In Self-Defense Podcast 115: Former TSA Lawyer Scott Klippel on Traveling with Firearms

Former TSA Lawyer and founder of TSANOVdefense.com joins the podcast to talk about how to avoid the mistake of inadvertently taking a firearm through airport security, and what will happen if you do.

 

 

TRANSCRIPT:

Shawn Vincent:

Hey everybody, it’s Shawn Vincent. Thanks for listening-in to the podcast today. Today we’re going to be speaking with attorney Scott Klippel. Scott Klippel was once an attorney for the TSA for years, and he helped people with what’s called an NOV, these are Notifications of Violation. That’s what happens when a concealed carrier accidentally brings their firearm to the airport and gets caught in security. It’s kind of a big deal, it can carry criminal implications in some jurisdictions. Regardless of that, you’re going to be facing an automatic hefty fine from the TSA. Scott’s now retired from the TSA. He’s independent and he operates a business that helps people reduce these fines and take care of these fines quickly.

In our podcast today, we’re joined by Steve Moses. He’s a firearms instructor and CCW Safe contributor. And of course Don West, he’s Criminal Defense Attorney and National Trial Counsel for CCW Safe. In addition to picking Scott’s brain about his expertise in dealing with the TSA on these Notices of Violation for firearms at security checkpoints and airports, we’re also going to have a conversation about best practices for armed defenders who are traveling with their firearms and how you can avoid being one of the unlucky souls who gets caught at security unwittingly because you forgot to unpack or leave your firearm at home. Here’s my conversation with Don West, Steve Moses, and our guest, attorney Scott Klippel.

Shawn Vincent:

Scott, Don West is familiar with you because he encountered you due to a rising problem that we’ve noticed that sometimes members, Don, contact you about, and that is issues with getting in trouble with TSA for bringing their firearms, usually accidentally through security. And you’re an authority when it comes to handling that. And Don wanted you to be on the show to talk to us about that. Clear up some questions we have, I’m sure, some questions that our members have. And because we haven’t talked before, I just wanted to make sure you knew our team. Don West you know, he is a Criminal Defense Attorney who has handled a number of high-profile self-defense cases. He’s also CCW Safe’s National Trial Counsel, and through working with CCW Safe, we’ve met Steve Moses. Steve Moses is a well-regarded firearms instructor and he served on, I always get the nomenclature wrong, Steve, Special Force Tactical Team that served high-risk warrants for a sheriff’s department.

Steve Moses:

Yeah, Special Response team.

Shawn Vincent:

And then I’m a litigation consultant, which means I get to dabble in the fun parts of law without having had the burden of going to law school or ever having to take a deposition or show up for a court appearance. I helped pick juries, and I handled press when it comes to high-profile cases, and get involved in some of the other nitty-gritty paralegal-type activities that go with law. All that said, Scott, I’d love for you to tell us about how you got to the point where you’re handling TSA, what do we call them? NOVs, Notices of Violation.

Scott Klippel:

Yes. Well, I just would like to say that I started with TSA very early — April 2002. TSA’s enabling legislation was passed right after Thanksgiving of 2001. As a result of 9/11, TSA has between 200 and 250 lawyers now. At the time I was hired, I was probably like number 20, 25. So I’ve been with them from the beginning. And in about 2007, my supervisor came up to me and said that Chief Counsel wanted me to take over the NOV docket. And the problem was it was being handled by field counsel. There were a number of TSA attorneys in airports throughout the country. What the number is, I don’t know. But they had the responsibility for prosecuting NOVs. And as a result, the settlements were all over the map and one of the most important things and the Federal Government and in TSA, everybody, they want everybody treated the same.

And so they figured coming through one person, I would be able to know what the parameters were and if there was any problem, they could just come to me and tell me what the problems were. So I started doing that and retired five and a half years later and was looking for something to do and decided to start NOV Defense, TSANOVDefense.com  online. And I’ve been doing it since, I think I’ve handled probably about 7,000 cases between the time that I was with TSA in charge of that portfolio, and since I’ve been doing it privately. So it keeps my fingers in the public and not quite the practice of law, but it keeps me out there, and I enjoy it.

Shawn Vincent:

That’s awesome. So I’m going to ask you the simplest and dumbest of all questions. Who is allowed to take a firearm on an airplane or through security?

Scott Klippel:

Last I know, and since I’m not at TSA and not privileged to change the changes of protocol, but I believe police officers who are traveling on the equivalent of orders to pick up prisoners at some other jurisdiction, they have to … I believe there’s some paperwork that they need and they need to check in with TSA before getting on the plane. And I do believe that they let the flight attendants know that they’re armed. And also I suspect they probably have access to whether or not there are FAMs on the plane to let the FAMs know that they’re on the plane.

Shawn Vincent:

And FAM would be a Federal Air Marshal?

Scott Klippel:

Federal Air Marshal, yes. And I have no idea and don’t want to know what planes they’re on and what their protocols are.

Shawn Vincent:

So all that’s to say is, except for law enforcement in very specific documented cases, nobody else is allowed to bring a firearm onto a plane?

Scott Klippel:

Absolutely. If they want, they can check it and check the luggage. And there are specific requirements for that, but not inside the plane itself.

Shawn Vincent:

And later on, I’d love to talk to you a little bit more about the check luggage side of things. So establishing that, if you go to security and for some reason or another you have a firearm or something related to a firearm, I have two questions for you. We can address them in different legs, but one is: Is it a criminal violation, a civil violation or both? And how big a difference does it make, whether the firearm is actually loaded and what’s the definition of a loaded firearm from the TSA’s point of view? Let’s go ahead and start with the criminal civil conversation.

Scott Klippel:

Whether it’s a criminal offense, it depends on state law, although it’s a violation of Federal Law, the FBI generally has other things that they’d rather be doing. So the most obvious places where it’s a violation of criminal law, New York, New Jersey, and a lot of cases out of Chicago. Detroit will arrest or give summons to most people. Most jurisdictions in California. Famous for not arresting people, it would be Phoenix, Arizona, Portland, Oregon. And most of the airports in Texas, they change the law and if it’s not a criminal violation in the state where the airport is, then the State Authorities give the gun back and you put it back in your car.

