Join the Mile High Club, Go To Jail

by Daniel Solove · November 15, 2006

A California couple whose in-flight friskiness on the way to Raleigh was a bit much for other passengers are facing federal charges for harassing the flight attendant who asked them to stop.

Carl Warren Persing and Dawn Elizabeth Sewell are scheduled to go to trial Dec. 11 at the federal courthouse in Wilmington for their behavior during a Sept. 15 flight. The indictment states that “the defendants repeatedly engaged in overt sexual activity in the cabin of the plane to such an extent that the flight attendant had to direct them to stop.”

But Persing and Sewell wouldn’t halt their public displays of affection, and Persing threatened the flight attendant who made the request and refused to serve them alcohol, according to the court records.

The details of what happened are recounted later on in the story:

At first, the couple complied with a request from a flight attendant to stop their behavior. But they soon resumed during the flight.

When asked again, according to Sutton’s affidavit, Persing told the flight attendant: “I’m going to give you one warning to get out of my face.”

Things deteriorated from there, according to Sutton’s affidavit: The flight attendant refused to serve them alcohol. Persing called the flight attendant “a punk.” Persing kept asking for alcohol.

Sewell told the flight attendants that she worked for a lawyer and it was illegal not to serve alcohol to them. The flight attendant told them to stop asking for alcohol. Persing said, “You and I are gonna have some serious confrontation when we get off this plane.”

When the couple got off the plane in Raleigh, law enforcement officials were waiting.

The couple was indicted. The AP reports:

A couple’s ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.

According to the indictment, Carl Persing and Dawn Sewell were allegedly snuggling and kissing inappropriately, “making other passengers uncomfortable,” when a flight attendant asked them to stop.

“Persing was observed nuzzling or kissing Sewell on the neck, and … with his face pressed against Sewell’s vaginal area. During these actions, Sewell was observed smiling,” reads the indictment filed by the Federal Bureau of Investigation.

The indictment is here. The couple is charged with violating 49 U.S.C. § 46504, which provides:

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.

Although the couple’s angry behavior is problematic, § 46504 strikes me as way too broad — perhaps so broad as to be unconstitutionally vague. What exactly does “intimidating” a flight attendant mean? What does “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” mean? Being an obnoxious passenger should be punished, but the hefty possible penalties in this statute seem to be designed for passengers who pose serious threats, not passengers who merely spark the ire of a flight attendant.

Doug B. says:

November 15, 2006 at 5:03 pm

Seems like shaming punishment might make sense, though perhaps would not work for this pair.
Howard Wasserman says:

November 15, 2006 at 9:02 pm

According to CNN,

http://www.cnn.com/2006/LAW/11/15/sex.plane.ap/index.html,

the man’s lawyer says he had his head in his girlfriend’s lap because he was feeling sick. Not sure that changes the question of whether he violated the statute by arguing with the flight attendant. But the lawyer wants to put his client in the best light.
Scott Moss says:

November 15, 2006 at 10:27 pm

Shaming, coupled with the fact that any airline would be justified in refusing to sell plane tickets to these folks. Being functionally banned from air travel is a pretty major penalty (and shows that criminal punishment for what was at worst disorderly conduct, under a statute that really is badly vague, may well be unnecessary….)
Deb Newton says:

November 17, 2006 at 4:49 pm

This note is to Howard Wasserman: If you are monitorin the site you posted on: Are you the Howard “Howie” Wasserman of Gourmet Video, whom Joe Cheshire defended successfully under the 1st Amendment? I was his paralegal when we won that case. I represent Mr. Persing. Can your guys help?
Julian says:

December 1, 2006 at 11:21 am

20 years in jail??? I don´t see who´s right in this case, if the couple taht was mading out disturbing other passengers(it was not like they had sex on folghit) or the flight attendant. As I see things, intimidating a member of the flight crew should be something more detailed than: “You and I are gonna have some serious confrontation when we get off this plane.” A good example would be : “leave us alone or I ´m going to bomb this flight” In that case the guy should go straight to jail but the intention in the “treath” given by the man not constitute a terrorist treath since he remarked that consequences would be off the plane. It shows that things are going wrong in the country. With a lot of more important issues I don´t see why these couple should be indicted as terrorists, certainly they are not. This case implications are that we can get molested by flight attendants nad we don´t have the right to defend ourselves without the real treath of being acused of terrorists; that´s scary. But I´m sure of one thing: I´m not traveling in that line ever!.
vapor_de says:

May 4, 2007 at 2:19 am

Julian,

http://dictionary.reference.com/browse/intimidation.

You sound like one of those folks that complain about getting a traffic citation because there are murderers on the loose. Guy was an ass and got called on it– life goes on. He won’t get 20 years, but hopefully, he’ll get something to curb obnoxious behavior like this in the future.
T says:

May 7, 2007 at 12:12 pm

I disagree with the lawyers statement that he had a right to privacy on the plane. As far as I am concerned your right to privacy ends the moment your actions intrude on other peoples space, especially on a plane. I am a frequent air traveler for business. I fly several times a month and I have called people on bad behavior as well as seeing flight attendants do it as well. People who are still talking, LOUDLY, on their cell phones even as we taxi onto the runway, kids kicking the back of my seat, people who watch those portable DVD play’s with the sound so loud half the plane can hear it, I was even on a flight into Vegas when 5 women, (Whom the flight attendants should have stopped serving) decided to do a congo line up and down the plane and had to be escorted back to their seat by the entire flight staff, and yes we were on approach with the fasten seat belt sign on.

When you buy a ticket you pay for the area between two arm rests, nothing more, the moment your actions expand beyond that, you are disrupting the flight for all those around you, and you should sit down and shut up.

I think the guy should get some type of sentence that will remind him each and every day of what he did so that he hopefully won’t do it again. I like the other guys Idea of banning him from air travel for life. Put him on the no fly list, and if he buys a ticket or tries to board an aircraft, he goes to jail.

I see far to many people in airports and on planes who don’t think the rules apply to them, they shouldn’t have to take all that jewelry off, “But sir, I know the metal detector went off but it’s just jewelry!” “Why do I have to take my computer out of the bag? it’s just a laptop.” “Can’t I leave my knee high, lace up boots on, they are so hard to tie”

The should be penalties for this kind of thing, but there won’t be, and the rest of us air travelers will have to suffer the fools.
James Barber says:

May 7, 2007 at 12:44 pm

Anyone who appears to support this man facing jail time for the confrontation is arguing for social reform through law. It is a dangerous slippery slope to give any governing body the ability to define socail graces. Would you also support a ban on ugly people on the plane, as they’re apperance disturbs those who also paid for there ticket. Yes it is true his behavior was disruptive, and infact the only fitting punishment for such action would be socail in nature(ie. banning him from airlines). Lastly the notion that this case involves any statute that relates to terrorism is quite frightening. Terrorism is not as big a danger as the patriot act, and this is proof that such laws are being used on domestic non-terrorist “criminal” actions. Technology and fear based laws are a danger to freedom.