Airlines treating squabbles, snuggling as terrorism

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 swatted each of them on the thigh three times. It was a small incident, but one that in the heightened anxiety after the Sept. 11 attacks would have enormous ramifications for Freeman and her children.

A flight attendant confronted Freeman, who responded by hurling a few profanities and throwing a can of tomato juice on the floor.

The incident 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.

"I had no idea I was breaking the law," said Freeman, who spent three months in jail before pleading guilty.

Freeman, 40, is one of at least 200 airline passengers who have been convicted under the law. In most cases, there was no evidence that the passengers had attempted to hijack an airplane or physically attack a flight crew member. Many simply have 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.

In one case, two people were arrested after an argument with a flight attendant who claimed the couple were 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 they helped improve airline security. He said prosecution was pursued only "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 was to target terrorists before they could execute an actual takeover, said Nathan Sales, a George Mason University law professor who helped write the Patriot Act when he served in the Justice Department.

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-Qaida with box cutters. That much is clear," he said.

For decades, airline personnel and law-enforcement officials have had wide latitude in prosecuting unruly passengers for any behavior, including arguing, that disrupts a flight or "lessens the ability" of crew members to perform their jobs. And airlines largely have maintained order under Federal Aviation Administration (FAA) rules, by which hundreds of unruly passengers have been slapped with infractions and fined 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."

The Sept. 11 attacks changed everything. Within two months, Congress passed the Patriot Act, including broad new powers for law enforcement in such areas as electronic surveillance, money laundering and search warrants.

Also included were two key provisions on airline security. The first defined disruptive behavior as a terrorist act. 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 posed a potential threat or disruption.

Judging by some cases, there is no clear standard.

A Boston man who took off his clothes and attempted to open an emergency exit during a flight to Los Angeles last summer was not charged, even though the plane had to make an unscheduled landing.

Yet Carl Persing and Dawn Sewell, a Lakewood, Calif., couple who never left their seats during the 2006 sexual incident aboard a Southwest flight to Raleigh, N.C., spent four days in jail.

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 observed smiling."

A flight attendant twice asked them to stop, 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 plane," according to the affidavit.

He denies 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 [the flight attendant] was waking us up, why he wouldn't let me sleep," he said.

Charges were dropped against Sewell, but Persing, who never had 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.

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 a flight since 2003.

The single case of actual terrorism cited by Boyd was that of Richard Reid, the so-called shoe bomber, who is serving three life sentences for trying to ignite explosives in his shoe during a 2001 flight from Paris to Miami.

The costs of a conviction can be enormous. In Tamera Freeman's case, it cost her custody of her children.

Her confrontation was particularly harsh, recalled Amy Fleming, the flight attendant who told Freeman to stop spanking her children and says Freeman was the most unruly passenger she had seen in 11 years on the job.

"Absolutely she deserved a felony conviction," Fleming 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. Freeman then "capitulated and offered no resistance. My sympathy shifted to her."

A Frontier spokeswoman said the airline had been providing 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 probation. A court-appointed attorney said the deal would be the fastest way to see her children, who had been taken back to Hawaii and put in foster care.

Her probation, however, required her to stay in Oklahoma City and prohibited her from flying. Meanwhile, legal proceedings in Hawaii have begun to allow the children's foster parents to adopt them and Freeman has been denied permission to attend custody hearings, court records show.

"I have cried. I have cried for my children every day," Freeman said. "I feel the system is failing me."