Does Operating an Airplane Include Preflight Activities?

In a case of first impression, the Sixth Circuit interpreted the term “operate” under 18 U.S.C. § 342, which criminalizes operating a common carrier while intoxicated.  The defendant—a commercial airline pilot—arrived to work drunk.  Scheduled to fly that day, he prepared the plane for flight, including calibrating and programming instruments and requesting clearance from traffic control.  However, before passengers boarded, the co-pilot informed authorities that the defendant was drunk, and he was arrested.

Charged with operating a common carrier while under the influence of alcohol, the only issue at trial was whether the defendant “operated” the plane through his preflight preparations.  The district court ultimately instructed the jury that “[f]or a commercial pilot [“operate”] includes anything the pilot does or directs in his capacity as a pilot before, during, or after flight, but only if . . . the activity or direction was directly and proximately linked to actual operational or functional requirements for the flight.”  The jury subsequently convicted the defendant.

On appeal, a divided panel affirmed the conviction.  Noting that the no federal court of appeals had interpreted the term “operate,”  the Court held that the district court properly instructed the jury.  It rejected an interpretation of “operating” that would include only flight itself.  The Court held that such a definition would problematically excluded the preflight operations needed to fly safely. Thus, considering an airplane pilot's role and the statute's “public safety purpose,” the district court properly instructed the jury.

The dissent argued that the defendant’s actions were merely an attempt to operate the plane, a situation that the statute does not criminalize.  Focusing on the common law definition of “common carrier,” the dissent noted that not all airplanes are common carriers; only those transporting public passengers or freight qualify.  Accordingly, the key function of a common carrier is to transport such passengers or freight, and “operating” a carrier means controlling its functions. 

Thus, under the dissent’s view, the defendant never operated a common carrier.  While the defendant conducted preflight activities, no passengers boarded and the plane never moved.  Therefore, he never controlled the transport of passengers.

Instead, the defendant merely attempted to operate the carrier.  However, 18 U.S.C. § 342 fails to criminalize attempts.  Thus, the dissent would have reversed.

Given the divided panel and the issue of first impression, it will be interesting to see whether the Sixth Circuit reviews the decision en banc.  Opinion available here.