NJ Port Authority operates JFK, LaGuardia and Newark airports. This is why it's difficult to believe that they wouldn't know they have already been sued once for the same thing.

Ask your attorney about trying to join the other suit and get it certified as a class action suit.

[jehu]

Mr. Moon. I have to remind you that my post was deleted and the thread locked(my post was 2nd after original) then reopened ,for supposedly giving leagle advice , after I said he should have Fedexed or UPS'ed the gun to himself as oposed to trying to fly with it then advised him to seek competent leagle counsel. Then I see you giving him leagle advise, just want to know why you deleted my post???? :confused: :nono:

[John]

Who is Mr. Moon?

And the post was not opened for supposedly giving legal advice (I think this is how it is spelled), we are not a legal forum here. It was opened just because I was curious to see what really is the issue with this. And so far, I am quite puzzled.

Initially, the poster was arrested for possession of stollen property. Then it seems as if he was arrested for criminal possession of firearm (I have no idea what the 4th degree is). And of course, as Hawkmoon said, that NY Port Authority must be pretty stubborn to keep arresting people who sue them for 3m$.

It gets more and more interesting.

[jehu]

Hawkmoon, the administrator. :lh:

[John]

Excuse me, but am I to assume that you are making jokes with Hawkmoon's name and insulting Hawkmoon?

[jehu]

El Commandante, You assume wrong, I mean no disrespect. In fact I thought Mr. Moon was very respectful. I only seek to understand why my post was deleted. I enjoy this forum and thank all for the useful information provided.

[warocker1]

§ 265.01 Criminal possession of a weapon in the fourth degree.

A person is guilty of criminal possession of a weapon in the fourth
degree when:

(1) He possesses any firearm, electronic dart gun, electronic stun
gun, gravity knife, switchblade knife, pilum ballistic knife, metal
knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles,
chuka stick, sand bag, sandclub, wrist-brace type slingshot or
slungshot, shirken or "Kung Fu star"; or
(2) He possesses any dagger, dangerous knife, dirk, razor, stiletto,
imitation pistol, or any other dangerous or deadly instrument or weapon
with intent to use the same unlawfully against another; or
(3) He knowingly has in his possession a rifle, shotgun or firearm in
or upon a building or grounds, used for educational purposes, of any
school, college or university, except the forestry lands, wherever
located, owned and maintained by the State University of New York
college of environmental science and forestry, without the written
authorization of such educational institution; or
(4) He possesses a rifle or shotgun and has been convicted of a felony
or serious offense; or
(5) He possesses any dangerous or deadly weapon and is not a citizen
of the United States; or
(6) He is a person who has been certified not suitable to possess a
rifle or shotgun, as defined in subdivision sixteen of section 265.00,
and refuses to yield possession of such rifle or shotgun upon the demand
of a police officer. Whenever a person is certified not suitable to
possess a rifle or shotgun, a member of the police department to which
such certification is made, or of the state police, shall forthwith
seize any rifle or shotgun possessed by such person. A rifle or shotgun
seized as herein provided shall not be destroyed, but shall be delivered
to the headquarters of such police department, or state police, and
there retained until the aforesaid certificate has been rescinded by the
director or physician in charge, or other disposition of such rifle or
shotgun has been ordered or authorized by a court of competent
jurisdiction.
(7) He knowingly possesses a bullet containing an explosive substance
designed to detonate upon impact.
(8) He possesses any armor piercing ammunition with intent to use the
same unlawfully against another.
Criminal possession of a weapon in the fourth degree is a class A
misdemeanor.

[warocker1]

I just found out that this bill is still in committee.

Veterans' Heritage Firearms Act of 2005 (Introduced in House)

HR 2088 IH


109th CONGRESS

1st Session

H. R. 2088
To provide an amnesty period during which veterans and their family members can register certain firearms in the National Firearms Registration and Transfer Record, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

