At least as the Patriot Act is currently being applied.
LA Times reports
Reporting from Los Angeles and
Oklahoma City --
Tamera Jo Freeman was on a Frontier Airlines flight to Denver in 2007
when her two children began to quarrel over the window shade and then
spilled a Bloody Mary into her lap.
She spanked each of them on the thigh with three swats. It was a small
incident, but one that in the heightened anxiety after the Sept. 11
terrorist attacks would eventually have enormous ramifications for
Freeman and her children.
A flight attendant confronted Freeman, who responded by hurling a few
profanities and throwing what remained of a can of tomato juice on the
The incident aboard the Frontier flight ultimately led to Freeman's
arrest and conviction for a federal felony defined as an act of
terrorism under the Patriot Act, the controversial federal law enacted
after the 2001 attacks in New York and Washington.
"I had no idea I was breaking the law," said Freeman, 40, who spent
three months in jail before pleading guilty.
Freeman is one of at least 200 people on flights who have been
convicted under the amended law. In most of the cases, there was no
evidence that the passengers had attempted to hijack the airplane or
physically attack any of the flight crew. Many have simply involved
raised voices, foul language and drunken behavior.
Some security experts say the use of the law by airlines and their
employees has run amok, criminalizing incidents that did not start out
as a threat to public safety, much less an act of terrorism.
In one case, a couple was arrested after an argument with a flight
attendant, who claimed the couple was engaged in "overt sexual
activity" -- an FBI affidavit said the two were "embracing, kissing and
acting in a manner that made other passengers uncomfortable."
"We have gone completely berserk on this issue," said Charles Slepian,
a New York security consultant. "These are not threats to national
security or threats to aircraft, but we use that as an excuse."
Justice Department spokesman Dean Boyd defended the prosecutions,
saying that they have helped improve airline security. He added that
the department has only pursued prosecution "when the facts and
circumstances of a particular case warrant such action."
Indeed, the law has given airlines new flexibility to clamp down on
unruly behavior. But the intent of the Patriot Act provisions was to
put terrorists in violation of the law before they could execute an
actual takeover, said Nathan Sales, a law professor at George Mason
University who helped write the Patriot Act when he served in the
But Sales acknowledged that in the fervor to protect the skies, the
practical application of the law has strayed.
"A woman spanking her child is not as great a threat to aviation as
members of Al Qaeda with box cutters. That much is clear," he said.
For decades, airline personnel and law enforcement have had wide
latitude in prosecuting unruly passengers, not only for assaults or
threats but also for any behavior, including arguing, that disrupts a
flight or "lessens the ability" of crew members to perform their jobs.
In practice, however, airlines have largely maintained order under
Federal Aviation Administration rules, in which hundreds of unruly
passengers are simply slapped with an infraction and fine each year.
According to FAA guidelines issued in 2007, "interference or
intimidation of a crew member by itself is not chargeable under the
[criminal] statute unless it rises to the level of physical assault,
threatened physical assault or an act posing an imminent threat to the
safety of the aircraft or other individuals on the aircraft."
Sept. 11, however, changed everything. Within two months of the
attacks, Congress passed the Patriot Act, a sweeping attempt to improve
the nation's defenses against international terrorism. It included
broad new powers for law enforcement in such areas as electronic
surveillance, money laundering and search warrants.
Included were two key provisions on airline security. The first defined
disruptive behavior as a terrorist act, reflecting the seismic shift in
The second broadened the existing criminal law so that any attempt or
conspiracy to interfere with a flight crew became a felony -- a change
that allowed flight personnel to act against suspicious passengers even
if they hadn't begun an actual assault.
The law gave flight personnel enormous latitude in determining what
precisely posed a potential threat or disruption, and judging by some
cases, there is no clear standard.
Last summer, a Boston man who took off his clothes and attempted to
open an emergency exit during a flight to Los Angeles was not charged
with a crime, even though the plane was forced to make an unscheduled
landing in Oklahoma City.
