UNITED STATES DISTRICT COURT SOUTHERN …nylawyer.nylj.com/adgifs/decisions/092111family.pdfiv...

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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IN RE SEPTEMBER 11 LITIGATION

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No. 21 MC 101 (AKH)

This document relates to :

Bavis v. United Air Lines, Inc.et al.,

02 CV 7154

THE BAVIS FAMILY’S MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Ronald L. Motley

Joseph F. Rice

Donald A. Migliori

Mary Schiavo

Jodi Westbrook Flowers

Michael E. Elsner

Vincent I. Parrett

Robert T. Haefele

Elizabeth Smith

James R. Brauchle

Motley Rice LLC

28 Bridgeside Boulevard

Post Office Box 1792

Mount Pleasant, SC 29465

Telephone: (843) 216-9000

Facsimile: (843) 216-9450

Attorneys for Plaintiff Bavis

Dated: September 16, 2011

Case 1:02-cv-07154-AKH Document 236 Filed 09/16/11 of 95

i

TABLE OF CONTENTS

Introduction ................................................................................................................................. 1

THE PARTIES .......................................................................................................................... 4

THE HIJACKERS, THEIR WEAPONS, AND THEIR TACTICS.................................................... 9

SECURITY RESPONSIBILITIES, WARNINGS, AND FLIGHT 175 PRE-BOARD SCREENING .....10

TIMELINE OF THE FOUR FLIGHTS .......................................................................................16

Summary of the Argument .......................................................................................................22

Argument ....................................................................................................................................24

I. Legal Standard for Summary Judgment ...............................................................24

II. United and Huntleigh’s argument that it was beyond the scope of their duty to

passenger Mark Bavis to screen passengers for weapons to prevent the Flight

175 hijacking fails ....................................................................................................27

A. There are disputes of fact over whether Defendants or the Federal

Government was in the best position to screen the hijackers boarding Flight

175 with weapons ...............................................................................................27

B. There are disputes of fact over whether the risk of hijackings by terrorists in

the United States was foreseeable on September 11, 2001 .............................29

1. The Broader Context: The Al-Qaida Threat to Western Civil

Aviation ...................................................................................................36

2. The Al-Qaida Threat to U.S. Civil Aviation ........................................38

a. Plots Targeting U.S. Civil Aviation ..........................................40

b. Religious Edicts Encouraging the Targeting of U.S. Civil

Aviation .......................................................................................43

c. Al-Qaida’s Final Warnings Before September 11, 2001 ........44

C. United and Huntleigh’s argument that it is “unfair” to impose a duty on

them to protect their passenger Mark Bavis from terrorist hijackings when

foreign sovereigns and financial supporters of al Qaeda do not have that duty

is absurd ..............................................................................................................46


ii

III. As the Court has ruled that the issue at trial is over Defendants’ substantial

compliance with applicable federal regulations and procedures implementing

those regulations, Defendants’ false argument that New York common-law

imposes only a duty to provide “minimal security” is irrelevant ........................47

IV. There are disputes of fact over whether United and Huntleigh failed to

substantially comply with federal regulations and procedures on September 11,

2001............................................................................................................................48

A. Failures to substantially comply with 14 C.F.R. § 108.9 and procedures—

the checkpoint screening failures .......................................................................53

B. Failures to substantially comply with 14 C.F.R. § 108.10 and procedures ...61

C. Failures to substantially comply with 14 C.F.R. § 108.18(d)(1-2) and

procedures ..........................................................................................................62

D. Failure to substantially comply with 14 C.F.R. § 108.29 and procedures ....63

1. Failures at the check-in ticket counter.....................................................64

E. Failures to substantially comply with 14 C.F.R. § 108.31 and procedures ...68

F. Failures to substantially comply with 14 C.F.R. § 108.33 and procedures ...69

V. Defendants’ argument that there were no deadly or dangerous weapons aboard

Flight 175 raises disputes of fact that the jury should resolve .............................74

