Enter a Passenger, Leave a Felon: An Update On Airline Passenger Disturbances and Continuing Response and Crackdown

Schnader Harrison Segal & Lewis LLP

Schnader Harrison Segal & Lewis LLP

Unruly passenger behavior resulting in investigations by the FAA has increased to more than 5,000 reports in 2021. One such incident involved frustrated passengers who assisted an off duty U.S. Marshall in restraining obnoxious behavior when they taped Max Berry, an inebriated aggressor, to his seat after Berry groped female flight attendants and punched a male flight attendant.1

The TSA received more than 4,000 reports of mask-related noncompliance incidents from February, 2021 to September, 2021. A female passenger who failed to wear her mask and fasten her seatbelt, punched a flight attendant in the mouth which resulted in two broken teeth and required 3 stitches. The passenger was sentenced to fifteen months in prison and ordered to pay more than $30,000 in fines and restitution.

These are just a handful of the passenger incidents on board airliners that have brought about deep governmental concern and record-breaking fines and criminal penalties.

A quick refresher on applicable federal law may be helpful. First, special aircraft jurisdiction covers actions taken only while an aircraft is “in flight” (i.e., “from the moment when all external doors are closed following boarding…through the moment when one external door is opened to allow passengers to leave the aircraft.” 49 U.S.C. §46501(1))(A). Violations of 49 U.S.C. §46504 (Interference with Flight Crew Members and Attendants) occur when “[a]n individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties…” Such violations can result in up to 20 years imprisonment and/or assessment of fines.

If a dangerous weapon is used, a term of years or life imprisonment can be imposed. 18 U.S.C. §113 makes assault by striking and wounding in special aircraft jurisdiction punishable by a fine and/or imprisonment of up to a year.

In one recent case, a passenger smelling strongly of alcohol pretended to shoot at passengers and shoved a flight attendant into a galley wall causing her to suffer injuries. The passenger then breached the main cabin door, triggered the alarm and caused the pilots to declare an emergency. After pleading guilty to interfering with flight crew and assault in special aircraft jurisdiction, the passenger was sentenced to serve a one year federal prison term, payment of civil penalties and a fine of $7,500.2

Civil remedies also are possible for unruly passenger behavior. In 2000, Congress made passengers civilly liable if they physically assault or threaten flight or crew, or any other individual on the aircraft.3 The TSA can bring civil actions against passengers who violate the federal mask mandate while on board an aircraft.4 As another example, the FAA recently proposed a fine of more than $50,000 for a passenger who struck and knocked down a flight attendant and attempted to breach the cockpit door on a Delta Airlines flight from Honolulu to Seattle. The FAA has proposed its largest ever fines since January, more than $80,000, and Transportation Secretary Buttigieg has succinctly encapsulated the FAA’s policy as “if you are on an airplane, don’t be a jerk…”

Delta has implemented a “no-fly” list banning passengers with a record of disruptions, which has drawn the ire of some legislators who claim the “no-fly” list would severely restrict citizens’ constitutional right to engage in interstate transportation.

This is a rapidly evolving field, with the extent to which these penalties actually are serving as a deterrent, still coming into focus. It appears, at least, that the various stakeholders, including airlines and regulatory bodies, are making good on their promises to hold accountable those responsible for jeopardizing the safety of those working and traveling on board commercial aircraft.

1 USA v. Berry, 1:21cr20598 (S.D. Fla. May 5, 2022).

2 United States of America v. Kameron C. Stone, 2022 U.S. Dist. LEXIS 24387 (N.D. Fla. Feb. 8, 2022).

3 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, §511, 114 Stat. 61, 142 (2000).

4 See Penalty for Refusal to Wear a Face Mask, tsa.gov, ttps://www.tsa.gov/coronavirus/penalty-mask.

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Schnader Harrison Segal & Lewis LLP

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