Recent FAA penalties against unruly passengers

Under the FAA’s Reauthorization Bill, the FAA can propose penalties of up to $37,000 per violation for unruly passenger cases, and one incident can result in multiple violations. Some examples of recent penalties include:

•  $40,823 against a passenger on an April 15, 2021 Southwest Airlines flight from San Jose to San Diego, California. The FAA alleges the passenger drank their own alcohol during the flight and continued to do so after a flight attendant told the passenger that doing so was prohibited. The passenger then sexually assaulted the flight attendant. As the flight was descending into San Diego, the passenger entered the lavatory and smoked marijuana. The flight crew asked for law enforcement to meet the plane at the arrival gate. Police arrested the passenger for resisting arrest and public intoxication.
• $21,500 against a passenger on a December 2020 Frontier Airlines flight. The FAA alleges the passenger drank alcohol the airline did not serve (against FAA regulations), refused to comply with a flight attendant’s instruction to stop drinking and wear a face mask, fought with the attendant and nearby passengers about the face mask policy, and struck the passenger next to him on the head.
• $18,500 against a passenger on a February 2021 Republic Airlines flight. The FAA alleges the passenger was repeatedly told to wear her face mask properly prior to and during boarding, refused to wear masks during the preflight safety announcement, threatened the passenger in front of her when they closed the window shade, and used obscene language against the flight attendants. When the captain left the cockpit to notify the passenger she was being removed, the passenger stood up and punched a female passenger seated in front of her, who was holding a small infant.

Potential litigation from unruly passengers

With this promise of increased prosecutions, airlines face a risk of lawsuits from passengers who are forced to leave aircraft, arrested, and/or ultimately prosecuted for their conduct. These passengers may claim that they did not do anything wrong, they should not have been forced to leave their flights, they were mistreated/discriminated against, and the conduct of the airlines amounts to malicious prosecution. Airlines also face the risk of suits from other passengers who may be injured by these unruly passengers for alleged failure by the airlines to adequately protect them.

Removing passengers on domestic flights

While mask compliance may be a relatively new phenomenon for courts to address, passenger unruliness is not.

Congress, by statute, explicitly gave safety “the highest priority in air commerce,”¹ and the Federal Aviation Act provides the pilot in command with broad authority to remove passengers who may be a threat to safety:² “Subject to regulations of the Administrator of the Transportation Security Administration, 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.” In other words, the pilot in command stands in the role of the air carrier and can decide whether to remove a passenger from a flight for safety reasons. This discretion is critical for a pilot in command who is, according to the Code of Federal Regulations, “during flight time, in command of the aircraft and crew and is responsible for the safety of the passengers, crewmembers, cargo, and airplane.” ³

State tort claims relating to a passenger’s removal from an aircraft for safety reasons should be preempted by the standard in section 44902(b). While the Federal Aviation Act does not contain an express preemption provision, a number of courts have found that section 44902 impliedly preempts state tort claims because it is a federal standard directly on point and constitutes pervasive federal regulatory control in that area.⁴

Moreover, given the deferential standard in section 44902, the majority of courts hold that the removal or refusal to transport a passenger cannot give rise to a claim for damages unless the carrier’s decision was “arbitrary or capricious.”⁵ To determine whether a pilot’s decision to remove a passenger was arbitrary or capricious, courts consider the facts and circumstances known by the pilot at the time they formed their opinion. This includes consideration of (1) the limited facts known by the pilot at the time, (2) the time constraints in making the decision, and (3) the general security climate surrounding the events.⁶ Moreover, some courts, including the First and Eleventh Circuits, have gone a step further and have interpreted section 44902 as an “affirmative grant” of permission to the air carrier, thus creating a presumption that the pilot’s decisions and actions are reasonable and placing the burden on the plaintiff to show that section 44902 is inapplicable.⁷

Deference to air carriers has been granted because removal decisions must usually be made quickly, shortly before the plane takes off, and therefore without the benefit of a lengthy investigation into the events. That is an important consideration to keep in mind – especially when live recordings and images of unruly passengers and events aboard an aircraft, often with incomplete information – are rapidly shared across social media platforms.

Removing passengers on international flights

Article 6 of the Tokyo Convention, governing rights of air carriers on international flights, authorizes the pilot in command to “take reasonable measures including restraint” when the pilot “has reasonable grounds to believe” that a passenger “committed, or is about to commit” a criminal offense or an act that jeopardizes the safety of the aircraft or “good discipline on board.”⁸ However, it is important to note that the only U.S. published court case interpreting the Tokyo Convention applied an objective negligence standard of reasonableness instead of the more deferential and subjective “arbitrary and capricious standard” that governs claims for domestic flights under U.S. federal regulations.⁹ In that case, the court found that a jury could conclude a reasonable pilot, when notified by a flight attendant that she had lost control of the first-class cabin, should have tried to find out “something” and ask follow-up questions or look through the cockpit window before undertaking an emergency landing. It is important to note that this standard does not apply to passenger claims stemming from domestic U.S. flights.

Airline defenses

Case law demonstrates most courts are aware that the circumstances in which decisions are made relating to unruly passengers are often time-sensitive, and that the pilot-in-command must often make a decision based on second-hand information received from flight attendants working in the cabin. Should an airline find itself in this unfortunate situation, it would be helpful to have a plan of action in place. Air carriers would benefit from implementing a go-to protocol that emphasizes sufficient documentation of the circumstances giving rise to an unruly passenger and the basis for making the decision to eject a passenger and/or call the authorities. Both the captain and lead flight attendant should prepare a flight incident report as appropriate and in accordance with the airline’s existing policy. Should a claim arise, air carriers would then be equipped to show that their decision was not arbitrary or capricious, allowing them to counter any claims from passengers that they were wrongfully ejected from the flight. The ability of air carriers to do so promotes safety in flight for all passengers and crew.

1. 49 U.S.C. section 40101(a)(1).
2. 49 U.S.C. section 44902(b).
3. 14 C.F.R. section 121.533(d).
4. Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (9th Cir. 2007); Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 364-65 (3d. Cir. 1999).
5. Williams v. Trans World Airlines, Inc., 509 F.2d 942, 948 (2d Cir. 1975); Cerqueira v. Am. Airlines, Inc., 520 F.3d 1, 14 (1st Cir. 2008).
6. Cerqueira, 520 F.3d at 14.
7. Id.; Xiaoyun “Lucy” Lu v.AirTran Airways, Inc., 631 F. App’x. 657, 661 (11th Cir. 2015).
8. Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 U.S.T. 2941, 704 U.N.T.S. 219.
9. Eid v. Alaska Airlines, Inc., 621 F.3d 858 (9th Cir. 2010).

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