TSA Confiscation of Replica Firearms and Toy Weapons
Dec 9, 2018, 10:58 am
#31
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TSA's "interpretation" says this:
"Weapons. Weapons are objects that may be used to attack another. TSA considers an item to be a weapon under 49 CFR 1540.111 if it is created for use as a weapon or is so similar to an item created as a weapon that it appears to be, or is easily used as, a weapon.
Explosives. Explosives are substances that explode or cause an explosion. While many explosives may have commercial uses, they clearly could be used to damage an aircraft or against passengers and flight crew members. Examples include dynamite, plastic explosives, blasting caps, fireworks, flares, gunpowder, hand grenades, and ammunition for firearms. Realistic replicas of explosive devices are prohibited for the same reasons that realistic weapons are prohibited: They can be effective in intimidating crew and passengers.
"Weapons. Weapons are objects that may be used to attack another. TSA considers an item to be a weapon under 49 CFR 1540.111 if it is created for use as a weapon or is so similar to an item created as a weapon that it appears to be, or is easily used as, a weapon.
Explosives. Explosives are substances that explode or cause an explosion. While many explosives may have commercial uses, they clearly could be used to damage an aircraft or against passengers and flight crew members. Examples include dynamite, plastic explosives, blasting caps, fireworks, flares, gunpowder, hand grenades, and ammunition for firearms. Realistic replicas of explosive devices are prohibited for the same reasons that realistic weapons are prohibited: They can be effective in intimidating crew and passengers.
This must be the rule under which my 'weaponized' medical nitro pills were confiscated. They kept telling me explosive substances were banned in any quantity or form.
Dec 9, 2018, 1:07 pm
#32
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I have ICP power supplies in my tools. I have carried them for years. With a child's imagination, one might be able to think that these look like detonators.
In fact, one TSA screener did. It was in the line before the x-ray. He started to screen my bag as I was in line and found the power supply. He held it up and said that it was a detonator for an IED. I said that it was an ICP power supply and that the confusing technical words on the face indicated that. The words were "ICP Power Supply." Anyway, he had stopped the line going into the x-ray and was creating quite a scene. I decided to join in. "Are you accusing me of having a bomb? Are you accusing me of a crime?" Then it got bizarre. He held it up in the air and said that these switches are used to detonate the bomb. He then started flipping the switches. A few of the people hit the floor and crawled under things certain that he had just set off my bomb. I stood there calmly watching. When he was finished, I asked, "Are you finished? Put my bag through the x-ray and call a supervisor. I need to report this."
On the other side, nothing. No supervisor and the bag did not even get the normal bag rape. He was gone. I stopped at the desk and reported him. Idiot.
In fact, one TSA screener did. It was in the line before the x-ray. He started to screen my bag as I was in line and found the power supply. He held it up and said that it was a detonator for an IED. I said that it was an ICP power supply and that the confusing technical words on the face indicated that. The words were "ICP Power Supply." Anyway, he had stopped the line going into the x-ray and was creating quite a scene. I decided to join in. "Are you accusing me of having a bomb? Are you accusing me of a crime?" Then it got bizarre. He held it up in the air and said that these switches are used to detonate the bomb. He then started flipping the switches. A few of the people hit the floor and crawled under things certain that he had just set off my bomb. I stood there calmly watching. When he was finished, I asked, "Are you finished? Put my bag through the x-ray and call a supervisor. I need to report this."
On the other side, nothing. No supervisor and the bag did not even get the normal bag rape. He was gone. I stopped at the desk and reported him. Idiot.
(Note: "attempt" crimes are about intent, not actual possibility. If he thought that the switches would detonate something, and switched it, he attempted to detonate something. Doesn't matter that his belief was completely unfounded.)
Dec 9, 2018, 1:27 pm
#33
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Moderator's Note
Folks,
Let me remind you once again to please stay on topic (FlyerTalk Rule 5).
We are discussing the TSA's confiscation of replica firearms, not explosives or medications.
