Court: Airlines Enjoy Broad Immunity for Threat Reports

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Several hours later, after speaking with his own supervisors about Hoeper, the supervisor who arranged Hoeper's flight home contacted the TSA. He reported that the airline was concerned that Hoeper was "mental unstable"; that Hoeper had been terminated that day; and that he was a federal flight deck officer who might be armed. (Flight deck officers are qualified to carry guns in the cockpit).

The TSA stopped Hoeper's flight as it taxied, took him off the plane and searched his belongings for a gun. He was released as not a threat and took a later flight home. He was fired the next day. Hoeper subsequently sued the airline for defamation, among other claims. A jury ruled in his favor on the defamation claim and found the airline was not immune. An intermediate state appellate court and the Colorado Supreme Court affirmed the award.

Although the Supreme Court was unanimous on the test for immunity under the federal law, the justices divided, 6-3, on its application to Hoeper's situation.

Hoeper, the majority said, "did not just lose his temper; he lost it in circumstances that he knew would lead to his firing, which he regarded as the culmination of a vendetta against him. And he was not just any passenger; he was [a federal flight deck officer], which meant that he could plausibly have been carrying a firearm. In short, Hoeper was not some traveling businessman who yelled at a barista in a fit of pique over a badly brewed cup of coffee."

However, Justice Antonin Scalia, dissenting with justices Clarence Thomas and Elena Kagan, said the court "reaches out to decide a fact-bound question better left to the lower courts, and then proceeds to give the wrong answer."

A jury, Scalia wrote, could find that Hoeper "did nothing more than engage in a brief, run-of-the-mill, and arguably justified display of anger that included raising his voice and swearing, but that did not cause anyone, including the person on the receiving end of the outburst, to view him as either irrational or a potential source of violence."

Air Wisconsin's counsel, Jonathan Cohn, partner in the Washington office of Sidley Austin, called the court's decision "very thorough and analytical." He added, "I think the court made clear airlines get deference, and the difference between getting immunity and not is not hairsplitting distinctions."

Kevin Russell of Washington's Goldstein & Russell, argued the case for Hoeper.

Contact Marcia Coyle at mcoyle@alm.com.

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