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Transporting through NY (Need an LEO Opinion)

JustaShooter

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Because lawyers are never wrong?

Which we know is not the case with you.

He quotes 18USC 926A:

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

See the bold section. I apologize if this may have been answered by someone, but if NY says it's a no go, then it's a no go. Guys forget that State Laws can and do supersede Federal code. Meaning, sure the Feds say you can transport, well the state says you can't so you can't.

Your understanding of the word "notwithstanding" is incorrect. It means "in spite of", "without being prevented by", or "regardless of". So, what that means is "In spite of any law or any rule or regulation of a State or any political subdivision thereof". So, "regardless of" NY law, you can transport a legally owned firearm from one place where you can legally possess it to another place that you can legally possess it, as long as it is stored properly, even if you have to travel through NY. The law would be pointless otherwise, now wouldn't it?

For example, AWB expired on a federal level, but not in MA. Make sense?
Completely different situation. The expiration of the AWB means there is no law prohibiting or expressly allowing those firearms. Since there is no law specifically allowing them, especially one worded as the FOPA is, a state can enact tougher restrictions.
 
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notalawyer

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Personally, I would not hesitate one moment to drive through NYS or NYC with a firearm transported in accordance with FOPA. I refuse to allow the threat of illegal actions by police affect the lawful behavior that I choose to engage in. I would not attempt to catch the attention of any law enforcement officers by intentionally breaking any laws. But, I did also take an oath to support and defend the Constitution of the United States against ALL enemies both foreign and DOMESTIC.

18 USC 926A is an affirmative defense to a state firearms charge, not an immunity to prosecution statute.


Any arrest could/will be completely lawful. Case law suggests that it is unreasonable to expect a street cop to know (to any degree of confidence) if an individual is covered by 18 USC 926A. The courts have stated that a street cop cannot possibly know if you can 'legally' carry the firearm at your departure or destination locations. Of if in fact that those stated locations are, in fact, your actual departure and destination locations.


We find no evidence either in the text or structure of Section 926A that would indicate that Congress intended that police officers tasked with enforcing state gun laws should be liable for damages when they fail to correctly apply Section 926A.


Applying Section 926A to Weasner's and Torraco's claims illustrates the difficulties, faced by judiciary and law enforcement officers, inherent its application. Prong one of Section 926A asks whether a person "is not otherwise prohibited by [the Firearms Chapter] from transporting, shipping, or receiving a firearm." 18 U.S.C. § 926A. Section 922(g) describes various categories of individuals—including felons, fugitives from justice, and unlawful aliens, among others—who are not permitted under the Firearms Chapter to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g). Problematically, however, Section 926A is silent as to how a police officer encountering an unlicensed person with a firearm is to ascertain that this prong of the statute is met, i.e., that said person is not prohibited by the Firearms Chapter from transporting the firearm. Both Weasner and Torraco claim that the laws of their states of residence, Ohio and Florida, do not require a license for gun possession and that their possession was not prohibited by the Firearms Chapter. Asked to produce documentation of lawful possession, however, neither could. Appellants would have us conclude that Congress intended that a police officer faced with this factual scenario must mutely accept appellants' assurances that their possession is lawful, or potentially be subject to suit for damages.

Multiply the fluidity of that scenario by 50 jurisdictions (putting aside issues that might arise as a result of international travel with interim domestic stopovers), and nearly a billion passengers moving through U.S. airports per year, and it becomes apparent that providing a damage remedy under § 1983 for a failure to adequately apply § 926A would be unworkable.

Torraco v. PORT AUTHORITY OF NY. AND NJ., 615 F. 3d 129 - Court of Appeals, 2nd Circuit 2010
 

notalawyer

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mostly right.

except...the LEO would have to have PROBABLE CAUSE to believe the requirements of FOPA were being violated.

if you're driving a vehicle with out of state tags, present an out of state DL (presuming you've been stopped for a traffic violation)...and exercise your 5A rights...there is no way there can be PC (or even reasonable suspicion) that you are in violation of FOPA...unless the officer sees something or you or your passenger admit that there is a gun present.

if you choose to disclose that you are transporting under FOPA...you'd better be able to show that your origin and destination are legal for POSSESS AND CARRY. the mere possibility in the officer's mind that "XYZ state doesn't recognize your permit" or "you might be staying in NY state" or "YOU STARTED YOUR JOURNEY IN NY STATE" does not amount to probable cause for arrest until it is admitted by you or otherwise verified (perhaps your passenger tells a different story). keep in mind that your electronic toll pass may reveal your journey if they decide to try and go that route...may be weeks/months later but a warrant may still issue.

remember...the statute states that "POSSESS AND CARRY" are required elements for your origin AND destination "places". "Places" doesn't seem to be defined...but it seems to me that "home" is a "place" even though the state your home is in may not permit you to carry. you'd still be covered.

as you can see...if you disclose the presence of a firearm during a routine traffic stop, you are asking for BIG trouble in NY. the climate in NY is such that no NY judge is going to call it "unreasonable" to assume you're in violation of FOPA in order to insulate police from wrongful arrest liability...even if all they had was an unreasonable hunch.

if you're going to disclose, ALWAYS travel with a way to verify your origin/destination and license status at both ends of the trip (hotel reservations, gas receipts, restaurant receipts, licenses, firearms reciprocity agreements, and statutes for both states/places etc.) That last bit you can keep locked up with the firearms since you won't need it until things are really bad.

