Dear Student,
Welcome to The Law School Playbook! I’m Halle Hara, a professor of academic success and personal skills coach to law students and attorneys. I’m glad you’re here! Today, we are going to pick up where we left off in the last episode, where commercial airline pilot Sean Fitzgerald showed up for work “rip-roaring drunk” and engaged in pre-flight work before he was arrested. The statute he is alleged to have violated is 18 U.S.C. § 343, and we are now at step 4, which requires us to look for the statute’s meaning using the text and determine if the language is ambiguous or vague.
Let’s consider what the arguments of counsel would be at this point:
Fitzgerald’s attorney would most certainly argue that his pre-flight actions were insufficient to constitute operating a common carrier; after all, passengers had not boarded and the plane never took flight. Thus, Fitzgerald’s attorney will argue for a narrow definition of the term operate.
The government’s attorney, in contrast, would undoubtedly argue for a more expansive definition. We can predict that the government might urge the court to look at the purpose of the statute, which might be to protect the safety and well-being of the public.
If the plain meaning is not apparent from the face of the statute, and neither this court nor any other court in the jurisdiction had decided what it means to “operate” a common carrier under 18 U.S.C. § 342, the court may look to a dictionary definition to give it meaning.
The American Heritage Dictionary 1233 (4th ed. 2000), for example, defines “operate” as “to run or control the functioning of.” Using this definition, Fitzgerald might be said to have “operated” the aircraft by taking certain preflight steps. Fitzgerald calibrated the altimeter (which calculates altitude), programmed the flight-management system (which controls navigation), turned on the auxiliary power unit (which provides energy for functions other than propulsion), and requested flight clearance from air-traffic control. Although Fitzgerald did not cause the airplane to take flight, he appears to have “run or control[led] the functioning of” the airplane under the American Heritage definition.
But even if Fitzgerald can be found to have operated the aircraft, a critical question concerns what degree of operation is required. In other words, what kind of control must one exert over an airplane to be found guilty under the statute? Is a flight attendant opening the door sufficient to constitute operation for purposes of this statute?
These questions prompt us to conclude that the term “operates” is at least arguably ambiguous. Consequently, we need to take the next step (step 5), which is to resolve the ambiguity or to add clarity using the canons of construction.
Let’s look first to the legislative intent. As you’ll recall, this canon endeavors to interpret the statutory language in a way that furthers the purpose of the statute. The arguments concerning this canon might be as follows:
For Fitzgerald: counsel for Fitzgerald might argue that the purpose of § 342 is to protect passenger from harm during movement
In contrast, counsel for the government will argue that the statute has a broader purpose—to protect passengers from harm in preparation for and during movement
Adopting Fitzgerald’s argument would seem to frustrate the purpose:
Consider adding hypothetical facts. [Let’s hypothesize about what could have happened.] After Fitzgerald was removed from the flight, the co-pilot neglected to re-program the flight-management system, and shortly after take-off, the path charted by Fitzgerald’s handiwork caused the jet to collide with another plane. In this scenario, the calamity occurred while the plane was moving, but the root cause of it was Fitzgerald’s error during preparation. Yet on Fitzgerald’s view of § 342, he would evade prosecution.
That construction of the statute would frustrate Fitzgerald’s own conception of § 342’s purpose to protect passengers on common carriers during movement. This seems to border on the canon that states that statutes should not be construed to produce an absurd result. If the pilot cannot violate § 342 by his preflight conduct, or can do so only when it may be too late to stop him, Congress’s desire to protect passengers on common carriers would be undermined.
Finally, the court could consider the rule of lenity, the canon that would require the ambiguous word “operate” to be construed in Fitzgerald’s favor. Clearly, Fitzgerald’s counsel would want it to apply, and the government’s counsel would resist its application. The court is likely to side with government because the rule is invoked only as a last resort, where the construction of a statutory term would leave it with a grievous ambiguity. Also, the rule of lenity, as we have discussed, arises from fair notice principles. Fitzgerald would not suffer from lack of notice that being intoxicated while on duty as a pilot could subject him to a conviction.
At bottom, this case is one that the legislature did not perceive of when it created this statute. Allowing Fitzgerald to avoid conviction based on his construction would lead to unjust result that would not honor the spirit of the law.
To review, we’ve predicted that the court would find that
Fitzgerald is a person who operated a common carrier based on his pre-flight activities – requirement 1
under the influence of alcohol – requirement 2
Thus, Fitzgerald shall be:
imprisoned up to 15 years, or fined; or imprisoned up to 15 years AND fined.
And here’s the part where I reveal that I did not make this up—it is a real case—so we don’t have to guess as to how it turned out.
The case is United States v. Fitzgerald and, based upon the facts we’ve discussed, Fitzgerald was convicted for a violation of the statute following a jury trial. The district court sentenced him to one year and one day in prison and three years of supervised release.
On appeal to the United States Court of Appeals for the Sixth Circuit, Fitzgerald contended that the pre-flight actions he performed were not enough to operate the aircraft within the meaning of section 342, that the jury was wrongly instructed, and that the district court erred at his sentencing. Finding no reversible error, the Sixth Circuit affirmed Fitzgerald’s conviction.
If you’d like to read the opinion, which will walk you through the steps of reading and interpreting statutes that we have discussed, the 6th Circuit citation is: 906 F.3d 437.
There is one more thing I’ll point out to reaffirm that statutory interpretation is a messy business: There was one Circuit Judge who dissented, finding Fitzgerald’s preparatory actions amounted to merely an attempt to operate the air common carrier. And because Congress failed to include an attempt provision in 18 U.S.C. § 342, that Judge would have held that as a matter of law Fitzgerald did not “operate” the air common carrier.
Well, this wraps up our series on reading and interpreting statutes. If would you like to read this episode, get suggestions for further reading, or to request individual coaching with me, please visit my website at www.lawschoolplaybook.com.
As always, do your best, and I’ll be rooting for you!
References and Further Reading
E. Scott Fruehwald, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals 126–130 (2013).
Georgetown University Law Center: A Guide to Reading, Interpreting and Applying Statutes (2017). https://www.law.georgetown.edu/wp-content/uploads/2018/12/A-Guide-to-Reading-Interpreting-and-Applying-Statutes-1.pdf.
Sarah Landrum, Law School Success: Tips for Reading Statutes (Feb. 13, 2015). https://lawschoolacademicsuccess.com/2015/02/03/statutory-interpretation/.
Deborah Maranville, Teaching Statute Reading Basics in a First Year Doctrinal Course: A “Handout” and Suggested Exercises, Law Teacher, Inst. For Law. Sch. Teaching 18–20 (Spring 2013).
Ira Nathenson, How to Read a Rule or Statute (Sept. 12, 2014). https://www.nathenson.org/courses/civpro/resources/how-to-read-a-rule-or-statute/.
David Romantz & Kathleen E. Vinson, Legal Analysis: The Fundamental Skill 89–96 (2d ed. 2009).
Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 167–170 (2009).