The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On December 14, a passenger boarded a United flight from Orlando to Los Angeles. Before the flight, the passenger exhibited several COVID-19 symptoms, such as lost of taste and smell. Indeed, the passenger's wife said the passenger was short of breath, and was flying back to Los Angeles to get tested for COVID. The United check-in process asks passengers if they are exhibiting any COVID symptoms. If they have any symptoms, they cannot obtain a boarding pass. Here the passenger lied to the airline.
During the flight, the passenger stopped breathing. Another passenger on the flight performed CPR. The flight made an emergency landing in New Orleans. The passenger was rushed to the hospital, where he died. The flight then continued to Los Angeles. Now, the good samaritan has coronavirus symptoms, including a headache, cough, and body aches. And United is scrambling to notify all of the other passengers.
Could the passenger (had he survived) been charged with some sort of criminal liability? More generally, can a person with COVID-19 be charged with recklessly putting others at risk of spreading the virus? My South Texas colleague Geoff Corn, and Professor Rachel E. VanLandingham, wrote an op-ed on this broader question. Here is an excerpt:
An American student was jailed in the Cayman Islands last week for violating the British territory's strict COVID-19 rules. The United States needs to start treating the reckless exposure of others to such risk as what it is: a crime. Whether charged as a violation of public health regulations, reckless endangerment or even criminal assault, the bottom line is that at some point people need to be held accountable for their indifference to the health and safety of others they interact with. And with the evolving ability to establish a real evidentiary link between such reckless indifference and a resulting COVID-19 death, even the prospect of involuntary manslaughter prosecution is not out of the question.
Proving such a serious crime might seem implausible, but it's not as much of a leap as some may assume. One example is a recent report about nursing home workers in Washington state whose decision to attend a wedding appears to be directly linked to the deaths of some of their patients. As with drunken driving, where prosecutors can prove a victim's death was a reasonably foreseeable consequence of a defendant's recklessness, involuntary manslaughter is an appropriate charge.
Criminal prosecution for reckless conduct serves to deter others from putting the rest of us at risk. We recognize prosecuting such cases would be neither routine nor easy, and that it would be challenging to prove a causal link between a defendant's reckless conduct and a subsequent COVID-19 death. Nonetheless, do these challenges justify continuing to simply shrug our collective shoulders at such blatant, knowingly risky — that is, reckless — conduct? Should those who recklessly endanger the rest of us as the result of this behavior do so with impunity?
In this case, the passenger died. But his wife knew, and perhaps encouraged him to fly, knowing that he had symptoms. Could she be charged on some sort of accomplice liability theory?
These questions are beyond my area of expertise, but I wanted to flag them here.