VI. Defendants’ argument that the Federal Government’s Common Strategy, and

not Defendants’ own security failures, was the proximate cause of the Flight 175

hijacking raises disputes of fact that are inappropriate to resolve by summary

judgment ...................................................................................................................81

VII. Defendants’ argument that the acts of the armed terrorists in hijacking Flight

175 as well as the federal Government’s Common Strategy are superseding

causes of the Flight 175 hijacking raises disputes of fact that are inappropriate

to resolve by summary judgment ...........................................................................85

VIII. Defendants’ argument that the Southern District of New York lacks jurisdiction

to hear this wrongful-death case arising out of the hijacking and crash of Flight

175 is frivolous ..........................................................................................................87

Conclusion ..................................................................................................................................88


iii

TABLE OF AUTHORITIES

Cases

Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1970) .......................................................................................................... 25

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .................................................................................................... 24, 25

Becker v. Poling Transp. Corp.,

356 F.3d 381 (2d Cir. 2004).............................................................................................. 86

Bryant v. Maffuci,

923 F.2d 979 (2d Cir. 1991).............................................................................................. 25

Celotex v. Catrett,

477 U.S. 317 (1986) .......................................................................................................... 24

D’Amico v. City of New York,

132 F.3d 145, 149 (2d Cir. 1998).......................................................................... 24, 25, 82

Derdiarian v. Felix Contracting Corp.,

51 N.Y.2d 308 (1980) ..................................................................................... 27, 30, 82, 86

DiBenedetto v. Pan Am World Service, Inc.,

359 F.3d 627 (2d Cir. 2004).............................................................................................. 48

Gummo v. Village of Depew,

75 F.3d 98 (2d Cir. 1996).................................................................................................. 26

Hamilton v. Berretta U.S.A. Corp.,

96 N.Y. 2d 222, 750 N.E.2d 1055 (N.Y. 2001) .......................................................... 28, 29

Havas v. Victory Paper Stock Co.,

49 N.Y. 2d 381 (1980) ...................................................................................................... 26

In the Matter of World Trade Center Bombing Litig.,

776 N.Y.S.2d 713 (2004) .................................................................................................. 48

In re Air Crash Disaster at John F. Kennedy Int’l Airport on June 24, 1975,

635 F.2d 67 (2d Cir. 1980)................................................................................................ 48

In re September 11 Litig,

280 F. Supp. 2d 279 (S.D.N.Y. 2003)................................................................... 27, 30, 82


iv

Institute for Shipboard Educ. v. Cigna Worldwide Ins. Co.,

22 F. 3d 414 (2d Cir. 1994)............................................................................................... 25

Kiernan v. Hendrick,

116 A.D.2d 779 (N.Y. App. Div. 3d Dep‘t 1986) ............................................................ 26

LaBarge v. Joslyn Joslyn Clark Controls,

2006 WL 2795612 at * 7 (W.D.N.Y. Sept. 26, 2006) ...................................................... 25

Packer v. Skid Roe, Inc.,

938 F. Supp. 193 (S.D.N.Y. 1996) ................................................................................... 26

Palsgraf v. Long Is. R.R. Co.,

248 N.Y. 339 (1928) ......................................................................................................... 29

Parsons v. Honeywell, Inc.,

929 F.2d 901 (2d Cir. 1991).................................................................................. 27, 30, 86

Rosenthal v. Ford Motor Co., Inc.,

462 F. Supp. 2d 296 (D. Conn. 2006) ............................................................................... 25

Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc.,

391 F.3d 77 (2d Cir. 2004)................................................................................................ 25

Stagl v. Delta Airlines,

52 F.3d 463 (2d Cir. 1995).................................................................................... 26, 29, 82

Stanford v. Kuwait Airways Corp.,

89 F.3d 117 (2d Cir. 1996)................................................................................................ 48

