Snakes on a Plane

Snakes on a Plane is a terrible, terrible movie (see for yourself, if you don’t believe us).

It’s also bad on the law.

The premise of the movie is that Samuel L. Jackson (who basically plays the movie version of himself, so we’re going to call him Jackson instead of “Neville Flynn”) is escorting a witness from Honolulu to LA to testify in a murder trial there. This is weird in and of itself, but so’s the way they travel: the FBI commandeers the first class cabin of a commercial flight. This is all kinds of wrong.

I. Why go to LA anyway?

The movie starts when Sean Jones witnesses the execution of a Los Angeles prosecutor at the hands of Eddie Kim, apparently a notorious gangland figure. Sean is identified by the FBI when the can of Red Bull he leaves at the scene is run for prints, and Jackson shows up just in time to prevent Sean from getting assassinated by Kim’s hired killers. Actually… so far so good. It’s not impossible that Sean’s prints would be in the federal database, and locating him that way makes a certain amount of sense.

Flying him to LA does not. True, the deceased is a California prosecutor, so California presumably wants a crack at him. But the murder occurs on Oahu, so Hawaii (either the state or the district) has jurisdiction over that part of the crime. Why they’re flying Sean to LA rather than Kim to Honolulu is beyond explanation. There’s simply no good reason Kim wasn’t arrested, in California, as soon as Sean told Jackson what he knew, and then flown to Honolulu to face charges for the murder. Sean can presumably be kept somewhere safe on the island for the few weeks it would take to get the murder trial going.

You might also be wondering why the FBI is involved at all, since the murder was likely a state crime.  Well, Kim was a gangster, and the FBI does invest significant resources in investigating gangs, and the FBI has gang task forces in California but not Hawaii.  The FBI could be involved because of various federal crimes such as firearms violations.  But that doesn’t mean that California would have jurisdiction over the crime.  The constitutional requirement of vicinage means that Kim would have to be tried in the state and district where the crime was committed (i.e. Hawaii).  We hope the FBI booked a round-trip flight.

II. Can the FBI commandeer a commercial flight?

To avoid discovery by the allegedly corrupt police force, Jackson decides to send a private FBI plane as a decoy, but to take Sean to LA on a commercial flight. So he commandeers the first class cabin of the next flight, which happens to be a red eye. One of the flight attendants asks if the FBI can even do that. The captain replies that “According to FAA § 108, they can do whatever they want.” Well, can they?

Nope.  The 1958 Federal Aviation Act’s § 108 is about a “report on air carrier marketing of tours.”  The FAA is codified at 49 U.S.C. § 40101 et seq, so there’s not even a § 108 in the codified version, and § 40108 is about flight training schools.

Even turning to the Code of Federal Regulations is no help. The FAA regulations are located in 14 CFR §§ 1.1-198.17, but there is no § 108. It’s currently reserved for future regulations (who knows, maybe there’s a future “commandeering planes” regulation). But more to the point, there isn’t any current FAA regulation that would permit a federal officer to simply seize a commercial aircraft for federal business. 14 CFR § 13.17 does permit the seizure of aircraft… but only if the aircraft is involved in some kind of violation. So, for example, in Aircrane, Inc. v. Butterfield, 369 F. Supp. 598 (E.D. Pa. 1974), the FAA seized some helicopters that were being used for tasks for which they were not licensed. The operator tried to save some money on refits and opted for a restricted type of certification from the FAA, but then went and used the choppers for more general purpose leasing. The FAA was Not Amused, and it seized the aircraft.

That’s not what’s going on here. Here, we’ve got a federal agent seizing seats on a commercial flight purely for the convenience of the FBI. That’s probably going to constitute a “taking” under the Fifth Amendment, which would require that the FBI pay for all of those seats. Which it could certainly do if it wanted to, but the FBI’s budget is not unlimited. In a sense, this is little different from any other influential customer that makes an onerous demand on short notice. There are plenty of services available that aren’t widely publicized for people who have the money. Reserving the entire first class cabin seems like something you can do if you’ve got the scratch for it, and the FBI presumably does.

