Reed Smith In-depth

The ongoing pandemic and associated face mask requirements for air travel have significantly increased the number of unruly airline passenger incidents and have resulted in the Federal Aviation Administration (FAA) proposing more than $1 million in civil penalties against passengers in 2021. With the FAA’s zero-tolerance policy, as well as U.S. Attorney General Merrick Garland’s recent directive to prosecute unruly passengers, it is helpful for air carriers to be aware of the applicable law and recent developments with respect to the removal of unruly passengers.

Unruly passengers in 2021

As of December 7, 2021, the FAA received 5,553 unruly passenger reports this year, with 3,998 of these incidents related to compliance with COVID-19 mask-related regulations. Over 1,000 of these incidents were investigated, and 292 enforcement cases have been initiated. This number likely understates the issue, as the FAA’s database contains only reported incidents, and reporting is at the discretion of the crewmember involved in the incident.

Although the number of monthly reports peaked in early 2021, concern regarding unruly passengers, particularly with respect to face mask compliance, remains given the anticipated holiday-related travel in the coming weeks, the Omicron variant, and looming fatigue over mask wearing. The problem of unruly passengers was so pervasive in 2021 that trade groups for major U.S. airlines and labor unions asked the Department of Justice in June to crack down on the spike in this behavior. A survey of nearly 5,000 flight attendants released in July 2021 by the Association of Flight Attendants found that more than 85 percent of all respondents had dealt with unruly passengers as air travel picked up in the first half of 2021, and 17 percent reported experiencing a physical incident. In September 2021, the Transportation Security Administration increased the range of civil penalties that can be proposed against individuals violating the federal mask mandate in U.S. transportation systems.

As of January 2021, the FAA imposed a zero-tolerance policy toward unruly passengers. While methods for responding to passenger disputes may have been previously resolved through warning notices or counseling, this new policy encourages resolution through civil penalties and criminal charges. Most recently, in November 2021, U.S. Attorney General Merrick Garland responded to these concerns in a memorandum to the FBI and U.S. Attorneys General. The memorandum directs U.S. Attorneys to “prioritize prosecution of federal crimes occurring on commercial aircraft that endanger the safety of passengers, flight crews, and flight attendants” and to “communicate to the relevant ... authorities and law enforcement agencies ... in their districts that this is a Departmental priority.”