Such was not the case with Carl Persing and Dawn Sewell, a Lakewood
couple who never left their seats during the 2006 incident aboard a
Southwest flight to Raleigh, N.C., that led to their arrests and four
days in jail.
FBI and local investigators in Raleigh alleged that the couple engaged
in a variety of sexual activities during the flight. At one point,
according to an FBI affidavit, Persing was "observed with his face
pressed against Sewell's vaginal area. During these actions, Sewell was
A flight attendant twice asked them to stop, according to the
affidavit, and Persing responded, "Get out of my face," and later, "You
and I are going to have a serious confrontation when we get off this
But he denied making a threat. He said he did not feel well because of
a chemotherapy drug and had put his head in Sewell's lap. "We were kind
of confused why he was waking us up, why he wouldn't let me sleep," he
said in a recent interview.
Charges were dropped against Sewell, but Persing, who had never been
arrested before, was sentenced to 12 months' probation.
He almost lost his job as a Port of Los Angeles mechanic, which
requires a security clearance from the Department of Homeland Security.
The department initially yanked the clearance but reinstated it after a
review of the facts.
The Justice Department does not keep data on how many such prosecutions
or convictions have occurred, Boyd said. But according to the
Transactional Records Access Clearinghouse, a Syracuse University
program, the federal government has obtained 208 felony convictions for
disrupting flights since 2003, when data first became available.
The single case of actual terrorism cited by Boyd involved Briton
Richard Reid, who is serving three life sentences. Reid was subdued by
passengers and flight attendants on a 2001 flight from Paris to Miami
after he was seen trying to ignite explosives in his shoe.
Tension aboard planes has increased over the years as the number of
flight attendants onboard has declined and flights have grown more
Airlines, in most cases, have provided no additional training for
flight attendants to deal with unruly passengers or potentially
threatening situations, said Corey Caldwell, spokeswoman for the Assn.
of Flight Attendants. The amount of training attendants receive --
averaging six weeks -- has not changed since Sept. 11.
Tolerance for irrational behavior linked to mental illness has also
diminished, said Ronald Honberg, legal director for the National
Alliance on Mental Illness.
In a number of cases, mentally ill passengers act bizarre, falsely
claiming to have heart attacks, seeing terrorists or needing to escape
the plane. In other cases, including one earlier this month in Los
Angeles, they use the word "bomb" or claim to have a bomb. They are
typically restrained, but whether they are prosecuted depends on the
widely varying judgment of prosecutors around the country.
"If you get out of your seat and walk to the front of a plane and talk
about bombs, you get what you deserve," said Sales, the law professor.
On the other hand, Sales adds, "There are other sanctions than throwing
the book at a person who has mental health issues."
The costs of a conviction can be enormous. In Tamera Freeman's case, it
cost her custody of her children.
The confrontation on the Frontier Airlines flight to Denver was
particularly harsh, recalled Amy Fleming, the flight attendant who told
Freeman to stop spanking her children. In a recent interview, Fleming
called Freeman the most unruly passenger she had seen in 11 years on
"Absolutely she deserved a felony conviction," she said.
But at least one passenger, John Carlson, a defense attorney who was
seated near Freeman, said there was no threat. "There was a nasty, loud
exchange," Carlson said. Then Freeman "capitulated and offered no
resistance. My sympathy shifted to her."
A spokeswoman for Frontier said the airline has provided more training
for flight attendants since 2001, including classes on "ways to calm a
situation before it reaches a boiling point or physical confrontation."
After three months in jail, Freeman agreed to plead guilty in exchange
for being released on probation. A court-appointed attorney told her
that a plea deal would be the fastest way to see her children, who had
been taken back to Hawaii and put into foster care.
Her probation required her to stay in Oklahoma City, where she grew up,
and prohibited her from flying. Meanwhile, legal proceedings in Hawaii
have begun to allow the children's foster parents to adopt them.
Freeman has been denied permission to attend custody hearings in Maui
over the last six months, court records show.
"I have cried. I have cried for my children every day," Freeman said.
"I feel the system is failing me."
Thanks to Antiwar.com