Sundaram v. Brookhaven Nat. Laboratories,

424 F. Supp. 545 (E.D.N.Y. 2006) ................................................................................... 25

U.S. v. Lopez

328 F. Supp. 1077 (E.D.N.Y. 1971) ...................................................................................3

U.S. v. Davis,

482 F.2d 893 (9th Cir. 1973) ..............................................................................................3

Ugarizza v. Schmieder,

46 N.Y.2d 471 (1979) ....................................................................................................... 26

United Air Lines v. Insurance Company of the State of Pennsylvania,

Docket No. 05-2144-cv (2d Cir Ct. 2006) ........................................................................ 16


v

Walker v. Eastern Air Lines, Inc.,

775 F. Supp. 111 (S.D.N.Y. 1991) ................................................................................... 26

Williams v. Trans World Airlines,

509 F.2d 942 (2d Cir. 1975).............................................................................................. 48

Williams v. Utica College of Syracuse University,

453 F.3d 112 (2d Cir. 2006).............................................................................................. 26

Federal Statutes & Regulations

Air Transportation Safety and System Stabilization Act, Pub.L. No. 107-42, 115 Stat 230 (2001)

(codified as amended at 49 U.S.C. § 40101 note) (―ATSSSA‖) § 408(b)(1)&(3) ....................... 88

49 U.S.C. § 44903(b) .................................................................................................................... 47

49 U.S.C. § 44705 ......................................................................................................................... 49

49 U.S.C. § 44701(b)(1) ............................................................................................................... 49

14 C.F.R. § 108.7 ................................................................................................................... passim

14 C.F.R. § 108.9 .................................................................................................................. .passim

14 C.F.R. § 108.10 ..................................................................................................................61, 62

14 C.F.R. § 108.18 ...................................................................................................................62, 63

14 C.F.R. § 108.29 .......................................................................................................63, 64, 65, 67

14 C.F.R. § 108.31 ...................................................................................................................68, 69

14 C.F.R. § 108.33 ........................................................................................................................68

Other authorities

Restatement [Second] of Torts § 328B [b] [1965]........................................................................ 26


1

Introduction

On September 11, 2001, 19 hijackers were let through passenger-screening checkpoints

controlled by United Airlines and American Airlines and boarded four flights: American

Airlines Flight 11, United Airlines Flight 175, American Airlines Flight 77 and United Airlines

Flight 93. Using deadly and dangerous weapons, they hijacked and crashed those planes—

Flights 11 and 175 into the World Trade Center, Flight 77 into the Pentagon, and Flight 93 into a

field near Shanksville, Pennsylvania after passengers and flight attendants heroically stormed the

cockpit. Phone calls from the other three planes revealed passengers and flight attendants on

those flights were also planning to take on the hijackers. Everyone aboard the planes was killed.

This case involves the wrongful death of Mark Bavis, a passenger aboard United Flight 175.

Before September 11, 2001, there was no Department of Homeland Security or

Transportation Security Administration (―TSA‖) providing security and screening for civil

aviation. In 2001, United, like all other air carriers, was responsible under federal law for the

security of its passengers on board its flights. Federal statute and regulations required United to

―provide for the safety of persons and property against acts of criminal violence and air piracy‖

such as hijackings.1 Specifically, those regulations required United ―to prevent or deter the

carriage aboard airplanes of any . . . deadly or dangerous weapon on or about each individual‘s

person or accessible property. . . .‖ 2 Those regulations required United to establish and comply

with security procedures to carefully screen its passengers and their carry-on items for deadly or

1 AVSEC DEP Exhibit 69, ―July 17, 2001 14 C.F.R. Part 108 Aircraft Operator Security; Final Rule,‖ §108.7:

―Provide for the safety of persons and property traveling on flights provided by the aircraft operator against acts of

criminal violence and air piracy, and the introduction of explosives, incendiaries, or deadly or dangerous weapons

aboard an aircraft.‖ Attached as Exhibit 1 to the accompanying Declaration of Vincent I. Parrett in Support of the

Bavis Family‘s Memorandum of Law in Opposition to Defendants‘ Motion for Summary Judgment (―Parrett

Declaration‖) 2 AVSEC DEP Exhibit 69, ―July 17, 2001 14 C.F.R. Part 108 Aircraft Operator Security; Final Rule,‖ §108.9.

