December 08, 2005

Don't Recite "Meet the Parents" While Flying Out of Miami

by Armen

Along with the title, I've had a few thoughts running through my head following the shooting of Alpizar by Federal Air Marshals yesterday. First, Chris Matthews (my favorite Darrell Hammond character on SNL) asked if the Air Marshals were at risk of being sued. The answer of course is yes, but I don't know if the suit will be 12(b)(6)ed based on qualified immunity. So if anyone knows the answer to this, I'd definitely like to know.

Second, I couldn't help but chuckle (and no disrespect to the deceased) during the Gov newsconference yesterday. It sure sounds like this incident is a bureaucratic nightmare. Fed Air Marshals involved in a shooting. But shooting took place in the airport, so Miami-Dade PD has jurisdiction. FBI investigating possible terrorist related crimes or other crimes on the airplane. TSA in charge of passenger security, and so on. It is certainly refreshing to see government streamlined [sarcasm]. More substantively, if a few questions from reporters have to be passed around among the four people in charge of various aspects of the investigation, I would really hate to imagine how the actual investigation is going to be conducted.

Lastly, perhaps it's because I'm outlining for tax, but I'm reminded of Gilliam v. Commissioner, 5 T.C.M. 515 (1986) (holding that a Schizo going nuts on a flight, attacking a passenger, and getting charges against him dismissed for temporary insanity cannot claim a deduction for the legal fees as a business expense). So pre 9/11 you don't get a tax write off if you go nuts on a flight, post 9/11 you get shot. This paragraph is meant to be snide and not serious. The serious side of me has not fully thought about how it would even be feasible to train Air Marshals to distinguish the mentally ill from actual threats.

December 8, 2005 02:55 PM | TrackBack


I'm outlining both Tax and Federal Courts myself, so I feel your pain. A qualified immunity defense fails if the federal officer violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982). This is a high standard to meet. According to the Supreme Court, the reasonable officer has to have known that his or her specific conduct was impermissible. Anderson v. Creighton, 483 U.S. 635 (1987). Considering the large burden the defense puts on plaintiffs, and that the defense is not just immunity from liability, but immunity from suit, the federal marshals will definitely bring a motion to dismiss on qualified immunity grounds. And if they fail there, they will try again on summary judgment.


Posted by: Nick at December 8, 2005 11:52 PM

It sounds like the marshal just followed the policy, which is always to shoot to kill. I don't think this necessarily is the best policy, but this seems like an instance of acting not only under color of law, but actually following the law. A suit should be against the Air Marshal Service or whoever promulgates the rules, not the individual who followed the rules.

Posted by: PG at December 10, 2005 05:42 PM

The policy is to shoot to kill if there is a perceived threat of loss of life. I see room for going after the individuals too.

Posted by: Armen at December 10, 2005 11:58 PM
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