As a lawyer, and as someone who writes about legal issues as a hobby, I'm constantly frustrated by the fundamental legal illiteracy of the media. That illiteracy is made up of one part ignorance to two parts sheer laziness — most of the legal issues that the media gets wrong are not really that complex, and most reporters could get it right if the were just willing to do a bit of digging.
It would be bad enough if a legally illiterate media merely misinformed the public. But the media's illiteracy allows it to mislead and frighten the public with various legal chimeras. Case in point: a recent Los Angeles Times article suggesting that the PATRIOT Act has led to people being classified as terrorists for misbehaving on airplanes.
Now, I'm the first to admit that the post-9/11 mindset has led to some foolish, unconstitutional, and liberty-eroding measures in air security. We've blogged about them here. But journalists should be able to separate results of post-9/11 laws from results of previously prevailing legal norms . In its article "In-Flight Confrontations Can Lead To Charges Defined As Terrorism," the Los Angeles Times utterly fails to make that distinction. In fact, it affirmatively obscures that distinction.
The misinformation begins in the article's caption:
At least 200 passengers have been convicted of felonies under the Patriot Act, often for behavior involving raised voices and profanity. Some experts say airlines are misusing the law.
As you will see, that is substantially misleading.
Now, here's the hook, telling the story of how one woman was prosecuted for her conduct on a plane:
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 floor.
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.
Let's begin with some research into the evidence against Ms. Freeman. The article's description of her conduct is somewhat limited, and helps support the article's theme of a hapless individual who as a result of losing her cool on a bad day gets caught in a web of post-9/11 paranoia. Fortunately, other resources are available to us — and to the journalists who wrote this story. Specifically, there's the affidavit in support of the criminal complaint against her, available online for pennies to anyone who opens a PACER account. That affidavit shows that witnesses described Ms. Freeman's conduct as rather more alarming:
3. The Denver Police Department immediately responded to the plane when itarrived at DIA and removed Tamera Freeman and her children, ages 2 and 4, from the plane. Additional law enforcement agents and I responded to DIA and interviewed the flight attendants, pilots and several passengers. Interviews of the witnesses and the victim flight attendant, Amy Fleming, revealed the following:
– Tamera Freeman appeared intoxicated and violent towards her children before she boarded the flight in San Francisco;
– During the flight, Freeman was observed by several passengers drinking additional alcohol and becoming verbally and physically abusive to her children;
-The passengers sitting near Freeman went to the flight attendants about this problem. When Flight Attendant (FA) Amy Fleming approached Freeman regarding her actions, Freeman became verbally abusive towards FA Fleming, demanding that FA Fleming mind her own business and provide her another alcoholic beverage;
-When denied further alcohol, Freeman threw a drink on the ground at FA Fleming. At one point, Freeman followed FA Fleming into a common area and began yelling and pointing her finger at FA Fleming. These actions by Freeman threatened FA Fleming to the point that FA Fleming moved into a defensive stance. FA Fleming talked Freeman into returning to her seat;
-FA Fleming, because of Freeman's actions towards her and Freeman's children, requested that a corrections officer who was a passenger on the plane assist by sitting near Freeman;
-FA Fleming also obtained restraining tape and had to physically stand near Freeman to prevent her from causing more problems on the flight or further assaulting her children;
-Freeman's actions prevented FA Fleming from performing her other duties as a flight attendant, which she then had to assign to other flight attendants.
4. I reviewed several statements provided by passengers seated near Freeman and her children. They provided the following information regarding Freeman's assaults on the children:
-Amy Grant observed Freeman hitting her children repeatedly and yelling profanities at her children and at the flight attendants. She observed Freeman swing with an opened hand down at the children and heard the children crying
after being struck;
-Carolyn DeRyder observed Freeman slapping her daughter on the legs 4 to 5 times, as well as yelling profanities at the children and the flight attendants. Deryder also observed Freeman drinking alcohol and throwing a drink on the floor
at the flight attendants's feet;
-In the San Francisco airport prior to the departure of the flight, Katie Shanahan observed Freeman drop her son on his back and head on the ground when he did not want to go to the bathroom with her. Freeman left her son on the ground crying for several minutes;
-Dianne Delverstoni was the passenger who first approached the flight attendants regarding Freeman's assaultive behavior toward the children. She observed Freeman hitting her son several times "over and over", using profanity to the flight attendant, and throwing a drink;
-Maria Aldeguer observed Freeman drinking alcohol on the flight, cursing and screaming at her children, and hitting the children with open fists on their shoulders and knees;
-Carrie Storin, who was sitting in front of Freeman on the flight, heard Freeman hitting her children "the entire flight", to the point where the children were trying to hide in a comer and on the floor;
-David Shipman stated that he observed Freeman hit her children with a closed fist during the flight.
