EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, January 19, 2009

Just Plane Dumb: Arizona Opinion In Bounty Hunters' Case Against Southwest Reveals That "Character" Evidence Is Admissible To Prove Notice

The recent opinion of the Court of Appeals of Arizona in Hudgins v. Southwest Airlines Co., 2009 WL 73251 (Ariz.App. Div. 1 2009), reveals that "character evidence" is admissible to prove notice.  It also reveals that bounty hunters cannot board flights with weapons.

In Hudgins, Thomas Hudgins and Leroy Devore were bounty hunters who flew from Baltimore to Phoenix on a Southwest flight to apprehend a fugitive in Arizona.  Before making the trip, they called Southwest to obtain instructions on how to lawfully transport handguns, and a representative told them to arrive two hours early, bring photo identification, and have departmental letters setting forth their itinerary and explaining their purpose for transporting weapons.

After arriving at the airport, Hudgins and Devore presented cards at the ticket counter identifying themselves as bail enforcement agents with H & D Enterprises and provided the requested information. A Southwest agent thereafter provided them forms entitled, "Notice to Armed Individuals," (NAI) and, in a space provided to list the individual's "[l]aw enforcement or authorizing [a]gency," Hudgins wrote "H & D Enforcement Agent" and Devore wrote "H & D Enterprises."

Southwest personnel did not ask any questions of the men and failed to realize they were not law enforcement agents.  Indeed, Hudgins and Devore asked to check their weapons because they did not have a fugitive in custody, but a Southwest employee told them to take the weapons on board, and another employee signed the NAI forms as written authorization to do so.

Subsequently, the lead flight attendant took the NAI forms to the captain, who spoke with a Baltimore terminal agent and was mistakenly told that Hudgins and Devore worked for HUD.  But near the end of the flight, Devore informed another flight attendant that he was a bounty hunter, and the captain was eventually told that the men were bounty hunters, not HUD employees.  Because the captain did not deem Hudgins and Devore to be an immediate threat, he continued the flight to Phoenix, but when he called the Phoenix ground operations for a gate assignment, he followed what he believed to be applicable Southwest flight operation manual procedures by requesting that law enforcement meet the airplane at the gate for assistance. And while neither the captain nor any other Southwest employee asked law enforcement agents to arrest Hudgins and Devore, they were indeed arrested upon landing for carrying concealed dangerous weapons on an aircraft in violation of 49 U.S.C. Section 46505(b)(1).

Later, however, the government dropped all charges against Hudgins and Devore, and the FAA decided not to pursue any civil penalties against them because "it appear[ed] every attempt was made to comply with instructions given to [them] by the airline."  Hudgins and Devore, however, subsequently sued Southwest based upon its acts and omissions on the date of the flight and during the ensuing federal investigations.  And while the trial court entered summary judgment for Southwest on all claims, the Court of Appeals of Arizona later reversed (1) the entry of summary judgment on the cause of action sounding in negligence, and (2) the trial court's ruling that as a matter of law Hudgins and Devore were not entitled to punitive damages. On remand, a jury thereafter found Southwest liable to Hudgins and Devore for $500,000 each in compensatory damages and $4 million each in punitive damages.

Southwest subsequently appealed, claiming, inter alia, that the trial court erred by allowing for the admission of a letter from the FAA to SWA's in-house attorney concerning a prior

     "incident in which other bounty hunters were permitted to board a SWA flight with weapons. The letter stated that although the bounty hunters had presented false information, SWA personnel had failed to ask basic questions of them that would have prevented the deception. Significantly, the letter further provided as follows:

          Unfortunately this appears to be a prevelant [sic] problem in Arizona where, at least some individuals calling themselves Bail Recovery Agents or Bounty Hunters have been able to present themselves as being authorized to travel armed when indeed, they are not.

     The letter closed by warning SWA to review its procedures to prevent future violations, which could result in the assessment of civil penalties."

Southwest claimed that this letter constituted inadmissible propensity character evidence, but the Court of Appeals of Arizona correctly rejected this argument, finding that:

     "[t]he letter demonstrated that SWA had notice prior to [the incident at issue] that 'bail recovery agents' were not authorized by the FAA to fly with weapons and that close inspection of identifying documents was necessary to prevent such occurrences....[B]ecause the letter was not introduced to prove SWA acted in conformity with its actions in the [prior] incident but to show notice, the letter fell within a Rule 404(b) exception."

Southwest also claimed that the probative value of the letter was substantially outweighed by its unfairly prejudicial effect, but the court also correctly rejected this argument, finding that:

     (1) "the FAA letter did not say that SWA had a 'prevalent problem' in allowing bounty hunters to fly with weapons but that the problem existed in Arizona. Indeed, the fact the FAA only issued a warning to SWA for a single incident suggested SWA did not have a prevalent problem;" and

     (2) "at SWA's request, the trial court gave a limiting instruction to the jury regarding the FAA letter."



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