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Thread: Title 18 U.S.C. §922(q) School Zones

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    State Researcher Bill Starks's Avatar
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    Title 18 U.S.C. §922(q) School Zones

    In essence, Title 18 U.S.C Part 1 Chapter 44 Section 922(q) known as the Federal Gun Free School Zones Act of 1995 currently on the books, effectively bans all concealed carry reciprocity agreements between States, by making it illegal for any person to have a functional firearm within 1000 Feet of the property line of any Elementary or High School in our country, with very few exceptions.

    Title 18 Part 1 Chapter 44 Section 922 (unlawful acts)
    United States Code - TITLE 18 - CRIMES AND CRIMINAL PROCEDURE - PART I - CRIMES - CHAPTER 44 - FIREARMS - section 922

    BATFE Opinion (2002) on Reciprocity: http://www.handgunlaw.us/documents/batf_school_zone.pdf

    The original version of this law, passed in 1990, was struck down by the US Supreme Court in "United States v Lopez (1995)," because Congress had not claimed a connection to "interstate commerce," however the second version, the one which is currently on the books, was upheld as recently as 2005 by the United States Court of Appeals for the Ninth Circuit in the case United States v Dorsey.

    One exception to this law, is if the firearm is unloaded and in a locked container.

    A second exception is having the firearm "on private property not part of school grounds." Remember, the roads/highways/sidewalks are not private property, so this exception does not apply while driving on public streets.

    A third exception, is if the person possessing the firearm has a concealed carry permit issued by the State in which the school zone is located. This means that as the law is written, and as it has been interpreted by BATFE, if a person with a concealed carry permit is in any State other than the State that physically issued their permit, and they drive within 1000 feet of any K-12 school (which is impossible to avoid) with an unlocked gun, they are committing a federal crime. Violation of this law is punishable by up to five (5) years in federal prison and a conviction will bar a person from owning firearms for life


    There was even a case in 2000 (United States v Tait) where an Alabama concealed carry permit holder was prosecuted under this federal law, for carrying a firearm in Alabama. The prosecution claimed that Mr. Tait's Alabama permit did not exempt him from the Federal Gun Free School Zones Act, even in Alabama.

    In another case, United States v Nieves-Castaño, a woman was actually convicted under the Federal Gun Free School Zones Act for having a firearm in her home! Her home (a third floor apartment) just happened to be within 1000 feet of a school and it happened to be public property (a housing project). She was not a student, and her conduct had absolutely nothing to do with the school. This conviction was upheld by the Federal Appeals Court for the First Circuit in 2007.

    Ironically, law enforcement officers carrying a handgun under LEOSA are not exempt from the GFSZA, unless they are acting in their official capacity. This means that a law enforcement officer, carrying under LEOSA while on vacation with their family, can not drive within 1000 feet of a school without risking five years in federal prison.

    Also note, there is no exception in the law for the discharge of a firearm by anyone other than a law enforcement officer acting in their official capacity on public property while in a school zone (within 1000 feet of the property line of any K-12 school), under any circumstance. This could conceivably be an issue if you're the victim of a violent crime while on public property such as roads, sidewalks, fair grounds, city parks, etc.


    Many people think this law has never been enforced. Unfortunately this is not the case. This revised law has indeed been enforced, against several people, below are a few examples:

    United States v Danks (1999) USA v. Jordan Danks

    United States v Tait (2000) (Attempted prosecution of an Alabama permit holder) 202 F3d 1320 United States v. Tait | OpenJurist

    United States v Haywood (2003) UNITED STATES of America v. Ira HAYWOOD, Appellant.

    United States v Dorsey (2005) (Upheld the revised law as constitutional) UNITED STATES of America, Plaintiff-Appellee, v. Nikos Delano DORSEY, Defendant-Appellant.

    United States v Smith (2005) USA v. Smith This case says that the mere movement of the gun's component parts in Interstate Commerce is enough to satisfy the jurisdictional element needed for conviction.

    United States v Nieves-Castaño (2007) UNITED STATES of America, Appellee, v. Belen NIEVES-CASTAÑO, Defendant, Appellant. A woman was convicted for having a gun in her home; which happened to be within 1000ft of a school.

