A generation ago, when the airlines trained their "stewardesses" or "flight attendants", it was stressed that the best way to serve the traveling public was with a friendly smile and courteous service. This, and a safe journey, was what the customers were paying for. Above all, the customer was always right. In those pre-deregulation days, passengers dressed up in coats and ties, dresses and hose when taking an airline flight.

Travel was expensive and not for everybody. Passengers treated the crew and each other with courtesy and respect. In the intervening years, many dramatic changes have taken place. Today, the bus and train depot have emptied to the airports and travel is now relatively cheap. Almost anybody can fly. Passengers are boarding airplanes in record numbers, paying a fraction of the previous airfares, and are dressing in a much more casual fashion. On many flights, vacationing passengers wear shorts and flip-flops. The Greyhound set has discovered air travel. The demeanor has also changed considerably. Instead of showing courtesy and respect to crew members and fellow passengers, passengers today are unruly and aggressive, and more and more frequently, engaging in assaultive acts against crew members and each other.

Here are some examples of some of the more outrageous recent newspaper incidents:

* An intoxicated U.S. Air passenger threw a flight attendant against the cockpit door because she refused to serve him another drink. The passenger threatened to open the door and throw her off the airplane. As a result, the flight crew were forced to divert the aircraft back to its starting point in Savannah, Georgia to hand the passenger over to authorities.

* A flight attendant and three of her fellow crew members were injured when a female passenger assaulted her for refusing to serve her another sandwich.

* A Connecticut investment banker named Gerald Finnerman, in a drunken rage, actually pulled down his pants and defecated on a food cart on a recent United flight from Buenos Aires to New York. He reacted in this fashion because he was not given another glass of wine when he demanded it.

The good news is that there are Federal and State laws and FAA regulations that prohibit this type of unruly behavior, as well as civil tort state common law remedies available. These passengers are being held accountable for their aggressions. The courts are seeing increasing numbers of civil actions and criminal proceedings involving the airlines and involving their employees and passengers. Years ago, a flight attendant would not dream of suing or filing charges against a passenger out of fear of losing their job. Today, under the directives and guidance of the Federal Aviation Administration (FAA), the airlines are responding to the dramatic changes in the nature of the traveling public and beginning to support their employees. The passenger who interferes with or commits a criminal act on a crew member is no longer "always right". The foundation for these legal actions can be found in the federal law, Federal Aviation Regulations (FAR’s) and in some instances, state criminal statues and common law.

In the federal scheme, criminal sanctions can be imposed under the Federal Aviation Act for any individual who assaults or intimidates a flight crew member, and thereby interferes with the performance of their duties. 49 U.S.C.A. § 46054 (1994 and West Supplement 1997).' Penalties under Title XVIII of the Act include fines up to $10,000.00, imprisonment for not more than twenty years, or both. If a dangerous weapon is used in assaulting or intimidating the crew member, this aggravates the act and the individual can be imprisoned for any term of years, or life.

The Ninth Circuit Court of Appeals has held that it is not necessary to prove that an aircraft is endangered in order to bring an assault charge under this statute. U.S. v. James Tabacca.² In Tabacca, a passenger on a flight from Boston to Los Angeles assaulted a flight attendant after being asked to extinguish his cigarette on a non-smoking flight. The court held that to impose conviction, it is sufficient to show that the act of assault or intimidation merely interfered with the performance of the flight attendant’s duties.³ The Court additionally held that it was reasonable to foresee that grabbing and shoving a flight attendant, while making profane remarks to them, could interfere with his or her duties.4

In another action where profanity was used against a flight attendant, the Fifth Circuit Court of Appeals held that to limit such speech would not violate a passenger’s right to free speech. U.S. v. Hicks.5 The defendants were asked repeatedly on the flight from Jamaica to Houston to turn off their "boombox," as it could interfere with the navigational system of the aircraft. They responded with profanity and refused to turn it off or turn it over to the crew. As a result, the plane had to make an unscheduled landing to remove them. The Court held that the FAA Act’s proscriptions did not discriminate on the type of speech, and, therefore, using the "yelling fire in a theater" analogy, there were permissible limitations on the time, place, and manner of speech.6 As a result, the defendants were convicted.

The purpose behind the imposition of criminal liability in such situations is to safeguard aircraft in transit by insuring that crew members are not prevented from performing their duties by such intimidating or physical interferences. A necessary element of the criminal charge of assault or battery on a crew member, therefore, is not required to establish this interference.

In U.S. v. Flores,7 the First Circuit held that not every assault on a flight attendant interferes with their duties. In such circumstances, criminal conviction under the Act may be imposed for simple assault or intimidation, with lesser penalties involved. Flores involved an altercation between a passenger and flight attendant because the passenger was denied a request for a pillow and blanket. The turbulent relationship between the flight attendant and passenger culminated in an alleged shoving match and verbal assault of the flight attendant by the irate customer.

In addition to federal statutes, such disruptive behavior by unruly passengers is also a direct violation of FARs. These civil Regulations have the force and effect of law. FAR 91.11 states that "no person may assault, threaten, intimidate, or interfere with a crew member in the performance of the crew member’s duties aboard an aircraft being operated."8 Also included in these regulations that are administered and enforced by the FAA, are prohibitions on in-flight intoxication. As passenger intoxication is a major causative factor in many or most of these in-flight disturbances, this is a particularly effective tool in prevention. Under FAR 121.575, no airline may allow a person to board an aircraft if that person appears to be intoxicated. Additionally, no passenger may be served alcoholic beverages on board if they appear to be intoxicated.9 Considering the fact that alcohol’s effects are intensified considerably at 30,000 feet, it is in the interest of flight safety that these regulations be strictly adhered to.

