Today was the oral argument for Air Wisconsin v. Hoeper.
As a background, here is my case summary post here and my talking points post here.

Upon reading the transcript, the Justices raise a very important point of focus in their questions (read: arguments) to counsel for both sides which was the demand for quick action under the ATSA by airport and airline employees. It reminded me of a great quote I include in my lecture to training new police officer hires in Illinois, and comes from the federal Court of Appeals for the Seventh Circuit:

The determination of reasonableness of force used must allow for the fact that ‘police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.’” Soriano v. Town of Cicero (7th Cir. 2013) (emphasis added).

While here we are talking about the quick response efforts by airport and airline employees rather than the level of use of force, you get the general idea that the courts recognize, and consider, when and how immediate action must be taken, and hindsight is 20-20.

Here are some of my favorite quotes (with my emphasis in bold added) from the oral argument transcript found here.

  • JONATHAN F. COHN (Air Wisconsin’s counsel): First, these reports are being made by airline employees such as pilots and flight attendants and baggage handlers and ticket agents who are being told by TSA, they have to report in realtime without investigation, without calling their lawyer, without stopping to think on how to refine the perfect script. And they are being told to do this based upon their suspicions. In some cases, suspicions of other people’s emotions or state of mind. That’s one critical piece of context….
  • MR. COHN: The second point of context is that these reports are being made to TSA, other reasonable air safety officials, for the purpose of passenger safety and aviation security. And TSA tells the airlines, if you have any doubt, report. If you see something, say something.
  • MR. COHN: And the third piece of context is the consequences of a failure to make a report can be catastrophic for passenger safety and aviation security. And that’s why TSA says, if you don’t report sincerely-held concerns, you might be sanctioned by us for failing to make the report, placing airlines between a rock and a hard place.
  • CHIEF JUSTICE ROBERTS: So you call some TSA official and say this pilot, you know, is having an affair. That’s immune?
    • MR. COHN: That would not be immune because that would not be relevant to a suspicious transaction, suspicious activity, or passenger safety, so –
    • JUSTICE SCALIA: But it would still support a defamation, wouldn’t it?
    • MR. COHN: Correct. It would –
    • JUSTICE SCALIA: Because it is material to the person’s reputation.
    • MR. COHN: Correct.
  • MR. COHN: Justice Sotomayor, I think that different people express the same thought in different ways. I think a baggage handler in Boston or a flight attendant in LaGuardia might use different words, such as “he lost it,” “he went off the deep end,” “he was acting irrationally,” “he blew up.” And the lower court said –
    • JUSTICE SCALIA: Yes, you could say he’s nuts, but the question isn’t whether could say it. The question is whether that is false. I mean, the mere fact that –that a lot of people will –will exaggerate and say things that are simply not true doesn’t make it okay.
  • JUSTICE SCALIA: There are two –there are two different issues of falsity that we’re talking about here, of materiality…. Materiality for defamation is –is quite different from the materiality for purposes of obtaining the immunity under this Act. The latter question is for the court, but the former is for the jury, it seems to me.
    • MR. COHN: I agree completely, Justice Scalia. That’s absolutely correct.
  • ERIC J. FEIGIN (United States’ counsel): It’s essentially undisputed that in order to encourage airlines to report suspicious activity to proper authorities the ATSA immunizes such reports when they’re materially true. I want to emphasize two main points about the scope of that immunity. First, ATSA gives airlines very wide latitude in how they describe the suspicious activities. These reports are made against an inherently uncertain factual backdrop, and that’s why the statute protects reports of any suspicious transaction relevant to a possible violation of law or regulation relating to air safety. Misconceptions and exaggerations can occur not only because of confusion about the facts, but because of the emotion, the stress, and potentially even the fear that may go along with making one of these reports.
  • JUSTICE SCALIA: And you’d –you’d feel snug and comfortable in making reports to airlines, knowing that whether you’re going to be held liable is going to be up to some jury who is going to see that this person, his career was ruined, and it’s going to be up to the jury to say whether he can recover or not?
    • MR. FEIGIN: Your Honor, we’re comfortable –
    • JUSTICE SCALIA: That doesn’t give me a lot of comfort.
  • CHIEF JUSTICE ROBERTS: No, no. I know. But I’m trying to find out if you think there’s a difference between the person’s subjective, uneducated evaluation, “he was acting crazy,” and a difference between that person saying “he’s crazy.”
    • KEVIN K. RUSSELL (Hoeper’s counsel): I don’t think there’s a difference between that. What’s the difference is when the person asserts that somebody is mentally unstable as a fact and doesn’t give the background facts to allow somebody to make an alternative –
  • CHIEF JUSTICE ROBERTS: Well, you’re not suggesting it would be a different case if they just said he’s unstable as opposed to he’s mentally unstable, are you?
    • MR. RUSSELL: No, because I would understand that they’re not saying that he might fall over.
    • CHIEF JUSTICE ROBERTS: Well, that’s what you were saying. (Laughter.)
  • JUSTICE BREYER: All of us have had the experience, at least I have, if I get very angry at something, one of my children will say: God, he’s mentally unstable. See, I mean, that’s –people use that word in different contexts. And what’s worrying me is that some real threat comes along and the lawyers get involved and the people are going to report it to the TSA, start watching their words and they don’t know what the lawyers mean exactly. And you understand the problem.
    • MR. RUSSELL: I understand.


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