All you need to establish that you are in compliance are:

1. lawful to possess and carry at start
2. lawful to possess and carry at destination
3. locked up, unloaded and out of reach (NOT glovebox or center console)

nothing more...nothing less. people say things like "disassembled" and "ammo separate" and quite frankly if the legislature wanted to put those words in, they would have. they didn't.

keep in mind that NY may consider simply being in possession of firearm and ammo in the same place to be "loaded"...nevertheless...FOPA is clear that it controls "notwithstanding" local laws. i haven't done the research to see how FOPA is applied by the courts but I can't imagine that you would be required to surrender/ship all your ammo separately or reconfigure your packing every time you cross a state border.

YMMV, IANYL, TINLA.

except...the LEO would have to have PROBABLE CAUSE to believe the requirements of FOPA were being violated.
Nope. They only need PC that their state law is being violated....see my post above.
 

CT Barfly

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Nope. They only need PC that their state law is being violated....see my post above.

It's a fine point and I appreciate you helping to clarify.

However, PC is necessary to obtain a warrant, search and/or arrest. PC may be as to federal or state law, doesn't matter.

BECAUSE FOPA explicitly controls on the possess/transport issue, it is the ONLY firearms possession law that he must have PC to believe is violated in order to make a good arrest. An officer's subjective belief that you are in violation of NY State law is immaterial and any charge under NY law (provided you are in compliance with FOPA) would be subject to dismissal...the officer is simply ignorant of the law at the time of arrest. IF he sees that you are not in compliance with FOPA...THEN he may apply NY State law to make an arrest. That's the problem that many travelers run into when they get charged and make the papers. WHERE FOPA IS NOT MET, STATE LAW COVERS. This means ANY violation of the three aforementioned elements.

It's a separate question as to whether the department or the state can be held liable for wrongful arrest or whether qualified immunity would protect the officer's actions if they decide to arrest/charge an individual complying with FOPA. FOPA has been on the books for quite some time, so pleading ignorance or "good faith" is a bit of a stretch. This is the case you've cited above. Reasonableness, with respect to a federal statute that is decades old would seem to be settled. The case you've cited does not allow for a good PC arrest/charge...it merely suggests that it's not unreasonable for a cop to make the arrest. In other words, it's simply a decision to protect officers from civil liability for making a mistake.

Federal statute has supremacy. There are different types of supremacy which I will not get into but suffice it to say that FOPA, by its very language, supercedes state law and an officer cannot cloak himself in state law while ignoring Fed statute...that would completely invalidate the actions of Congress/President in passing the law.
 
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CT Barfly

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Because lawyers are never wrong?

He quotes 18USC 926A:

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

See the bold section. I apologize if this may have been answered by someone, but if NY says it's a no go, then it's a no go. Guys forget that State Laws can and do supersede Federal code. Meaning, sure the Feds say you can transport, well the state says you can't so you can't.

For example, AWB expired on a federal level, but not in MA. Make sense?

Wrong. States can pass laws that restrict activities that the Feds don't have laws about. In this case, there IS Fed law. Where there is a conflict between a State law and a Fed law, the Fed law controls.

There is clearly a conflict between NY's law and FOPA...FOPA controls (and explicitly states so).
 

CT Barfly

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TO CLARIFY:

On the scene/side of the road...an officer can make an arrest without fear of liability if he's wrong. That's the decision cited above. It's Torraco v. PORT AUTHORITY meaning Torraco sued the Port authority for failing to know/understand that he was protected by FOPA. That's slightly off topic. Calling FOPA, an action of Congress/President, an "affirmative defense" is disingenuous and just plain wrong. It is clearly meant to supercede state laws in order to allow people to travel across state lines.

FOPA has been on the books for quite some time. What should be plainly obvious from the cited text is that the NY Courts bend over backwards to decide reasonableness in favor of police officers IN THE CONTEXT OF A WRONGFUL ARREST CIVIL CASE. This is qualified immunity. Reasonableness really should be decided in favor of citizens (i.e. if a person has out of state tags, tells the officer his start/end points, provides his gun permit info, etc.) it is UNreasonable for an officer to IGNORE FACTS POINTING TO INNOCENCE IN FAVOR OF HIS UNFOUNDED SUSPICION THAT THE LAW IS BEING BROKEN. PC is what a reasonable person would conclude from the totality of the circumstances before the officer.

