A recent decision by the United States Court of Appeals for the Ninth Circuit provides important protection for airlines and their employees who report potentially suspicious passenger behavior to law enforcement.
Airline employees routinely make judgment calls about passenger behavior. But when does a reasonable security concern become legally protected conduct—and how far does that protection extend if a passenger is injured during the resulting law-enforcement intervention?
In Bandary v. Delta Air Lines, Inc., (a copy of which can be found HERE) the court affirmed that Delta has broad immunity under the Aviation and Transportation Security Act ATSA, and that the immunity can extend to both an airline employee’s initial report to law enforcement and injuries resulting from law enforcement’s response.
The case arose out of an incident on a Delta flight from Atlanta to Salt Lake City. The passenger was frequently out of his seat, walked through the aisles, visited multiple bathrooms, looked into the first-class cabin, and photographed flight attendants. At least one of the passengers alerted flight attendants to the suspicious activity, who in turn informed the Captain. Based on this, a flight attendant told the passenger that he needed to stay in his seat for the remaining 45 minutes of the flight.
The interaction quickly escalated into a shouting match. The flight attendant contacted a Special Agent who was on the aircraft and got his assistance in restraining the passenger in his seat. The passenger claimed that he suffered substantial injuries during the altercation and brought suit against Delta for malicious prosecution. A jury initially found in the plaintiff’s favor and awarded approximately $7.2 million in damages. The district court subsequently vacated the verdict and entered summary judgment for Delta based on ATSA immunity.
The ATSA generally provides that an airline or airline employee that voluntarily discloses a suspicious transaction to law enforcement is not civilly liable for that disclosure. The passenger who had been restrained, argued that the statute protected only the communication itself and did not extend to subsequent conduct by the airline or its employees.
The Ninth Circuit rejected that narrow interpretation.
The court held that ATSA immunity extends to conduct that flows from law enforcement’s decisions following a qualifying disclosure. The court emphasized that the statute protects against liability under “any” law and that limiting immunity to the communication itself would be inconsistent with Congress’s objective of encouraging airlines to report potential security threats.
The Court went on to explain that Congress intended to shift responsibility for assessing and investigating potential threats from airlines to government security authorities. The court concluded that imposing liability on airlines for consequences arising from law enforcement’s response could discourage the very reporting the ATSA was designed to promote.
The Ninth Circuit’s opinion joins the Second and Fifth Circuits in recognizing this broader interpretation of ATSA immunity.
The court then examined the facts available to the flight attendants when they contacted law enforcement and concluded that the passenger was acting suspiciously at that time, and that any facts developed later were not relevant to the inquiry. The court also rejected the passenger’s argument that Delta alone caused his injuries. The record showed that the federal agent independently assessed the situation, intervened, and assumed control of the passenger. The flight attendants assisted the agent, but the evidence did not establish that Delta alone made the decisions resulting in the restraint.
Bandary v. Delta Air Lines, Inc. provides airlines with meaningful guidance concerning the scope of ATSA immunity and reinforces the importance of promptly referring potential security concerns to appropriate law enforcement authorities. It also strengthens the statutory framework Congress established to encourage airlines to report potential threats while preserving the distinction between an airline’s independent actions and consequences resulting from law enforcement’s response.