    United States v Weekes (2007) [UNITED]UNITED STATES OF AMERICA v. PHINEHAS WEEKES, Appellant STATES OF AMERICA v. PHINEHAS WEEKES[/url]

    United States v Benally (2007) http://caselaw.findlaw.com/us-10th-circuit/1364658.html

    United States v Cruz-Rodriguez (2008) Untitled #1668141
    Last edited by Bill Starks; 12-23-2010 at 07:13 PM.

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    Quote Originally Posted by M1Gunr View Post
    In essence, Title 18 U.S.C Part 1 Chapter 44 Section 922(q) known as the Federal Gun Free School Zones Act of 1995 currently on the books, effectively bans all concealed carry reciprocity agreements between States, by making it illegal for any person to have a functional firearm within 1000 Feet of the property line of any Elementary or High School in our country, with very few exceptions.

    Title 18 Part 1 Chapter 44 Section 922 (unlawful acts)
    United States Code - TITLE 18 - CRIMES AND CRIMINAL PROCEDURE - PART I - CRIMES - CHAPTER 44 - FIREARMS - section 922

    BATFE Opinion (2002) on Reciprocity: http://www.handgunlaw.us/documents/batf_school_zone.pdf

    The original version of this law, passed in 1990, was struck down by the US Supreme Court in "United States v Lopez (1995)," because Congress had not claimed a connection to "interstate commerce," however the second version, the one which is currently on the books, was upheld as recently as 2005 by the United States Court of Appeals for the Ninth Circuit in the case United States v Dorsey.

    One exception to this law, is if the firearm is unloaded and in a locked container.

    A second exception is having the firearm "on private property not part of school grounds." Remember, the roads/highways/sidewalks are not private property, so this exception does not apply while driving on public streets.

    A third exception, is if the person possessing the firearm has a concealed carry permit issued by the State in which the school zone is located. This means that as the law is written, and as it has been interpreted by BATFE, if a person with a concealed carry permit is in any State other than the State that physically issued their permit, and they drive within 1000 feet of any K-12 school (which is impossible to avoid) with an unlocked gun, they are committing a federal crime. Violation of this law is punishable by up to five (5) years in federal prison and a conviction will bar a person from owning firearms for life


    There was even a case in 2000 (United States v Tait) where an Alabama concealed carry permit holder was prosecuted under this federal law, for carrying a firearm in Alabama. The prosecution claimed that Mr. Tait's Alabama permit did not exempt him from the Federal Gun Free School Zones Act, even in Alabama.

    In another case, United States v Nieves-Castaño, a woman was actually convicted under the Federal Gun Free School Zones Act for having a firearm in her home! Her home (a third floor apartment) just happened to be within 1000 feet of a school and it happened to be public property (a housing project). She was not a student, and her conduct had absolutely nothing to do with the school. This conviction was upheld by the Federal Appeals Court for the First Circuit in 2007.

    Ironically, law enforcement officers carrying a handgun under LEOSA are not exempt from the GFSZA, unless they are acting in their official capacity. This means that a law enforcement officer, carrying under LEOSA while on vacation with their family, can not drive within 1000 feet of a school without risking five years in federal prison.

    Also note, there is no exception in the law for the discharge of a firearm by anyone other than a law enforcement officer acting in their official capacity on public property while in a school zone (within 1000 feet of the property line of any K-12 school), under any circumstance. This could conceivably be an issue if you're the victim of a violent crime while on public property such as roads, sidewalks, fair grounds, city parks, etc.


    Many people think this law has never been enforced. Unfortunately this is not the case. This revised law has indeed been enforced, against several people, below are a few examples:

    United States v Danks (1999) USA v. Jordan Danks

    United States v Tait (2000) (Attempted prosecution of an Alabama permit holder) 202 F3d 1320 United States v. Tait | OpenJurist

    United States v Haywood (2003) UNITED STATES of America v. Ira HAYWOOD, Appellant.

    United States v Dorsey (2005) (Upheld the revised law as constitutional) UNITED STATES of America, Plaintiff-Appellee, v. Nikos Delano DORSEY, Defendant-Appellant.

    United States v Smith (2005) USA v. Smith This case says that the mere movement of the gun's component parts in Interstate Commerce is enough to satisfy the jurisdictional element needed for conviction.

