More bad FOPA caselaw, this time from NY (2d Cir)

K-Romulus · Jul 6, 2010

Basically, the federal Court of Appeals for the 2d Circuit has gutted the federal interstate transport law by ruling that individual officers can't be sued for arresting you EVEN WHEN you are complying with the FOPA interstate transport requirements. The court said that FOPA only lets you beat a criminal conviction, not the arrest. So you still get the ride EVEN THOUGH prosecutors know you will beat the rap.

The judges decided that there was "no way" that Congress intended individual officers to be liable for knowing whether a person traveling under FOPA was legally entitled to possess the firearms in the beginning and destination states.

The 2d Circuit's opinion disposed of three different lawsuits by travelers who were either arrested or delayed(harassed) while traveling through NYC-area airports within NY state.

This means that two different circuits have attacked FOPA and severely restricted its application (the other being the 3rd circuit, which held that unexpected flight cancellations leave you open to arrest/conviction if the state in which you wind up stranded prohibits your gun). That 3rd Circuit case stemmed from two NJ arrests.

Prof. Volokh has more info and a link to the 2d circuit opinion:
http://volokh.com/2010/07/02/the-li...etting-you-travel-with-a-locked-unloaded-gun/

(...)So police officers seem to have nearly unlimited authority to arrest and otherwise interfere with people who are exercising their § 926A rights, with no threat of damages liability or anything else deterring such arrests or interference. And while I’m sure that most police officers want to follow the law, and don’t want to arrest people who are behaving legally, even well-intentioned officers might well know little about § 926A in the first place and even less about the other state laws that they’d have to apply in order to figure out whether the person is indeed transporting the gun legally. Now perhaps this is a necessary evil, given the police officers’ duty to enforce their state law, and the difficulty of knowing all the other states’ laws. But it is a reminder of how one’s rights on paper might not readily translate into rights in practice, even in the absence of any ill intentions on the part of the police.(...)

Oreo · Jul 6, 2010

OK well if that's individual officers, what about suing the police department or whatever governmental agency is responsible. I wouldn't agree to individual officers being liable in court either but they should be open to reprimand from their department which in turn definitely should answer to the public on some level.

Patrick · Jul 6, 2010

It speaks to training. It also speaks to a need for Congress to step up and fix this ineffective law.

It's a tough place for the anti-gunners in Congress right now. We need to pester the original FOPA sponsors to tell them to fix it.

One big change I'd like for them to make is to place into law the assumption that a gun during transport is legal - that absent specific infringing activity the law clearly allows its carry. This is much easier to do now that McDonald is out of the Court. As a matter of fact, Congress has a lot of power today to loosen gun laws at the state level than they had two weeks ago. They cannot restrict them, but they can loosen them.

I think FOPA can be re-written to provide an affirmative defense for qualified individuals (law-abiding people) travelling with a gun.

hvymax · Jul 6, 2010

Before an officer can arrest somebody I would think he would have to dillagently asses that a crime is being commited. If he fails in that dillagance then he should be fully liable for his actions.The officers involved clearly violated these peoples rights just as much as if they mistake you for somebody and beat you sensless for being in the wrong place or if they get the wrong adress and shoot you and your pets before asking questions. By taking on these roles many LEO's are domestic enemies of the Constitution and happy to be them. Until we make a U turn soon the Constitution will have almost as much relavance as Neville Chaimberlan's deal with Hitler and this experiment will end.

Markp · Jul 6, 2010

Patrick said:
It speaks to training. It also speaks to a need for Congress to step up and fix this ineffective law.

It's a tough place for the anti-gunners in Congress right now. We need to pester the original FOPA sponsors to tell them to fix it.

One big change I'd like for them to make is to place into law the assumption that a gun during transport is legal - that absent specific infringing activity the law clearly allows its carry. This is much easier to do now that McDonald is out of the Court. As a matter of fact, Congress has a lot of power today to loosen gun laws at the state level than they had two weeks ago. They cannot restrict them, but they can loosen them.