May 4, 2005
Mr. GIBBONS (for himself, Mr. OTTER, Mr. KENNEDY of Minnesota, Mr. SESSIONS, Mr. JONES of North Carolina, Mr. MILLER of Florida, Mr. CANNON, Mr. BURTON of Indiana, Mr. GOODE, Mr. KINGSTON, Mr. BRADLEY of New Hampshire, Mr. TERRY, Mr. BAKER, Mr. WHITFIELD, Mr. BARRETT of South Carolina, Mr. BACHUS, Mr. BOOZMAN, Mr. TIBERI, Mr. BISHOP of Utah, Mr. WILSON of South Carolina, Mr. BARTON of Texas, Mr. DUNCAN, Mr. SHUSTER, Mr. HOSTETTLER, Mr. MCCOTTER, Mr. HEFLEY, Mr. ISSA, Mr. SIMPSON, Mr. TANCREDO, Mr. SHIMKUS, Mr. PEARCE, Mr. KING of Iowa, Mr. PETERSON of Pennsylvania, Mr. SALAZAR, Mr. KUHL of New York, Mr. HALL, Mr. MOLLOHAN, Mr. FRANKS of Arizona, Mr. SOUDER, Mr. ROGERS of Alabama, Mr. AKIN, Mr. BURGESS, Mr. CRAMER, Mr. CUNNINGHAM, Mr. BARTLETT of Maryland, Mr. ROSS, Mrs. EMERSON, Mr. HUNTER, Mr. TAYLOR of Mississippi, Mr. DEAL of Georgia, Mr. HERGER, Mr. FEENEY, Mr. LEWIS of Kentucky, and Mr. CALVERT) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


--------------------------------------------------------------------------------


A BILL
To provide an amnesty period during which veterans and their family members can register certain firearms in the National Firearms Registration and Transfer Record, and for other purposes.

[John]

I am afraid you are a bit confused. You are not accused about how you acquired the firearm, you are accused for owing it in NY. Two different things. Get an attorney.

[warocker1]

I am very clear about my desire to recover the firearm in addition to fighting the possession charge. The only way to recover the firearm is being able to establish ownership. I am hopeful of finding his military records that establish that the firearm was issued to him. If such records are found and it allows ownership to be established, I am further hopeful that if the pending legislation is passed, it will allow it be registered legally.

[John]

Good luck!

[Joel Babcock]

Warning about traveling through New York airports

From NRA:

The District Attorney in Albany County and Queens 18 months ago issued an order to arrest anyone coming through the airports with a handgun in their luggage, regardless if the handgun was being transported properly by FAA regulations. The criteria is if you do not have a NY license, you are charged. So what's happening is 2 different scenarios:

1. People are flying into New York from other states, most but not all of whom have carry permits from their home states, and are carrying a pistol. When they go to fly home, they declare the gun, which has always been unloaded and locked up properly in their checked luggage, but if they cannot produce a NY license, they are promptly charged with illegal weapon possession, and their gun confiscated forever. (The Albany airport sheriff has been doing it as a lower class misdemeanor, the LaGuardia cases were charged as a felony.) As their home state permit is not reciprocal, and they were in NY state for an amount of time carrying a handgun, this group is screwed.

2. People are DRIVING to the airport from another state where the NY airport is their closest one to fly out of, and are getting popped right off the bat an hour or two from their home. In these cases, we are going to war for them being covered by FOPA, even the Sheriff's office and TSA in Albany have argued over that with the DA, but he won't budge. He did, however, blink on the two cases from Albany, with the people getting a walk. Didn't get their guns back, though, either time.

Bottom line, UNLESS you are in possession of a VALID New York pistol license, DO NOT bring a handgun in your luggage to the airport, you will be charged.

This is not being done in any other state in the country except at Logan international in Boston, (same thing there) but even at O'Hare in Illinois, if you come in from another state and meet FAA guidelines, they feel you are covered by FOPA and off you go a happy camper.

[Joel Babcock]

http://home.stny.rr.com/jdtan/DOJletterP1.jpg
http://home.stny.rr.com/jdtan/DOJletterp2.jpg

You'll notice the dates, this has/is been an ongoing issue, and they keep arresting people who believe they are in compliance with the law. Good Luck!

[Joel Babcock]

I forgot to add in my previous posts, HR 2088 you mention is only for an amnesty registration for Class III, ie., Machine Guns veterans brought home and missed the 1968 amnesty that are still buried in closets, attics and basements. Has no bearing on your 1911.

[warocker1]

I do appreciate the additional information!

[John]

Joel, I think that the image of the document you posted is too small for reading (at least with my aging eyes). I know we have a rule for the pictures size, but in this case, I am sure we can make an exception, so that we can read what the document says.

Could you please post a larger image, please?

[Joel Babcock]

I just increased the size of the DOJ document.....see if that's any better.

[John]

Joel, thanks for the enlargement.

So the Dept. of Justice says that people can legally carry their firearms trough the TSA airports, but the TSA LEO's go ahead and arrest them, and the guns are confiscated? Interesting! And no one from the Justice Dept seems to bother to contact those authorities?

[jehu]

I thought federal law trumped state law, overrideing it?