Then the question becomes whether the FBI could actually buy up the entire cabin on a few hour’s notice, despite the fact that private individuals had already purchased some of those tickets. This is more of a contractual question, but if the FBI asked to buy out an entire cabin of a flight on almost no notice, it seems likely that the airline would probably comply, regardless of whether or not other tickets had been sold. Plane tickets are not actually a guarantee of a seat until you are in that seat and the plane has left the ground. Tickets do entitle you to get from Point A to Point B on the airline’s dime, but not on any particular flight at any particular time. Read the fine print. There’s enough contingencies and escape clauses built in to most of those tickets that describing the flight as “oversold” is 1) not actually untrue, and 2) probably something the airline could get away with, without even having to offer an explanation.

So though there doesn’t seem to be any real reason for Jackson to want to take Sean to LA, it is theoretically possible for him to have done it on a commercial flight, though probably not in the way it was described.

III. Conclusion

We’ve had it with these terrible legal treatments in this terrible movie.

15 Responses to Snakes on a Plane

  1. You want horrible jurisdictional issues, try the Lost episode “Eggtown,” where Kate is being tried in a LA County Court (from both sheriff uniforms and a very visible seal) for BOTH a bank robbery (federal crime) that happened in New Mexico (episode “Whatever the Case May Be”) and a murder that happened in Iowa (episode “What Kate did”). Then the prosecutors let her talk to her mother (key witness in the murder), whom she convinces to not testify. Without the mother, the prosecutors agree to a plea of 10 years probation! Sigh

  2. From TV etc, one gets the sense that the Department of Homeland Security could commander what the hell they want…

    • TV doesn’t know what to make of Homeland Security yet, nicely mirroring real life. It ranges from the cleaner version of the F.B.I. to as dark as conspiracy theorists think the C.I.A. is.

      • James Pollock

        Well, this range is probably accurate, depending on which of the approximately 32,378 agencies that were merged into DHS you’re actually dealing with. (Heck, TV hasn’t even figured out the FBI yet… sometimes they’re the good guys, and sometimes they’re the mean “feds” who step all over the local law enforcement and just generally get in the way… which range is ALSO probably accurate.)

    • And, of course, if Johnny Cash shot a man in Reno, what’s he doing in Folsom Prison? Shouldn’t he be in prison in Nevada?

      • Perhaps the man was in Reno, Cash was standing across the state line, and he shot the man from a distance. Or maybe Cash formulated his plan to kill the man while Cash was in California, then traveled to Nevada to commit the crime. Because ‘malice aforethought’ is an element of murder in California, it would still have jurisdiction under Cal. Penal Code § 27(a)(1).

      • Ryan Davidson

        The song doesn’t actually say that he’s doing time for that murder. Someone depraved enough to shoot a man “just to watch him die” is likely to have gotten in trouble in California too.

  3. Well, if the charge is conspiracy to commit various illegal acts, wouldn’t jurisdiction lie where the conspiracy was formed? Especially if the actual criminal acts were performed in multiple jurisdictions? Thus, wouldn’t California’s federal courts be able to make a claim to jurisdiction if the prosecution there was most ready to present a case? (This assumes that the FBI had an active investigation that was poised to bear fruit, and that the corrupt organization did in fact operate in multiple jurisdictions.)

  4. Hi. Long time listener
    Can I ask a really stupid question really quickly that I’ve been dying to ask for ages?
    §
    That symbol. Obviously used to cite laws and things but I’ve only ever seen it in these contexts. What is it called and how do you say it?

    • Not a stupid question at all, since it’s impossible to Google and has no obvious pronunciation. It’s the section sign and in the legal citation context it’s simply shorthand for the word ‘section.’ For example, 35 U.S.C. § 102 refers to section 102 of title 35 of the United States Code and would be pronounced “35 USC section 102.”

  5. Do you guys plan on revisiting Gotham Central in the near future?

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