ATSA immunizes airline and employee from liability to customer who made bomb reference and disparaged TSA

September 30, 2015

Baez v. JetBlue Airways Corporation (2d. Cir. July 16, 2015).  The plaintiff checked baggage for her JetBlue flight from JFK to Austin, Texas.  However, she appeared at the gate late, after the aircraft’s door had been closed, so the gate agent refused to let her board.  The plaintiff admitted that she then made what the Second Circuit described as a “cryptic reference to the possibility of a bomb in her luggage”:  “Isn’t it a security risk to let a bag go on a plane without a passenger, what if there was a bomb in the bag?”  The plaintiff alleged that the agent responded, “TSA agents would know if there was a bomb in the bag,” to which the plaintiff replied, “TSA–my ass,” and walked away.

The gate agent reported the conversation to her supervisor, who alerted the airline’s security personnel and TSA.  JetBlue rerouted the aircraft as a security measure and searched all the checked baggage after it landed.  The plaintiff’s bag did not contain a bomb.  But it did contain marijuana residue.  The plaintiff was charged under 49 U.S.C. § 46507(1) with making a false bomb threat.  The government dropped the charge, and the plaintiff pleaded guilty to charges based on the marijuana residue found in her bag.

The plaintiff sued JetBlue for “a host of claims,” including negligent supervision, retention, training and hiring, defamation, false arrest and intentional infliction of emotional distress.  She sued the gate agent as well.

The district court granted summary judgment to the defendants on the ground that they were immune from suit under the Aviation and Transportation Security Act, 49 U.S.C. § 44941.  Among other things, ATSA immunizes airlines and their employees from any liability for reporting “any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism” to a law enforcement officer.  Immunity is not provided for reports that are “materially false.”  A report is materially false if an accurate report regarding the “suspicious transaction” at issue would have had a different effect on the mind of a “reasonable security officer,” i.e., if an accurate report would have caused such officer to decide not to investigate the report.

Before the Second Circuit, the plaintiff argued that the district court had erred by deciding whether the gate agent’s statements were materially false at the summary judgment stage, as that issue should been decided by a jury.  The appeals court disagreed and affirmed the district court.  It concluded that the gate agent’s report was not materially false because “a reasonable officer would necessarily have followed up on the statements Baez admitted she made,” i.e., such officer would have investigated the “report of a disgruntled passenger who adverted to a bomb in luggage and deprecated the agency responsible for detecting such bombs.”

Airline obtains reversal of passenger jury verdict in refusal to transport case

February 11, 2008

Cerqueira v. American Airlines, Inc. (1st Cir. (Mass.) Jan. 10, 2008).  As previously reported, in December 2003, American Airlines removed three passengers, a man of Portuguese national origin and two Israelis seated nearby, from an aircraft at the departure gate in Boston for questioning by state police officers.  After the questioning, the airline declined to rebook them on another flight to Ft. Lauderdale.

The passenger of Portuguese national origin filed a lawsuit against the airline.  He alleged that airline personnel removed him from the aircraft and then refused to provide him service solely because of his perceived national origin, in violation of Title VI of the Civil Rights Act and a Massachusetts antidiscrimination statute.  The airline alleged that the passengers had been removed for questioning and then refused service solely due to security concerns based on their alleged unusual behavior before and during the boarding process.

After a six-day trial, the jury returned a verdict in favor of the passenger, assessing compensatory damages of $130,000 and punitive damages of $270,000.  After the trial court denied American’s motions for a JNOV and a new trial, American appealed.

Only two months after the appeal was argued, the First Circuit issued an opinion reversing the trial court’s judgment and remanding the case to the district court with instructions to enter judgment for American.  The First Circuit’s opinion centered on 49 U.S.C. § 44902, entitled “Refusal to transport passengers and property,” which provides in section (b) as follows:  “Permissive Refusal. – Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”

American had requested that the trial judge give a series of jury instructions regarding section 44902(b), including the well-established standard for liability that the jury must return a verdict for the airline unless its actions with respect to the passenger were “arbitrary or capricious.”  The judge refused to give the requested instructions.  The First Circuit held that the omitted instructions “were essential to the case” and the trial court had erred by refusing to give them.

The First Circuit also held that the instructions that were given were erroneous.  The most serious error was that the trial judge had instructed the jury that American had the burden of proving that its reasons for removing the passenger were legitimate.  The appeals court held that, in a section 44902(b) case, it is the passenger who has the burden of proof, and the passenger must prove that the airline’s conduct was arbitrary or capricious.

Update:  On February 29, 2008, the First Circuit denied the passenger’s petition for rehearing en banc.  Two judges dissented from the denial of the petition.  On October 6, 2008, the U.S. Supreme Court denied the passenger’s petition for a writ of certiorari.