[COTTON302]

Federal law doesnt really trump state law. In most cases they are apples and oranges. A state cannot pass a law that legalizes something that federal law prohibits but a state can pass a law that is more restrictive than federal.

Example:

In Texas we have people that go across the border to Mexico and buy prescription drugs (cheaper and easier to get a prescription whether you really need it or not but that is a discussion for another forum). The US border patrol will allow the drugs in to the country because federal law does not prohibit this practice and they have no jurisdiction to enforce state law. Then Texas Peace Officers (DPS Troopers, County Deputies, Local Police, etc.) find the drugs on a traffic stop or whatever and arrest them for possession of a dangerous drug or controlled substance depending on what the drug is. Yeah, I know the border agents should tell folks but that is also a discussion for another forum.

If I understand this issue correctly the Feds(TSA) allow the guns because it is not a violation of federal law. Then the NY authorities (Port Police, City, etc.) enforce a state law on them.

I'm just glad that they finally gave us state and local LE Officers nationwide concealed carry protection outside our home state.

John,

I know you want to keep some of these kinds of discussions off this forum but i am curious about how these carry/transport, concealed carry laws work in Greece. Can you give me a little info on that? (private message if neccessary)

Thanks, Cotton

[topcat39]

Another issue that could apply is where (physically) in the airport the gun was found and the arrest made. IMHO, international airports have areas where local, state, and perhaps US federal laws do not apply - for example, Duty Free stores. It could be the case that NY LEO do not have jurisdiction where the gun was found and/or the arrest was made. If NY LEO does not have jurisdiction, then that is grounds for summary judgement - a ruling by the judge there is no legal basis for the charge, no trial, and case dismissed. Get a good lawyer knowing these issues.

Another approach is to challenge NY procedure in Federal court because the US Justice Dept. letter would trump NY law and prevent NY LEO from arresting otherwise law abiding US citizens transporting a gun in International airports. Get a good lawyer.

Bottom line, get a good lawyer knowing NY law, US federal law, and international law. Further, get the NRA and ACLU involved. NY has every right to protect US citizens from terrorists, but they should not be using Catch 22 procedures to ensnare law abiding citizens who are complying with the rules when transporting guns on airplanes.

Last, the above is sincerely not meant to be political speech, nor to stir controversy, and is not legal advice. Just comments/suggestions to help a forum member, nothing more.

My $0.02 worth!

[John]

John,

I know you want to keep some of these kinds of discussions off this forum but i am curious about how these carry/transport, concealed carry laws work in Greece. Can you give me a little info on that? (private message if neccessary)

Thanks, Cotton

Oh we have much simpler rules here. We have no notion of CCW, the way you have it in US (Shall Issue), here. In Greece, you have to prove that you are either a target of a terrorist organization (we had one, which is now arrested and its members are in prison), or that you often carry large sums of money, because of your business, or in general that your business/life puts you in severe danger of being assaulted or robbed.

Only those priviledged to have contacts in high places in the Government can get a CCW. From the moment you get it, you can carry everywhere, the only thing I am not sure, is if you are allowed to carry your gun, on yourself, in an airplane. I do not think so, but I do not know. Every where else, you can carry your gun and no one will ever ask you.

For those unpriviledged, like me, who have a permit to own guns for target shooting (we are considered to be athletes and follow the general athletic laws, as far as medical examinations etc are concerned), we are allowed to have up to 5 rimfire firearms and up to two centerfire firearms (handguns or non-semi-automatic long guns). If you have a rimfire, you need to make at least 6 official matches per year, to maintain your permit. If you own a centerfire, you need to participate in 8 matches. If you own one and one (or more, but from both categories), you need to do 14 matches per year. And of course, we are not allowed to carry outside the range, the guns have to be stored in a case, empty, when driving from your home to the range.

Not a very good environment overall!

[Joel Babcock]

I'm just glad that they finally gave us state and local LE Officers nationwide concealed carry protection outside our home state.



I'm not sure you want to test that Federal carry law in NY either. New York State Superintendent of State Police has refused to allow retired New York State LEO's to remain qualified for their retirement permit to carry.....says it's a liability issue. So, retired LEO's in New York State are not privileged to carry nationwide......contrary to the will of the Congress. They can get the same carry permit all us other state residents can get to carry in NYS and any reciprocal state, but NYS also says the retired LEO from other states do not have the NYS permit so they will get the same treatment the airport folks are getting.
(John - Please delete this if you think this conversation has gone too far off topic)

[John]

What I think is that we have supplied all help we could to our member. We are not a legal forum, and it is quite evident by now, that what he really needs is a good attorney.

So, I'll close this thread, before it becomes political.