One List To Rule Them All: Creating A National Unruly Passenger No-Fly List

SCOTT FRASER—Whether you read the paper, watch the nightly local news, or scour social media, chances are that you have heard, or seen footage of, an airline passenger acting in a disruptive manner, fighting other passengers, physically and sexually assaulting flight attendants, or even attacking the authorities.

Prior to the COVID-19 Pandemic, airlines began noticing an upward trend in unruly passenger incidents. In studying the issue, experts theorized that the culprit was increasingly overcrowded airports and a culture that was losing tolerance for improper behavior and unwanted sexual advances. Yet, before there was time to act on this data, the incident numbers took off as COVID spread around the world, creating new and unique tensions in the airline industry.

Federal law has long made it a crime to “assault, threaten, intimidate, or interfere with a crewmember . . . .” The Federal Aviation Administration (“FAA”), which regulates all civil aviation matters in the United States, has historically dealt with violations of those laws through civil penalties such as fines, warning notices, and counseling. Due to the increasing violations, the FAA has altered its flight path, and instituted a zero tolerance policy, eschewing warnings and counseling for increased fines up to $37,000 per violation (there may be multiple violations found within a single incident), and referring the parties involved for criminal prosecution.

The airlines have also worked to combat unruly passengers by creating their own no-fly lists and refusing future service to those involved in prior incidents. Still, the airlines are finding that when an identified problem passenger is put on such a list with one airline, they promptly take their business and baggage to a new airline. Instead of simply shuffling the deck and redistributing unruly passengers to other carriers in the industry, Delta Airlines has proposed in a letter to U.S. Attorney General Merrick Garland that the federal government institute a national unruly passenger no-fly list.

Notable organizations, such as the American Civil Liberties Union (“ACLU”), have raised issue with such a no-fly list. The ACLU has previously argued cases pertaining to the Terrorist Screening Center’s No Fly List (“the watchlist”), claiming that such lists are unconstitutional. The ACLU was successful early on in Latif v. Holder, with the United States District Court for the District of Oregon finding that the watchlist was unconstitutional after applying the Mathews balancing test, and weighing the private interests of the parties, risk of erroneous deprivation of those interests, and governmental interests. The court held that lack of notice and clear reasoning for placement on the list, and therefore an inability to challenge a list placement, was a violation of due process. Despite this early victory, appeals by the ACLU claiming that the revised procedures, with incomplete records for purposes of national security, still created an impermissibly vague process were rebuffed by the Ninth Circuit.

Although there may always be individual cases in which a party is treated unfairly, it seems as though here, an unruly passenger no-fly list would avoid many of the issues the ACLU confronted in the watchlist. The main issue in the aforementioned watchlist cases revolved around the governmental interest in preventing terrorism and protecting sensitive information. Although serious in nature, unruly passenger incidents do not rely on that type of sensitive government information, which would ultimately allow for a much more robust and transparent process for notice and appeal of inclusion on a no-fly list.

Accordingly, these differences would make it far less likely that an individual would be erroneously deprived of their private interests of free travel without a reasonable runway for remedy. Further, in asking for the development of a national list, the CEO of Delta only asked that those “convicted of an on-board disruption” be added to the list. This requirement of prior adjudication makes Due Process violations less likely than processes that rely on instances of secret reports compiled by the FBI or other intelligence organizations.

While the ACLU simultaneously argues that as COVID recedes, such lists will become obsolete, that timeframe is unclear, and as mentioned earlier, although exacerbated by it, this trend began before COVID hit. Within this particular context, the Federal Government, airline companies, and organizations like the ACLU should hopefully be able to come together to create a reasonable process that will allow airlines to protect themselves from unruly passengers, while simultaneously protecting the constitutional rights of those engaging in air travel.