While some minor natural deviation - such as discussing comparable situations - is obviously okay, please let’s not derail this conversation by straying too far off topic.
Thank you for understanding,
TWA884
Travel Safety/Security co-moderator
Let me remind you once again to please stay on topic (FlyerTalk Rule 5).
We are discussing the TSA's confiscation of replica firearms, not explosives or medications.
While some minor natural deviation - such as discussing comparable situations - is obviously okay, please let’s not derail this conversation by straying too far off topic.
Thank you for understanding,
TWA884
Travel Safety/Security co-moderator
Dec 11, 2018, 3:31 pm
#34
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I’m surprised the highly trained screeners haven’t tried to confiscate medals, pins, ribbons, etc on military uniforms. They’re just as dangerous as a sock monkey’s rifle.
Dec 11, 2018, 6:15 pm
#35
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They have!
Edit to add:
Joseph J. Foss Medal of Honor
edit, edit to add:
The TSA Proves its Own Irrelevance
Edit to add:
Joseph J. Foss Medal of Honor
“They just kept passing it around there were eight or nine or ten of them who handled it before it was over,” he said.
“They had found it in my pocket at the airport, and they thought it was suspicious. It’s shaped like a star, and they were looking at the metal edges of it, like it was a weapon. I asked for it back, but they kept handing it to each other and inspecting it. I was told to move to a separate area.
“I told them — just turn it over. The engraving on the back explains everything. But they thought they must have something potentially dangerous here.
“I told them exactly what it was — I said, ‘That’s my Congressional Medal of Honor.´”
“They had found it in my pocket at the airport, and they thought it was suspicious. It’s shaped like a star, and they were looking at the metal edges of it, like it was a weapon. I asked for it back, but they kept handing it to each other and inspecting it. I was told to move to a separate area.
“I told them — just turn it over. The engraving on the back explains everything. But they thought they must have something potentially dangerous here.
“I told them exactly what it was — I said, ‘That’s my Congressional Medal of Honor.´”
edit, edit to add:
The TSA Proves its Own Irrelevance
And the TSA decided not to mention its stupidest confiscations:
TSA confiscates a butter knife from an airline pilot. TSA confiscates a teenage girl's purse with an embroidered handgun design. TSA confiscates a 4-inch plastic rifle from a GI Joe action doll on the grounds that it’s a "replica weapon." TSA confiscates a liquid-filled baby rattle from airline pilot’s infant daughter. TSA confiscates a plastic "Star Wars" lightsaber from a toddler.
TSA confiscates a butter knife from an airline pilot. TSA confiscates a teenage girl's purse with an embroidered handgun design. TSA confiscates a 4-inch plastic rifle from a GI Joe action doll on the grounds that it’s a "replica weapon." TSA confiscates a liquid-filled baby rattle from airline pilot’s infant daughter. TSA confiscates a plastic "Star Wars" lightsaber from a toddler.
Last edited by Boggie Dog; Dec 12, 2018 at 1:00 am Reason: corrected link
Dec 15, 2018, 9:46 am
#36
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They've been doing this since I worked at MCI as a LEO.
We'd get calls for one single round of ammo someone left in a coat pocket or carry-on all they up to those scary Christmas toys a young child wanted to carry on-board.
The worst case that I saw was when a elderly women got stopped for having (2) empty rifle cartridges on her person. After talking to her, I found out that they were from her husband's funeral detail (21 Gun Salute). TSA refused to let her go thru with them and SW refused to pull he luggage so she could put it in there (flight would end up being late).
I ended up securing the items and when I got off shift that day, ran to the local UPS Store and shipped the stuff to her......
Reason 500,000,001 why I hate TSA and SW Airlines.....
We'd get calls for one single round of ammo someone left in a coat pocket or carry-on all they up to those scary Christmas toys a young child wanted to carry on-board.
