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Old June 19th, 2012, 12:03 PM #10501
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Today is the day.. Woot!!

One can only hope! It would be nice though...
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Old June 19th, 2012, 12:17 PM #10502
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Today is the day.. Woot!!
Nothing yet!

http://ia600501.us.archive.org/1/ite...72.docket.html
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Old June 19th, 2012, 01:29 PM #10503
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Originally Posted by esqappellate View Post
nonsense, CharlieFox is right. The law is the law. If it unconstitutional under 1983 in a civil suit, then it is unconstitutional to enforce that same law in a criminal prosecution. See, e.g., Bond v. United States, 131 S.Ct. 2355 (2011) (holding a criminal defendant has standing to challenge the constitutionality of a statute which was the basis of her prosecution).
He claimed the appeals court denied his appeal because he stated the arrest at the airport was illegal based on FOPA. The criminal charge was dismissed but he appealed the arrest as a 1983 violation.

The appeals court refused the appeal saying the arrest was not illegal because he could not use FOPA as an affirmative defense because he took possession of his luggage with a firearm in it.

So in the same circumstances if a person does the same thing and is charged criminally, doesn't the court's reasoning and decision from the civil case also apply to a criminal charge?
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Old June 19th, 2012, 01:48 PM #10504
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Originally Posted by swinokur View Post
He claimed the appeals court denied his appeal because he stated the arrest at the airport was illegal based on FOPA. The criminal charge was dismissed but he appealed the arrest as a 1983 violation.

The appeals court refused the appeal saying the arrest was not illegal because he could not use FOPA as an affirmative defense because he took possession of his luggage with a firearm in it.

So in the same circumstances if a person does the same thing and is charged criminally, doesn't the court's reasoning and decision from the civil case also apply to a criminal charge?
I would like to see the opinion. Some courts have held that FOPA is not a federal right within the meaning of Section 1983 and thus no 1983 suit lies at all. See Torraco v. Port Authority of New York and New Jersey, 615 F.3d 129, C.A.2 (N.Y.), June 30, 2010. The case your friend is referring to is probably Revell v. Port Authority of New York, New Jersey, 598 F.3d 128, C.A.3 (N.J.), March 22, 2010, where the court held that the plaintiff did not have a 926A claim because his conduct took him outside 926A's coverage.

To answer your question directly: The court's legal ruling in a civil case is a statement of the law and the law is the same in criminal and civil cases. If the civil court found that a statute was unconstitutional, and that holding is res judicata or was otherwise binding precedent (district court decisions are not binding on any court, including that district court) then that statute cannot be enforced in a criminal case. But the variations in facts are endless, so I would have to see the opinion and the actual circumstances. In the case you described Revell, the criminal charges were ultimately dismissed but the court nonetheless held that he was outside 926A coverage by staying in the hotel room.
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Old June 19th, 2012, 01:54 PM #10505
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So would I be correct in saying if you take possession of your luggage in NYC with the firearm inside, I may no longer have FOPA protection because of the decision in the civil case or is it a whole new process? I assume many courts and juries would use the same line of reasoning even in a criminal proceeding.

Or is it something we cannot predict?

ETA wasn't Revell a Circuit decision, and thus has an impact on District courts in NJ?

ETA NJ not NY

Last edited by swinokur; June 19th, 2012 at 03:37 PM.
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Old June 19th, 2012, 01:58 PM #10506
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Originally Posted by esqappellate View Post
That's fast. It took Va 10 weeks for me to get my Va non-resident permit.

Wow...when was this? Just after the Woollard ruling? It took me about 30 days as well from app sent to permit received (that was two years ago as well).
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Old June 19th, 2012, 02:17 PM #10507
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Wow...when was this? Just after the Woollard ruling? It took me about 30 days as well from app sent to permit received (that was two years ago as well).
Just after the Woollard ruling. Still waiting for the FL license I applied for in April. They sent me a letter 3 weeks ago, demanding $42 for print processing. Never heard of that charge, but I sent them a check. Must be because my prints were ink (practically mandatory for out of state applicants). Their website didn't mention that charge.
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Old June 19th, 2012, 02:19 PM #10508
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It used to 117 dollars total. Maybe the print charge was an FBI background check?
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Old June 19th, 2012, 02:22 PM #10509
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Pleasant interview at Westminster Barracks. 45 min, usual questions. The Sgt did say that he was for 2a, but as a police officer he would like to have open carry vs. conceal carry.

I told him my concerns of open carry, and parted on great terms. We can use more police officers like him. Sadly he was tasked to do this job because he was hurt and was not able to be in the field.
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Old June 19th, 2012, 02:27 PM #10510
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Quote:
Originally Posted by swinokur View Post
So would I be correct in saying if you take possession of your luggage in NYC with the firearm inside, I may no longer have FOPA protection because of the decision in the civil case or is it a whole new process? I assume many courts and juries would use the same line of reasoning even in a criminal proceeding.

Or is it something we cannot predict?

ETA wasn't Revell a Circuit decision, and thus has an impact on District courts in NY?
Revel was a 3d circuit decision which isn't binding in NY, but is persuasive precedent. As to taking possession of your firearm in NYC, FOPA is a defense to criminal charges. If you fall within its terms, you have a complete defense to criminal charges. Torrace merely holds that if the police violate FOPA, you have no civil 1983 damages remedy for that violation. Your criminal charges still get dismissed (assuming that you fall within FOPA terms). That you have no 1983 civil remedy is immaterial to the defense 926A gives you to criminal charges.

As to taking possession at a NYC airport. A suggestion: Don't, unless it is legal for you to carry in NYC. Remember that FOPA requires that the handguns and ammo be inaccessible to you while you travel. When you pick up your guns at the airport, the handgun is accessible to you. Lesson: Don't fly into NY with your guns, drive and drive in compliance with Section 926A. Read the Torrace opinion. It is very interesting. Attached.
Attached Images
File Type: pdf opinion.Torraco615_F_3D_129_6-19-12_1259.92Arights.pdf (129.6 KB, 55 views)
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