Exhibit 1, Parrett Declaration


2

dangerous weapons. On September 11, 2001, United and its agent Huntleigh failed to

substantially comply with those regulations and procedures.

As this Court made clear in its recent Order of September 7, 2011, ―[t]he issue at trial

rests on Defendants‘ substantial compliance with governing, regulations and security programs.‖

Order, 21 MC 101 Dkt. 1545 at p. 12 (Sept. 7, 2011) (emphasis added). Trial is necessary

precisely because the parties dispute whether United and Huntleigh in fact substantially complied

with applicable regulations and procedures and used common sense and reasonable care in what

they did. As the Bavis family will demonstrate in these summary judgment opposition papers,

United and Huntleigh screeners failed to comply with their duty to screen the terrorists at the

ticket counters and at the security checkpoints. They failed to prevent or deter the terrorists from

carrying deadly or dangerous weapons aboard the four hijacked planes—as 19 for 19 of the

hijackers got through the screening checkpoints, three of which were operated by United, with

weapons that they used to hijack and crash the planes. Moreover, on board their aircrafts, United

failed to maintain control and prevent the hijackings. While United disputes these facts and tries

to blame others, those disputes of fact are for a jury of New Yorkers to decide by trial in this

Court. Hence, United‘s summary judgment motion fails.

One point bears special emphasis at the outset. The Bavis family believes that the United

and Huntleigh screeners and flight crew on September 11 were all decent people. The fault lies

not with them personally, but rather with the United and Huntleigh corporations that put those

screeners and flight crew in a position to fail to stop the hijackers from bringing aboard those

deadly weapons, which they used to hijack and crash Flight 175 on September 11, 2001.


3

While United and Huntleigh terrifyingly argue that the security program in place on

September 11, 2001, was ―neither intended to stop, nor capable of stopping, what happened that

day,‖ Def. Mem. at 2, that incorrect statement of fact is sharply disputed by the Bavis family.

The entire security screening program was designed to ―prevent or deter aircraft

hijackings, sabotage, and other criminal acts.‖3 In fact, even in the 1973 decision U.S. v. Davis,

482 F.2d 893, 910 (9th Cir. 1973), cited by the Defendants in their motion for summary

judgment, the Court noted the purpose behind the airline security regulations was to prevent

aircraft hijackings:

The need to prevent airline hijacking is unquestionably grave and urgent. The

potential damage to person and property from such acts is enormous. The

disruption of air traffic severe. There is serious risk of complications in our

foreign relations. A pre-board screening of all passengers and carry-on articles

sufficient in scope to detect the presence of weapons or explosives is reasonably

necessary to meet the need.

The aviation security regulations arose out of the need to prevent aircraft hijackings. Even in

those early days it was recognized: ―[t]hat the risk of hijacking is greatly increased when a

passenger possesses weapons can hardly be doubted. In the 80 hijackings up to June of 1970,

there were 55 firearms, 20 knives, 14 alleged bombs, 3 razors or razor blades, 1 BB gun, 1 tear

gas pen and 1 broken bottle.‖ U.S. v. Lopez, 328 F. Supp. 1077, 1084 (E.D.N.Y. 1971).

The security-screening program in place at the checkpoint was designed to prevent such weapons

from entering the sterile area of the airport and the airplanes precisely because those weapons

could be used to hijack the aircraft. Mace and knives that are menacing in nature are not

permitted on the airplanes by federal regulation, regardless of whether the intent of the holder

was benevolent. Section 108.201(e) of the Federal Aviation Regulations specifically required:

