The Ninth Circuit has granted rehearing en banc in an interesting venue case, United States v. Lozoya, No. 17-50336. The panel decision is here. The case involves a charge of misdemeanor simple assault occurring somewhere over the Great Plains on a flight from Minneapolis to Los Angeles. A garden-variety dispute between passengers escalated to a physical blow.
Where should this case be tried? (Sounds like a law school exam question.) It is more complicated than you might think.
Assault on an airplane is a federal offense, though you have to follow a convoluted path to get there. Under 49 U.S.C. § 46501(2), the plane comes within the "special aircraft jurisdiction of the United States." Then § 46506 incorporates for that jurisdiction the law for assaults and certain other crimes "within the special maritime and territorial jurisdiction of the United States." That gets us to 18 U.S.C. § 113(a)(4). So, this simple assault is a federal case. But which district?
In federal courts, venue has a constitutional dimension under Article III, §2: "The Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
Ninth Circuit precedent holds that the navigable airspace above a federal court district is part of that district. So if it has to be in the district of occurrence, it is definitely not Los Angeles. Whether it is South Dakota or Wyoming or some other state might be difficult to determine at this point. A statute for "offense[s] involving transportation in interstate or foreign commerce," 18 U.S.C. § 3237, may or may not permit venue in any district through which the plane moved, including the Central District of California (LA). The panel split over the interpretation of that statute as applied to this case.
The majority recognized the "creeping absurdity" of its holding.
Should it really be necessary for the government to pinpoint where precisely in the spacious skies an alleged assault occurred? Imagine an inflight robbery or homicide--or some other nightmare at 20,000 feet--that were to occur over the northeastern United States, home to three circuits, fifteen districts, and a half-dozen major airports, all in close proximity. How feasible would it be for the government to prove venue in such cluttered airspace?
For offenses "committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district," the proper venue is where the defendant is first brought. Does that statute apply? Could Congress constitutionally make it apply to high-altitude airplanes if it wanted to?
This is a case where original understanding of the Constitution does not answer the specific question because there is no original understanding. If we reason by analogy, the closest analogue seems to me to be ships at sea, which the Constitution places entirely under federal control. In practice, regulation of activities at high altitudes is entirely federal now. However, the argument that making this airspace constitutionally the same as the high seas would require an amendment of the Constitution is not a trivial one.
How high is "high altitude"? I suggest 18,000 feet. That is the present floor of "Class A Airspace" in the contiguous 48 States. See 14 CFR § 71.33(a). Different rules apply there. It is high enough that the territory below has no real interest in local regulation. Nearly all airline flights any longer than local fly there for all except the beginning and end of the flight.
We will see what the Ninth does with this case en banc, but eventually Congress should speak on the subject.
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