Delta Requests Department of Justice To Establish a National ‘No Fly List’ For Unruly Passengers
The tragic loss of life on September 11, 2001, resulted in heightened security at airports and more stringent regulations to ensure passenger safety compliance in commercial airline travel. The unique challenges of the Covid-19 pandemic made air travel even more challenging and stressful for airline passengers. Mask mandates have resulted in arguments between passengers and flight attendants that have erupted on commercial aircraft. News reports about chaos in the cabins of commercial aircraft have become commonplace. We are constantly barraged with reports of angry passengers and tense encounters between airline passengers and flight attendants. In light of this emotionally charged and stressful environment, it is not surprising that Ed Bastian, Chief Executive Officer, of Delta Airlines dispatched a letter to Attorney General Merrick Garland on February 3, 2022, seeking cooperation from the United States Department of Justice in establishing a National No Fly List and ensuring the development of a “zero tolerance [policy] for any behavior that interferes with flight safety.” In this article, we will review the Delta Letter dispatched to the United States Attorney General, as well as statutory and regulatory guidance that impacts on the behavior of passengers on commercial airliners.
A Review of the Delta Letter
Ed Bastian, writing on behalf of Delta Airlines to Merrick Garland thanked Garland for “your recent steps to prioritize the prosecution of federal crimes that endanger the safety and security of our people and customers…” Bastian went on to write that “the rate of incidents with unruly passengers on Delta has increased by nearly 100% since 2019.” Bastian further related: “We fully support using the full force of the law in these cases.” Interestingly, Delta Airlines has two former Department of Justice prosecutors on its legal team to ensure cooperation with federal prosecutors “when Delta people are involved.”
Bastian forcefully made the case for a national ‘no fly list’ declaring:
In addition to the welcome increase in enforcement and prosecutions, we are requesting you support our efforts with respect to the much-needed steps of putting any person convicted of an on-board disruption on a national, comprehensive, unruly passenger “no-fly” list that would bar that person from travelling on any commercial air carrier. This action will help prevent future incidents and serve as a strong symbol of the consequences of not complying with crew member instructions on commercial aircraft.
Bastian then described a number of steps taken at Delta Airlines to ensure passenger safety, to-wit:
- Putting nearly 1,900 people on Delta’s “no-fly” list for refusing to comply with masking requirements and submitting more than 900 banned names to the TSA to pursue civil penalties.
- Calling on our aviation partners to share their unruly passenger ‘no fly’ list to ensure individuals who have endangered the safety and security of our people do not go on to do so on another carrier.
- Conducting a safety risk assessment of all our current processes, identifying additional measures in our training and on-board responses to disruptions.
- Expanding de-escalation and self-defense training for our flight attendants and other front line team members to ensure preparedness.
- Increasing security at dozens of airports as a result of our ongoing partnership with local law enforcement agencies across the country.
- Sharing relevant information from crew members to assist federal authorities in their ability to take action.
- Expanding peer support teams, mental health coaching and providing 24/7 assistance to our people to ensure they have the support they need in a challenging environment.
Bastian concluded his letter to Garland with these comments:
Although these cases remain rare, we are proud that our actions have provided meaningful assistance in investigations and prosecutions. Last month, for example, federal charges were brought against three customers who harmed two Delta team members in JFK. Delta pursued the strongest possible charges to hold these individuals accountable and will continue to support our employees. This is one of four incidents that have resulted in federal charges against abusive customers in the last thirty days.
Since, as Bastian concedes, more than 1,900 people were placed on Delta’s ‘no fly’ list “for refusing to comply with masking requirements,” it is reasonable to conclude that much of the hostility and anxiety we have seen reported on the evening news and which has erupted in commercial air carriers is the product of policies and protocols put in place in the wake of the Covid-19 pandemic.
A Brief Review of Statutory and Regulatory Directives That Impact the Behavior of Passengers on Commercial Aircraft
14 C.F.R. §91.11 provides:
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.
The provisions of §91.11 are not limited to passenger carrying aircraft, since they apply to the performance of any crew member’s duties aboard an operational aircraft. On the other hand, 49 U.S.C. §46504 does apply to aircraft with flight attendants and provides:
An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than twenty years or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life.
The statutory prohibition against assaulting or intimidating or interfering with flight crew members, including flight attendants, is quite onerous in terms of punishment, since without a weapon the person might be imprisoned for 20 years, and with a dangerous weapon he might be imprisoned for life. Clearly, misbehaving on a passenger carrying aircraft is no small matter, something most passengers probably fail to appreciate when they board a commercial airliner.
From a regulatory standpoint, an air carrier has an obligation not to board a passenger who does not consent to a search for dangerous weapons or explosives. Furthermore, an air carrier has the right to permissibly refuse a passenger air transportation if “the carrier decides [providing transportation] is, or might be inimical to safety.”
From the perspective of personal experience, the author has represented several people charged with interfering with the performance of flight crew member duties. Those cases were administrative in nature, and the FAA was only attempting to recover a monetary fine for the misconduct, not put the passenger in prison. However, with heightened fear and anxiety in the cabins of commercial aircraft, one may see, in the more aggravated cases, the specter of criminal prosecution to place people who have engaged in destructive activities aboard airliners in prison. The Delta Letter to the Department of Justice clearly signals that disruptive behavior aboard air carrier aircraft and/or directed at security personnel is viewed as a very serious threat to air safety such that Delta is seeking to enlist the assistance of the Department of Justice, both in terms of establishing a national ‘no fly’ list and ensuring that disruptive passengers are prosecuted “using the full force of the law.”
 49 U.S.C. §44902(a)(1), (2).
 49 U.S.C. §44902(b)(2).
 Delta Letter at 1.
The fact that airline passengers, intent on boarding commercial aircraft must partially disrobe and subject their luggage to x-rays as part and parcel of TSA searches, has become accepted as part of the price of commercial air travel. Apparently, the same cannot be said for the mask mandates. The Covid-19 protocols and disagreements between passengers about whether one passenger is authorized to remove his mask to consume a beverage or snack have sparked arguments in the cabins of commercial aircraft. These arguments, in turn, require the intervention of flight attendants. Once a flight attendant becomes involved in attempting to de-escalate the argument, that flight attendant has been distracted from his or her aviation safety functions. This suggests that the person who began the argument or whose conduct required the intervention of the flight attendant may face the risk of a civil, administrative action to enforce a monetary penalty for interfering with the operations of the flight crew member and, if the circumstances are aggravated, may confront criminal prosecution and the prospects of serving time in prison, if convicted. Clearly, this environment in the cabins of commercial airlines is disturbing and troublesome. Passengers boarding or wishing to board a commercial airliner must bear in mind that if they become boisterous or unruly aboard an aircraft, that conduct will be viewed as interfering with the conduct of a flight crewmember and present the prospect of that passenger being fined or imprisoned for such misconduct. These are the harsh realities of air travel in the 21st Century.