If it is a violation, then you’ll either get arrested or given a summons and generally, the police will hold the gun for the criminal prosecution, and then it’s up to the prosecutors what the disposition of the criminal case is and whether or not the gun gets returned or not. But I just would like to say TSA has absolutely no criminal jurisdiction at all. There was a decision early on made by TSA when they were stood up, and TSA does not decide whether criminal charges get filed or not. So people often ask me, “Oh, can I get the gun back?” I said, “TSA doesn’t have it. If it was taken from you, it’s with the local law enforcement agency that you interacted with.”

Shawn Vincent:

Sure. And I want to make sure I get that right. So from a criminal side, TSA has nothing to do with that. Federally, it’s a crime, but it’s rare that the FBI is going to get involved with that. Extraordinarily rare.

Scott Klippel:

I have seen two cases out of the thousands that I’ve done, and I had never figured out why the federal prosecutors got involved in those cases. One was out of New Jersey, the person was in his 60s, had a joy-riding case against him when he was a teenager underage, and we had no idea why the feds went against him. And another one was in the Midwest. But TSA has nothing to do with that at all. And the feds don’t like these cases. I mean, they have other things to be doing.

Shawn Vincent:

So with the feds out of it, then it’s really up to the state that you’re in or the local jurisdiction how they’re going to proceed with those types of things.

Scott Klippel:

Interesting side note though, it was interesting because Atlanta, originally they were not arresting people at ATL then they were arresting people. And then I don’t know whether there was a change of state law or not, but they stopped arresting people. And the US attorney’s office got involved and said, “If you are not arrested in ATL, they are going to file criminal misdemeanor charges against you.” Which was a big anomaly.

Shawn Vincent:

Steve, you have the thought?

Steve Moses:

Yeah, while you guys were discussing whether or not the Federal Air Marshals are notified as to whether or not armed LEO on duty are on the plane, just contacted one of our instructors who is a Federal Air Marshal, and he said, yes, they are notified by the gate agent or lead flight attendant that there is an armed LEO on the plane.

Scott Klippel:

It would sure be something if I was a FAM, I would want to know about.

Shawn Vincent:

Don, did you have something to interject?

Don West:

Not on that specific point, but I did want to follow up with Scott. So if you’re looking at the typical screening process, a gun would be discovered in a carry-on bag typically as the passenger is clearing security. So TSA discovers the firearm probably as a result of their x-ray or their screening. So they’re the first people to recognize there may be a prohibited item here. So obviously then, they would make the decision whether or not to involve local law enforcement. And do they have discretion there based upon their assessment or their identification of what it is that’s just been sent through the security line?

Scott Klippel:

I don’t know the exact protocol, but I’ve never seen a case where local law enforcement authorities were not notified. And the reason is, is that the TSA screeners are not supposed to touch those guns. The only person that’s authorized to take the gun out of the bag is a law enforcement officer. So I assume that they notify the LEOs at the airport immediately upon finding a gun. Although honestly, I have been told by some clients that it was the TSA screeners that took out the firearm, in not too many instances, but they’re not supposed to.

Don West:

So I think, we can pretty fairly assume that it is TSA that discovers the item, the firearm, is going to call local law enforcement. They’re going to be standing by the agency is going to have a presence at the airport. So they call them over, they see what they’ve got, and then at that point, law enforcement will make a decision whether to seize the firearm, whether to initiate some sort of criminal investigation, like you said, issue a summons for a misdemeanor offense, take the person into custody for a felony if the law provides for that or do something from the local jurisdiction. But as far as TSA is concerned, they have, as you put it, no dog in that fight. But regardless of what locals might do, and I’ve had cases where they’ve just let them go on to wherever they were going, they may have kept the gun, may have given … So they don’t always arrest people even if they legally could. But then does that solve the problem that you might have with TSA?

Scott Klippel:

No, absolutely not. Everybody who’s found with the gun is going to get a Notice of Violation. Many years ago, they would cut officers who were not flying on orders some slack because they were so used to carrying guns and they would issue warning notices in those cases. Those go back many, many years. After I left, that policy stopped. LEOs who were flying who have the guns in their carry-on, if they’re not traveling on orders, are going to get Notices of Violation. And I’m told that they receive civil penalties equivalent to what a non-LEO would get.

Don West:

Scott, and maybe later on we can talk about it in more detail, but how was that processed by TSA? Is it all get funneled through a department or an agency or even a specific lawyer that handles it, no matter where the incident took place, it gets funneled to one spot for processing?

Scott Klippel:

It’s the Special Enforcement Program Office, CEPO. I have absolutely no idea why it’s called that. And all the cases are given to them and they issue the NOVs. Now in the last couple of years because of the backlog that they had, there are cases, NOVs being issued by TSA representatives at the airports. So how those decisions were made, I don’t know. But when I was there, everything went through SEPO, Special Enforcement Program Office. And they were all issued on the same day. And now it’s all over the place. Some are issued by SEPO, some are sent out by the airports. How those administrative decisions were made in TSA, I don’t know, and doesn’t affect my business because I’m only contacted after the NOVs are delivered by the postman or postwoman.

Shawn Vincent:

So another question I had for you is, is there a difference in how you’re handled between having a loaded firearm and an unloaded firearm? Just ammunition, just a firearm with no ammunition? When is a firearm considered loaded as far as the TSA is concerned?

Scott Klippel:

Okay, there are a couple of aspects of that. Loaded firearms as far as TSA is concerned at the checkpoint, it differs in checked luggage. At the checkpoint, whether there are bullets in the gun itself or whether there are bullets in the pocket or no bullets in the clip, bullets in the pocket, bullets in the gun case, all of that is considered to be a loaded gun.

Now the other interesting thing, I had a conversation with the TSA attorney, who’s doing this probably for the last eight years, almost since I retired. TSA has taken the position that if you have a gun and no bullets in it and different caliber bullets in your pocket or in the bag, that that is considered to be a loaded firearm even though those bullets will not go into the gun. Whether that would be upheld after a formal hearing by an administrative law judge, I have no idea. These cases are not that big that they go to an administrative law judge on those issues. And TSA attorney told me, because he said, you have a firearm or accessible ammunition, it didn’t say it has to be ammunition that fits in the gun. So they’re taking a very strict approach to that.

