Unruly Airline Passengers Rarely Face Criminal Charges

Yet few passengers faced criminal charges. Joining me is Alan Levin, Bloomberg Aviation reporter start by telling us about this passenger on the Alaska Airlines flight in January from Seattle. Yeah, that's actually a really interesting case. This was an Alaska Airlines flight in Seattle. It was just about to depart and a man on the flight allegedly began calling one reporting a hijacking and was quite vivid. He said there was a hijacker who had a flight attendant at knife point.

There were multiple calls the plane, I guess it began to depart, but then authority notified the airport lane was taxi to a secure area. Police came on board to start the situation out. And during this time he also called the FBI and made some sort of vague reference

to a bomb. Now, you know, once a hijacking is reported like that, you have to re screen the passengers and they had to rescreen all the bags to make sure there was no bomb on board, check all the passengers to make sure nobody had a knife that was reported, etcetera. And under federal law, making a false report of a hijackie it's quite a serious criminal charge. It carries a five up to five year prison term along with a have to be fine, etcetera. But this is sort of

what happened to some of these unruly passenger cases. It was referred to the county prosecutor in Under Washington state law, there is no equivalent charge to making a false hijacking report. There are you know, serious sylonies in mistakes for things like making a threat. But in this particular case, the hoax threats there was no knife, there was no bomb, there was no real threat. So they've not been able

to charge this individual. They're looking at making filing charges on a misdemeanor account of making a false report, which is, you know, less serious matter and we were not able to determine why, but the case was never referred to the federal government and no charge federal ars are being brought. So it's sort of illustrates the difficulty in these cases tell us about the spike in cases. By all accounts, it's been a huge increase this year. So far, there've

been about thirty reports of unruly passengers. They sort of run the gamut, but by and large, the biggest category is some form of people not wanting to wear their based mask, which are now required, so either objecting to wearing the mask or not wearing it properly, or becoming abusive to the flight attendants after they ask you to wear the mask. That seems to be one of the

biggest common denominators. There also has been a thread. A lot of these events occurred just before and just after the January six storming of the US capital, and so there's kind of a political thread that runs through this phenomenon as well. In some cases, people are escorted off flights for voicing political views loudly and that sort of thing and sing. So do people actually get arrested who

arrest them? Well, that's one of the issues that makes it difficult is that the federal government by and large overseas the aviation industry, and that's largely the case when it comes to behavior on a plane, but with only a rare exceptions, there are no federal agents at airport, so it tends to be some sort of a local police force. Each airport is different. You know, sometimes they have their own police force at the airport, but often it's a state or local entity in which the airport

is located. So they will escort people off aircraft. At times, they'll make an arrest, but you know, if the activity occurred in flight, it may not even be in that police force's jurisdiction, and so they may have limited ability to bring charges. We have seen cases where the plane is parked at the gate and the door is open and there's an assault on a plane, for example, that

may fall under the local police's jurisdiction. But generally speaking, when the doors are closed and the plane has hold back and begin taxing to the runway, and then also obviously in flight, it becomes a federal issue, and so the powers of the local police are somewhat limited. What about the f A A. Why aren't they handling these cases, So that's a very good question. The f a A, I think it's fair to say, is the entity that jumped in most aggressively here to try to stem the

stig increase. But they only have civil powers, so they can't bring criminal charges. But they have initiated enforcement actions and what that allows them to do is to collect fine But they're not a police force and they don't have legal authority to bring any of them. So when there's an incident, let's say, where there is a physical altercation and someone gets injured, what happens in those cases

are charges brought? Well, it sort of runs the gamut, But there's a big distinction to be made between two passengers fighting each other, which you know is obviously serious and could injure other people. But that's distinct from a passenger hitting and or otherwise interfering with the work of a flight crew that is governed by federal statute and carries the penalty up to twenty years by the serious offense, I would say they rarely charge people who aren't terrorists

with that charge to the fullest extent. But we checked the federal docket around the country and there were a total of twelve cases filed under that statute this calendar year so far. How difficult are these cases for federal prosecutors to make? These are cases where the witnesses all dispersed. You may get statements from flight attendants, but they likely weren't obtained from a trained, you know, FBI agent or

somebody who knows what's needed to bring a prosecution. And then it may also require tracking down other passengers who are witness says, so it can take quite a bit of effort to put a case together. Has there been a push recently to have more passengers criminally charged? Yes,

so the airline industry and that includes their unions. The flight attendant unions in particular on the front lines having to deal with this, wrote a letter to the Justice Department last month asking that they take more action to bring charges. Attorney General Merrick Garland was asked about this at a Senate hearing last month, and he said that at least the most egregious cases are clearly criminal matters, not civil, And he said he's still developing a policy,

but that they did take it seriously. You know, it's hard when you have such a small number of cases to see any actual trends. I think it's fair to say that so far this year, the number of cases brought at least under the statute for interfering with the flight attendant is about the same as they've seen the past two years. They ranged from about six team to twenty cases per year. Thanks Alan. That's Alan Levin, Bloomberg

