A Bar Bouncer Equivalent for Planes in Flight

A Bar Bouncer Equivalent for Planes in Flight

Legal Sidebari

A Bar Bouncer Equivalent for Planes in Flight
March 5, 2018
Two federal appellate courts recently upheld convictions under the federal statute that outlaws
intimidating flight attendants aboard a commercial airline. Both cases involved boorish in-flight
misconduct, U.S. v. Lynch in U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) and U.S. v. Petras
in the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit). These cases illustrate judicial practicality
and the limits of a 2014 Supreme Court decision, Elonis v. U.S., that recognized a state-of-mind
requirement for prosecution under a federal threat statute.
Lynch was an inebriated first-class passenger who repeatedly placed his hand on a flight attendant’s lower
back. He shouted vulgarities when the attendant refused to serve him additional drinks, caused two of the
flight’s three attendants to devote their full attention to trying to calm him down to the neglect of their
other duties, and prompted the pilot to check on the disturbance leaving the co-pilot alone to handle their
cockpit responsibilities.
In the second case, Petras was one of a group of raucous soccer players heading to a tournament who
refused to quiet down and who responded poorly when their drink requests were not honored. Flight
attendants who tried to pacify the group were met with crude and abusive harangues. After one of the
attendants reported that she felt threatened, the pilot diverted the flight, and the group was removed from
the plane.
Lynch and Petras were convicted under a federal statute that proscribes intimidating and interfering with
the performance of an airline’s flight crew. Lynch was sentenced to four months followed by three years
of supervised release. Petras was sentenced to five months followed by three years of supervised release
and ordered to pay $6,890 in restitution.
Lynch and Petras argued, among other things, in their respective appeals before the Fifth and Tenth
Circuits that in light of the Supreme Court’s decision in Elonis the trial court had misadvised the jury on
the state of mind (mens rea) required for conviction. At trial, the defendants had requested a jury
instruction that noted that the government was required to prove that the defendants intended to intimidate
the flight attendants. The trial courts in both cases instead instructed the jury that the government need
only prove that a reasonable person would have found the defendants’ conduct intimidating.
Elonis involved a federal statute that outlaws interstate transmission of threatening communications. The
statute does not have an express “knowingly” or other state-of-mind requirement. The prosecutor at trial
told the jury that it did not matter what the defendant thought. The trial judge instructed the jury that “a
statement is a true threat when a defendant intentionally makes a statement” that a reasonable person
Congressional Research Service
https://crsreports.congress.gov
LSB10090
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

Congressional Research Service
2
could consider a threat. Elonis appealed. The U.S. Court of Appeals for the Third Circuit agreed with a
majority of the other circuits that the threat statute did not require a showing that the defendant
specifically intended to threaten a victim. It was enough that “the government had to prove that a
reasonable person would foresee Elonis’s statements would be understood as threats.”
The Supreme Court disagreed on the basis of a due process-grounded series of rules of statutory
construction. The Court noted that as a general matter a mens rea requirement is assumed even for a
statute that makes no mention of criminal intent. Moreover, the assumption applies to every substantive
element of a silent criminal statute. The Court explained that this does not mean that a defendant must
know that his conduct is unlawful, but only that he must know the facts that make his conduct fit the
crime. That is, the Court will “read into the statute only that mens rea which is necessary to separate
wrongful conduct from otherwise innocent conduct.”
The statute in Elonis had two elements: (1) transmitting a communication and (2) a threat. The Court
noted, that “[T]he parties agree[d] that a defendant [under the threat statute] must know that he is
transmitting a communication.” However, “communicating something is not what makes the conduct
wrongful. Here, the crucial element separating legal innocence from wrongful conduct is the threatening
nature of the communication.” Thus, “[t]he mental state requirement must … apply to the fact that the
communication contains a threat.” The Court ended with the observation that “[t]here is no dispute that
the mental state requirement [here] is satisfied if the defendant transmits a communication for the purpose
of issuing a threat, or with knowledge that the communication will be viewed as a threat.” The Court left
for another day the determination of exactly what level of intent is sufficient for purposes of the threat
statute.
Petras and Lynch argued before the Fifth and Tenth Circuits respectively that their cases mirrored Elonis
and therefore their convictions should be overturned. They contended that the government should have
been required to prove that they intended the conduct that the attendants found intimidating and that they
intended to intimidate or that they knew that their conduct would be viewed as intimidating. The
appellate courts were unpersuaded. The Fifth Circuit had a case decided before Elonis, U.S. v. Hicks, that
had addressed the mens rea issue in the context of an earlier version of the in-flight intimidation-and-
interference statute. The court in Hicks concluded that the government only need establish that a
reasonable person would find the defendant’s conduct intimidating; it was not necessary to establish the
defendant’s intent to intimidate. In Petras, the Fifth Circuit held that Hick survives Elonis and is
controlling. “[F]or a Supreme Court decision to override a Fifth Circuit case, the decision must
unequivocally overrule prior precedent; mere illumination of a case is insufficient,” the Fifth Circuit
declared. Elonis “did not mandate that all federal statutes be interpreted as specific intent-crimes,” Hicks
and Petras involved a different crime statute, and therefore, the Fifth Circuit concluded that Elonis did not
supersede Hicks.
The Tenth Circuit in Lynch, with no comparable precedent, took a different tack. The Tenth Circuit
explained that “the mental state required under [the Elonis statute] is not in the crime here” and reading a
general intent of voluntary and deliberate conduct into the statute in Lynch “readily satisfies Elonis’s mens
rea standard.”
Neither Petras nor Lynch raised the question of whether the intimidation-and-interference statute was ever
intended to apply to flight attendants. Although there is little if any case law on point, the statute’s
legislative history can be read to support an argument that the statute should apply only to those members
of the flight crew responsible for safe operation of the aircraft. The legislative history suggests that
passengers and members of the flight crew who are not responsible for safe operation of the aircraft are to
be protected by the assault statute enacted at the same time. That might explain the discrepancies in
sentencing authority between the two statutes. The intimidation-and-interference statute carries a

Congressional Research Service
3
maximum penalty of imprisonment for not than 20 years, while simple assault under its counterpart is
punishable by imprisonment for not more than 6 months.
If the intimidation-and-interference statute does not apply, disruptive verbal abuse of flight attendants is
no crime. Under such an alternative, some may be inclined to endorse what they consider the common
sense approach taken by the Fifth and Tenth Circuits – apply the intimidation-and-interference statute to
loud churlish passengers, but punish them as misdemeanants. Others may feel that the decisions in Petras
and Lynch are at odds with the decision in Elonis, are inconsistent with the statute’s legislative history,
and that any common sense adjustments should be left to Congress.

Author Information

Charles Doyle

Senior Specialist in American Public Law

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10090 · VERSION 2 · NEW