Did You Forget That Firearm in Your Carry-On?

Unlawful Carry of a Weapon – AIRPORT

Many of us have found ourselves in an airport security line and realized – after it is too late of course – that we left our large bottle of shampoo, new toothpaste tube, and a way-too-expensive bottle of skin lotion in our carry-on bag. A completely honest mistake with the “punishment” being either running it all the way back to your car, or seeing it dumped into the nearest garbage can.

But what if someone makes a similarly honest mistake and forgets that their lawfully owned handgun (whether loaded or not) is also in their carry-on baggage. Unfortunately, while the gun will be confiscated just like the shampoo, this mistake will also result in the person being charged criminally.

Certainly, readers in north Texas will recall that in 1997, Barry Switzer – while the Head Coach of the Dallas Cowboys – found himself in this exact predicament.

The Law

Specifically, Section 46.03(a)(5) of the Texas Penal Code states that: a person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm…in or into a secured area of an airport. Importantly, this means that even if you “just forgot it was in there,” you will still be charged with the commission of this crime. In Texas, this offense is a 3rd Degree Felony, which means it is punishable by up to 10 years in prison and an additional $10,000 fine. So, obviously, it must be handled with extreme care and attention to detail.

Section 46.03 also makes it clear that it is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a handgun under Subchapter H, Chapter 411, Government Code.

Importantly though, in 2015 the Texas Legislature created a provision that allows Concealed Handgun License (“CHL”) holders to potentially avoid a felony arrest if found in this situation. Specifically, the law now states that:

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 screening 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.

Stated more plainly, if a CHL holder has a firearm in their carry-on, law enforcement shall notify the person that the firearm is in the bag, and give the person the opportunity leave the area without being arrested. For CHL holders, this is obviously great news. Obviously though, for people who do not possess a CHL and forget that the gun is in their bag, they will be arrested for a Felony.

Successfully defending these charges is subject to a number of variables, oftentimes resulting in the reduction of the charges to a misdemeanor, or an even more favorable outcome. If you, or a loved one, ever “accidentally” find yourself in this predicament, contact an experienced criminal defense attorney immediately.

*Edward “Eddie” Cawlfield is an attorney licensed to practice in the State of Texas. Nothing in this article should be considered legal advice. For specific legal advice about any case please schedule a free consultation at 972-369-0577.