News Aviation reporter. The US Justice Department will investigate the City of Phoenix and its police department for potential civil rights violations, including sweeps of homeless encampments, the third such investigation of policing since President Joe Biden took office. Joining me is David Harris, a professor at the University of Pittsburgh School of Law and host of the Criminal Injustice podcast. So why is the Justice Department launching this civil investigation?

The Civil Rights Division and the federal government can't investigate any old police department and things might be doing a better job than it is. The only reason that they can launch these investigations is if they think that there may be a pattern of constitutional violations here. This is certainly true with the investigation launched of Minneapolis Police and Louisville Police, and here they have information that leads them to think that there is a pattern of constitutional level abuse.

So they do this not because there's one bad incident or one bad shooting, or even a couple. They do this because they see a pattern of violations of constitutional rights. In the case of the police departments that they've recently investigated it in a similar way. In Minneapolis, the death of George Floyd was a motivating factor, and in Louisville,

the shooting of Briana Taylor was a motivating factor. This is based on whether law enforcement is violating the rights of homeless people in Phoenix by seizing and disposing of their belongings. That's the headline allegation at this point, But the Justice Department made it clear that that wasn't the only thing that they were looking at. They were looking at us as a four. They were looking at the way that the Phoenix police have handled demonstrations and a

number of other things. The things that they have in common is that all of them are potential violations of constitutional rights. So it's not a matter of not following best practices or making a mistake here and there. It's a matter of finding a pattern of constitutional level wrongdoing. In the case of Phoenix. The thing that apparently drew the most attention from law enforcement perspectives was the way that the city was dealing with its homeless population, sweeps

through homeless encampments and so forth. It sounds like what's happening in the other cities that they've chosen to investigate is more serious then what's happening in Phoenix. Now. Is that just because there's other reasons or is that because it is less serious? Well, I think the important thing to look for is not the seriousness of the sort of headline incident that might have attracted notice in the

first place. Uh, even one very bad in custody death or shooting is not enough to allow the federal government to have jurisdiction over a local police department. What they're looking for is a pattern of use of force, a pattern of bad search warrant executions like they had in Louisville. It's that pattern that makes the difference. The fact that we the public might know about just one important bad

incident isn't what really brings in the justice department. It might attract the attention of the Justice department first, but the thing that keeps them there and that gives them jurisdiction is the existence of a pattern of constitutional violations. That can be stopping frisk, that can be the use of force, that can be uh the way that people

are prosecuted, the way that complaints are handled. As long as there's a pattern of constitutional violation, it doesn't require the most serious kind of catastrophe like the death of George Floyd. What's important is whether or not there's a pattern of violation of the constitution. If you have that,

it's enough to give the Justice Department jurisdiction. What I found interesting was that Attorney General Merrick Garland said, too often we asked law enforcement officers to be the first and last option for addressing issues that should not be

handled by our criminal justice system. Well, it's very interesting to hear how he talked about it, because what it was was an acknowledgement of what many of us have come to understand really only in the last year, and that is we look at police as the answer to everything, and they're clearly not. They're not trained to respond to

mental illness and mental health crisis. They're not really trained to respond the crises of homelessness or drug addiction, and too often they're the only agency in any given city that may be available to do those sorts of things, and they're given those tasks, even though we could easily imagine that an agency made up of social workers or other kinds of people would be better suited to these

kinds of tasks. Police or police, they're going to use the tools that they know and the training that they have. And so what Garland is saying is that he's acknowledging that maybe police weren't the right ones to do this. Maybe it's not their fault that they got sent in like that, but in any case, since they were there and they were given that job, the end result may

have been a pattern of constitutional violation. So it's a way of talking and addressing a problem that acknowledge the difficulties that law enforcement has been forced to confront that maybe aren't really in its wheelhouse, and then aren't the best suited for police? We should have other agencies doing that. What do they do when they go in joing these investigations? How are they better suited? Then, Let's say in an