Now as far as loaded guns are concerned, the NOVs now became fairly complicated in determining how TSA sets their penalties. If the gun is unloaded … No, let’s back up. There are certain aggravating factors that they have now. One aggravating factor is, is that there are bullets in the chamber. One aggravating factor is, is that you’re in TSA pre-check. So if there are no aggravating factors, TSA sends the NOV out at $3,000, pay $1,500. If there’s one aggravating factor, the NOV goes out at $4,950 and they offered to settle it for $2,475, half of that. If there are two aggravating factors that you were in pre-check and there was a bullet in the clip, then it goes at $4,950 and they want you to pay $3,712. There’s another aggravating factor that I personally have not seen with a bullet in the clip with the safety off, excuse me, with the safety off, and then that goes out at $10,000 and that’s not an NOV at that point, but that’s beyond this discussion.

So they made it more complicated for themselves. Back a couple years ago, everything went out at $4,000 or $4,100 when they upped it, and for whatever internal reasons, TSA decided to go to these aggravating factors.

Shawn Vincent:

So there’s not like two categories of loaded/unloaded as far as the TSA is concerned, there’s an unloaded firearm and then there are aggregating factors on top of that as they get more severe. So a firearm with ammo in a pocket, that’s one thing. Firearm with ammo in a magazine, another thing. Magazine loaded, a bullet in the chamber, these all get worse as aggravating factors.

Scott Klippel:

Well, bullets in the clip are not an aggravating factor, that’s just a normal loaded gun. The aggravating factors: is there a bullet in the chamber and were you in pre-check? They’re very upset with people who are in pre-check, they trusted them, they go to the airport, go through the expedited screening line and that has gotten TSA very upset and they now lose their pre-check endorsement for five years.

Shawn Vincent:

Which may, from my point of view, be the worst punishment.

Scott Klippel:

I have people call me up, they said, “Hey, if I pay the full penalty, can I keep my pre-check?” And they go, “Sorry, it doesn’t work that way.”

Shawn Vincent:

Especially flying out of Orlando, right, Don?

Don West:

Yes, exactly.

Scott Klippel:

No, I mean I have people flying, a lot of my clients fly once a week, some of them several times a week. And the worst thing is they’ve lost the pre-check. They’ve just-

Shawn Vincent:

Yeah, I do 10 days in jail if I-

Scott Klippel:

No, I understand.

Shawn Vincent:

Scott explained to us that TSA does not want your money, they just don’t want you to bring firearms to security checkpoints. So we’re going to talk to Steve Moses about some responsible gun handling techniques that can help make sure that you don’t make this very costly mistake. And then we’ll talk to Scott again about what the actual bureaucratic process looks like to take care of that fine with the TSA.

So here’s where I want to go next, Scott, so we’ve talked about NOVs a lot. That’s a Notice of Violation and what you’ve said is even law enforcement not in official capacity, everyone who gets caught with a firearm in security, they’re going to get a Notice of Violation. What’s next? I’m a concealed carrier, I forgot this firearm was in this bag. What am I doing?

Scott Klippel:

I’ve never run into a case where somebody intentionally brought a gun to the airport. I saw two cases when I was with TSA where they forgot that the gun was in their ankle holster, which is kind of interesting. But I have clients that call me up and say, “Oh, it was just complete honest mistake.” And they’re indignant that they got an NOV. I said, “Out of the 7,000 cases I’ve handled, how many of you think took guns to the airport intentionally?” They said, “I don’t know how many.” I said, “None. They don’t do that, and it doesn’t happen.” I mean, there are a lot of intentional guns in checked luggage. I don’t know why they put them in peanut butter jars, but it seems …

Shawn Vincent:

Steve, I saw you react to the idea forgetting that you had a firearm and an ankle holster, from a training professional’s point of view, a gun safety point of view, and advocate for responsible gun ownership – tell me a little bit about the mindset that is violated there when you forget you’re armed.

Steve Moses:

Oh, it’s just hard for me to even fathom if you’re halfway responsible that you have a loaded gun somewhere on your person. I mean, I do this every time before I go through TSA. I look like I’m doing the Macarena when I do my self-frisk. And I am grabbing my belt, I’m squeezing all my pockets, I go down and touch my ankles. And I may do this several times before I actually get in the line. I know I’m attracting attention, but I would rather go ahead and attract that attention and find something than that I would, when I get into the circumstances that Scott’s talking about, which man, that’s a bad situation. I just think a big part of being just a responsible concealed carrier should take into consideration that you have control of everything that’s on your person in your house at all times, and then you especially focus on it anytime that you’re getting ready to travel into an airport, whether you think you have a gun on you or not.

Shawn Vincent:

Scott, you said that the TSA attorney actually has some advice for people on how to mark their bags and how-

Scott Klippel:

Oh, absolutely. Absolutely. One of the things that I go over with all my clients, and I’m happy to share it here. I mean, I have more than enough business with the guns being recovered every year going up. So the two things that my clients are told by me and they agree to, and I assume that the TSA attorney tells people when he conducts informal conferences with them, is that you take your bags, all your carry-on bags, bring them over to a bed, sofa, desk, turn them upside down, dump everything out, shake it out real good, and then you put your hands inside open, all the zippers, all the velcro, stick your hands into each and every compartment. And then when you’re sure that all your carry-on bags are completely empty, then you pack it for your trip.

The other thing is, and this comes from the TSA attorney, is that you go through your house, you have carabiner clips in the drawer someplace, everybody does. And in any bag that you may ever put a firearm in, you put a carabiner clip in that bag, and then if and when you put a firearm in that bag, you take the clip out, put it on the handle of the bag. Gun out of the bag, clip back in the gun. Come back in the bag, clip back out on the handle. That way when you see the carabiner clip on a handle of a bag, you remember that there’s a firearm in there.

Shawn Vincent:

Sort of like an electrician tagging a circuit before he or she works on it, right?

Scott Klippel:

Yeah, exactly. And the second the carabiner comes directly from the TSA attorney who’s a big hunter, and he sits out in the middle of Michigan in January, I think, to go hunting. It’s a little cold for me. And he doesn’t need any more cases either. TSA is really all about, they now don’t want to handle this. These cases, there’s no reason for it. They wish it didn’t happen. It wastes a lot of TSA resources and they are just really, beside themselves, as the guns go up every year.

