I'm arguing with an idiot - need FAR reference

[Greebo]

Idiot on another forum insists that Flight attendant has no authority to confiscate an item - specifically in this case to confiscate an electronic device a passenger refused to turn off.

Now in point of fact, to the best of my knowledge, the item was no threat and was cleared for operation during takeoff, but I am asserting that under 91.3 the Captain authority can convey to the FA's and that orders from the FA's must be obeyed and that the FA has the right to confiscate if they feel it's necessary.

Need some hard references to back this up if there are any, or to be corrected.

 

[SkyHog]

Idiot on another forum insists that Flight attendant has no authority to confiscate an item - specifically in this case to confiscate an electronic device a passenger refused to turn off.

Now in point of fact, to the best of my knowledge, the item was no threat and was cleared for operation during takeoff, but I am asserting that under 91.3 the Captain authority can convey to the FA's and that orders from the FA's must be obeyed and that the FA has the right to confiscate if they feel it's necessary.

Need some hard references to back this up if there are any, or to be corrected.

I believe 91.3 does not apply to part 121, right?

edit: But I'm sure there's a 121 equivalent. I'm on it, Chuck.

 

[Greebo]

I've been going through both 91 and 121 - it's a freaking nightmare though and I'm super rusty at it.

 

[EdFred]

It's probably not in there, it's probably in some obscure 49CFR reference.

 

[SkyHog]

Let's start with some definitions, so that you have a base to argue your point:

Part 121.391(a) defines flight attendants, requiring which flight attendants are "required crewmembers," which sets up the next part of the argument. It reads:

(a) Each certificate holder shall provide at least the following flight attendants on each passenger-carrying airplane used:
(1) For airplanes having a maximum payload capacity of more than 7,500 pounds and having a seating capacity of more than 9 but less than 51 passengers—one flight attendant.
(2) For airplanes having a maximum payload capacity of 7,500 pounds or less and having a seating capacity of more than 19 but less than 51 passengers—one flight attendant.
(3) For airplanes having a seating capacity of more than 50 but less than 101 passengers—two flight attendants.
(4) For airplanes having a seating capacity of more than 100 passengers—two flight attendants plus one additional flight attendant for each unit (or part of a unit) of 50 passenger seats above a seating capacity of 100 passengers.

Part two of this argument is in research, but it relates to the "Must follow all crewmember instructions and lighted placards."

 

[Greebo]

Found an American Airlines rule for passengers that state they can kick you off if you don't obey the crew...
http://www.aa.com/i18nForward.do?p=/customerService/customerCommitment/conditionsOfCarriage.jsp

 

[alaskaflyer]

It's probably not in there, it's probably in some obscure 49CFR reference.

This. I'm on the iPhone so I'm not going to follow up on it

 

[kkoran]

Part two of this argument is in research, but it relates to the "Must follow all crewmember instructions and lighted placards."

Violation of the requirement to follow crewmember instructions allows the FAA to assess civil penalties, but it doesn't allow a crew member to confiscate (steal) a passenger's property.

 

[Capt. Geoffrey Thorpe]

Idiot on another forum insists that Flight attendant has no authority to confiscate an item - specifically in this case to confiscate an electronic device a passenger refused to turn off.

Obviously this individual needs to go out and make him/herself a test case to see if it holds up in court.

Encourage, don't argue.

 

[Greebo]

Violation of the requirement to follow crewmember instructions allows the FAA to assess civil penalties, but it doesn't allow a crew member to confiscate (steal) a passenger's property.

In the case in question, the plane returned to the gate, the misunderstanding was sorted out, and the electronics were returned.

No, I agree, it wouldn't allow the FA to take it and keep it. But to confiscate it for the duration of the flight to keep it from being used if it wasn't authorized? I think that would stand up.

 

[wabower]

Not if I refuse to hand it over. Which, if I had a legitimate reason or just thought she was being a ***** (which is becoming more common) and/or throwing her weight around --which is also more common and they're carrying more of it but that's another story-- I would do. Because I usually have a GPS along, I've spent a fair amount of time reading the magazine in the seat pocket regarding what is and is not permissible. They are somewhat inconsistent between carriers.

In the case in question, the plane returned to the gate, the misunderstanding was sorted out, and the electronics were returned.

No, I agree, it wouldn't allow the FA to take it and keep it. But to confiscate it for the duration of the flight to keep it from being used if it wasn't authorized? I think that would stand up.

 

[Greebo]

That'd be a great way to get kicked off the flight, I think, Wayne.

