OKLAHOMA CITY — Tamera Jo Freeman was on a Frontier Airlines flight to Denver in 2007 when her two children began to quarrel over the window shade and then spilled a Bloody Mary into her lap.
She spanked each of them on the thigh with three swats. It was a small incident, but one that in the heightened anxiety after the Sept. 11 terrorist attacks eventually would have enormous ramifications for Freeman and her children.
A flight attendant confronted Freeman, who responded by hurling a few profanities and throwing what remained of a can of tomato juice on the floor.
The incident aboard the Frontier flight ultimately led to Freeman’s arrest and conviction for a federal felony defined as an act of terrorism under the Patriot Act, the controversial federal law enacted after the 2001 attacks on New York’s World Trade Center and the Pentagon.
“I had no idea I was breaking the law,” said Freeman, 40, who spent three months in jail before pleading guilty.
Freeman is one of at least 200 flight passengers who have been convicted under the amended law. In most of the cases, there was no evidence that the passengers had attempted to hijack an airplane or physically attack any flight crew members. Many have simply involved raised voices, foul language and drunken behavior.
Some security experts say the use of the law by airlines and their employees has run amok, criminalizing incidents that did not start out as threats to public safety, much less acts of terrorism.
In one case, two people were arrested after an argument with a flight attendant who claimed the couple were engaged in “overt sexual activity.” An FBI affidavit said the two were “embracing, kissing and acting in a manner that made other passengers uncomfortable.”
“We have gone completely berserk on this issue,” said Charles Slepian, a New York security consultant. “These are not threats to national security or threats to aircraft, but we use that as an excuse.”
Justice Department spokesman Dean Boyd defended the prosecutions, saying they helped improve airline security. He added that the department pursued prosecution only “when the facts and circumstances of a particular case warrant such action.”
Indeed, the law has given airlines new flexibility to clamp down on unruly behavior. But the intent of the Patriot Act provisions was to put terrorists in violation of the law before they could execute an actual takeover, said Nathan Sales, a law professor at George Mason University who helped write the Patriot Act when he served in the Justice Department.
But Sales acknowledged that in the fervor to protect the skies, the practical application of the law has strayed.
“A woman spanking her child is not as great a threat to aviation as members of al-Qaida with box cutters. That much is clear,” he said.
For decades, airline personnel and law-enforcement officials have had wide latitude in prosecuting unruly passengers, not only for assaults or threats but also for any behavior, including arguing, that disrupts a flight or “lessens the ability” of crew members to perform their jobs.
In practice, however, airlines largely have maintained order under Federal Aviation Administration rules, by which hundreds of unruly passengers have been slapped with infractions and fined each year.
According to FAA guidelines issued in 2007, “interference or intimidation of a crew member by itself is not chargeable under the (criminal) statute unless it rises to the level of physical assault, threatened physical assault or an act posing an imminent threat to the safety of the aircraft or other individuals on the aircraft.”
The Sept. 11 attacks changed everything. Within two months, Congress passed the Patriot Act, a sweeping attempt to improve the nation’s defenses against international terrorism. It included broad new powers for law enforcement in such areas as electronic surveillance, money laundering and search warrants.
Included were two key provisions on airline security. The first defined disruptive behavior as a terrorist act, reflecting the seismic shift in airline security.
The second broadened the existing criminal law so that any attempt or conspiracy to interfere with a flight crew became a felony — a change that allowed flight personnel to act against suspicious passengers even if they hadn’t begun an actual assault.
The law gave flight personnel enormous latitude in determining what posed a potential threat or disruption.
The Justice Department does not keep data on how many such prosecutions or convictions have occurred, Boyd said. But according to the Transactional Records Access Clearinghouse, a Syracuse University program, the federal government has obtained 208 felony convictions for disrupting a flight since 2003, when data first became available.
The single case of actual terrorism cited by Boyd was that of Richard Reid, the so-called shoe bomber, who is serving three life sentences. Reid was subdued by passengers and flight attendants on a 2001 flight from Paris to Miami after he was seen trying to ignite explosives in his shoe.
The costs of a conviction can be enormous. In Freeman’s case, it cost her custody of her children.
The confrontation on the Frontier Airlines flight to Denver was particularly harsh, recalled Amy Fleming, the flight attendant who told Freeman to stop spanking her children. In a recent interview, Fleming called Freeman the most unruly passenger she had seen in 11 years on the job.
“Absolutely she deserved a felony conviction,” she said.
But at least one passenger, John Carlson, a defense attorney who was seated near Freeman, said there was no threat. “There was a nasty, loud exchange,” Carlson said. Then Freeman “capitulated and offered no resistance. My sympathy shifted to her.”
A spokeswoman for Frontier said the airline had been providing more training for flight attendants since 2001, including classes on “ways to calm a situation before it reaches a boiling point or physical confrontation.”
After three months in jail, Freeman agreed to plead guilty in exchange for being released on probation. A court-appointed attorney told her that a plea deal would be the fastest way to see her children, who had been taken back to Hawaii and put in foster care.
Her probation required her to stay in Oklahoma City, where she grew up, and prohibited her from flying. Meanwhile, legal proceedings in Hawaii have begun to allow the children’s foster parents to adopt them.
Freeman has been denied permission to attend custody hearings in Maui over the last six months, court records show.
“I have cried. I have cried for my children every day,” Freeman said. “I feel the system is failing me.”
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