Impact of Firearms Laws on Airports (2016)

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5other states or permit a designated official such as the state attorney general to enter into reciprocity agreements with other states. Section XII examines the issue of whether state statutes preempt the reg- ulation of firearms by local governments. Section XIII discusses how law enforcement offi- cers may be able to respond to persons carrying a firearm in an airport. Section XIV reviews federal statutes that apply to the possession of firearms at airports, including federal laws that prohibit firearms at screening checkpoints and in the sterile area of an airport; TSA’s procedures for assessing a civil monetary pen- alty in an amount up to $10,000 for each violation; the Federal Flight Deck Officer Program that allows participating pilots to have a firearm in a locked cockpit; the interstate transportation of firearms; and the Undetectable Firearms Act. Finally, Section XV of the digest discusses whether airports have immunity from a claim for damages that arises out of state laws or airport policies that prohibit a person from carrying a firearm in an airport or on airport property, as well as the potential for a Bivens claim or a claim under 42 United States Code (U.S.C.) § 1983 for a violation of an individual’s civil rights. I. SYNTHESIS AND SUMMARY OF KEY POINTS AND TRENDS There is presently considerable controversy in the United States regarding the meaning of the Sec- ond Amendment to the United States Constitution and an individual’s right to carry a firearm in public. The tension that exists generally between the advo- cates of firearms rights and firearms control exists also with regard to airports. There is an absolute necessity to maintain security in air travel and in the nation’s airports. Some jurisdictions in the United States lean more toward the right to bear arms, however, while others lean more toward restricting the right to bear arms in certain loca- tions, such as airports. As explained in Section II of the digest, the United States Constitution, decisions made primarily by the United States Supreme Court, but also by other courts and principally state statutory law, provide a national boundary defining where firearms may or may not be regulated or prohibited. Nevertheless, state legislatures are the ones that may address the many areas that have been left open when deciding whether to prohibit or restrict the possession of fire- arms. Although what an airport may do legally var- ies from state to state, there are actions that states may take that are fairly universal, subject to any restrictions grounded in the Second Amendment. Most regulation of firearms, in fact, occurs at the state level. Notwithstanding a wide variance in state firearms laws, there are some recognizable trends, as well as areas of the law that currently are reasonably well-established. The issue of whether there is a right to carry a firearm in the nonsterile area of an airport presum- ably arises because in at least 31 states a person, who otherwise is entitled to possess a firearm legally, may carry a handgun openly without a license or permit. Although the digest provides more details, five states and the District of Columbia ban the open carrying of a handgun, and six states ban the open carrying of long guns as defined by state law. Fifteen states require that a person have a license to carry a firearm openly. Unless restricted by statute, state firearms laws apply statewide, including at airports. Most states ban the possession of firearms by cer- tain persons, such as those who are underage, usu- ally under the age of 21, or those who have been convicted of a felony. Several states ban certain kinds of firearms, such as machine guns or high- capacity magazines. Virtually every state allows a person who meets the conditions imposed by a state licensing statute to obtain a license to carry a con- cealed weapon. Many states have established proce- dures for the recognition of out-of-state firearms licenses or permits. As for what airports and airport authorities may do legally to prohibit or restrict the possession of fire- arms in airports, the Supreme Court has not provided much guidance. The Court has held that there is a right to have an accessible, operable firearm in the home, but the Court has left many other questions unanswered. One unanswered question is whether an airport is a “sensitive place” where firearms may be restricted or even prohibited entirely. The digest discusses two lower court decisions in which the courts stated that an airport is a sensitive place. For airports wanting to prevent the carrying of firearms in their airport, their first line of defense may to cooperate closely with local law enforcement authorities to enforce state laws that apply to the many ways that travelers and visitors arrive at an airport. In some states, individuals carrying a fire- arm when arriving at an airport on a particular mode of transportation (e.g., public transportation) may be violating state law. When a motorist trans- ports a firearm by motor vehicle to an airport or air- port parking lot, the manner in which the firearm is being transported may violate the law of some states. For example, an individual may violate state law by removing a firearm from a motor vehicle in an airport parking lot (or other public or private parking lot) or by displaying or brandishing the fire- arm. In some states, firearms are banned in publicly owned parking lots. Under many states’ statutes,