I think FOPA can be re-written to provide an affirmative defense for qualified individuals (law-abiding people) travelling with a gun.

Repealing it and the machine gun ban would be a great start... then we can "fix it", because in reality it's no longer needed law, the 2nd amendment is incorporated. The RKBA arms is no longer in dispute.

Mark

Ab_Normal · Jul 6, 2010

The "tell it to the Judge" attitude is long outdated for situations like this. All they have to do is look up the info on the NRA website from the laptop in their cruiser. Or call their dispatcher/headquarters and ask someone there to do it. Yes the officer AND the department should be held liable. It is harrassment plain and simple.

Mike OTDP · Jul 7, 2010

I remain convinced that the cure is a Federal preemption law. Any attempt to enforce a state or local law more restrictive than Federal law would be a felony. Minimum three year sentence, and the jurisdiction that employed the felon forfeits all Federal funds for three years.

I guarantee that such a law would get LEO's perfect obedience...especially after the first conviction.

outofthegame · Jul 7, 2010

At first glance, it doesn't appear to be one sided. The firearm has to be unloaded, locked in a container, and not readily accessible. As soon as you remove the suitcase from the trunk of the car, you are on your own. Seems to be intent of the law rather than letter of the law. -Not a lawyer.

Patrick · Jul 7, 2010

outofthegame said:
At first glance, it doesn't appear to be one sided. The firearm has to be unloaded, locked in a container, and not readily accessible. As soon as you remove the suitcase from the trunk of the car, you are on your own. Seems to be intent of the law rather than letter of the law. -Not a lawyer.

That's how I see it, too. The Court cannot rule on anything but what was written. And a poorly written law is dangerous to us little people.

Hellphish · Jul 17, 2010

not that hard. because of FOPA, there is no crime being committed therefore, wrongful arrest. activist judges should be thrown out with extreme prejudice.

press1280 · Jul 18, 2010

outofthegame said:
At first glance, it doesn't appear to be one sided. The firearm has to be unloaded, locked in a container, and not readily accessible. As soon as you remove the suitcase from the trunk of the car, you are on your own. Seems to be intent of the law rather than letter of the law. -Not a lawyer.

The vehicle transport wasn't an issue in either this or the 3rd Circuit case. Those were both airline travel, both involved NY/NJ Port Authority officers who didn't know laws outside their own states.
FOPA is really iffy now with air travel, and I would stay away from a NY/NJ airport without a permit from those states.

yellowfin · Jul 31, 2010

Once Peterson v LaCabe goes through, it can be sent to SCOTUS to be fixed. NY is going to be taken there many, many times as necessary.

buzzzyy · Jul 31, 2010

It's too bad, because an unjust arrest can still screw you up. As it happens, I'm filling out job applications at the moment . Quite a few of them ask if you have ever been arrested. Good luck getting an interview if you answer "yes" and explain as a "gun related"

On a side note, I've been told by a less than reliable source that if there is a locked cabinet in a car, a police officer would need a search warrant to open it. Is that true?

jpk1md · Jul 31, 2010

THIS is what happens when you elect Democrats and RINO's!!!!

THIS is what happens when you elect Democrats and RINO's!!!!

A very very large number of judges currently serving in our Federal Courts are Clinton Appointees......if allowed, Obama will do the same thing and pack the courts with Justices that are hostile to common sense, the states and the Constitution.

Elections have Consequences but the most long lasting effect that bad presidents have on the US is through the appointment of Judges that remain in their positions for 10-40 years or more.... there are STILL Judges on the bench that were appointed by Nixon, Ford and Carter!!!!!

yellowfin · Aug 2, 2010

Agreed, and it's a very bad problem we have right now in that there's very little mechanism to reject RINO's and be certain that we don't get the greater of the two evils as a reward for our efforts. Product convergence has gotten us badly trapped.

More bad FOPA caselaw, this time from NY (2d Cir)

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