Now, this is merely a government agent's claim about what witnesses said to him. But it provides a rather different picture than the one that the Los Angeles Times attempts to portray. Moreover, even the facts that Freeman admitted to in her plea agreement (which is also available to interested citizens and competent journalists) portray a substantially more volatile situation than the mild "few profanities" described in the article. In her plea agreement, she admitted to the following facts:
On July 16, 2007, the Defendant and her two young children were passengers on Frontier flight #1 08, an airplane in flight between San Francisco, Califomia and Denver, Colorado. During the flight, and within the special aircraft jurisdiction of the United States, passengers observed the Defendant yelling, cursing, and striking her children. One passenger reported the Defendant's conduct to flight attendant Amy Fleming. Ms. Fleming attempted to intervene. When she contacted the Defendant, the Defendant began yelling at Ms. Fleming that she wanted another drink because hers had been spilled. Ms. Fleming refused to serve her another alcoholic drink. The Defendant continued to cause a disturbance, cursing at Ms. Fleming, telling her, "You fucking bitch,
get away from me."
Ms. Fleming asked another flight attendant to notify the Captain of the disturbance. When the Defendant got out of her seat to go to the lavatory, Ms. Fleming followed her. When the Defendant left the bathroom, she continued to curse and yell at Ms. Fleming with her hands flying and fingers pointing. Ms. Fleming felt threatened and got into a defensive stance at that point. Flight Attendant Fleming handed the Defendant a "red card" which Ms. Freeman threw back at her. Ms. Fleming then retrieved restraint tape and warned the Defendant she would physically restrain her if she hit the children again. Ms. Fleming also reseated a passenger who worked as a correctional officer across from the Defendant so that he could assist as necessary. Ms. Fleming would testify that the actions of the Defendant intimidated her and interfered with the performance of her assigned duties.
Once again, this account cost me pennies and took me a few minutes to find and download. That basic research also allowed me to determine why Ms. Freeman spent three months in jail. The article implies that this was a result of post-9/11 paranoia and legal overreaching. In fact, documents available to the public show that Ms. Freeman did not contest the government's request that she be detained:
Defendant is not contesting detention. Defendant reserves the right to address detention at a later date.
Freeman was later released on bond after she filed a motion for reconsideration of detention, a motion that strongly suggests that she had not been able to secure the family support necessary after her initial arrest.
So, records available to the public show that Tamera Freeman's actions — at least as reported by witnesses — were rather more alarming than the Los Angeles Times has chosen to report. What about the legal issue? Would Ms. Freeman have been prosecuted before the PATRIOT Act? The Los Angeles Times would like for you to conclude that she would not have been:
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.
But this — like the article's caption suggesting that people are being convicted "under the PATRIOT Act" — is demonstrably misleading. Ms. Freeman's indictment charged her under two statutes: Interference with a flight attendant in violation of 49 U.S.C. section 46504 and assault within the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. section 113(a)(5). She was allowed to plead guilty to only the interference charge. The PATRIOT Act only changed one rather minor aspect of the interference statute:
2001 Amendments. Pub.L. 107-56, § 811(i), inserted “or attempts or conspires to do such an act,” before “shall be fined”.
In other words, the PATRIOT Act made it illegal to attempt to do or conspire to do the things already prohibited by the statute. The Times attempts to portray this as a sinister expansion:
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 airline security.
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.
First of all, it is no doubt true that somewhere in the bowels of the PATRIOT Act a violation of 49 USC 46504 is listed as a possible example of terrorism. But this classification has little, if any, practical impact on a case like Freeman's. Freeman was sentenced to probation and three months time served. The government agreed to recommend the minimum sentence possible under the sentencing guidelines. Nothing in the text of section 46504 brands her as a terrorist. Her conditions of probation were not altered.
Second, the addition of the attempt and conspiracy language simply makes section 46504 consistent with other federal criminal statutes, most of which already include attempt or conspiracy provisions. Even if they didn't, a prosecutor can simply charge a defendant with a separate conspiracy to violate a specified federal law under 18 U.S.C. section 371. Moreover, the addition of the attempt and conspiracy language had no demonstrable impact on Freeman's case. The government charged, and Freeman admitted, that her actions actually interfered with a flight crew, not that she merely attempted to assault or interfere with a flight crew.
