August 24, 2019

Tenth Circuit: Venue Proper and Sufficient Evidence to Show Copilot Was Under the Influence of Alcohol During Flight

The Tenth Circuit Court of Appeals published its opinion in United States v. Cope on Tuesday, May 1, 2012.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was convicted of one count of operating a common carrier—a commercial airplane—under the influence of alcohol. He now challenges his conviction based on improper venue, insufficiency of the evidence, and improper reliance on federal regulations.

Petitioner argues that there is no evidence that he was under the influence of alcohol in Colorado and thus venue in the District of Colorado was improper. The Court disagreed, finding that because he was operating a common carrier in interstate commerce, it is immaterial whether he was “under the influence of alcohol” in Colorado. “Venue is proper in any district through which Mr. Cope traveled on the flight, including the District of Colorado.”

Petitioner also argues that the district court put improper weight on the breathalyzer tests, which he contends are invalid, and that there was insufficient evidence that he was “under the influence of alcohol.” The Court found that the district court was entitled to weigh competing testimony about the tests. Additionally, his “high BAC combined with the evidence that [Petitioner] drank a significant amount of alcohol the night before the flight, implicitly admitted that he would fail a breathalyzer test, smelled of alcohol, and had red eyes and a puffy face before the flight, is sufficient evidence for a reasonable fact-finder to find that [Petitioner] was ‘under the influence of alcohol.'”

Tenth Circuit: Claim for Suspension and Withdrawal of Air Traffic Control Specialist Certificate Not Barred by Feres Doctrine

The Tenth Circuit Court of Appeals published its opinion in Newton v. Lee on Tuesday, April 24, 2012.

The Tenth Circuit affirmed in part and declined to exercise jurisdiction in an interlocutory appeal. Petitioner alleges that two officers of the Utah Air National Guard violated his due process rights when they suspended and subsequently withdrew his Air Traffic Control Specialist (ATCS) certificate, and when they suspended his employment as an Air Traffic Control Supervisor at Hill Air Force Base in Utah. The district court granted summary judgment to Respondents on Petitioner’s due process claim regarding the suspension of his employment. However, it denied summary judgment on his due process claim regarding the withdrawal of his ATCS certificate, holding this claim is not barred by qualified immunity or by intramilitary immunity under the Feres doctrine.

In this interlocutory appeal, Respondents challenge the denial of qualified immunity and intramilitary immunity on Petitioner’s ATCS certificate claim. Petitioner cross-appeals the grant of summary judgment on his employment claim. The Court held that Petitioner’s ATCS certificate is not barred by the Feres doctrine, and that it had no jurisdiction over the interlocutory appeal from the denial of qualified immunity to Respondents. The Court also declined to exercise pendent jurisdiction over Petitioner’s cross-appeal.

Colorado Supreme Court: Trial Court Must Decide Before Trial if Party Is Immune from Suit Pursuant to Aviation and Transportation Security Act

The Colorado Supreme Court issued its opinion in Air Wisconsin Airlines Corp. v. Hoeper on March 19, 2012.

Defamation—Statutory Immunity—Actual Malice.

The Supreme Court affirmed the court of appeals’ judgment and held that a trial court must decide before trial if a party is immune from suit pursuant to the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 44941. The Court held that (1) Air Wisconsin Airlines Corporation was not immune from suit for defamation under the ATSA; (2) the record showed clear and convincing evidence to support a finding of actual malice; (3) Air Wisconsin’s statements were not protected as opinion; and (4) the evidence was sufficient to support the jury’s determination that the statements were false.

Summary and full case available here.

SB 12-035: Limitation on Liability for Entities Holding FAA License for Spaceflight Activities

On January 11, 2012, Sen. Mary Hodge introduced SB 12-035 – Concerning Limited Liability for Spaceflight Activities. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill limits liability for a spaceflight entity for any injury to a spaceflight participant unless the injury is intentionally caused or proximately caused by gross negligence on the part of the entity. Before participating in a spaceflight activity, a participant must sign an agreement and warning statement acknowledging his or her understanding of limited liability for the entity.

Since this summary, the Senate has daily laid over the second reading.

Summaries of other featured bills can be found here.

Colorado Court of Appeals: Wheelchair Assistance to Passengers Not “Airline Services” Warranting Preemption

The Colorado Court of Appeals issued its opinion in Paredes v. Air-Serv Corporation, Inc. on December 9, 2010.

Negligence—Airline—Federal Aviation Authority Authorization Act (FAAAA)—Preemption.

Plaintiff appealed the district court’s judgment dismissing his complaint alleging negligence against defendants Air Serv Corporation, Inc. and United Airlines, Inc. The judgment was reversed and the case was remanded.

Plaintiff’s complaint alleged, in a single negligence claim, that while he was traveling by air on United-operated flights from Florida to his home in Alaska, he was in a weakened condition and required wheelchair assistance. While being transported, plaintiff’s wheelchair caught the edge of the jetway and he fell from the wheelchair, suffering injuries. The trial court dismissed plaintiff’s complaint, finding that his state law negligence claim was preempted by the Federal Aviation Authority Authorization Act (FAAAA), 49 U.S.C. § 41713(b)(1) (1994).

On appeal, plaintiff argued that the trial court erred in concluding that the FAAAA preemption provision preempted his common law negligence claim. Congress expressly preempted any state regulation relating to rates, routes, or services of any air carrier. The act of providing wheelchair assistance to passengers, however, is “too tenuous, remote, or peripheral” to the provision of airline services to come within the intent of the preemption provision. Plaintiff’s common law claim alleging negligence by defendants in providing wheelchair assistance to an airline passenger in deboarding and transferring him to another flight is, therefore, not preempted by 49 U.S.C. § 41713(b)(1). The trial court’s judgment and order of dismissal was reversed and the case was remanded with directions to reinstate plaintiff’s amended complaint.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on December 9, 2010, can be found here.

Tenth Circuit: Opinions, 12/3/10

The Tenth Circuit on Friday issued one published opinion and five unpublished opinions.


In US Airways, Inc. v. O’Donnell, the Court reversed and remanded the district court’s decision. Petitioner filed suit against New Mexico to prevent them from regulating alcohol sales to passengers aboard their flights, pursuant to the New Mexico Liquor Control Act. The Court found that “New Mexico’s regulatory scheme is impliedly preempted as it falls within the field of aviation safety that Congress intended federal law to occupy exclusively, but that the Twenty-first Amendment of the United States Constitution requires a balancing of New Mexico’s core powers and the federal interests underlying the FAA.” The key inquiry on remand concerning the balancing of state and federal interests should be “whether the interests implicated by a state regulation are so closely related to the powers reserved by the Twenty-first Amendment that the regulation may prevail, notwithstanding that its requirements directly conflict with express federal policies.”


Neyra-Martinez v. Holder, Jr.

Esquibel v. Bechtel

Conkleton v. Milyard

United States v. Andrews

United States v. Espinoza