3 Air Carrier Standard Security Program (―ACSSP‖) at 10, UAL026336; TSA UAL0000009 (emphasis added).



4

―…no aircraft operator may permit any person to have a deadly or dangerous weapon, on or

about the individual‘s person or accessible property when aboard an aircraft.‖4

Frighteningly, United and Huntleigh say that as far as they are aware the security program that

they implemented on September 11 was incapable of preventing the hijackings. That assertion is

not only false but actually highlights their own failures to substantially comply with the security

regulations and procedures, which required them to be aware of the risks, aware of the security

regulations, and aware of their purpose to prevent hijackings carried out with deadly and

dangerous weapons.5

THE PARTIES

On September 11, 2001, Mark Bavis was a passenger aboard Flight 175 from Boston‘s

Logan International Airport to Los Angeles International Airport. Mark sat in seat 19F, the

fourth row of the coach cabin of the airplane.6 Shortly after takeoff, five hijackers

commandeered and crashed the plane into the South Tower of the World Trade Center. Other

than one tiny bone fragment, Mark‘s remains and personal effects were never recovered.

Mark, age 31 when killed, was traveling from his home in Massachusetts to Los Angeles

where he worked as a professional hockey scout for the Los Angeles Kings National Hockey

League team. Surviving Mark is his identical twin brother, Michael Bavis, his mother, Mary

Bavis, his sisters Kathleen, Mary Ellen and Kelly, and brothers John and Patrick. Both Mark and

his twin brother, Mike, were hockey stars in high school and college. Mark had been a draft pick

4 Federal Register Vol. 66, No. 13, Tuesday, July 17, 2001 Rules and Regulation, 14 C.F.R. Part 108.201(e),

Aircraft Operator Security; Final Rule at 37360. Exhibit 1, Parrett Declaration 5 14 C.F.R. § 108.105 at 37359. Exhibit 1, Parrett Declaration 6 UAL001400-487; UAL0001167-77; UAL0001168-70; United States v. Zacarias Moussaoui, Criminal No. 01-455-

A Trial Exhibit P200018. Exhibit 3, Parrett Declaration


5

of the New York Rangers. He played three seasons of professional hockey and coached hockey

at Brown and Harvard Universities before accepting a position with the Los Angeles Kings. 7

Mark‘s mother Mary is the Plaintiff in this case, suing on her own behalf and as the

representative of the estate of her son. She claims that Mark‘s death was the result of the

Defendants‘ acts and failures to substantially comply with applicable regulations and procedures

at the security screening checkpoint at Logan Airport, which in turn enabled the hijackers to

board Flight 175 with weapons, hijack and crash the plane into the South Tower of the World

Trade Center.8 Those Defendants are (1) United Air Lines, Inc. and UAL Corporation

(―United‖) and Huntleigh USA Corporation (―Huntleigh‖).

The Bavis Family chose not to make a claim through the government‘s Victim

Compensation Fund that provided payments to some September 11th victims. Instead, the Bavis

family chose to seek justice in this Court against the defendants responsible for those security

breakdowns – as is the Bavis Family‘s right under federal law. Air Transportation Safety and

System Stabilization Act § 408(b)(1)(―federal cause of action‖), Pub.L. No. 107-42, 115 Stat 230

(2001) (codified as amended at 49 U.S.C. § 40101 note) (―ATSSSA‖)(―There shall exist a

federal cause of action for damages arising out of the hijacking and subsequent crashes of

American Airlines flight 11 and 77, and United Airlines flights 93 and 175, on September 11,

2001‖).

On September 11, 2001, air carriers like United, who were responsible for screening

baggage, passengers, and cargo, often hired others, called third-party subcontractors, to conduct

these tasks.9 United hired Huntleigh to conduct screening at Logan Airport.

10 As the company

7 Deposition of Michael Bavis, 20:8-19, May 20, 2011. Exhibit 4, Parrett Declaration 8 Plaintiffs‘ Amended Flight 175 Master Liability Complaint.

