Leroy Devore and Thomas Hudgins v. Southwest Airlines Co.

Cause Number 2001-015620

Verdict: $1 million in compensatory damages, $8 million in punitive damages (October 20, 2006)

Richard M. Gerry, Esq.

Phoenix, Arizona, personal injury attorney Richard Gerry focuses on serious personal injury claims. Over the past 27 years, juries have awarded Richard's clients multi-million-dollar verdicts to compensate for wrongful deaths and catastrophic injuries. His experience ranges from automobile cases to complex litigation involving freeway design. Appearing before the Arizona Supreme Court, the Arizona Court of Appeals and the Ninth Circuit Court of Appeals, Richard has tried and won cases that have established new legal precedents to protect the rights of injured clients.

On September 11, 1999, bail bond agents Thomas Hudgins and Leroy Devore flew to Phoenix aboard a Southwest Airlines flight from Baltimore. Unlike bounty hunters (i.e., someone who goes into a post office and decides to hunt a fugitive for the reward), Hudgins and Devore worked through a bonding company (H&D Enterprises) and possessed written authorization from the Virginia Court to arrest a certain fugitive.

Prior to the flight, Hudgins and Devore called Southwest Airlines to find out how to transport their weapons lawfully. Due to changing reservations, Hudgins and Devore called a total of four times. The calls were documented through Southwest’s records. Southwest gave them specific instructions regarding identification and to bring a letter identifying their company and purpose for flying with weapons.

Hudgins and Devore followed the instructions and reported at the specified time and place. They presented their identification, letter and court documents to a Southwest employee. The identification and the letter stated they were bail enforcement agents working for H&D Enterprises. The letter stated that they were traveling to Phoenix to arrest a fugitive and that they were traveling with weapons. The employee read the documents and handed Hudgins and Devore a form to sign. Hudgins and Devore read the form entitled “Notice to Armed Individuals.” The form described the procedures that must be followed to check in with weapons, the procedures to follow during the flight, and the procedures for escorting prisoners. After reading the forms, Hudgins and Devore signed and printed their names and the company name. The employee then called over another customer service agent, who signed the form.

Devore asked the first customer service agent if they should check their bags with the weapons. She told them that was not necessary since they had the signed authorization form and their bags fit within the box for carry-on luggage. Then Hudgins asked again whether they should check the bags. She again told them they had the authorization to carry the bags aboard the plane and instructed them on what to do when they went to the security checkpoint.

The security checkpoint was operated by Globe Aviation Services. The security agent checked Hudgins’ and Devore’s identification and matched it to the authorization given by Southwest. Security directed Hudgins and Devore to sign the log for law enforcement officers and escorted them around the security checkpoint. Hudgins and Devore went to the check-in desk at the boarding gate. They again showed their identification, letter and authorization form. They were instructed to pre-board. Hudgins and Devore again presented their identification, letter and authorization to the pre-boarding operations agent and an operations supervisor. They were escorted to the plane and identified to the flight attendant as armed passengers. The authorization forms were given to the flight attendant.

The flight attendant read the name of Hudgins’ and Devore’s company and concluded they were not law enforcement officials. He took the forms to the pilot. The pilot left the plane to verify the authorization. The boarding operations agent stated that Hudgins and Devore could fly armed because they worked for “HUD.” About two hours into the flight, Devore was talking with a flight attendant about his work. He explained a bail enforcement agent is commonly known as a bounty hunter. She reported his statement to the lead flight attendant, who reported to the pilot. The pilot asked to look at the authorization forms again and read the company name was H&D Enterprises, not HUD. The flight crew concluded Hudgins and Devore were not a threat to the flight, so they continued on to Phoenix. About two hours later, on landing approach, the pilot radioed to Southwest that there were armed passengers aboard without authorization and to have the police meet the plane.

After the plane landed, the police handcuffed Hudgins and Devore and took them to a holding cell at the airport. Hudgins and Devore explained they had done what they were instructed to do by Southwest. No information was given to the police by a Southwest employee. Southwest did not conduct any investigation that day to determine why Hudgins and Devore were given the authorization to board with weapons.

Hudgins and Devore were incarcerated for three days. Federal criminal charges were filed for carrying concealed weapons aboard a commercial flight. The Federal Aviation Administration (FAA) also filed civil sanctions against Hudgins and Devore.

Southwest’s internal investigation revealed that Southwest’s employees were at fault for giving the authorization to Hudgins and Devore to fly armed, as federal regulations do not permit bail agents to fly with weapons. Five months prior to Hudgins’ and Devore’s arrest, the FAA sent a warning letter to Southwest to review procedures regarding authorizations to passengers to fly armed. The FAA noted “bounty hunters” were being given permission to fly with weapons because Southwest’s employees were not asking basic questions or carefully reviewing identification presented. Southwest took no action in response to this warning.

