The Transportation Security Administration (TSA) pre-board screening procedures have resulted in the detection of increasingly large numbers of individuals who attempt to board aircraft with deadly or dangerous weapons concealed on their person or contained in accessible property.

In most cases, the offender has no prior criminal record, and there is no evidence that he or she intended to use the weapon to commit an offense aboard the aircraft. Nevertheless, the transportation of dangerous weapons into airport security areas is disruptive, diverts the time and attention of airport security personnel, and creates an unnecessary risk to the safety of the general public. Accordingly, federal felony prosecutions under 49 U.S.C. § 46314(b)(2) and 49 U.S.C. § 46505 are generally not warranted in these types of cases, but misdemeanor charges under 49 U.S.C. § 46314(b)(1) may be given consideration.

Specifically, the following guidelines should be considered when determining whether and how an airport weapons violation will be prosecuted.

1. A. Aggravated cases may be investigated and criminally prosecuted under 49 U.S.C. § 46314(b)(2) or 49 U.S.C. § 46505. Such aggravated cases may include, but are not limited to, the following examples:

   1. 1. The offender has endeavored by obvious and deliberate measures to preclude detection of a concealed weapon on his/her person or in his/her carry-on baggage;

   2. 2. Evidence available indicates that the offender intended to use the weapon in the commission of an offense; or

   3. 3. The weapon is any type of explosive or incendiary device, which includes devices using gasoline or similar flammable liquids, binary liquids, and other hazardous materials.

2. B. In other cases, federal misdemeanor charges under 49 U.S.C. § 46314(b)(1) may be considered, although prosecutors should also consider whether state or local law enforcement authorities will accept a referral of the matter for investigation and potential prosecution, as well as the following mitigating factors:

   1. 1. The offender is not a law enforcement officer, but nevertheless possesses a valid permit to carry the weapon;

   2. 2. The offender has no criminal record, where the circumstances surrounding the offense are clearly extenuating in nature; or

   3. 3. The offender possesses items which are normally and acceptably used for a noncriminal purpose and which present only a marginal risk to the safety of the public.

An unaggravated weapons violation may not require further criminal investigation and may be referred initially to an appropriate law enforcement agency. An investigation or prosecution under this section involving the unaggravated transportation of a weapon into an airport security area is not subject to the prior approval, consultation, and notification requirements set forthat JM 9-90.020. Nothing in this policy precludes a referral of weapons violations to state or local authorities for investigation and prosecution.

A United States Attorney may also elect to seek a civil penalty pursuant to 49 U.S.C. § 46303. In such cases, the matter should be referred to the nearest TSA Regulatory Compliance Field Office responsible for the airport for appropriate civil action. See JM 9-76.110. The civil penalty provision is one of strict liability. See United States v. Gutierrez, 624 F. Supp. 759 (E.D.N.Y. 1985).

[updated January 2020]