9 See AVSEC DEP Exhibit 32, 9/11 Commission Staff Report, August 26, 2004, Revised September 2005, p. 73.



6

responsible for staffing the checkpoint at Terminal C at Logan Airport on September 11, 2001,

Huntleigh, for United, was responsible for the security screening of passengers boarding Flight

175.11

Despite hiring Huntleigh as its agent to perform its security responsibilities, however,

United is ultimately responsible for the security screening for Flight 175:

…the air carrier covered by this security program is responsible for the actions of

its agents and/or contractors that perform functions that are subject to provisions

of this security program.12

United was responsible for hiring Huntleigh, training Huntleigh screeners, and overseeing

Huntleigh‘s performance. United was responsible for the way Huntleigh employees did or did

not perform their jobs at the security screening checkpoint on September 11, 2001. In short,

United was responsible for making sure that Huntleigh substantially complied with all applicable

regulations and procedures for screening passengers that day.

Unfortunately, on and before September 11, 2001, United had a long history of failing to

substantially comply with the federal aviation security regulations. See, Expert Report from

Glen Winn, Former Staff Executive for Operational Security at United Airlines, p. 16-19.13

As

early as February, 1994, the FAA wrote to United Airlines and warned of an increase in security

violations from 1991 through 1993. United‘s poor FAA test performance, Winn notes, was a

direct result of inadequate staffing and training. Id. at p. 17. ―United did not have a United

Ground Security Coordinator on duty at all times and at all stations.‖ Id. Mr. Winn reports that

he wrote several memos during that period strongly urging management to permit him to hire

additional employees. The memos each bore the subject line ―HELP!‖ Id. Winn‘s warnings

and requests went largely unheeded. ―United‘s staff levels were so deficient in 1994, that we had

10

Id. at 18. 11

Id. 12

AVSEC DEP Exhibit 2B, ―Air Carrier Standard Security Program,‖ p. 91. Exhibit 2, Parrett Declaration 13

Expert Report of Glenn Winn (Redacted for SSI); attached as Exhibit 6, Parrett Declaration


7

one security representative for 12,500 employees worldwide. Id. Thus, even after the FAA‘s

warning in February of 1994, United security test failures were the worst in the industry for the

first eight months of 1994.‖ Id. Winn‘s notes from the 1990‘s reflected that ―some vice

presidents at United were stalling my requests,‖ ―the world of terrorism wasn‘t getting any

nicer,‖ and ―the airlines and FAA were tangled in a web of denial and Let‘s Delay.‖ Id.

In spite of Winn‘s warnings and requests for greater staffing, training and auditing, FAA

testing continued to demonstrate that United was not substantially complying with the mandatory

security regulations. ―On December 9, 1996, United passed only 17 of 38 FAA tests, for a mere

45% compliance rate‖ Id. ―In 1997, the FAA wrote to the Chairman and Chief Executive

Officer for United, informing him that in recent testing United failed at 20 of 36 stations tested.‖

Id. The FAA specifically warned: ―it is critical that everyone from executive level officers to

customer service representatives clearly understand the security requirements and act according

to a conviction that the FAA-mandated security requirements must not take second place behind

other objectives.‖ Id. at 18. Compliance, the FAA wrote, ―remains United‘s responsibility. The

FAA will not allow United, one of the largest U.S. carriers, to neglect actions needed to protect

the traveling public.‖ Id.

United failed to heed these warnings as well. In 1996, United received 161 letters of

Investigation from the FAA denoting a security failure. By 2000, United received 280 letters of

investigation, and from January to June 2001, United received 176 letters of investigation

demonstrating a sustained failure to substantially comply with the FAA security regulations. Id.

―Between 1998 and 2000 United Airlines was fined by the FAA $3,026,825.00 for security

violations.‖


8

Those failures continued through the summer of 2001. Not only were those failures

violations of federal security regulations, they are violations of United‘s ACSSP, as testified to

by a Primary Security Inspector of United:

6 Q. . . . . Those

7 are those all violations of federal

8 security standards at checkpoints?

