Across the Line. Published in the Washoe County Bar Association s The Writ December By: Jim Porter SARCASTIC BOMB JOKE A FELONY?

Transcription

1 Across the Line Published in the Washoe County Bar Association s The Writ December 2008 By: Jim Porter SARCASTIC BOMB JOKE A FELONY? 9/11 changed our lives in many ways, none more evident than taking a commercial airline flight. Flying out of a large airport like San Francisco or LAX is a lesson in patience. Reno-Tahoe is a comparative ease. First you park miles from the terminal, wait for a shuttle, wait in line for check-in, always with bags in tow. If you are really in a hurry, the line will be particularly slow moving. Then you face another more ominous line security. Did I remember to take the pocket knife out of my back pack? Oh no, that s a brand new tube of toothpaste. If you have a new knee like mine, you will be wanded every time or is it wand?. And they don t just wand the knee; it s a full-on body search taking about 15 minutes. As your patience thins and your frustration grows, is it ever appropriate to mumble a little joke like, Do you really think I have a bomb in that bag? A sarcastic bomb joke never hurt anyone right? Ask lawyer Barbara Levin, who learned the hard way. Late Arrival California-licensed attorney and former Illinois prosecutor, Barbara Levin was flying from LAX to Vancouver, British Columbia beginning an exciting and long-awaited scuba diving trip. Per her testimony, Levin left home about 2 ½ hours before her scheduled flight, but was caught up in traffic, spent over an hour locating a parking place,

2 took precious minutes to walk to the shuttle, waited 20 minutes for the shuttle to arrive, and the shuttle took 10 minutes to travel to the United Terminal at LAX. Levin exited the shuttle at Terminal 8, but discovered her flight was departing from Terminal 7, so she walked as fast as she could, only to find a long line at the ticket counter. She walked to the front of the line. Given her late arrival, the ticket agent suggested she take her bags to the gate. Levin took her bags to the gate, but her bulky dive bag would not fit through the screening template at the X-ray machine. She went back to the ticket counter. No time left, so she returned to the screening area. At that point she tried something novel. Something you should not try. She walked her three bags up to the metal detector and asked for a manual search, adding impatiently, Look, no bomb. No gun. No knife. I am going to the gate. With that Levin inexplicably left her dive bag and her purse, ignoring security and proceeded to the gate. By this time she was fairly amped up. She was too late. She missed her flight and returned to the screening area resigned to catch the next flight. Security was waiting for her. I Have a Bomb Security personnel admonished Levin for proceeding to the gate. After a heated conversation, Levin threw up her hands, rolled her eyes, and said, Yeah, right. It s a bomb. Come with us was the response. The conversation between Levin and an assortment of United Airlines personnel, security officers and airport police finally degenerated to the point where Levin stated, Yes. I said I have a bomb. I have a bomb. Again, do not try this on your own. Arrest at Airport

3 Eventually Levin was handcuffed, taken to a detention cell and released that night. She was arrested for making a false bomb report, although she was never formally charged with a crime. Levin sued United Airlines and the personnel involved as well as the City of Los Angeles for false imprisonment. If she was guilty of making a false bomb report, her case would be dismissed, if on the other hand she was improperly arrested, there being no probable cause, she could make a case for false imprisonment, perhaps collecting enough money for scuba diving vacations (or anger and time management classes). False Bomb Report California Penal Code section 148.1(a) addresses making bomb reports at airports. It is straightforward. The BAJI jury instruction reads: Any person who reports to any police officer, employee of an airline or employee of an airport, that a bomb has been placed in any public or private place, knowing that such report is false, is in violation of California Penal Code section 148.1(a), which is punishable as a felony. The former prosecutor representing herself, Levin worked every legal angle on that Code, including, that airport personnel knew she was being facetious or sarcastic therefore it was not a true threat as defined by First Amendment cases. (Virginia v. Black (2003) 538 U.S. 343,359). I.e., everyone knew there were no bombs in her bags. As proof, Levin pointed out they left the bags at the screening area for hours. Levin further disputed she ever reported to anyone there was a bomb in her bag. She also claimed the arresting officers had no reasonable belief she was making a false bomb threat.

4 Fire The Second District Court of Appeal found that the concept of a true threat had no application as Levin was not arrested for making a threat, she was arrested for making a false report of a bomb. The court analogized making a false report of a bomb to the false cry of fire in a crowded theater the classic example of unprotected speech provided by Justice Oliver Wendall Holmes, Jr., a verbal act not protected by the First Amendment (Schenk v. United States (1919) 249 U.S.47, ) The false bomb penal code criminalizes falsely uttered words that by their very nature have the inherent potential to cause alarm or disruption. Court of Appeal Ruling Even a non-litigator like me could predict the Court s ruling on section 148.1(a). Neither Levin s intent in making the comments not the actual effect on the persons that heard them is an element of the crime. As the Court wrote, Neither the police or the other persons or entities specified in this statute should be put in the position of having to speculate whether the person making the bomb report intended that it be taken seriously or as a joke. The lesson is clear. Arrive early, remain calm. This is another of a series of articles on California law - for Nevada lawyers - authored by members of the Truckee, South Lake Tahoe, Incline Village and Reno law firm of Porter Simon.

5 Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor's appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firm s web site