November 1, 2003
By John S. Yodice
From our most basic courses in American Civics we learned that our system of government creates a unique division of powers between the federal government and the individual states. It has been interesting to review in this column how this uniqueness plays out in the laws that govern our activities as aircraft owners and pilots. We have frequently seen how, in the aviation context, state laws have been restricted by the application of the doctrine of "preemption." This doctrine is based on the U.S. constitutional provision that states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme law of the Land." So, if state law is found to conflict, or is found to regulate in an area fully occupied by the federal government, the state law must give way. However, preemption, especially in the aviation context, is a doctrine that is not so easy to apply, and is still evolving.
We know how intensively and extensively the federal government regulates our activities as aircraft owners and pilots. Less frequently, we run into state aviation laws that affect our flying. In fact, most states have adopted regulations governing aviation (about 85 percent, according to one survey). Are they preempted? That is not so easy to answer. Here is a recent federal court decision that wrestles with the question. It involves a state ban on operating an aircraft while under the influence of alcohol, which most states, as well as the federal government, have.
The captain and the first officer of an America West airlines flight were pushing back from a gate at Miami International Airport, about to take a flight to Phoenix, when the airplane was called back to the gate. Officials at a security checkpoint said that these two pilots smelled of alcohol. They reported it to the Miami-Dade County Police, who in turn contacted the Transportation Security Administration and asked permission to recall the flight. The TSA granted permission and air traffic control recalled the flight.
The police interviewed the pilots at the airport, and a few hours later took them to a police station and gave them breathalyzer tests. Both pilots tested at breath-alcohol levels that exceeded the Florida criminal law limit of 0.08. They also exceeded the 0.04 federal regulatory limit of FAR 91.17. But they didn't exceed the federal criminal limit of 0.10. There is a federal criminal law that applies to "common carriers," which includes airlines as well as rail, water, and bus transportation. It prohibits the operation of a common carrier while under the influence of alcohol. A blood alcohol content of 0.10 percent is presumed to constitute "under the influence." This statute doesn't apply to general aviation; FAR 91.17 does.
America West fired the pilots, and the FAA revoked their airmen and medical certificates. It was sometime later that the State of Florida filed a two criminal counts against the pilots. It charged the pilots with operating an aircraft while under the influence of alcohol in violation of Florida state law (the state later added a count of culpable negligence). Both pilots protested their innocence and pleaded "not guilty" to the state charges. They were released on bail pending trial.
Before the trial, the pilots made a motion in the state court proceeding seeking dismissal of the state criminal charges. The pilots argued that the state court didn't have jurisdiction because federal law preempts state law in the area of pilot qualification and capacity to operate commercial aircraft in interstate commerce. The state court denied the pilots' motion.
The pilots went to federal court asking for a writ of habeas corpus ("I want the body") to enjoin the state of Florida from criminally prosecuting them. The pilots contended that federal law exclusively governed their actions as federally certificated commercial airline pilots, and that federal law preempts the state criminal laws under which Florida sought to prosecute them. The state attorney general argued to the federal court that the state has concurrent power to prosecute these airline pilots for operating an aircraft while under the influence of alcohol.
The court had to consider two competing principles. On the one hand, the court recognized the federal government's interest in maintaining and enforcing uniform, nationwide standards regulating the behavior of commercial airline pilots. On the other hand, the court recognized the state's interest in enforcing its criminal laws to protect the safety and welfare of its citizens. The federal court ultimately found in favor of the pilots. The court held that the federal law governing pilot qualifications and capacity to operate commercial aircraft in interstate commerce preempts the state criminal laws. Based on this holding, the court granted the petition for habeas corpus, ordered the state courts to discharge the pilots from the state's custody, quashed the state criminal proceedings, and enjoined the state from taking any further criminal action against the pilots. The state case never went to trial.
What effect will this decision have on the preemption of other state aviation regulations? This is a decision of one federal district court, the Southern District of Florida, and is not binding on other federal courts. The decision could be narrowly construed to apply only to airline pilots and only to state alcohol laws. However, other courts could, and often do, find such preemption analyses persuasive, and could apply the rationale of the decision to other state aviation laws, as for example, state law that criminalizes reckless flying (which most states have).
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