Shawn Vincent:

Tell me about the process. So someone’s been tagged with a Notice of Violation, an NOV. And from what I understand, from what you provided to us that you now have what, 30-45 days to have an informal conference or they’ll tell you what your fine is and you can just pay half of it and be done with it, or you can have the informal conference, or if you ignore it for some reason, then you have a formal hearing? If you can manage that and tell us about how that goes.

Scott Klippel:

The way it works is the NOV goes out for a specific amount, TSA in that will tell you, depending on whether they’re aggravating circumstances, how many more, they will tell you what they are going to settle the case with. If you do not want to pay that, you have options at that point. A formal hearing is just … shouldn’t even be on the plate for anybody. If they want to negotiate with TSA, they can send in the packet that people get from TSA, there’s an NOV option sheet. They should fill it out, request an informal conference. TSA gives you instructions on how to return it either by snail mail or email. And then at some point, the TSA attorney will call them back and negotiate a settlement with them. Reasonably they have, when I was handling it, there was a good chance that the cases would be settled for another 50% off. And so unfortunately now there’s a six-month to a one-year delay for the attorneys to get back to them.

If they ignore it, what happens is that eventually a final Notice of Violation will go out and that will state you have two options: you can pay the full amount or you can request a formal hearing in front of an administrative law judge. And then, unfortunately, that route, there’s a docket number signed and it now becomes a public record. TSA by federal privacy regulations cannot tell anybody about the NOV. So I’ve represented on both sides, judges, state representatives, they say, can anybody find out about it? They’re worried if the press calls up and says, “Is Representative Smith going to … Was he found or she found with a gun at the airport?” TSA’s response is, “We can tell you how many guns were found at the airport on that date. We can’t tell you whose guns they were or who was responsible for it.” So these things are very private. With a formal hearing, it becomes a public record.

And if they ignore, and you have 15 days at that point, you really have to be quick about requesting a formal hearing. If they ignore the final Notice of Violation and take no action within 15 days, it turns into a final judgment owed by the respondent to the Federal Government for the full amount of money. If it’s not paid within 30 or 60 days, that then gets sent out to a private debt collector, and eventually, if you think you’re going to get a federal tax return refund, they’ll get the money back. So I have people call up and say, “Oh, I’m just going to ignore it.” I explained what’s going to happen. They said, “Well, I’ll take my chances.” That’s up to them, but I would not want a private debt collector on my tail, filing reports that my creditworthiness and all that.

Shawn Vincent:

In the simplest form, you’ll get a Notice of Violation, an NOV, it will have a fine associated with it, and they’re going to offer you 50% off if you take care of it within a month or whatever the timeframe is. And you can just decide to do that, and it’s private, it won’t be public record, it’ll be done and over with. Or you can have an informal conference and there’s a chance you’ve had success on a lot of occasions getting another 50% knocked off. So there’s a chance you can get a quarter of what that fine would be if you engage with them. Let me ask you this, in a minute I’m going to ask you kind of what the range of what those fines look like and where they end up. I want to know, are there things that you can do, behaviors, things you can say at the TSA checkpoint when they find this firearm, and in your interactions in these conferences that can improve or make worse your case?

Scott Klippel:

TSA on the settlement just assumes everybody was very cooperative at the checkpoint and didn’t fail what we called the “attitude test.” And to settle these cases, TSA really just wants to make sure that you’re not going to do it again. And so what they’re really interested in is that you agreed that you understand you’re going to dump your bags in the future, you’re going to use the carabiner clip, and I assume if people mouth off at the checkpoint that if a summons was optional, that the police officers may decide that that’s the time to issue a summons. But that I don’t know about, most of the cases everybody tells me they’re cooperative. I say, well, if you weren’t, I suspect you were. It would not have been as easy at the checkpoint as you tell me it was.

Shawn Vincent:

Beyond the aggravators that we talked about, are there other aggravators that happen along the way that can affect your fine?

Scott Klippel:

Not on the NOVs. I mean the cases I do not handle which involve refusing to cooperate with screeners and I have no idea what happens on those cases. I know TSA takes them very seriously and you’ll wind up with a big notice of a proposed civil penalty of over $5,000 for failure to cooperate with screening. But those cases, I didn’t handle when I was with TSA and I have no contact with them now other than telling the people that I don’t handle them I’m sorry and I don’t know anybody who does.

Shawn Vincent:

What are the types of things that help you mitigate a fine down?

Scott Klippel:

Again, the most important thing is to, what I emphasize is how inadvertent it was. They were running late for the plane, they just grabbed the bag, they grabbed their backpack, they grabbed their briefcase, their purse, and they just were running late and didn’t bother to check it at home. Again, the whole thing TSA does, as far as I know, never emphasized how much money they made in civil penalties. It doesn’t go to TSA, goes to the General Treasury Fund. 

And on occasion, I remember when I was with TSA, somebody sent something around an email about how much dollars were made and Chief Counsel said, “This is not the purpose of the program.” The purpose of the program is we have a vigorous civil enforcement program and that it not happen again. The money is secondary to them, but have there has to be some sort of financial penalty otherwise people go, “Oh, next time it’s not going to be so bad.”

By the way, I’ve handled three in the last year, three cases involving second incidents, two of whom I represented on the first, and they didn’t dump their bags, they didn’t use the carabiner clip, and those penalties go out at roughly $10,000. So that’s a big hit.

Shawn Vincent:

If you’re going to travel with your firearm, there’s the right way to do it and the wrong way to do it. The right way is to pack it in your luggage and even then you have to do it in a particular way to be compliant with the TSA and with the requirements of your airline. If you do it wrong, you can get a Notice of Violation from the TSA. Also in this section I ask if bullets without a gun will subject you to a Violation Notice and then we talk about traveling with salamis.

Don, I’m curious, what was your reaction when he saw the chart that Scott sent over that shows from, gosh, 2008, with just the exception of the pandemic, every year there’s been more guns taken or detected at security than the last.

Don West:

I wonder does it reflect a growing irresponsibility or does it just reflect a growing number of people that are traveling at this point or a growing number of people that possess firearms? To the extent that it’s a growing number of people that possess firearms and aren’t being completely responsible because they’re new or they are cavalier in some way that’s dangerous, obviously. If it reflects just a number of people that are traveling and the numbers go up, well, that’s somewhat understandable. 