I can't say I see *anything* in the American Airlines consumer agreement language that says you have any right to argue with the FA, even if the FA is in the wrong. What I'm really interested in, however, is what the FAA regulations have to say about passenger obligation to obey the orders of a crew member.

 

[Steve Foley]

to confiscate it for the duration of the flight to keep it from being used if it wasn't authorized? I think that would stand up.

I read this somewhere. It seems to cover confiscating things:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

[JeffDG]

I read this somewhere. It seems to cover confiscating things:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That only applies to government action, an does not apply to private action. So if I seize your cell phone, you cannot claim I'm violating the 4th unless I happen to be an agent of the government.

You have both criminal (theft) and civil (conversion) causes of action, but not a constitutional one.

 

[jesse]

That'd be a great way to get kicked off the flight, I think, Wayne.

I can't say I see *anything* in the American Airlines consumer agreement language that says you have any right to argue with the FA, even if the FA is in the wrong. What I'm really interested in, however, is what the FAA regulations have to say about passenger obligation to obey the orders of a crew member.

Depending on how much time you have or the value of the item -- getting kicked off might be the better option.

For example, I'd walk from a flight before I'd hand some flight attendant my company laptop.

 

[wabower]

You could be right. And I tread pretty softly around them, because of my pilot status and desire to maintain it. OTOH, I'm a collision-sport guy and have enjoyed reasonable success getting my point across when I think I'm being jerked around. A reasonable request or misunderstanding? No problem. Somebody who got up on the wrong side of her broom trying to give me a hard time? Totally different reaction.

That'd be a great way to get kicked off the flight, I think, Wayne.

I can't say I see *anything* in the American Airlines consumer agreement language that says you have any right to argue with the FA, even if the FA is in the wrong. What I'm really interested in, however, is what the FAA regulations have to say about passenger obligation to obey the orders of a crew member.

 

[markb5900]

I believe not following their instructions, what ever they maybe (put that away now), may fall under this.


TITLE 49 > SUBTITLE VII > PART A > subpart iv > CHAPTER 465 > § 46504

§ 46504. Interference with flight crew members and attendants

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 20 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.

 

[poadeleted20]

On the ground, I an reasonably sure the courts would find stopping the plane, returning to the gate, and calling law enforcement would be more appropriate than taking the device, but in flight, since the crew is required to enforce 121.306 and doesn't have the option of booting you off, I'm reasonably certain that if you refuse to turn off a portable electronic device when ordered, the crew can use any reasonable measure (including taking it from the owner) to ensure safety, and point to 121.1(e), 121.306, 121.580, and 49 USC 46504 (cited above) as legal justification. However, I'm equally sure that you'd have to give it back after landing, and take all reasonable measures to ensure that it wasn't damaged while you had it.

Section 121.1: Applicability.
This part prescribes rules governing-
(e) Each person who is on board an aircraft being operated under this part.

Section 121.306: Portable electronic devices.
(a) Except as provided in paragraph (b) of this section, no person may operate, nor may any operator or pilot in command of an aircraft allow the operation of, any portable electronic device on any U.S.-registered civil aircraft operating under this part.

Section 121.580: Prohibition on interference with crewmembers.
No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember's duties aboard an aircraft being operated under this part.

 

[Greebo]

I read this somewhere. It seems to cover confiscating things:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You are on an aircraft.
You are using an electronic device which the air carrier (in the form of their duly authorized representative, the FA) has not determined is safe for use in flight.
You insist upon using it.
In response, the FA temporarily seizes the device in order to shut it off.

Seems like a very reasonable seizure to me.

 

[Greebo]

Perfect, thank you.

 

[mdreger]

Quote:
Originally Posted by Steve Foley
I read this somewhere. It seems to cover confiscating things:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That only applies to government action, an does not apply to private action. So if I seize your cell phone, you cannot claim I'm violating the 4th unless I happen to be an agent of the government.

You have both criminal (theft) and civil (conversion) causes of action, but not a constitutional one.

Government agents, like... say... TSA agents barring entry to the gate area unless you submit to being searched and surrender any items they order you to surrender?

I don't remember EVER being shown a search warrant particularly describing the place to be searched, and the persons or things to be seized. I similarly don't recall being offered a receipt for items confiscated by those TSA employees.

The only probable cause that existed was that these citizens wished to ride on an airline, which hardly seems like a valid probable cause.

But, we as a nation, have surrendered our 4th amendment rights at least when it comes to airline travel.

 

[TMetzinger]

Depending on how much time you have or the value of the item -- getting kicked off might be the better option.