    United States v Nieves-Castaño (2007) UNITED STATES of America, Appellee, v. Belen NIEVES-CASTAÑO, Defendant, Appellant. A woman was convicted for having a gun in her home; which happened to be within 1000ft of a school.

    United States v Weekes (2007) [UNITED]UNITED STATES OF AMERICA v. PHINEHAS WEEKES, Appellant STATES OF AMERICA v. PHINEHAS WEEKES[/url]

    United States v Benally (2007) United States vs. Benally

    United States v Cruz-Rodriguez (2008) Untitled #1668141
    Just out of curiosity, why did you bring this up?

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    State Researcher Bill Starks's Avatar
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    Just out of curiosity, why did you bring this up?
    Some of us are licensed to carry in many other states. So it seems that when we visit them our license is no longer valid in school zones (unless we have a license from that state).

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    Quote Originally Posted by M1Gunr View Post
    Some of us are licensed to carry in many other states. So it seems that when we visit them our license is no longer valid in school zones (unless we have a license from that state).
    Interesting... Is it just me, or does this law somehow seem Unconstitutional...? I always known you can't have guns ON school property, but OUTSIDE of it? Has ANYONE challenged the Constitutional aspects of this law? I was reading about it online, yet I seem to have read NOTHINg about any challenges given to the law

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    Regular Member amlevin's Avatar
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    Quote Originally Posted by M1Gunr View Post
    Some of us are licensed to carry in many other states. So it seems that when we visit them our license is no longer valid in school zones (unless we have a license from that state).
    Isn't that interesting. We are afforded the courtesy of having OUR CPL honored by the State we visit which means we should be able to carry in the same manner and places a resident of that state.

    It gets down to the BATFE's interpretation. Hmmm. What's wrong with this picture?

    I haven't read all the case law on this matter but I wonder if there aren't some other extenuating circumstances other than merely carrying with a "reciprocal" permit or license?
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

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    M1Gunr It looks like in every cited case the possission of a firearm in a school zone was an add on charge to a more serious crime(s). This is a pretty typical LE tactic of pile on all the charges that they can think of just to see how many might stick anmd to have back up charges in case the dont do the rel crime investigation correctly, this is one of the places where I lose respect for LE. Most of the cases look like someones lawyer was looking for a way to get their client off of other charges. I would be curious to what would happen post McDonald/Heller if the feds were to attempt to charge someone with the 1000 foot rule with out anyother charges to add to it.

    I for one am not going to worry about this very much but then again I am covered in OR, WA, UT and NV.

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    State Researcher Bill Starks's Avatar
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    Quote Originally Posted by Orphan View Post
    M1Gunr It looks like in every cited case the possission of a firearm in a school zone was an add on charge to a more serious crime(s). This is a pretty typical LE tactic of pile on all the charges that they can think of just to see how many might stick anmd to have back up charges in case the dont do the rel crime investigation correctly, this is one of the places where I lose respect for LE. Most of the cases look like someones lawyer was looking for a way to get their client off of other charges. I would be curious to what would happen post McDonald/Heller if the feds were to attempt to charge someone with the 1000 foot rule with out anyother charges to add to it.

    I for one am not going to worry about this very much but then again I am covered in OR, WA, UT and NV.
    Like you I am covered in 4 states, however the law that is written is quite clear for visitors to other states.

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    Quote Originally Posted by M1Gunr View Post
    Like you I am covered in 4 states, however the law that is written is quite clear for visitors to other states.
    I agree the law is clear. What I dont see is it being enforced unless other laws being enforced at the same time. I think that while its possable to be arrested for the 1000 foot rule I dont think there is much of a chance of it being a problem unless you have commited another serious crime. Outside of Kalifornia which has its own 1000 ft law I doubt that any state or city officer would try to enforce federal law. Its possable but I believe pretty remote.

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    Remind me again how a school effects interstate commerce?

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    Quote Originally Posted by TechnoWeenie View Post
    Remind me again how a school effects interstate commerce?
    And how an UNCONSTITUTIONAL Federal agency is INTERFERING WITH LEGAL AGREEMENTS BETWEEN SPECIFIC STATES?

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    Quote Originally Posted by TechnoWeenie View Post
    Remind me again how a school effects interstate commerce?

    Well to be fair, I am sure that some of the materials used to build the school may have, at one point, gone through interstate commerce.