internal investigation by the local police department. The first thing is that they are independent of local law enforcement and prosecution. And if there is a long standard standing pattern of constitutional violation of unconstitutional policing. Typically, people uh in the jurisdiction would not trust an internal investigation of the police investigating themselves. That's one of the reasons that we have

civilian oversight in many cities of this country. So Number one is that they are independent of any of the

local actors. Number Two, they do a comprehensive review. They talked to the public, they talked to officers, they talked to the command staff, and you better believe that they get every document out of that police department that might shine a light on current practices and patterns, so that they really understand what has gone on in the past, what the structures are, why things are functioning or not

functioning the way that they are. So it's a very deep and comprehensive look at how the department is operating on a day to day basis, month to month and year in and year out, so that they have a full and complete picture. And they do this with input from all of the stakeholder groups you can think of, from the public to the inside of the police department

to the police union. I think in the past, and I say this from the point of view of Pittsburgh, having been the very first, very first big city to undergo one of these consent decree back in nine In the past, they wouldn't do such a thorough job. They wouldn't talk to all the stakeholders, they might not talk to the public, and therefore they didn't always come up with the best answers. They have a much wider view of things now. Uh, they want to take into account

everybody's a point of view. Uh, they want to know the full picture of what's happening. It sounds really intense. How long do these investigations take. They can take a while. It depends on the degree of cooperation that they get from the municipality and from the police department. UM. It depends on what kind of resistance they might be internally in the police department UM, and how many stakeholder groups

they figured they need to talk to. Already, I was reading that in Minneapolis and in Louisville, where they've been working on this already for some months, they've talked to something like a thousand different people in each of those aces. So you'd expect an investigation that will last month. The most important thing is that they be through and that

they get it right. Uh, so that they can come out of it with the comprehensive plan for rebuilding, reinforcing, even recreating the necessary structures to give the people of Phoenix policing that obeys the Constitution and that gives them the kind of public safety service that they need. So they take the time that that that they need. If there's more resistance, it takes more time. Since Garland became the a G in March, there are three civil rights

investigations of police undertaken by the Justice Department. What does that signal? Is it too much too soon? No? I don't think so, Because the incidents and the precipitating events in both Louisville and Minneapolis told you from the first minute of the new administration that there would be pattern of practiced investigations in those cities. I think that was a total non surprise. This is really the first one if you look at it that way, and uh, launching

the first one in the first few months of the administration. No, I don't think that's too much too soon. I think that we should expect more of these. We know that the Trump administration basically shut this process down entirely. Former Attorney General Jeff Sessions went into that job announcing, well known as an opponent of these investigations, that there was going to be no more of this stuff. He considered it wrong, even though the federal statute that authorizes it,

and Attorney General Bill Barr was really no better. And so it's not a surprise at all that we have the first of these in Garland's first few months, along with the totally expected investigations into Minneapolis and Louisville. So in the past it usually ends up being a consent decree. How have these worked out in the past. Have some of them worked better than others? Yes, in a word, absolutely yes, some of them. The process has been much

longer than anybody would hope. In at least one case, New Orleans, they needed a second intervention when the first proved inadequate. Here in Pittsburgh, where I live, the first consent decree to ever be done in a big city. UH did a lot for the police department in those

five years that it was in effect. But within just a couple more years there had been a turnover of mayors and police chiefs and so forth, and there were very few people in the higher echelon divided the police chief of the city that was very committed to the agreement anymore, and therefore it kind of fell away. In Cincinnati, it did really train insform that police department, and it's a much better police department than it used to be even now almost twenty years later. So it you know,

some of them have been more successful than others. I think that's fair to say. Are they costly, Yes, they are um but the price of unconstitutional policing people need to remember that has a price too. It has a price in the confidence of people in their police department, their belief that the police department is legitimate and is on their side. And then of course the millions and millions of dollars that many cities have to pay when

police officers violate the law in the constitution. They have to pay those and damage it. So any thoughts about the cost of these things in the length of time they take, you have to compare that to not doing them. Uh, And there is a substantial cost to lack of intervention as well. Thanks so much for being on the show, David. That's David Harris. He's a professor at the University of Pittsburgh.

Law school and host of the Criminal Injustice podcast. Remember, you could always at the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, slash Law. I'm June Grosso and you're listening to Bloomberg