This is the heart of the article's legal illiteracy and/or willful scaremongering. People like Freeman are being prosecuted "under the PATRIOT Act" in only the most remote sense — they are being prosecuted under a statute that existed well before the PATRIOT Act, under elements established well before the PATRIOT Act, facing a sentencing guideline range not altered by the PATRIOT Act.
The Times also attempts to convince its readers that the airline industry, not the government, makes the call about whether a drunk lout on your flight to Newark gets prosecuted:
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.
. . .
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."
As a reporter who had achieved a baseline of legal literacy would know, neither the airlines nor the FAA prosecute cases. They have no "wide latitude" to do so. All that the airlines and the FAA can do is decide when to call the FBI so that they show up when the plane lands, and whether to "refer the case for prosecution" — that is, ask the local U.S. Attorney's Office to prosecute the drunk lout. The U.S. Attorney, with the advice of the investigating FBI agent — not the pilot or the airline or the FAA — decides, based in part on guidelines established by the Department of Justice, whether the evidence warrants prosecution. That's how Freeman, and everyone else prosecuted for interference with a flight crew, winds up on the hook. And despite the Times' suggestion that there has been a sea change in the government's approach to such cases, the United States Attorney's Manual entry on interference with a flight crew has not been updated since 1999.
The Times would still like for you to believe that the government has suddenly started prosecuting far more people for mere profanities or misbehavior, not for assaults or some more grave form of interference. To the Times' credit, it concedes that statistically speaking, it is pulling this impression out of its ass:
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.
As they say, the plural of anecdote is not data. But I can tell you that in the 1990s, when I was a federal prosecutor, I saw many interference cases come through the office, and some — including one I prosecuted — did not involve assaults any more life-threatening than Ms. Freeman's chucking a drink and a red card at a flight attendant. Rather, as with Ms. Freeman, they involved people losing their shit and shouting at flight attendants and forcing the attendants to pay attention to them rather than running the flight. A slightly more legally literate reporter might have used Google to determine that the leading case interpreting the interference statute, United States v. Hicks, involved people swearing at flight attendants and refusing to surrender a boombox, not committing assaults or "terrorist acts." In short, the Times' claim that people are routinely being prosecuted for conduct that used to be excused routinely is highly dubious.
As a final touch, the Times implies that Ms. Freeman lost custody of her children because the government treated her like a terrorist:
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."
No doubt the fact that Ms. Freeman was in jail for a time, and sustained a felony conviction, played some role. But bear in mind that she did not contest pretrial detention. Child custody cases are sealed, so the exact reasons that her children were taken from her, and that the State of Hawaii is considering stripping her of parental rights, are not available to us. But I don't think I'm going out on a limb to suggest that the allegations in the affidavit in support of the complaint — suggesting that she was beating the shit out of the poor kids — played a role. The Times, however, does not see fit to report those facts.
As I have often argued on this blog, citizens should remain vigilant about how our government uses the convenient excuse of the War on Terror to expand police powers and trammel rights in a manner unrelated to legitimate anti-terrorist efforts. The media does it job when it reports on genuine abuses and expansions of power. However, like the boy who cried wolf, the media does more harm than good when it does not do its homework before asserting that pre-existing norms and practices are actually new developments. And the media certainly doesn't do its job when it attempts to sanitize someone like Tamera Freeman.
By the way: the Times article tells the story of another prosecution as well. I did not bother to pull documents on that case — I may still do so, to see if the Times sanitized its facts in favor of the defendant as well.
Update: I am reliably informed that Keith Olbermann, in apparent credulous reliance on the L.A. Times story, named Frontier Airlines its runner-up "Worst Person in the World" based on this. Not inspiring.
Further update: Welcome to readers referred here from other blogs. A couple of comments by others worth noting:
Patterico, a Deputy District Attorney in my own fair city and a formidable critic of the L.A. Times, fact-checks the Times' description of the second case mentioned above and finds it also inaccurate.
The estimable Scott Greenfield at his blog Simple Justice thinks that I am too accepting of the court records, and disagrees with some other points as well. He knows what he's talking about, so it's well worth a read.
Commenter Jay L., below, digs up a newspaper story with some further details that may explain the pretrial detention decision.
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