    It is obvious that the framers had just this type of law in mind when they gave congress the power to "...regulate commerce among the states...."

    Anyone can see that this law is "necessary and proper" to prevent interstate trade wars.
    A wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.- Thomas Jefferson March 4 1801

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    Quote Originally Posted by TechnoWeenie View Post
    Remind me again how a school effects interstate commerce?
    Tsk-tsk. Settled constitutional law, since 1942.

    The same concept relying on Wickard has since been used to determine that legally (under state law) growing marijuana strictly for personal use, with no commerce at all, is "in or affects interstate commerce", because the legal grower might otherwise have bought marijuana from a source that might have been in another state; or, at the very least, growing his own meant never having to buy from another state, so voila!, it's subject to federal law!
    Last edited by KBCraig; 12-24-2010 at 05:58 AM.

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    Quote Originally Posted by Orphan View Post
    This is a pretty typical LE tactic of pile on all the charges that they can think of just to see how many might stick anmd to have back up charges in case the dont do the rel crime investigation correctly, this is one of the places where I lose respect for LE.

    Actually, it is the job of a Law Enforcement Officer to include ALL violations of law in his Arrest Report. The Prosecutor, not the LEO, decides which ones are going to be prosecuted. In many cases, the "enhancements" are useful in putting someone in jail for some "real time" because the underlying crime may have one of those "slap on the wrist" penalties when compared to its true severity.
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

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    Quote Originally Posted by amlevin View Post
    Actually, it is the job of a Law Enforcement Officer to include ALL violations of law in his Arrest Report. The Prosecutor, not the LEO, decides which ones are going to be prosecuted. In many cases, the "enhancements" are useful in putting someone in jail for some "real time" because the underlying crime may have one of those "slap on the wrist" penalties when compared to its true severity.
    Maybe I was not clear enough. Too many times BS charges are just piled on when no crime has been commited thats what I am talking about not legit charges where someone has violated a law. It happens all the time and it makes defending yourself against the real charges a lot more expensive and time consuming. A good example of this is felony resisting arrest tacked onto to a lessor charge. Not a very good way to persue justice or the truth. Remember a lot of arrests never result in convictions much less charges being brought against the arrested person therefore a good portion of the time LE must have been wrong.

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    Quote Originally Posted by Orphan View Post
    Maybe I was not clear enough. Too many times BS charges are just piled on when no crime has been commited thats what I am talking about not legit charges where someone has violated a law. It happens all the time and it makes defending yourself against the real charges a lot more expensive and time consuming. A good example of this is felony resisting arrest tacked onto to a lessor charge. Not a very good way to persue justice or the truth. Remember a lot of arrests never result in convictions much less charges being brought against the arrested person therefore a good portion of the time LE must have been wrong.
    So then the question: "Can an enhancement be continue as a stand-alone charge if the subject was not charged or convicted of the basic charge? Or is it only an enhancement to the sentence for a conviction on the underlying offense?
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

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    Quote Originally Posted by amlevin View Post
    So then the question: "Can an enhancement be continue as a stand-alone charge if the subject was not charged or convicted of the basic charge? Or is it only an enhancement to the sentence for a conviction on the underlying offense?
    I believe an enhancement is only used in sentencing. If there was another crime committed then there will be a separate charge altogether. I don't think Orphan was referring to enhancements but rather separate charges that are piled up that really had nothing to do with the initial complaint.
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    Quote Originally Posted by joeroket View Post
    I believe an enhancement is only used in sentencing. If there was another crime committed then there will be a separate charge altogether. I don't think Orphan was referring to enhancements but rather separate charges that are piled up that really had nothing to do with the initial complaint.
    Grantred, but it is still the responsibility of a Law Officer to include all crimes committed in his report and the Prosecutor gets to sort them out. LEO's don't charge anyone. Only a Prosecutor.
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    Quote Originally Posted by amlevin View Post
    Grantred, but it is still the responsibility of a Law Officer to include all crimes committed in his report and the Prosecutor gets to sort them out. LEO's don't charge anyone. Only a Prosecutor.
    Absolutely. The job of LEO, as far as I know, has not changed from detect, deter, respond, and report. Some do a better job than others and some just seem to have caught the failboat when it comes to doing their job correctly.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

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    you can find more good info here. http://www.usacarry.com/forums/polit...important.html

    this has been challenged in court, and thus far appeals courts have upheld it

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    Quote Originally Posted by amlevin View Post
    So then the question: "Can an enhancement be continue as a stand-alone charge if the subject was not charged or convicted of the basic charge? Or is it only an enhancement to the sentence for a conviction on the underlying offense?
    Depends on the state, and the charge.