Disgruntled passengers who attempt to bring court action themselves against the airlines for crew actions taken in such situations will often run into legal road blocks to recovery for civil damages as a result of Federal "preemption". Under the FAA Act, as amended by the 1978 Airline Deregulation Act (ADA), an air carrier which performs services in accordance with federal regulations may not be subject to civil liability actions based on state statutes or common law. 10 The rationale behind this preemption was to prevent conflicts and inconsistent regulations that vary from state to state, by eliminating state jurisdiction over airline’s rates, routes, and services. In doing so, this allows airlines to ensure the safety of air travel, pursuant to federal regulations, without fear of vexatious lawsuits by every unhappy passenger.

Regardless of who is suing whom, the fact remains that such litigation because of in-flight disturbances and outright physical violence is increasing at an alarming rate, and these laws and regulations are being invoked more frequently. The reasons for the increase in passenger distress and aggression can be found in the dramatic changes in air travel that have occurred over the years.

Since the 1978 Airline Deregulation Act (ADA), more passengers are traveling than ever before. This resulted in fierce competition for these new customers among the airlines. In many instances, the airfares have dropped considerably, and more flight options are now available to a broader range and classes of travelers. The decrease in fares, however, has been accompanied by a decrease in service to the passengers. Most airlines have reconfigured their aircraft to fit as many passengers as possible to increase their seat revenues per flight mile.

Not only are the passengers more numerous and compactly seated together, the airlines have additionally cut back on the previous in-flight amenities they formerly offered. Where passengers used to be served full, hot meals in many markets, today, passengers crammed elbow to elbow in economy class on some flights are served only beverages and peanuts, with a fortunate few receiving a cold sandwich. It would stand to reason that if airfares are further cut, services would likewise also have to be cut even more in order for airlines to viably stay in business. Most passengers unfortunately do not see it that way.

The new, inexperienced fliers, who now are able to afford air travel, still expect the glamour and type of service their higher paying predecessors enjoyed. The more seasoned travelers have come to expect a certain level of service, and are also sorely disappointed when the airline fails to deliver.

These various in-flight tensions are frequently released when alcohol is introduced into the picture. It’s a source of great revenue to the airlines, who are accordingly reluctant to terminate its availability. FAA reports have indicated that a significant percentage of the recent disturbances reported involve passengers who have had too much to drink, either before boarding (perhaps out of a fear of flying) or during the course of the flight. Refusal by flight attendants to serve alcohol to passengers who appear to be intoxicated, as required by federal regulations, sometimes is not done soon enough. As a result, the impaired passenger reacts abusively and sometimes aggressively to such refusals.

As a result of this changing climate in the traveling public, and recognizing the need for guidance for the airlines on how to respond to these incidents, the FAA in 1996, issued an Advisory Circular for all air carriers. In taking a "zero tolerance" approach, the FAA made numerous suggestions to the airlines as to the best ways to handle passenger misconduct, and how to communicate these measures to their employees.

The FAA recommended that the airlines instruct their crew members to report cases of passenger misconduct, without fear of company reprisal. Taking this a step further, the airline should also instruct the employees how to register complaints with the appropriate law enforcement agencies and the FAA. Additionally, preventive measures should be taught to crew members on how best to defuse a potentially volatile situation, and how to respond if conflict does ensue. Of primary importance is the conveyance of this "zero tolerance" position in all actions.

In early 1997 the Air Lines Pilots Association (ALPA) held a conference in Washington to discuss the problem of ever-increasing unruly passengers. They want to focus air carrier employer attention on the problem. Plastic handcuffs are now part of the cockpit equipment. One flight attendant filed a civil tort suit against a passenger for civil assault, seeking monetary damages for the harmful or offensive touching arising out of an in-flight incident with an evangelical preacher.

On a positive note, many of the legal actions that have ensued as a result, have made some of these unruly customers accountable for their actions. Gary Lee Loungee was sentenced by a U.S. District Court judge to fifty-two months in prison and 200 hours of community service for his drunken episode on board the US Air flight, when he threw the flight attendant against the cockpit door. He pled guilty to interfering with flight crew members, and was additionally fined $611 for the fuel spent returning to Savannah.

Gerald Finnerman, the "gentleman" who defecated on the food cart, struck a deal with federal prosecutors whereby he would plead guilty to committing assault on a crew member, in exchange for two years of probation. He was additionally sentenced to 300 hours of community service, and had to pay fines totalling $55,000.00.

Besides court imposed sentences, fines, and civil penalties under the FAA, some airlines are using their own methods of sanctioning passenger misconduct. Some are "blackballing" bad applies and denying any further air travel on the carrier by the offender. Northwest has banned the man that assaulted their pilot at the ticket counter in Detroit. In denying him any future transportation on Northwest, they additionally advised the other carriers of their actions against him. United has also denied the return of a passenger holding a round-trip ticket, who had grabbed a flight attendant and pilot on a previous flight.

Additionally, airlines today are quicker to deny boarding or escort unruly passengers off the flight prior to takeoff if they are likely to be a potential source of trouble in the air.

The airlines have also made changes in their initial training programs for their flight crews. A generation ago, the airlines emphasized flight attendant hospitality. Today, they stress flight attendant professionalism. Tomorrow may require training in self-defense and equipping flight crews with breathalyzers. The earlier procedures for handling passenger conflicts, which consisted of persona, one-on-one, face-to-face contact, have now been replaced with an instruction for flight attendants to take a safe distance from a confrontational passenger, and to step back for self protection. It seems that, today, for a cabin flight attendant or crew member to be prepared to respond to the flying public, they either need a good pair of combat boots, or a good attorney!

For a reprint of the entire article, contact Chad Coogan

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