For example, I'd walk from a flight before I'd hand some flight attendant my company laptop.

That used to be true for me - if I didn't, I'd be exposing my company and myself personally to a whole bunch of liability. But when the CBP started taking laptops of US Citizens (and non-citizens too) returning from overseas "just because they could", my company went to full disk encryption with biometrics. Now, unless an authorized person powers up the computer properly, it remains an expensive paperweight.

 

[ntbjounin]

well it's a federal crime not to cooperate with all crewmember instructions. i read it in the far a while back, but its not in front of me... there's a far tha says basically THAT.

 

[Steve Foley]

That only applies to government action, an does not apply to private action. So if I seize your cell phone, you cannot claim I'm violating the 4th unless I happen to be an agent of the government.

You have both criminal (theft) and civil (conversion) causes of action, but not a constitutional one.

If you are seizing the item under authority granted to you by a federal regulation, that makes you an agent of the gubmint.

 

[Steve Foley]

Government agents, like... say... TSA agents barring entry to the gate area unless you submit to being searched and surrender any items they order you to surrender?

There's a difference between a condition of entry into a secure area, and a unconditional taking of property.

In my opinion when a flight attendant seizes your property, you have no choice. You cannot simply step off the plane.

"Give me that or leave" and "Give me that or else" are completely different situations.

 

[jesse]

That used to be true for me - if I didn't, I'd be exposing my company and myself personally to a whole bunch of liability. But when the CBP started taking laptops of US Citizens (and non-citizens too) returning from overseas "just because they could", my company went to full disk encryption with biometrics. Now, unless an authorized person powers up the computer properly, it remains an expensive paperweight.

For me -- the data isn't the problem -- the problem is simply not having the laptop. Since I'm on call 24x7 it's a pretty big issue if I don't have my laptop and something happens.

 

[Steve Foley]

well it's a federal crime not to cooperate with all crewmember instructions. i read it in the far a while back, but its not in front of me... there's a far tha says basically THAT.

That does not mean all crewmember instructions are legal.

If a crewmember instructs you to punch the passenger sitting next to you, it's still battery.

If a crewmember grabs your private parts, it's still sexual assault.

If a crewmember takes your property, it's still an unlawful deprivation of property.

 

[gprellwitz]

For me -- the data isn't the problem -- the problem is simply not having the laptop. Since I'm on call 24x7 it's a pretty big issue if I don't have my laptop and something happens.

Ummmm, how can you be on call while in the plane when there's no way for you to receive the call? So why does it matter whether you have the laptop in your possession?

 

[wsuffa]

Violation of the requirement to follow crewmember instructions allows the FAA to assess civil penalties, but it doesn't allow a crew member to confiscate (steal) a passenger's property.

In the case in question, the plane returned to the gate, the misunderstanding was sorted out, and the electronics were returned.

No, I agree, it wouldn't allow the FA to take it and keep it. But to confiscate it for the duration of the flight to keep it from being used if it wasn't authorized? I think that would stand up.

I don't believe that confiscating it would stand up. However, I may be wrong. Remember that you are on private property.... they can ban whatever they want within limits of the law. You could allege theft (esp. if it's not returned), and if there is any damage (for example, if pictures are erased from a camera) you do have rights.

It would also depend on whether the object were physically taken from you or whether you voluntarily surrendered it.

Government agents, like... say... TSA agents barring entry to the gate area unless you submit to being searched and surrender any items they order you to surrender?

TSA technically doesn't confiscate anything. They ask you to voluntarily surrender anything that the determine at the time to be unaccepable (and they have the ability to be arbitrary) or deny you entrance to the secure area. There are certain issues with that - they technically can't detain you, but they also are permitted to continue a search and/or deny you the ability to terminate a search if they find anything.

I don't remember EVER being shown a search warrant particularly describing the place to be searched, and the persons or things to be seized. I similarly don't recall being offered a receipt for items confiscated by those TSA employees.

That's because the TSA are not law enforcement officers, and courts must issue issue search warrants. Notwithstanding the fact that many TSA folks think they really do have the power over the people and some that think they are junior G-men.

The only probable cause that existed was that these citizens wished to ride on an airline, which hardly seems like a valid probable cause.

But, we as a nation, have surrendered our 4th amendment rights at least when it comes to airline travel.

Administrative search is different than criminal search. But I agree with the sentiment.

 

[poadeleted20]

Government agents, like... say... TSA agents barring entry to the gate area unless you submit to being searched and surrender any items they order you to surrender?