Torraco is an AIRPORT CASE. Peopla have been trying to extend FOPA to airline travel for a long time. It never works. Also, the cited text clearly shows the Judge's bias against Torraco calling it UNreasonable for Torraco to expect that the officers be knowledgeable about FOPA or his legal status vis a vis the gun. The STATE is the one who has the burden of proof when it comes to establishing there was PC for arrest...not you and I. The Judge also stated there was nothing in FOPA to grant an arrestee civil damages for a violation of a person's "FOPA rights," for lack of a better term. You can see that the judge makes a BIG STRETCH to cover the police officers by stating that Torraco showed no evidence of lawful possession...however, common sense dictates that the default setting for reality is not "unlawful possession." Otherwise, we'd all be subject to arrest for auto theft whenever we leave our wallets at home (and don't have car registration with us). I'm guessing the officer in Torraco did not have any reports of stolen guns passing through the area at the time.

The Judge also states that FOPA is deficient in that it doesn't give the officer any instructions/guidance for ascertaining whether FOPA is complied with (lawful possession/carry at start/end of journey)...this is a RIDICULOUS and an attempt to shield LE from liability. An officer's job is to develop probable cause in order to make an arrest...which means that he starts off without PC and must BUILD IT. If you're on the side of the road, complying with FOPA, he cannot develop probable cause based on your mere possession of guns in NY, your stated origination/destination and your properly stowed firearms. Now, mere possession can get you pinched...so it's up to you to advise the officer that you are traveling under FOPA...the problem here is that your disclosure that you are in possession will open up the pandora's box and it'll be up to the officer's discretion/education/currency as to whether you take a ride in HIS car or continue in yours. DON'T OPEN THE BOX.

It's a bad decision.

As the years drag on and NY keeps trying to bully travelers, and losing, FOPA will be expected to be known/understood by officers and the qualified immunity should evaporate.

In court, FOPA controls and the state law charges should be dismissed forthwith.


TL:DR...FOPA beats state law. Don't expect to prevail against NY LE for wrongful arrest if you are arrested. Until someone sues to stop the practice (of treating Federal law as an affirmative defense), it will likely continue. It's an area worthy of litigation on behalf of all persons traveling through the state of NY.
 
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Primus

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Wrong. States can pass laws that restrict activities that the Feds don't have laws about. In this case, there IS Fed law. Where there is a conflict between a State law and a Fed law, the Fed law controls.

There is clearly a conflict between NY's law and FOPA...FOPA controls (and explicitly states so).

Your referring to Federal preemption.... It's unclear because this explains that there has to be an explicit INTENT of preemption when the law was written by congress. It then goes on to state that unless there is that specificity, they refer to the states.

http://en.wikipedia.org/wiki/Federal_preemption

Here's an even better explanation specifically about firearms and Preemption of higher .govs. :http://smartgunlaws.org/local-authority-to-regulate-firearms-policy-summary/


To emphasize my point... In mass there is still the AWB, even though the FEDs let it expire. The preemption clause clearly states that its only in CONFLICT and if it EXPLICITLY states it. This is where my understanding on being able to pass a MORE restrictive law, not a lesser restrictive law. For example, if the feds said you can only have 30 rds, NY can still say you can only have 7 rds. There's no conflict because its less. If NY tried to say you could have MORE then 30, well there in lies a conflict, and the Feds MAY win if they explicitly said they have preemption.

I'm not saying the FOPA doesn't have preemption (I assumed it didn't , but I could be wrong). I'm just saying its not true to state that Federal law ALWAYS trumps State or local law. Again, as long as local law is more restrictive (no conflict).
 

CT Barfly

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Yes preemption, the word escaped me the other day.

There's implied and express preemption.

The language of FOPA states pretty clearly that it expressly preempts any state/local laws. The intent of the legislature is written into the law and an examination of the legislative intent (the history of enactment) backs this up (i had a nice link to the bill analysis a while back on a site i administer, have to dig up). The fact that there is implied preemption is just icing on the cake. The state law frustrates congressional intent (to protect interstate travelers from the draconian laws enacted by states they traverse).

If you really dig at it, NY's own statutes, by virtue of being SO onerous and having their permitting laws restricted to those with some sort of property ownership in the state...REALLY vitiates NY's enforcement of their statute in the face of a FOPA challenge. That is, permit/licensing isn't available to out-of-staters...therefore...there would be NO conceivable way for travelers to pass through NY state in compliance with NY law...which is precisely what FOPA was designed to protect against. NY literally cuts off New England from the rest of the lower 48...they can't have it both ways and are subject to not only FOPA challenge but also commerce clause challege. if NY offered permits at the border, their scheme might pass muster...they don't, so it can't stand up to FOPA.


With respect to your MA AWB it sounds like you're talking about implied preemption (absent express language of preemption). The question that is asked is whether it's possible to comply with BOTH state and fed law OR whether the feds intended their law to occupy the space covered by the state law. MA can have a 7rd mag limit and the feds can have a 30rd limit...that's a given. The question of preemption is whether MA can have a minimum 30+ rd MANDATE...requiring people to have 30+ rd mags ONLY. That's in direct conflict with a fed ban on the same thing and fed law would invalidate MA's enforcement.

Yadda yadda yadda. Thx for the exercise.
 
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