***

12 A. They are all, yes.

13 Q. And those are violations

14 of the air carrier of United Airlines Air

15 Carrier Standard Security Program?

16 A. Yes.14

Another former FAA employee (now a TSA employee) testified that in May 2001,

United had the worst security test record of all the major carriers, including United, American,

Continental, Delta, US Airways, and TWA. So there can be little doubt why hijackers selected

three of the four flights with checkpoints run by United:

17 Q. So of the major carriers, at

18 least on this roll up on May 25, 2001 United

19 Airlines, of the total number, had the worst

20 record, at least on this roll up on 5/25/2001?

21 MS. SIMMONS: Objection.

22 A. I can't say because I'm not sure

23 what that, as we did the -- as I look at that

24 total percentage again I'm not sure what

25 that -- it doesn't come out to be the

2 percentage. So, I don't know.

3 Q. Let's break it down. Then under

4 the MDD percentage, looking down the list of

5 seven carriers, does United have the worst

6 percentage on this roll up?


8 A.

9 Q. Then let's look at the x-ray

10 percentage, United's number is And it

11 appears there are three carriers with lower

12 numbers; correct?


14

Deposition of Frances Lozito, p. 208:6-8, 12-16 (January 27, 2011). Exhibit 7, Parrett Declaration


9

14 A. Yes.

15 Q. And then for the total percentage

16 United has the worst percentage of all the

17 carriers in this compilation?


19 A. Yes.15

THE HIJACKERS, THEIR WEAPONS, AND THEIR TACTICS

Acting in concert, 19 young, Middle Eastern men hijacked and crashed four planes on

September 11, 2001. The five hijackers of Flight 175 were Marwan al Shehhi, who piloted the

aircraft, Mohand al Shehri, Hamza al Ghamdi, Fayez Banihammad, and Ahmed al Ghamdi.16

The hijackers were seated in the First Class and Business Class sections of Flight 175.17

Though this trial concerns the hijacking of Flight 175, the tactics employed by all four

hijackings teams were the same. Common tactics used among the flights included, among other

elements, the timing of the takeover of the cockpit, the killing or stabbing of the pilots and flight

attendants, the use of knives or box cutters, the threat of a bomb, and the use of mace or pepper

spray.18

On August 13, 2001, Flight 175 hijacker al Shehhi purchased two short-blade knives, a

Cliphanger Viper and an Imperial Tradesman Dual Edge.19

That same day, Flight 175 hijacker

Banihammad bought a multipurpose tool, a Stanley two-piece snap knife set and Flight 175

hijacker al Ghamdi purchased a Leatherman Wave multi-tool.20

15

Deposition of Stephen P. Jenkins, pp. 158:17-25, 159:2-19 (January 28, 2011). Exhibit 8, Parrett Declaration 16

AVSEC DEP Exhibit 32, 9/11 Commission Staff Report (―Staff Report),‖ August 26, 2004, Revised September

2005, p. 17. Exhibit 5, Parrett Declaration. 17

United States v. Zacarias Moussaoui, Criminal No. 01-455-A Trial Exhibit P200018. Exhibit 9, Parrett

Declaration 18

See AVSEC DEP Exhibit 32, 9/11 Commission Staff Report, August 26, 2004, Revised September 2005, p. 16,

17, 20, 38. Exhibit 5, Parrett Declaration 19

Id. 20

Id.; see also AVSEC Exhibit 452 A, Al Ghamdi‘s Lowe‘s Store receipt for his purchase of the Leatherman Wave.



10

The other hijacking teams bought similar weapons in the weeks and days before the

September 11, 2001 flights. Flight 11 hijacker Mohammad Atta bought two Victorinox Swiss

Army knives and a Leatherman multi-tool.21

Flight 77 hijacker al Hazmi purchased Leatherman

multi-tool knives.22

A box cutter was found in Hazmi‘s car, which was abandoned at Dulles

Airport.23

Hijacker belongings left behind included mace and knives similar to those purchased

by other hijackers.24

Last minute instructions were found in the hijackers‘ luggage, which

missed its fateful connecting flight, directing the hijackers to prepare their weapons and confirm

the weapons were packed along with tickets and identification.25

The FBI recovered 14 knives

or portions of knives, including a box cutter, at the crash site of Flight 93.26

Defendants

contention that the fact that the hijackers left some weapons behind ―means‖ that those same

hijackers brought no weapons aboard the planes (Def. Mem. at 47-48) is ludicrous.

