Metropolitan News-Enterprise


Friday, January 11, 2008


Page 1


C.A.: Sarcastic Comments About Bomb Constitute ‘False Reports’


By STEVEN M. ELLIS, Staff Writer


A state law prohibiting false bomb threats gave airport police probable cause to arrest a woman who sarcastically told airline employees that her luggage contained a bomb, this District’s Court of Appeal ruled yesterday.

Div. Five held unanimously that airport police had probable cause to arrest Barbara A. Levin for violating the law when she made at least three separate references to a “bomb” in her luggage to security and airline employees—even though the statements were informal and employees and police officers did not consider them to be a serious threat—because the statements were false.

Levin made the statements at the Los Angles International Airport in 1999 when she became involved in a series of contentious exchanges with security screeners, airline personnel and airport police officers after arriving 20 minutes before the scheduled departure of her flight to Vancouver. A former California attorney suspended since 1999 for not paying State Bar dues, Levin was never criminally charged for the statements.

Representing herself, Levin filed suit against United Airlines, airport security and the City of Los Angeles alleging, among other claims, that the arrest constituted false imprisonment because officers lacked probable cause to believe she had violated Penal Code 148.1(a).  The statute makes it a crime for any person to report “to any peace officer…employees of an airline [or] employees of an airport…that a bomb or other explosive has been…placed…in any public or private place, knowing that the report is false.”

At trial, Los Angeles Superior Court Judge Ramona See instructed the jury that probable cause existed if it found that the police officers had probable cause to believe Levin made a false report of a bomb. After the jury requested clarification, See modified the instruction to require it to find that probable cause for the arrest existed merely if Levin said that a bomb had been placed, and the jury returned a verdict in favor of the defendants

Probable Cause

Levin appealed, challenging the validity of the modified instruction. However, Justice Richard M. Mosk wrote for the court that See had not erred in issuing the modified instruction because it accurately stated the applicable law governing probable cause to arrest and the crime of making a false bomb report.

“A false statement to airport personnel or peace officers about a bomb in luggage, even if not seriously made or understood, can be the basis for a violation,” he wrote.

Examining the first element of the crime—making a report of a bomb—Mosk said that the use of the word “report” in the statute did not require a formal statement to authorities, but was satisfied when one person intentionally communicated a comment to another.  He similarly said that the element did not require a “true threat” that a reasonable recipient would have taken seriously.

“All that is required by the plain language…,” he said, “is a report that a bomb has been placed or secreted—nothing more.”

Specific Intent Unnecessary

Mosk also said that the second element of the crime—knowing that the report was not true—did not require a specific intent to cause fear or harm.

“Based on the plain language of the statute, it does not matter why the person made the report did so,” he said.  “All that matters is that the report was made to one of the specified persons or entities, with knowledge that it was false.”

Categorically rejecting Levin’s argument that the First Amendment required the statute to be read to criminalize only “true threats,” Mosk likened Levin’s remarks to the proverbial false cry of “fire” in a crowded theater.

“That the words might be said sarcastically or jokingly, or might even be understood as such, does not provide constitutional protection...,” he wrote.  “Neither the police nor the other persons or entities specified in the statute should be put in the position of having to speculate whether the person making the bomb report intended that it be taken seriously or as a joke.”

Mosk was joined in his opinion by Presiding Justice Paul Turner and Justice Sandy R. Kriegler.

The case is Levin v. United Airlines, B160939.


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