    Resisting arrest is one of those (in WA).

    An officer walks up to you and demands you put your hands behind your back. You've done nothing wrong, you're just walking down the street. He attempts to handcuff you and you fight back...

    The arrest is unlawful, but you will still get charged, and convicted, of resisting arrest.

    I don't know how the F(&$ WA thinks that, when the supreme court ruled that it's quite alright to resist an unlawful arrest.

    “Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306

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    Plummer and several other supreme court decisions have decidedly shown we have the right to resist an arrest. It needs to be a re-educating going on, if a cop knew he could loose his life for false arrest he would be way more careful that he has the right guy and the guy has done a real crime.
    I am not anti Cop I am just pro Citizen.

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    The exemptions that include Law Enforcement personnel should include them on AND off duty, considering they always have the same authority, regardless of if they are being paid or not.

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    Quote Originally Posted by sudden valley gunner View Post
    , if a cop knew he could loose his life for false arrest he would be way more careful that he has the right guy and the guy has done a real crime.
    Or they might just shoot more people.
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

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    Message to the Congress Transmitting Proposed Legislation To Amend the Gun-Free School Zones Act of 1990

    http://www.presidency.ucsb.edu/ws/index.php?pid=51344

    To the Congress of the United States: Today I am transmitting for your immediate consideration and passage the "Gun-Free School Zones Amendments Act of 1995." This Act will provide the jurisdictional element for the Gun-Free School Zones Act of 1990 required by the Supreme Court's recent decision in United States v. Lopez.
    In a 5-4 decision, the Court in Lopez held that the Congress had exceeded its authority under the Commerce Clause by enacting the Gun-Free School Zones Act of 1990, codified at 18 U.S.C. 922(q). The Court found that this Act did not contain the jurisdictional element that would ensure that the firearms possession in question has the requisite nexus with interstate commerce.
    In the wake of that decision, I directed Attorney General Reno to present to me an analysis of Lopez and to recommend a legislative solution to the problem identified by that decision. Her legislative recommendation is presented in this proposal.
    The legislative proposal would amend the Gun-Free School Zones Act by adding the requirement that the Government prove that the firearm has "moved in or the possession of such firearm otherwise affects interstate or foreign commerce."
    The addition of this jurisdictional element would limit the Act's "reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce," as the Court stated in Lopez, and thereby bring it within the Congress' Commerce Clause authority.
    The Attorney General reported to me that this proposal would have little, if any, impact on the ability of prosecutors to charge this offense, for the vast majority of firearms have "moved in . . . commerce" before reaching their eventual possessor.
    Furthermore, by also including the possibility of proving the offense by showing that the possession of the firearm "otherwise affects interstate or foreign commerce," this proposal would leave open the possibility of showing, under the facts of a particular case, that although the firearm itself may not have "moved in . . . interstate or foreign commerce," its possession nonetheless has a sufficient nexus to commerce.
    The Attorney General has advised that this proposal does not require the Government to prove that a defendant had knowledge that the firearm " has moved in or the possession of such firearm otherwise affects interstate or foreign commerce." The defendant must know only that he or she possesses the firearm.
    I am committed to doing everything in my power to make schools places where young people can be secure, where they can learn, and where parents can be confident that discipline is enforced.
    I pledge that the Administration will do our part to help make our schools safe and the neighborhoods around them safe. We are prepared to work immediately with the Congress to enact this legislation. I urge the prompt and favorable consideration of this legislative proposal by the Congress.
    WILLIAM J. CLINTON
    The White House,
    May 10, 1995.

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    Regular Member amlevin's Avatar
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    M1-

    Does this mean that not be prosecuted under Federal Statute if the firearm they are carrying was made within the State where it was being carried and "didn't move in Interstate Commerce"?
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

    "If you refuse to stand up for others now, who will stand up for you when your time comes?"

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