Two separate reports by Southwest supervisors concluded that the employees made the mistake and took full responsibility for their failure to follow procedures and read Hudgins’ and Devore’s identification. Five of the six employees stated that Hudgins and Devore did not mislead or misrepresent their identification, occupation or purpose for having weapons. Southwest claimed it could not identify the first customer service agent who spoke to Hudgins and Devore.

The U.S. Attorney’s office, through the FBI, and defense counsel for Hudgins and Devore called Southwest to obtain information. The prosecutor needed to determine if Hudgins and Devore misled or misrepresented anything to obtain the authorization to fly armed. If Hudgins and Devore did not mislead Southwest, then, pursuant to the doctrine of “entrapment estoppel,” the charges had to be dismissed. In addition to calls by the FBI to interview the employees, defense counsel for Hudgins and Devore wrote Southwest requesting information about the results of Southwest’s internal investigation and requesting the results be sent to the U.S. Attorney and the FAA.

After receiving the results of the internal investigation, in-house counsel for Southwest stated that the information would not be sent unless Hudgins and Devore signed a release of liability. He stated that Hudgins’ and Devore’s convictions would be Southwest’s best defense. He is on record as saying, “Those rednecks are not going to line their pockets with Southwest’s money. That’s never going to happen.”

Defense counsel for Hudgins and Devore sent confirming letters regarding these statements. During his deposition, the in-house counsel stated that, to serve the interests of Southwest, he was willing to allow Hudgins and Devore to be convicted based on incomplete information.

After five months without a response to calls from the FBI, the prosecutor dismissed the charges without prejudice to refiling. After six months the FAA also dismissed the charges, concluding that, although Hudgins and Devore violated the law, they did what they were instructed to do by Southwest.

In 2001, Hudgins and Devore filed a civil action in Maricopa County Superior Court against Southwest Airlines, alleging negligence, intentional/negligent infliction of emotional distress, abuse of process, negligent misrepresentation and fraud, and requesting punitive damages. Judge Jonathan Schwartz dismissed the action on all counts, ruling no duty was owed to Hudgins and Devore. The Court of Appeals reversed the ruling, finding there was a duty to correctly advise Hudgins and Devore whether they could board the plane with weapons and a duty to mitigate Hudgins’ and Devore’s damages once Southwest knew or should have known of the potential harm to them. The Court also ruled that Southwest’s conduct – in particular the conduct of the in-house counsel – presented a question of fact for the jury to determine whether Southwest acted with an “evil mind.”

At trial, Hudgins and Devore testified and called their criminal defense counsel and an assistant U.S. Attorney as non-expert witnesses. Hudgins and Devore presented the deposition testimony from Southwest’s customer service agent who signed the authorization form, the two boarding operations agents, a flight attendant, the pilot, the investigating supervisor, and in-house counsel. Hudgins and Devore testified regarding the three days of incarceration, the threats to their lives in jail, sleeping in shifts, the disgusting conditions within the jail, unannounced searches of their home, nightmares, stress-related physical symptoms, and the impact of having to explain the arrest when they apply for a license.

Southwest called the pilot and flight attendant to testify. Southwest also called an expert witness on airport security procedures, a security employee, and the police officer that arrested Hudgins and Devore. Southwest argued that Hudgins and Devore were at fault because they:

• used the term “bail enforcement agent” on their identification instead of “bounty hunter”;

• should have hired an attorney to advise them;

• did not have the right to rely on Southwest telling them they could board with weapons;

• signed the authorization form that contained an avowal that they were authorized to fly armed pursuant to federal regulations.

Southwest also claimed that Globe Aviation was at fault because the security employee should have independently determined whether Hudgins and Devore were authorized to fly armed. Southwest argued that Hudgins and Devore did not suffer any damages because “they were tough guys doing dangerous work” and that, because Devore is an army veteran trained to withstand enemy interrogation and Hudgins is a black belt, they didn’t have anything to fear while in jail.

Hudgins and Devore noted that all of Southwest’s employees admitted that the airline is required to advise passengers regarding federal regulations and that passengers are not expected to research the regulations. In addition, nothing in the authorization form stated that only law enforcement officials were permitted to travel with weapons. The procedures stated within the form appeared to be the applicable regulations that Hudgins and Devore were avowing to follow. The assistant U.S. Attorney testified that the authorization form was ambiguous, and Southwest’s employees testified that the identification presented by Hudgins and Devore was not misleading.

Hudgins and Devore asked the jury to award a fair and reasonable amount to compensate them for the three days in jail, five months of prosecution, and lifetime effects of the arrest. They requested a punitive damage award sufficient to send a message and punish Southwest’s conduct, an amount within a ratio of $1 in punitive damages to $10 of the compensatory damages. Southwest suggested that, although Southwest erred in giving Hudgins and Devore authorization to fly with weapons, the jury should award nothing to them.

On October 20, 2006, after a five-day trial, the jury deliberated six hours before finding Southwest Airlines to be 100% at fault and awarding each defendant $500,000 in compensatory damages and $4 million in punitive damages.