The worst case that I saw was when a elderly women got stopped for having (2) empty rifle cartridges on her person. After talking to her, I found out that they were from her husband's funeral detail (21 Gun Salute). TSA refused to let her go thru with them and SW refused to pull he luggage so she could put it in there (flight would end up being late).
I ended up securing the items and when I got off shift that day, ran to the local UPS Store and shipped the stuff to her......
Reason 500,000,001 why I hate TSA and SW Airlines.....
Last edited by Bearcat06; Dec 15, 2018 at 10:02 am
Dec 15, 2018, 9:59 am
#37
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Dec 15, 2018, 11:34 am
#38
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They've been doing this since I worked at MCI as a LEO.
We'd get calls for one single round of ammo someone left in a coat pocket or carry-on all they up to those scary Christmas toys a young child wanted to carry on-board.
The worst case that I saw was when a elderly women got stopped for having (2) empty rifle cartridges on her person. After talking to her, I found out that they were from her husband's funeral detail (21 Gun Salute). TSA refused to let her go thru with them and SW refused to pull he luggage so she could put it in there (flight would end up being late).
I ended up securing the items and when I got off shift that day, ran to the local UPS Store and shipped the stuff to her......
Reason 500,000,001 why I hate TSA and SW Airlines.....
We'd get calls for one single round of ammo someone left in a coat pocket or carry-on all they up to those scary Christmas toys a young child wanted to carry on-board.
The worst case that I saw was when a elderly women got stopped for having (2) empty rifle cartridges on her person. After talking to her, I found out that they were from her husband's funeral detail (21 Gun Salute). TSA refused to let her go thru with them and SW refused to pull he luggage so she could put it in there (flight would end up being late).
I ended up securing the items and when I got off shift that day, ran to the local UPS Store and shipped the stuff to her......
Reason 500,000,001 why I hate TSA and SW Airlines.....
That could have been my mom, carrying an irreplaceable memento of my dad, and getting it confiscated because someone chose 'zero tolerance' over 'discretion' and common sense.
Dec 16, 2018, 7:35 pm
#39
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Not sure if I could ever go back to working as an Airport LEO. TSA irritates me just flying.... i'd hate to deal with them 24/7 again.
Dec 18, 2018, 10:44 am
#40
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It's also not a threat to aviation,
... is totally irrelevant, and does not say what you claim it says.
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both."
So (a) that says nothing about toys, just actual "dangerous weapon or device"; and (b) it's only a tack-on crime to the crime of actual bank robbery.
Your logic is like banning fingers and pockets, because people have used fingers in a pocket to commit robberies (pretending it's a gun). Um, no.
I think this is a case of interpretation that clearly fails even Auer deference.
There is no world in which a nonfunctional replica is in fact a WEI. The language of the regulation and statute is unambiguous. I don't think that the canons of statutory or regulatory interpretation permit a reading in which something that is not a weapon, explosive, or incendiary could be banned by a law that only applies to "a weapon, explosive, or incendiary".
But that issue will only get ruled on once a court gets it. (Which at present probably only likely in my case, Sai v. Pekoske, No. 15-2356 (1st Cir.).)
It's noteworthy that TSA did not choose to amend 49 CFR 1540.111 to prohibit "a weapon, explosive, or incendiary, or a realistic replica thereof". They could have passed that regulation, instead of this absurd interpretation that "an X includes a not-X". Yet they didn't. That failure is interesting, isn't it?
Dec 18, 2018, 11:18 pm
#41
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True, the statute doesn't specify replicas. But the Supreme Court and DoJ disagree with your conclusion as to what is or is not a dangerous weapon. See this section of the DOJ Criminal Resource Manual https://www.justice.gov/jm/criminal-...g-bank-robbery and see McLaughlin v. United States, 476 U.S. 16 (1986) in which the Court also noted that "The floor debate on the provision that became 2113(d) indicates that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute. See 78 Cong. Rec. 8132 (1934) (colloquy among Reps. Sumners, Blanton, and Dockweiler)."
