18 U.S.C. Section 926A[1], enacted as part of the Firearms Owners' Protection Act of 1986, provides a federal safe passage for persons transporting firearms through states where the firearm might otherwise be illegal. The statute provides an affirmative defense for any person who is "transporting a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm."
Federal Requirements
To qualify for FOPA safe passage protection, the traveler must meet all of the following conditions:
- The firearm must be legal at both the origin and destination
- The firearm must be unloaded during transport
- The firearm must not be readily accessible from the passenger compartment (in vehicles without a trunk, it must be in a locked container other than the glove compartment or console)
- Ammunition must be stored separately from the firearm or in a locked container
- The transport must be continuous (reasonable stops for fuel, food, and rest are permitted, but extended stays may defeat the protection)
The California Problem
California presents unique challenges for travelers relying on FOPA:
- Assault weapons: Firearms that are legal in most other states may qualify as assault weapons under California's broad characteristics test (Penal Code Section 30515). FOPA does not protect against California's assault weapon possession laws if the traveler stops beyond what is reasonable for continuous transit.
- Large-capacity magazines: Magazines holding more than 10 rounds are prohibited in California. A traveler passing through with standard-capacity magazines faces significant legal risk.
- Ammunition restrictions: California's ammunition purchase regulations do not directly affect transit, but travelers should not attempt to purchase ammunition while passing through.
- Enforcement practice: FOPA provides an affirmative defense, not immunity from arrest. California law enforcement officers may not be familiar with the federal safe passage provision, and a traveler could face arrest, vehicle impoundment, and firearm seizure before being able to assert the defense in court.
Practical Recommendations
Travelers transporting firearms through California should keep all firearms unloaded and locked in the trunk or a locked container in the rearmost area of the vehicle, keep ammunition in a separate locked container, carry documentation showing lawful ownership at origin and destination, avoid unnecessary stops in California beyond fuel and rest, and never remove the firearm from its locked container while in the state. The Revell v. Port Authority of New York and New Jersey[2] line of cases illustrates how the affirmative defense nature of FOPA can leave travelers vulnerable to initial arrest and prosecution.
See also: FOPA Safe Passage: Theory vs Practice in California