The courts (including the USSC) have ruled repeatedly that airline security inspections do not, repeat not, violate the 4th Amendment guarantees against unreasonable search and seizure, since you have the option not to board the aircraft. Unless you're a prisoner being transported or something like that, you have freely chosen to accept the search as a condition of being permitted on the plane. And no, folks, the right to travel freely does not include an unconditional right to board public conveyances, and yes, that, too, has been tested in court.

 

[poadeleted20]

If you are seizing the item under authority granted to you by a federal regulation, that makes you an agent of the gubmint.

Not legally true.

 

[jesse]

Ummmm, how can you be on call while in the plane when there's no way for you to receive the call? So why does it matter whether you have the laptop in your possession?

Because once it leaves my possession there is a chance something can happen to it and I am SOL if that occurs. Flights are for the most part rather short (since I don't leave the country).

 

[TMetzinger]

Sounds like a business risk you should plan for, Jesse, or not travel by airline (or leave home, or do anything that could damage the laptop).

 

[poadeleted20]

In my opinion when a flight attendant seizes your property, you have no choice. You cannot simply step off the plane.

You made the choice to accept the rules when you got on the plane.

 

[poadeleted20]

If a crewmember instructs you to punch the passenger sitting next to you, it's still battery.

Not if the passenger sitting next to you is trying to set fire to his shoes.

If a crewmember grabs your private parts, it's still sexual assault.

Not if it happens while the crewmember is trying to pull you off the cockpit door.

If a crewmember takes your property, it's still an unlawful deprivation of property.

Not if it's a portable electronic device you've refused to turn off in flight and they give it back when you deplane.

 

[TMetzinger]

While there's no reg that explicitly says "Crewmembers can confiscate your property for the duration of the flight", the logic chain any attorney would use, whether they were prosecuting you, or defending the crewmember is:

1. The crew have a duty to ensure the safe flight
2. The passengers have a duty to comply with crewmember instructions.
3. A crewmember ordering you to turn off your PED is in accordance with his duty
4. Your refusal to do so is in violation of your duty.
5. The crewmember then took your toy, and turned it off, and kept it for the duration of the flight in accordance with his duty. Clearly, since you'd already violated your duty, you could no longer be trusted to abide by it.

Now, having lost on that argument, you can argue that they have a duty to take reasonable care with your property while it's in their possession, and to return it to you at the completion of the flight.

But if I was the captain on that flight, and one of my crew had to physically take something away because of a safety of flight issue, we'd be met by law enforcement and the item would be turned over to them as evidence in the case of your failure to comply with crewmember instructions. If you get it back the cops, good for you.

 

[Steve Foley]

Not if the passenger sitting next to you is trying to set fire to his shoes.

It's still battery, but you could claim justification

Not if it happens while the crewmember is trying to pull you off the cockpit door.

It's still assault, but you could claim justification

Not if it's a portable electronic device you've refused to turn off in flight and they give it back when you deplane.

OK, I get your point.

But....

I still don't think a flight attendant is unilaterally granted authority to seize personal property.

 

[alaskaflyer]

I still don't think a flight attendant is unilaterally granted authority to seize personal property.

Are public school teachers?

Courtroom bailiffs (and I'm not thinking of the other thread here )?

Shop owners? (Leave your backpacks at the register.)

We aren't talking about unilateral authority here are we? But a more narrowly-tailored authority - or only a policy - for specific items, in specific circumstances?

It's not as if you can be asked to leave the premise on an airliner

There are things in this world that happen for which we don't have specific authority. Not even federal bureaucrats can regulate every possible activity.

 

[Palmpilot]

And no, folks, the right to travel freely does not include an unconditional right to board public conveyances, and yes, that, too, has been tested in court.

Agreed. For example, in Shapiro v. Thompson, the Supreme Court only said that unreasonable restrictions or burdens on the right to travel were barred.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0394_0618_ZO.html

 

[Ghery]

That used to be true for me - if I didn't, I'd be exposing my company and myself personally to a whole bunch of liability. But when the CBP started taking laptops of US Citizens (and non-citizens too) returning from overseas "just because they could", my company went to full disk encryption with biometrics. Now, unless an authorized person powers up the computer properly, it remains an expensive paperweight.

Mine, too. No biometrics yet, but right now it takes 3 independent passwords/phrases to boot my laptop. 1 to get the process started, a passphrase to get the whole disc encryption going and a final one to log on as me. Good luck, TSA or CBP. And my files are backed up somewhere in the company network (daily) so I wouldn't lose much. Just so long as they don't take my Bose QC2 headset.