The concern would be, and we’ve talked about this before, whether it’s societal events, political events, or just the times that we’re living in, people for one reason or another, on their own decide to be a firearm owner for the first time, but they don’t take the next steps that we preach that they need to do. They don’t get enough training. They don’t understand firearm safety and then all of a sudden from never owning a firearm in their entire life. Now they have one every day in some capacity, but don’t necessarily have the mindset that you need if you’re going to be a responsible firearm owner.

I don’t know if Steve has had any experience with this or anyone else, just the idea that the new, certainly in firearms instruction classes, I would think you encounter people that think all they need to do is buy the gun, maybe take a class that makes them eligible for a carry permit and then they’re done. They don’t have to do any more training and they don’t even really have to do any more thinking about it. And that allows them both effectively drop the ball in many ways, but perhaps very specifically when it comes to this sort of stuff. They mix the bags up, the ones they take to the range, they don’t check their carry-on because they aren’t really even that worried about it. And that would be disturbing if that’s reflective of this increase, I would think.

Shawn Vincent:

Does that come up in your classes, Steve, how to transport firearms?

Steve Moses:

It does. In the basic classes most of the students that are in our classes already have license to carry permits and safe storage and transportation, especially safe storage is something that’s emphasized in those particular classes. Regardless, it’s even for those people that have had that instruction, it’s very easy to be a little bit cavalier or casual thinking that, “Okay, worst case scenario, it won’t happen to me.” Well, in some instances there may be a low probability of something really negative happening, but that thing is really negative and you need to avoid that. So we are big advocates for always having control of every firearm that’s in your house, limiting that access to only people that you’ve authorized and you believe that are capable of handling that. For instance, my wife and I, we live alone, but we do have three grandchildren, two of which are pre-teens, and so we make a big deal about making sure that no matter what, those kids can’t without our knowledge get into a firearm, so we have them secured all the time.

The other thing is, and I especially liked what Scott said about dumping all of your contents and checking all of those, I’m also a big advocate of don’t do it once, do it twice. I think it’s very well worth the extra time to go through that when you’ve packed that thing. I’m not saying you have to go dump it again, but go through everything in there where anything that could get you in any kind of conceivable trouble, which could even include, well, I’m going to say it’s got a big deal, but even knives and screwdrivers — there are other instruments that could be ascertained to be weapons that won’t make it through the screening too, and I don’t want to have to deal with that.

And there’s been an instance or two, especially when this first started with TSA, where I’ve actually had to surrender a knife when it was being screened, and at that particular time I said, “Well, just throw it away.” I don’t have the means of going back to my vehicle. But I think being very careful and double checking, triple checking, and make sure that that’s not going to be something that you’re going to have to deal with at TSA is really important.

Shawn Vincent:

And Steve, I have another question for you. In the firearms training community, trainers and instructors have the challenge of traveling with their firearms when they go on the road to work with other folks. Scott had mentioned before that it is appropriate at certain times to pack your firearm with your luggage. Can you tell me anything from an instructor’s point of view, about what you know about that? And then Scott, I’d love to get any feedback from you.

Steve Moses:

Well, most of what I know is going to be from my own personal experience, and I travel with firearms virtually every time I get on an airplane. I’m a retired law enforcement officer, so I have the LEOSA status, which allows me to carry in all 50 states. That doesn’t mean that I may not run into an issue, like in certain states like New Jersey and New York. As a matter of fact, those are states that I’m like going, “Ugh, man, do I really want to go there knowing that I’m going to be unarmed?” And if there is an issue with them finding out that, yeah, I’m carrying under LEO in some instances you’ll even have trouble with some of the authorities there in those airports. So try to avoid that.

By the same token, it’s very important that you have a TSA-approved hard case container. You need to have TSA-approved locks on it. You need to make absolutely sure that there is no ammunition or a magazine inside that locked case. What I’d like to do if my case is large enough, is go ahead and actually lock the slide open so that when I look in there, I can see that, okay, there’s obviously nothing in the chamber and there’s nothing in the magazine. I check that and then when I actually go to the airport and I go into parking, I will actually go in there and open up that case and check it one more time. 

Then I want to make sure that the first thing I’m going to do when I go in there to check my luggage is to say, “Hey, I’m Steve Moses and I have a firearm to declare.” And typically they’re very professional, it wasn’t always the case at first when you had a lot of people that had seen firearms a lot, and didn’t know what they could and couldn’t do, and I’m referring to some of the people that are checking in for working for the airlines. They’ll just say, okay, what they’re going to ask you to do is sign a little card that says that that firearm is unloaded. And it’s kind of changed over the years, Scott may be able to clarify this better than me, but I think the last time I traveled, they basically they taped that card to the outside of that case and then made sure it was in that bag and then took it off.

The other thing is, you want to travel with your ammunition, in my opinion, in a factory container, the same thing it came in. I’ve heard issues where people have put them in plastic boxes or they’ve stuck them in magazines, et cetera. They’ve stuck them in baggies. The best thing to do, if you want to avoid any kind of trouble in my opinion, is to go ahead and just bring a pristine box of new ammunition, and you use that when you get to wherever your destination is. That’s what you load in your magazines or in the cylinder of a revolver, and when you’re ready to go back, you put them back in that factory container.

Shawn Vincent:

Scott, I saw you nodding your head a bit while Steve was talking. Anything to follow up or reinforce there?

Scott Klippel:

Yes, a couple of things. Airlines have their own requirements about how to transport ammunition. Some of them say they can’t be in the same container as the gun, and as far as I know, they generally do not enforce their own regulations. So what I’m talking about is TSA regulations, not about what the airlines may require. For TSA regulations: number one, it has to be unloaded. And one of the problems that I get calls on is the definition of TSA unloaded is no bullets in the chamber and no bullets in the clip. I’m told by military people, and by a number of law enforcement people. And some definitions in state law say that if there’s no bullet in the clip, but no bullets in the chamber, but there are bullets in the clip that it’s considered to be unloaded, that is not TSA.

