Arrested for Unlawful Carry of Weapon – Prohibited Place
Forgetting a handgun or firearm in carry-on luggage in unfortunately an easy mistake to make in Texas. Individuals from all walks of lives carry guns in Texas for their own protection, and sometimes they forget the piece of luggage they grabbed to use as a carry-on still has a firearm in it. This article addresses what happens when a person has a gun or firearm in their luggage in Texas.
DFW Airport has the largest amount of offenders who try to carry a gun through airport security. In 2014 alone, the TSA seized 120 guns from would-be passengers. In August of 2013, Shemane Nugent, wife of rockstar and gun activist Ted Nugent, was arrested at DFW Airport for attempting to take a Smith & Wesson 38 Special revolver onto a plane. In September of 2014, Eric Laffoon was caught at a security gate with a folding rifle loaded with 15 rounds of ammunition in his carry-on bag.
So what is going on here? Are these people really looking to smuggle guns onto planes for nefarious purposes? Generally not. Shemane Nugent, Eric Laffoon, and most of the other people arrested all said the same basic thing. “I forgot it was there.” Most people charged with bringing a gun through airport security are law-abiding citizens of Texas who are not attempting to commit a crime but are so used to carrying their guns that they just forget they have them until it’s too late and they have been arrested. It is important to understand why they will need an attorney when this happens.
Unlawful Carry of a Weapon in Airports
Texas Penal Code Section 46.03 states that a person commits an offense if they intentionally, knowingly, or recklessly possess a firearm when going into a secured area of an airport. This means that once you pass that security threshold, even if you accidentally carried a firearm on your person or in your bag, you have committed a crime. It is NOT a defense to the crime that you are licensed to carry a concealed handgun.
This does not mean that you cannot take a gun with you when you fly. In fact, the TSA and Texas laws allow guns to be transported, so long as they are done so properly in a checked bag. Always check TSA regulations before flying with a weapon in a checked bag. You will need to ensure the firearm is not loaded, declare the firearm, transport it in a locked hard-sided case, ensure the destination allows for the weapon to be transported there, and to have the key to the hard-sided case available should the TSA request an inspection of the weapon. (Some states do not allow this and you may be arrested if you try to bring a gun onto a plane even in a checked bag. New York and New Jersey in particular have this law.)
The Consequences of Violating Section 46.03 | Unlawful Carry of Weapon – Prohibited Place
Before talking about why an attorney is necessary, let’s cover what will happen as a result of bringing a gun through security. 1) You will be arrested. There used to be some discretion to not arrest offenders, but that is not the world we live in anymore. You will be sent to the DFW Airport Jail if you bring a gun through security. 2) You are probably going to miss your flight. Being arrested often takes time and even if you did arrive at the airport the recommended two hours early, you still probably will not get back to the gate in time to make your flight. 3) Your gun will be seized. You may or may not get it back. Most judges will not authorize weapons to be released back to individuals who were arrested. 4) Your case will be filed with the Tarrant County District Attorney’s Office for prosecution. And most importantly, 5) you will be charged with a third degree felony or a Class A misdemeanor. (See below.) A third degree felony potentially carries a prison sentence up to 10 years and up to a $10,000 fine. Additionally, the federal government could seek up to an $11,000 fine. The point is, you could be facing some tough time and a large chunk of your bank account disappearing just because you forgot that you brought a gun with you to the airport. Additionally, if convicted you may lose additional rights. Also relevant is that Texas Penal Code Section 46.04 makes it illegal for a convicted felon to possess a gun. So if you are convicted of this crime, you may not be able to carry a gun in the future. Being charged with bringing a gun through airport security is a very serious matter.
Texas Penal Code Section 46.02 | UCW
The State can also file the case as an Unlawful Carry of a Weapon under Section 46.02 of the Penal Code. It is illegal to intentionally or knowingly carry a handgun on a premises not owned or controlled the carrier, when the person carrying the handgun is not inside or directly en route to his/her motor vehicle. If the State files the case without the Prohibited Places language, it is a Class A misdemeanor. As such the punishment range would be up to one year in jail and up to a $4,000 fine.
Changes in the law: 2015 Airport UCW Amendments
The Texas Legislature created an exception that may be applied to CHL holders. Effective September 1, 2015, Section 46.03, Penal Code was amended so that instead of placing someone under arrest, TSA agents may ask the individual to exit the secured area. An individual asked to exit the secured area must immediately comply.
Penal Code 46.03 is amended to provide:
(e-1) It is a defense to prosecution under Subsection (a)(5)
that the actor:
(1) possessed, at the screening checkpoint for the
secured area, a concealed handgun that the actor was licensed to
carry under Subchapter H, Chapter 411, Government Code; and
(2) exited the screening checkpoint for the secured
area immediately upon completion of the required
processes and notification that the actor possessed the handgun.
(e-2) A peace officer investigating conduct that may
constitute an offense under Subsection (a)(5) and that consists
only of an actor’s possession of a concealed handgun that the actor
is licensed to carry under Subchapter H, Chapter 411, Government
Code, may not arrest the actor for the offense unless:
(1) the officer advises the actor of the defense
available under Subsection (e-1) and gives the actor an opportunity
to exit the screening checkpoint for the secured area; and
(2) the actor does not immediately exit the checkpoint
upon completion of the required screening processes.
(f) Except as provided by Subsection (e-1), it [It] is not a
defense to prosecution under this section that the actor possessed
a handgun and was licensed to carry a concealed handgun under
Subchapter H, Chapter 411, Government Code.
This new law was passed in hopes of differentiating between individuals who intentionally, knowingly, or recklessly bring a firearm into a secured area and CHL holders who simply forgot that they had their handgun at the airport.
What Can an Attorney Do For You on a Possession of Prohibited Weapon Case?
If you are still in custody in DFW Airport Jail and a bond has not been set, have a family member call an attorney immediately. The first thing the attorney can do for you is to file a writ to get you out of DFW Airport Jail. Normally, you have to wait until bond is set before you can leave the jail, but an attorney may be able to expedite the process for you by filing a writ of habeas corpus. This writ orders the DFW Airport Jail to release you from custody. Second, once bond is set the attorney can bring you back to do a walk-through. A walk-through is a way to satisfy an arrest warrant without the necessity of being confined to jail for a period of time. With the help of your attorney, you may be able to surrender yourself to the jail and immediately booked in and booked out without ever being taken to a jail cell. If you are interested in doing a walk-through in Tarrant County, contact the attorneys at Varghese Summersett PLLC at (817) 203-2220.
A skilled attorney may be able to negotiate a dismissal of your case or secure a no-bill through the grand jury (which is when the grand jury decides a felony case should not be prosecuted). They may also be able to resolve the case without a criminal conviction. Depending on the outcome, you may also be eligible for an expunction or non-disclosure of the record.