Ninth Circuit upholds sentencing enhancement for unruly passenger

July 13, 2007

U.S. v. Gonzalez (9th Cir. (Nev.) July 3, 2007).  Just after takeoff, a passenger stood up, complained of heart problems and requested oxygen.  He then became increasingly agitated and started demanding to the flight attendants that the pilots land the aircraft.  The passenger then stated that he had a bomb and started opening overhead bins.  The flight attendants and other passengers to tried to restrain the unruly passenger, who fought back.  At that point, in the words of one witness, “all hell broke loose.”  Eventually, the passenger was restrained with plastic handcuffs and the aircraft was diverted back to the airport from which it had taken off, where the FBI arrested the passenger.

The unruly passenger pled guilty to interference with a flight crew member in violation of 49 U.S.C. § 46504.  He appealed the federal district court’s decision to impose a nine-level sentencing enhancement for “recklessly endangering the safety of the aircraft and passengers” under U.S. Sentencing Guideline § 2A5.2, which is entitled “Interference with Flight Crew Member or Flight Attendant.”  The enhancement resulted in a 27-month sentence.

On appeal, the passenger argued that the enhancement did not apply because he had interfered with the flight crew and endangered the other passengers but had not endangered the aircraft itself.  The passenger contended that he had not endangered the aircraft because he neither caused it actual harm nor did he actually have a bomb with him on the aircraft.

The passenger’s arguments were too far-fetched for even the liberal Ninth Circuit.  The court sensibly reasoned that because “an aircraft is a captive, closed environment in which the safety of the passengers and the integrity of the aircraft are closely intertwined,” the passenger’s chaos-causing statements and other conduct not only interfered with the flight crew and endangered the other passengers but also endangered the aircraft itself.

Jury returns verdict for passenger in refusal to transport case

January 21, 2007

Cerqueira v. American Airlines, Inc. (D. Mass. Jan. 12, 2007).  In December 2003, the airline removed three passengers, a man of Portuguese national origin and two Israelis seated nearby, from an aircraft at the departure gate in Boston for questioning by state police officers.  After the questioning, the airline declined to rebook them on another flight to Ft. Lauderdale.

The passenger of Portuguese national origin filed a lawsuit against the airline.  He alleged that airline personnel removed him from the aircraft and then refused to provide him service solely because of his perceived national origin, in violation of Title VI of the Civil Rights Act and a Massachusetts antidiscrimination statute.  The airline alleged that the passengers had been removed for questioning and then refused service solely due to security concerns based on their alleged unusual behavior before and during the boarding process.

After a six-day trial, the jury returned a verdict in favor of the passenger, assessing compensatory damages of $130,000 and punitive damages of $270,000.  The passenger had also requested that the court enter an injunction ordering the airline to take steps “to prevent similar occurrences in the future,” but the court did not take such action.

Update:  As reported here, in January 2008 the First Circuit reversed the trial court’s judgment in this case.

Airline summary judgment motion granted in boarding discrimination case

January 7, 2007

Dasrath v. Continental Airlines, Inc. (D. N.J. Dec. 22, 2006).  Three months after September 11, an airline captain had three passengers removed from the aircraft during boarding due to his security concerns.  One of the passengers, a U.S. citizen of West Indian national origin, filed a lawsuit against the airline alleging discrimination in violation of federal and state statutes.

The airline moved for summary judgment on the grounds that it was immune from liability under 49 U.S.C. 44902, which “gives airline personnel broad, but not absolute, discretion to remove passengers purportedly for safety reasons” as long as their decisions “have a rational basis in safety.”

The court granted the airline’s motion.  It held that the captain had acted rationally in removing the passenger because there was undisputed evidence linking him to two passengers (who were also removed) who had been repeatedly moving luggage from one overhead bin to another and changing seats, and that the captain had acted solely for security reasons and not due to the passenger’s race.

Gun-toting passenger avoids conviction

December 3, 2006

U.S. v. Holtzhauer (S.D. Ohio Nov. 21, 2006).  One danger in owning “57 firearms” is that the owner might forget that one of his many handguns is lurking in the briefcase he is carrying through airport security.  Despite making what appeared to be a honest mistake, the well-armed but absent-minded passenger was charged with violating 49 U.S.C. sec. 46314(a).  That statute prohibits passengers from “knowingly and willfully” entering “an airport area that serves an air carrier” carrying a firearm.

The case was tried before the judge, who obviously was convinced that the passenger, who had a law enforcement background, was a respectable citizen who had simply forgotten that the gun was in the briefcase.  The judge shaved the onion finely, holding that the passenger was not guilty because had acted “willfully” but not “knowingly.”