Back when I was running the program if you had… Okay, let’s back up. So if you do not want to take the bullets out of the clip, as far as TSA is concerned, you don’t have to, but you do have to remove it from the gun entirely. And according to TSA, you can put the gun and the clip side by side in that locked hard-sided container. It may not be good enough for the airlines, but nobody has ever told me, they don’t call me up for airline violations and I don’t know that the airlines care or if the airlines will tell you as you’re checking in, the ammo is not packaged properly. But as far as TSA is concerned, if you want to leave the bullets in the clip, you can, but you have to take the clip out entirely side by side with the gun.

And as Steve says, in a locked hard-sided gun case, put a lock on it, and then you go to their check it in and you tell them, “I have an unloaded firearm in here,” … and this has become problematic: the airlines are not doing a terribly good job of training their people. Too many people are just, the airline ticket agent smiles at them and says, great. Grabs the bag and tries to put it on the belt. And passengers who travel with guns a lot, they go, “Oh, I guess TSA changed that requirement.” TSA hasn’t changed that requirement, that requirement will never be changed. If the ticket agent does not give you a declaration form that says there’s an unloaded gun it in here, then you have to ask for one.

I’ve had a number of people I’ve spoken to say, “The ticket agent told me they had no idea what a declaration form was.” I tell people, you then have to ask. And I go over this, by the way, with my clients who have NOVs for carry-on, but I want to make sure that they don’t get in trouble in the future if they’re checking guns. So I explain all this to everybody. So you ask for a declaration form. If the ticket agent has no idea what you’re talking about, ask to speak to a supervisor. Somebody told me once that a supervisor told them they had no idea what a declaration form was. This is kind of crazy.

But anyway, so you fill it out, sign it. I’ve heard that sometimes the airlines will tape the declaration form onto the gun case. Just do not put it inside the gun case because if it gets open, they don’t know that there’s a declaration form in there and just put it next to the gun case, then you’re good to go, that’s it …

Shawn Vincent:

Can you get a violation. Just to be clear, can you get a violation from the TSA if the firearm’s not declared or it’s not being stored properly?

Scott Klippel:

Yes. I mean, if it’s not packaged properly, there’s a violation. They will claim that you didn’t declare it because there’s no declaration form in there. Of course, the airline is going to say, “Oh, obviously the passenger never declared it.” And so, you want to make sure that that declaration form is in there. You can get an NOV. If the gun is unloaded to TSA requirements, and it was properly packaged, and they say that it was not declared and the passenger asked for an informal conference and says, “I told them about it.” Then there’s a good chance they’re going to get a warning notice out of it because no administrative law judge is going to want to hear this case – a “he said, she said,” and if the guy passenger says, “I told them about it.” I’m not sure that TSA’s going to have to carry the burden of proof.

Shawn Vincent:

But you’re in that process and you don’t want to be in that process.

Scott Klippel:

Yeah. But the thing is then TSA is not forgiving anymore about bullets being in the clip if the clip’s in the gun, you will get a penalty and they will not waive it. And that’s different from when I was in charge. Why they did that, I don’t know. I don’t think it’s terribly fair, but nobody asked me my opinion about these things.

Shawn Vincent:

Scott, one more question about going through with a carry-on. What about the circumstance where there’s ammunition but no firearm? Have you encountered that before? How does the TSA handle them?

Scott Klippel:

Okay, I’m giving you old guidelines because I don’t get calls on ammunition. Under the old guidelines, if it was 20 rounds or less, they were given a warning notice instead of a Notice of Violation. If it was 21 rounds or more, it went out as an NOV, back in the day it was $250. It may be three or five now. Whether they changed that minimal amount, I don’t know because I don’t handle those. And the TSA attorney doesn’t know either, because it’s a non-firearm case that gets handled by the clerks in the special enforcement program office.

Shawn Vincent:

Don, that could be a criminal problem in some jurisdictions though, having ammunition?

Don West:

I would think so. I know that… Well, I think it would be from locale to locale, whether there’s an ordinance or a statute that prohibits possessing ammunition across the board in a secure area. I don’t know that specifically. I know there are people that are prohibited by law because they have a prior felony conviction that are prohibited from possessing firearms, and they don’t necessarily know that they’re also prohibited from possessing ammunition. So if they were to get caught with ammunition, even in a fairly innocent circumstance of an inadvertent round being in a bag they were attempting to carry on an airplane, not having any idea there was ammunition in there, they might very well be arrested if law enforcement realizes they were a prohibited person. So that would be all sorts of problems.

I don’t know if we were simply walking through an airport with ammunition, whether that would violate the law or not. I would think so, because Scott, aren’t there other prohibitions separate and apart from firearm violations that would include other kinds of explosive stuff? Certainly, a live round is an explosive of some sort that you’d have some issues there, I would think.

Scott Klippel:

I think though, but the definition of explosives, and I haven’t looked at it for a while, ammunition is not classified as an explosive. It’s just classified as ammunition.

Shawn Vincent:

I know it gets their attention because I learned a hard way that a harmonica is easily mistaken for a 22 magazine going through TSA. So I don’t travel with harmonicas anymore. And Scott reminded me of your experience traveling with salamis. Do you want to share it with our audience about that?

Scott Klippel:

Yeah, I was living in a place where I couldn’t get decent salamis, and after the first time I took it through and they explained to me that it looks awfully like a plastic explosive, so I always would just put it on top so that when they opened the bag, as they invariably would I say, “I know what you’re looking for, its salami on top.” And then one more experienced screener said, “Just take it out, put it in its own bin, and we’ll see what it is. We don’t have to open your luggage and it’ll save you and us a lot of time.” And that’s what I then started to do. Blocks of cheese, I think also have that problem. Peanut butter jars also I think have that problem. So I’d recommend if you think that there’s anything that a screener might be interested in, because it may look like a plastic explosive, just put it in its separate bin and put it through and you’ll save yourself a lot of time as you’re waiting, otherwise you’re going to be waiting for them to get around to open your luggage.

Shawn Vincent:

Here’s a question. If you get a Notification of Violation, what happens to your concealed carry permit? Scott’s going to let us know. We’re also going to talk about some other miscellaneous concerns about traveling with firearms. For example, do you know that if you’re going from one place where it’s legal for you to have your firearm to another place where it’s legal, but you get rerouted and land in a place where it’s not, you can face serious criminal liability.