Jan 14, 2019, 8:16 am
#42
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True, the statute doesn't specify replicas. But the Supreme Court and DoJ disagree with your conclusion as to what is or is not a dangerous weapon. See this section of the DOJ Criminal Resource Manual https://www.justice.gov/jm/criminal-...g-bank-robbery and see McLaughlin v. United States, 476 U.S. 16 (1986) in which the Court also noted that "The floor debate on the provision that became 2113(d) indicates that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute. See 78 Cong. Rec. 8132 (1934) (colloquy among Reps. Sumners, Blanton, and Dockweiler)."
"(d) Whoever, in committing, or in attempting to commit, [a bank robbery], assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both."
McLaughlin involved an actual, but unloaded, handgun. The reasoning is literally one paragraph so I'll quote the whole thing:
Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen;[3] as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.
[3] The floor debate on the provision that became § 2113(d) indicates that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute. See 78 Cong. Rec. 8132 (1934) (colloquy among Reps. Sumners, Blanton, and Dockweiler).
[3] The floor debate on the provision that became § 2113(d) indicates that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as "dangerous" within the meaning of the statute. See 78 Cong. Rec. 8132 (1934) (colloquy among Reps. Sumners, Blanton, and Dockweiler).
a) an unloaded real handgun is dangerous weapon per se, because a real gun is a real gun even if not loaded or aimed
b) it can be dangerous (as a device, not as a weapon) if it provokes an attack in response
c) it can be used to hit people (i.e. because it's steel).
Now contrast that wording with 49 USC 44902, TSA's compulsion authority, prohibiting air travel for "a passenger who does not consent to a search under section 44901(a) of this title establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance".
TSA's regulation of this code, 49 CFR 1540.11, is different: "an individual may not have a weapon, explosive, or incendiary on or about the individual's person or accessible property" (dropped 'other destructive substance', and dropped 'dangerous' qualifier of 'weapon').
Note that neither has the generic term "device" as in the bank robbery statute, so it's not enough to be "dangerous" alone, it must also be a weapon (or an explosive or destructive substance).
It has to be carried "unlawfully". That must refer to some other law (it can't self-refer, that'd be surplusage). I don't know of any other law (e.g. under the FAA?) that makes it illegal to carry a Toy Story doll's plastic gun onto a plane. (Please cite if you know of one.)
Let's agree that a real gun is a "weapon", loaded or not.
The "can be used as a bludgeon" bit is unusably vague; any hard thing bigger than a fist can be, and there are tons of those that we all agree are not weapons and have never been prohibited on planes. So ignore that.
A replica that's good enough that it could be used to scare people might be dangerous (to the brandisher), i.e. it might provoke a violent response, but it isn't a weapon, i.e. it can't actually hurt someone. TSA's statute, unlike the bank robbery statute, simply does not cover dangerous non-weapons, so this doesn't count. (ETA: the McLaughlin opinion is just wrong about stating its holding on this one. A piece of paper with the words "this is a bank robbery" can cause "danger" in the same way. So could any number of offensive things that are not weapons. Its analysis only applies to 'dangerous'.)
A Buzz Lightyear toy, however, could not plausibly provoke a reasonable person into violence. Nor can it even be used as a budgeon; it's weaker than a fist.
So... IMHO, no.
Do you have any case law citing interpretations of the bank robbery statute as a basis for interpreting the TSA's compulsion statute?
I would like to see video of someone causing an explosion using medical nitro pills.
Last edited by saizai; Jan 14, 2019 at 3:24 pm Reason: Merge consecutive posts by the same member; please use the multi-quote function
Jan 14, 2019, 11:42 am
#43
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Jan 15, 2019, 1:35 pm
#44
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Sai,
Reasonable arguments. Now all you have to do is get DOJ or TSA liar-, er, lawyers to argue them with you. I am only pointing out their interpretations and bases for making decisions.
Reasonable arguments. Now all you have to do is get DOJ or TSA liar-, er, lawyers to argue them with you. I am only pointing out their interpretations and bases for making decisions.