6owners or operators of publicly owned or privately owned parking lots may post a conspicuous sign banning firearms in motor vehicles in a parking lot. Thus, airports and law enforcement agencies may prevent or discourage individuals from carrying a firearm in an airport unless it is encased for ship- ment by enforcing existing state laws that prohibit or restrict the carrying of firearms on public ways, on public transportation, or in motor vehicles. Insofar as airport terminals are concerned, fed- eral laws and regulations and some state statutes prohibit the possession of firearms by private indi- viduals or other unauthorized persons in the sterile area of an airport. No federal or state court has held, however, that a state legislature may not prohibit individuals from possessing firearms in airports. Indeed, at least 11 states already prohibit the pos- session of firearms anywhere in airport terminals, including areas reserved for ticketing and baggage claim. A few states extend the prohibition to other airport property. Some states ban the possession of concealed firearms in airports. At least one airport in 12 states has adopted a policy or rule banning firearms in the airport. Although one court rejected a challenge to an airport’s gun-free zone policy, the court’s decision was based on statutory interpreta- tion rather than the Second Amendment. It is sug- gested that an airport authority or operator consult legal counsel prior to adopting a policy or rule ban- ning firearms in the airport. Also of interest to airports is that some states prohibit firearms in publicly owned or leased build- ings or permit municipalities or other government entities to post signs prohibiting firearms in public buildings. Some airports that responded to the sur- vey for this digest stated that they had acted in accordance with their state’s statute when they posted a notice banning firearms in their airports. In some states, a person having a license to carry a con- cealed firearm may be prohibited from carrying a concealed firearm in a public building, whereas in other states a license may be required to possess a firearm in a public building. Other laws of interest to airports with regard to the possession of firearms are even more wide- spread. State laws generally prohibit certain per- sons from possessing a firearm anywhere, such as individuals who have been convicted of a felony or other serious crime, persons who are underage, and persons who are under the influence of illegal drugs or alcohol. It is particularly noteworthy that most states permit private establishments of the type that lease space in airports to post conspicuous signage pro- hibiting firearms on their premises. As discussed in the digest, one jurist on the United States Court of Appeals for the Seventh Circuit has suggested that laws banning the carrying of firearms in public would be less important if more private establish- ments and institutions were to ban firearms on their premises. Moreover, state laws generally prohibit the possession of firearms in bars and restaurants, as may be defined under some states’ statutes, where alcohol is consumed on the premises. Airports may want to examine their state’s law that prohibits a disturbance of the peace or review similar laws that exist in their state. Breach of the peace laws vary widely from state to state. For exam- ple, although one person carrying a firearm into an airport terminal may not be violating state law, pos- sibly there would be a violation of state law if two or more persons were to do so, thereby causing travelers and other airport visitors to become alarmed about their safety. Another example is that in some states if a person removes a firearm from a motor vehicle in an airport parking lot and displays or brandishes the firearm, the person’s action may violate state law. Moreover, if an individual displays a firearm in a threatening manner anywhere, the display likely vio- lates state law. Whether there is a violation of a breach of the peace law depends on the language and meaning of the state statute and the attendant cir- cumstances when a violation allegedly occurred. As for state-issued licenses to carry a firearm openly or in a concealed manner, licensing statutes impose conditions that must be met for the granting of a license. In some states, the conditions are quite numerous. Airports will want to be aware that a licensee must be in compliance with all conditions on which a state granted an individual a license to carry a firearm openly or in a concealed manner. In a few states, a violation of a condition on which a person’s license was issued results in an immediate revocation of the license. As for the regulation of firearms by localities, local regulation usually is preempted by state legis- lation. Thus, in most states, localities may not enact firearms laws that conflict with state law. As dis- cussed in the digest, however, there are exceptions in some states. It appears to be well settled that federal law may prohibit firearms at security screening check- points in airports and in the sterile area of air- ports. As for whether an airport would be liable under 42 U.S.C. § 1983 for prohibiting a person from possessing a firearm in the nonsterile area of the airport, a § 1983 action against an airport likely would be unsuccessful for several reasons. Most important, however, is that the Supreme Court has not held that a person has a constitu- tional right to carry a firearm anywhere in an air- port. Liability under § 1983 is improbable when an