Shawn Vincent:

If we haven’t put a fine point on it, can you tell us what the range is of fines that somebody who haplessly encounters security with a firearm will face?

Scott Klippel:

It will be a maximum of two aggravating factors, bullet in the chamber, and pre-check goes out at $3,712. That’s the maximum that TSA would ask for if there’s one aggravating factor. $2,475, if there are no aggravating factors, it goes out at $3,000, pay $1,500. And then of course from there, you can request your informal conference to try to get them down even further.

Something that you haven’t mentioned that I think your listeners would be very interested in is what happens to their carry permits after a gun is found.

Shawn Vincent:

Yeah, please.

Scott Klippel:

Okay. Now there are only two instances that I know of that carry permits were suspended. Both of them were in Texas and one was as a condition of probation, they lost the carry permit for the term of probation. And the other one, I never figured out why DPS took it away. I have never gotten a call from anybody that said, “They said that my carry permit’s not being renewed because of this, so I assume that this is not a problem.” And when people ask me about it, and I said, “I have never heard of it being an issue, and if you have any problems, get back in touch with me.” So I don’t think that’s an issue.

Secret clearance also is an issue. The thing people have to remember in applying for security clearance or for renewals is that the TSA matter is a civil matter. And most of the time the questions that are asked are, have you been arrested? Have you been convicted? And I always tell my clients, if you are renewing a clearance or applying for a clearance, if you have any questions about a particular question that they’re asking, get in touch with me. And if there were criminal charges, they need to get in touch with their criminal attorney to see whether there was a conviction, whether it was expunged, or whatever.

Steve Moses:

Yeah. Just going back to the ammunition issue, I believe in New Jersey that having hollow-point ammunition, that is the bullet itself has a hollow-point, which is mostly designed to expand when fired and engaging soft tissue is illegal, at least in the state of New Jersey, I believe it’s a fourth degree felony if you possess hollow-point ammunition. So in reference to your comment earlier about having ammunition in your possession be a problem? It really can, at least in that jurisdiction, or at least that’s to the best of my knowledge,

Don West:

Which is… Well, that’s even a good point, Steve, because a lot of concealed carriers purposefully carry hollow-point ammunition because of the backdrop not wanting a through-and-through penetration if they have to use their firearm, that would put other people at risk. So there might be a good tactical reason to have it, and yet the very presence of it, if you forget you’ve got a couple of loose rounds in your bag and you’re in New Jersey somehow you’re asking for a lot of trouble.

You told me about circumstances where people were going from point to point where they were permitted that had their firearms but got inadvertently deferred through no fault of their own to a state like New Jersey or New York where that’s not allowed and had faced legal problems when they landed. Is that true?

Don West:

Sure, and I think maybe Scott can speak to that and Steve as well. Someone’s traveling with no intention of going to LaGuardia or to somewhere in New Jersey and wind up because of weather or mechanical failures, wind up landing in an airport they had no intention of going to, and now all of a sudden they’re possessing firearms where they’re not supposed to have them. And I don’t know of any reason why both TSA and local law enforcement wouldn’t be interested in that. Although there’s a question of criminal intent, I suppose. Nonetheless, if you have a firearm in a jurisdiction where you’re not allowed to have one, I think you’re subject to investigation and arrest.

Shawn Vincent:

Steve?

Steve Moses:

Yeah, and another thing to consider is that there are certain states where magazine capacity is regulated. So even though a concealed carry handgun is permitted, assuming that you have reciprocity because of the state that you actually got your permit in, you very well could end up in a state again like New Jersey, where magazine restrictions are 10 rounds or less and you’ve got your Glock 19 that holds 15 rounds, and those magazines can become an issue also. So that’s one of the reasons that I really am a big advocate of traveling always with magazines that are limited in capacity to no greater than I might incur in any one of those states. So 10-round magazines, in my opinion, that’s the way to go if you do a lot of traveling or you expect you might end up inadvertently even in a state that restricts magazine capacity.

Shawn Vincent:

Scott, what do you have to add?

Scott Klippel:

Well, the cases that I see are somebody goes through screening and they miss the firearm and they fly up to New York and they don’t know the guns in the bag and they don’t check their bag going back home. And so they get to the airport and they discover the gun on the return trip, had the gun been discovered, say in Texas, they would’ve put the gun back in the car. They go up to New York, again, don’t check their bag going to the airport, they find the gun and they get arrested and spend a bunch of time in central booking and waiting for bond being set, and that’s a problem. I just spoke to one woman who was flying down to Mexico. They found a gun and say, “Aren’t you lucky? If you had flown down to Mexico and they had found it down there, you’d still be in jail probably by now.”

Shawn Vincent:

Yeah, Scott, you wrote that TSA is doing you a favor. If they find it at that point, because of the consequences of having it on the plane or discovered it later, it could be much worse.

Scott Klippel:

Yeah.

Shawn Vincent:

So what are the consequences if you don’t promptly take care of your Notice of Violation? Here’s a hint, it costs more money. Also, do you need an attorney if you’re facing an NOV? You don’t, but it’s good to have somebody on your side who knows the system and who can likely save you a lot of money. We’ll talk to Scott about that, about his business and we’ll give you some final thoughts for today.

Don West:

I would like Scott to talk a little bit about the process of dealing with a Notice of Violation. We know generally that it’s going to be delivered by mail at some point in time, and then you have a certain period of time to respond to it. Will the letter identify any aggravators that the fine is being based on? So will you know why your fine is $3,700 as opposed to $2,200?

Scott Klippel:

No, they don’t post it and that’s why I always ask my client, depending on if TSA is asking for $3,712, I know they’re alleging two aggravating factors. The notice doesn’t say that. And so I asked, “Was there a round in the chamber and were you in TSA pre-check?” And sometimes there’s only one aggravating factor and I contact the TSA attorney and he’ll look at it and go, “You’re right, there was no bullet in the chamber.” So there was just a mistake being made. But no, until people speak to me, they don’t know that there are aggravating factors or why that amount was picked. And I’m would like to add roughly about 50% of the people that contact me don’t hire me. I’m happy to explain how to handle the cases themselves, whether they pay the full amount or whether they ask for informal conferences, I have no idea, but I’m very happy to explain the process to them and exactly what’s going on.

