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UNITED STATES OF AMERICA 

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OFFICE OF HEARINGS 

WASHINGTON, DC 

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FAA DOCKET NO. CP09EA0010 f-ipAntf,. ^ ^ ^ 

(Civil Penalty Action) ' "^^KIN G OOCKE T 

DMS NO. FAA-2009-0077 

COMPLAINANT'S MEMORANDUM OF LAW 

COMES NOW the Complainant, the Federal Aviation Administration, by and through its 

designated and authorized representative, the Regional Counsel for the Eastern Region, and his 

designated and authorized representatives, pursuant to the Rules of Practice in FAA Civil Penalty 

Actions (herein the "Rules"), [14 C.F.R. part 13], to submit a memorandum of law on the issue of 

the applicability of intent in 49 U.S.C. §46318. 

It is provided in 49 U.S.C. §46318(a), as follows: General Rule - An individual who 

physically assaults or threatens to physically assault a member of the flight crew or cabin crew of 

a civil aircraft or any other individual on the aircraft, or takes an action that poses an imminent 

threat to the safety of the aircraft or other individuals on the aircraft is liable to the United States 

for a civil penalty of not more than $25,000. 

The Administrator has held that the term "assault" as used in 14 C.F.R. §91.11, includes 

the intentional torts of assault and battery. In the Matter of Conger, FAA Order No. 2007-8 

(2007), citing In the Matter of Benerv. FAA Order No. 2003-9 at 5 (2003); In the Matter of 
Mayer. FAA Order No. 1997-12 at 9 (1997); In the Matter of Ignatov, FAA Order No. 1996-6 at 

8-9 (1996). Assauh is also used in 14 C.F.R. §121.580, which is substantively identical to 

Section 91.11, except that Section 121.580 applies only to prohibited actions of passengers on 

board Part 121 air carriers. (See 64 Fed. Reg. 1076 (January 7, 1999) (in which the FAA 

explained that the agency was adding a provision mirroring Section 91.11 to Part 121 of the 

Federal Aviation Regulations.) The Administrator held that Conger violated 49 U.S.C. §46318 

because she assaulted the flight attendant by pulling on the flight attendant's apron and whipping 

her around (an unwanted touching), and by her actions that caused the flight attendant "to fear 

further harmfiil or offensive contact." (Initial Decision at 11.) 

The Administrator deliberated on the issue of intent and scienter in another case. In the 

Matter of Bengrv. FAA Order No; 2003-9 (2003). On appeal, respondent argued that he lacked 

the necessary intent, or scienter, to assault a crewmember because he did not know that the 

person whose arm he grabbed was a crewmember. No previous cases addressed the issue of 

whether scienter is an element of a violation of Section 91.11. The Administrator found that there 

are cases that address whether scienter is required vinder a statute prohibiting assaults on federal 

officers. In such cases, the courts have held that it is uimecessary to prove that an assailant knew 

the victim was a federal officer. See, e.g., United States v. Goldson. 954 F.2d 51,54 (2nd Cir. 

1992); Bennett v. United States. 285 F.2d 567, 570-71 (5th Cir. 1960). According to the court in 

United States v. Young. 464 F.2d 160, 163 (5th Cir. 1972), when the defendant intends to assauh 

the victim and has no legal excuse such as self-defense, "knowledge of the official capacity of the 

victim is invariably uimecessary; the assailant takes his victim as he finds him." The 

Administrator held that knowledge of the crewmember's identity is not an element of a violation 
of 14 C.F.R. § 91.11. This regulation provides, in relevant part, that"[ n]o person may assault... 

a crewmember in the performance of the crewmember's duties .... " The Administrator held that 

Section 91.11 does not contain an exemption for assailants who do not know they are assaulting 

a crewmember, and that all the regulation requires is the intent to assault, not the intent to assault 

a crevraiember in particular. 

In several cases, the Administrator has held that the term "assault" as used in Section 

91.11 should be interpreted to mean both a battery, meaning an intentional harmfiil or offensive 

physical contact, as well as an assault, meaning intentional acts causing apprehension of such a 

harmfiil or offensive contact. In the Matter of Ignatov, FAA Order No. 1996-6 at 8-9 (1996). The 

Administrator explained: "Common sense demands that the term "assault" as used in Section 

91.11 be read to include both assault and battery. To hold otherwise would result in the illogical 

and undesirable result that shaking one's fist vmder a crewmember's nose would constitute an 

assault under Section 91.11, but actually hitting the crewmember would not." 

