The Volokh Conspiracy

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Prosecutorial Discretion For The FAA Mask Mandate

Different flight crews enforce the federal airline mask mandate in very different ways.


Since August, I have been flying on a semi-regular basis. (Indeed, this week I will visit seven airports in four days). I've found that different flight crews enforce the FAA mask mandate in very different ways.

Recently, I flew from Houston to New York. The purser (lead flight attendant) took enforcement to the extreme. (As a general rule, when a flight attendant self-identifies as the "purser," he or she has a bit of a power trip). At the start of the flight, he announced that he was required to issue fines to mask-mandate violators. He went up and down every row and instructed people to wear their masks. There was a child, maybe four or five years old, whose cloth mask kept falling below his nose. The purser gave the kid's parents a new mask that would not fall down. (They all fall down for kids). During the meal service in business class, the purser insisted that we put on our mask between bites and sips. Seriously. If a few moments elapsed after I finished putting food in my mouth, the purser would come over. This purser took his prosecutorial discretion to the absolute extreme of complete enforcement.

My flight back from New York to Houston was very different. These flight attendants mentioned the mask mandate once, and never again. During the meal service, the flight attendants did not say a word when masks were taken off. Children whose masks fell below their noses were ignored. Here, the flight attendants took prosecutorial discretion to other extreme of non-enforcement.

The FAA mask mandate gives flight attendants exercise vast prosecutorial discretion. And the enforcement is uneven. There is nothing new here. Flight attendants routinely enforce rules to different degrees. Will a flight attendant say something if you keep using a large electronic device (laptop) during takeoff and landing? Will a flight attendant say something if you go to the bathroom while the fasten-seatbelt sign is on? (They can't actually stop you from going to the bathroom). Will a flight attendant say something if you put your personal items underneath your own seat, rather than in the seat in front of you? How much attention does the flight attendant demand during exit row briefings? (I no longer sit in exit rows to avoid flight attendant power trips). Do flight attendants actually tell people who are using their phones to turn on airplane mode, and wait for them to do so? And so on.

And for those curious, this week I will hit IAH, LGA, EWR, HOU, SAT, DCA, and IAD.