Don West:

Well, in that regard, I’ll get a call sometimes from a CCW Safe member or someone else I’ve had contact with that says, “My friend had a problem at this airport, or I had a problem at this airport.” If they’re telling the whole truth, right? “And can you refer me to an attorney in that area to handle my TSA problem?” And I wanted to talk with you about that. Is there any benefit particularly to having an attorney that practices law in the geographical area where the airport is located, either where the gun was found, if that wasn’t the home airport or in the home jurisdiction of where the person lives. And I sort of touched on that early on today, that it sounds like TSA is funneling all this stuff through one spot and even one person. And it also sounds like to me that having an expert like you is a far greater advantage than having someone that might have a local office where the incident took place. Because you’re not going to local court, you’re not dealing with local administrators or attorneys.

Am I correct about at least how this thing plays out that it’s all going to wind up in one spot anyway, and you can handle these cases from wherever in the US they occur?

Scott Klippel:

Yeah. No, the TSA regs are, you don’t have to be a lawyer to represent anybody. If somebody gets caught and they want their spouse to do it, they can have their spouse represent them. I speak to the TSA attorney, I handled roughly 250 cases last year, part of the 7,000 total that I’ve handled over my life. The benefit of hiring me is that I can get it done quickly. The TSA attorney, when he gets into the office, has a couple of my cases, takes him 10 minutes to settle my cases, as opposed to playing phone tag with people who’ve requested informal conferences. I write it up, I know what he needs, the information he needs, and it gets done.

There are other attorneys on the internet who say they want these cases. I think what they’re looking for is the criminal cases really that stem from arrests sometimes in Florida. There’s an attorney in one state who I helped out and then started advertising for NOVs, and now I’m getting people call me up and say, “Oh, this guy told me to call you for a $400 fee for an NOV.” Most lawyers can’t open a file for that. Everything’s computerized and just most of these cases get settled within a day of my being retained.

But what happens if people represent themselves? I don’t know. Because if I’m not hired, I have no idea what the final settlement is. But again, they have a 2,500 case backlog at this point. So if they hire me, the case is going to be settled this week. If they don’t, it’s going to be hanging over their heads. And want to add, by the way, the fact that you got an NOV, you are not on any watch list. So having this case over your head doesn’t mean that you can’t travel. There’s going to be nothing on your boarding pass that says that you had a gun, check this person carefully.

Shawn Vincent:

So it just will say pre-check and that’s all?

Scott Klippel:

Yeah, that’s it, you’re not on any watch list. And a lot of people call me up, I explain you’re not on a watch list. And they say, “I’ll wait a year. I don’t care better than money in my bank account than the government, so that’s just fine.” But they will eventually call you back exactly when. But the worst thing for the TSA attorney is that he plays phone tag with people. He gets into the office, he tries to call 20 people and reaches one or two, leads messages to the other and then they may or may not call him back that day.

Shawn Vincent:

And then in December, he’s hunting in Michigan. Scott, if our members would like to check you out or get ahold of you, how do they find you?

Scott Klippel:

At TSANOVdefense.com. They can also write that into Facebook, that’s the easiest way. The quickest way to get a hold of me, I think, as Don has discovered, is by email. I sit in front of my computer all day, and so if I get an email, I write back immediately if I’m not on the phone. So that’s how people can get me. And people are a little bit nervous about dealing with somebody they’ve never met or that only has a presence on the internet. And so in my initial email to them, after I speak to them, there’s a link to the Texas bar page where if they click on that link, they can also scroll down and they will see, find an attorney. They can type my name in and they’ll see that I’ve been licensed in Texas since 1976. God, that’s a long time.

Shawn Vincent:

I won’t tell you that is the year I was born, Scott.

Scott Klippel:

Yeah, I’m tempted when I speak to people, I say, “I practicing since ’76, that’s probably before you were born.” So anyway, and that confirms that I’m licensed, and if they’re still nervous, they pay by PayPal and if there’s a problem, they can complain to PayPal. Ne never had any problems. Never. On avvo.com, I don’t know if you’re familiar with that website, it evaluates lawyers. I have finally got my 200th review. 198 have been five-star, one was two-star, they were upset that I wouldn’t retain them. I wouldn’t represent them. I just told them, look, I’m not the attorney for you. And one gave me a one-star review, and I really don’t think he was a client, but anyway.

Shawn Vincent:

You’re preaching to the choir there. Yeah.

Scott Klippel:

Honestly, what I sell is peace of mind. I just got an email from somebody who I represented two years ago. I had a question about TWIC. I wrote back, I said, “I don’t know anything about TWIC. But on the application, if you have a question about a specific question that they’re asking you about how you should answer it, send me that question.” So as I sell peace of mind and people call me back all the time or email me and I don’t charge for subsequent consultations. This is my way of keeping my fingers in the business.

Shawn Vincent:

So you don’t golf, is what you’re trying to say, Scott?

Scott Klippel:

Yeah.

Don West:

So that peace of mind that you’re talking about, and also, of course, the confidence that you’ve got someone who knows what they’re doing, handling things, is in the general ballpark, four, $500, and you can resolve one of these NOV cases?

Scott Klippel:

NOVs, my fee is $400. There’ve been some problems lately with people getting final notices, not having gotten the original notice because of the problem about having to request a formal hearing and working around that so they don’t have a public record, my fee for that is $750. But most of the cases are NOVs, my fee is $400, not more. And when they pay the penalty, it doesn’t come to my office, goes to pay.gov.

Don West:

And they’re saving a lot more than that. Just in your ability to negotiate a further reduction of the fee.

Scott Klippel:

Exactly. Yeah.

Shawn Vincent:

Do you have any final words, Scott?

Scott Klippel:

Yeah. Dump your bags before you go to the airport, make sure they’re completely empty. Use the carabiner clip and thank you, I have enough business, and all your people out there who discover firearms and prohibited items at home, I’m glad you have. I don’t need this, TSA doesn’t need this, and so please, please, please be careful.

Shawn Vincent:

All right. That’s the podcast for today. It’s a long one. Thanks for sticking through to the end. I know that you’ll never be caught at security with a firearm, but share this with your friends. Let’s keep people from facing a real nightmare and losing their TSA pre-clearance. Oh my God, could be the worst. We’ll have something new for you next time. Until then, be smart. Stay safe. Take care.