For example, in one case the Administrator upheld the law judge's holding that 

respondent shoved the flight attendant, thereby committing a battery, which is a violation of 

Section 91.11, and that all the witnesses agreed on the key point that respondent grabbed and 

pushed the flight attendant. In the Matter of Houtenbos, FAA Order No. 2002. 

In another case, the law judge held that respondent's act of gripping the flight attendant's 

shoulder and then tightening his grip when she told him to remove his hand constituted an 

assault. The law judge based this determination upon his finding that respondent had engaged in 

a deliberate unwanted and offensive touching. Respondent argued that the requisite intent to 

assault was lacking because the law judge found that respondent did not threaten, intimidate, or 
interfere with the flight attendant. The law judge, however, expressly found that respondent 

assaulted the flight attendant when he deliberately gripped her shoulder, and when he 

subsequently tightened his grip in response to her request that he remove his hand. The law judge 

also found that respondent's gripping of the flight attendant's shoulder intimidated and frightened 

her, and that her fear of respondent was reasonable under the circumstances. Unwanted touching 

constitutes assault under 14 C.F.R. § 91.11, as does inducing reasonable fear in another, citing In 

the Matter of Mayer, FAA Order No. 97-12 at 9 (1997). Thus, the Administrator held that the law 

judge did not err in finding that respondent committed an assault on the flight attendant. In the 

Matter of Gotbetter, FAA Order No. 2000-17 (2000). 

In applying these legal principles, Administrative Law Judge Richard C. Goodv/in has 

foimd that 49 U.S.C. §46318 is violated when an individual assaults a member of a flight crew, 

and that complainant proved that respondent assaulted a flight attendant in violation of this 

statute when she tapped, or "popped," the flight attendant in the face. In the Matter of Tahaira. 

FAA Docket No. CP09NM0006, Initial Decision. The law judge found that respondent also 

committed an assault when she grabbed and yanked the flight attendant's wrist or forearm. Citing 

the Administrator's statement that an assault is an unwanted touching (In the Matter of Gotbetter. 

FAA Order No. 2000-17 (2000)), in the context of this case, "popping," or tapping, the flight 

attendant in the face plainly constituted an assault. So did respondent's action in forcefully 

grabbing and jerking forward the flight attendant's wrist and forearm. The law judge held that 

these actions were attempts to commit a battery; they also each constituted threats to injure the 

flight attendant, which caused her reasonably to fear present bodily harm. The law judge found 

also in both instances that actual contact took place. The law judge found that respondent's 
actions described above were unwanted and offensive; her grab of the flight attendant's forearm 

or wrist was harmful as well. The law judge found these actions were deliberate and intentional, 

and that whether respondent may or may not have intended to cause harm is irrelevant to the 

violation; what matters is that she fully intended the assault. 

In another case before Judge Goodwin (In the Matter of Schwager, FAA Docket No. 

CP06SW0010, Initial Decision), he found that complainant proved that respondent assaulted a 

flight attendant in violation of 49 U.S.C. §46318. The law judge held that an assault is an 

unwanted touching, again citing Gotbetter, above. Respondent's touching the flight attendant 

plainly constituted an assault. Respondent also committed an assault by actions which caused the 

flight attendant to fear further harmful or offensive contact, citing Ignatov, above at p. 8, and 

Mayer, above at p. 9. 
Complainant reserves the right to supplement its memorandum as necessary. 

Respectfiilly submitted, 

ALFRED R. JOHNSON, JR. 

Regional Counsel 

By:. 

Christian Lewerenz 

Attorney 

Tel: (718) 553-3273 

Fax:(718)995-5699 

CERTIFICATE OF SERVICE 

I hereby certify that on this date copies of Complainant's Memorandum of Law was sent by 

Federal Express to the following: 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

Tel: 202-366-2142 

Fax: 202-366-7536 

Robert Waldman, Esq. 

Law Office of Robert Henry Waldman 

113 Ridgely Avenue 

Annapolis, MD 21401 

Tel: 410-268-5050 

Fax:410-269-1544 

Dated: 

Christian Lewerenz 

Attorney