SECURITY RESPONSIBILITIES, WARNINGS, AND FLIGHT 175 PRE-BOARDING SCREENING

Of the four hijacked flights on September 11, 2001, United Air Lines was responsible for

the checkpoints and passenger and carry-on item screening for three of the flights.27

On September 11, 2001, United was required to adopt and carry out a government-

approved security program to fulfill its legally mandated security responsibilities.28

United

adopted such a security plan called the Air Carrier Standard Security Program (―ACSSP‖), which

detailed the security procedures it would follow to secure its passengers, including the use of

21

AVSEC DEP Exhibit 32, 9/11 Commission Staff Report, August 26, 2004, Revised September 2005, p. 4.

Exhibit 5, Parrett Declaration 22

Id. at 27. 23

Photograph of Box Cutter, U. S. v. Moussaoui, Exhibit FO08301. Exhibit 11, Parrett Declaration 24

Photograph of Mace recovered from Atta luggage BS01143. Exhibit 12; see also, Photograph of box cutter that

was recovered in the Toyota Corolla registered to and owned by Nawaf al-Hazmi recovered at Dulles Airport,

FO08031. Exhibit 11, Parrett Declaration 25

Atta Last Night Letter, U. S. v. Moussaoui, Exhibit BS01101, BS01101T. Exhibit 14, Parrett Declaration 26



Id. at 18, 27, 35. 28

AVSEC DEP Exhibit 69, ―July 17, 2001 14 C.F.R. Part 108 Aircraft Operator Security; Final Rule,‖ § 108.101.



11

checkpoint security screening.29

The federal government approved each air carrier‘s security

plan and the air carriers were required to carry out the security plan they proposed to comply

with the law. The ACSSP is authorized under federal law 14 C.F.R. Part 108, and its

requirements have the force of federal regulations to which the air carriers are bound to

comply.30

Section 14 C.F.R. Part 108.9, required air carriers to conduct checkpoint screening

and ―prevent or deter‖ people from carrying any explosive, incendiary or deadly or dangerous

weapon on airplanes.31

Both ―mace‖ and ―pepper spray‖ were listed as specifically prohibited

items under the ACSSP.32

―Menacing knives‖ were also prohibited items pursuant to the

ACSSP:

Knives with blades under 4 inches, such as Swiss Army Knives, scout knives,

pocket utility knives, etc. may be allowed to enter the sterile area. However, some

knives with blades under 4 inches could be considered by a reasonable person to

be a 'menacing knife' and/or may be illegal under local law and should not be

allowed to enter the sterile area.33

Additionally, the passenger security checkpoint procedures are set forth in the

Checkpoint Operations Guide (―COG‖) — an industry created a set of standards on how best to

screen passengers and their carry-on items.34

The COG specified that mace, pepper spray, box

cutters, menacing knives and other weapons were not allowed to pass through the checkpoint and

were not allowed on planes.35

The COG required that a ground security coordinator be called

when mace or pepper spray was found to be carried on the person or in the carry-on items of

someone going through security and that those items be logged.36

The COG required that a law

29

AVSEC DEP Exhibit 2B, ACSSP § IIB, Appendix I, II.1.a., 139m, 4.f., 132-33. Exhibit 2, Parrett Declaration 30

Robert J. Cammaroto deposition transcript, pp. 35 – 36, Sept. 18, 2006. Exhibit 15, Parrett Declaration 31

Id. at 199 – 200; AVSEC DEP Exhibit 2B, ACSSP, p. 10. Exhibit 2, Parrett Declaration 32

AVSEC DEP Exhibit 2B, ACSSP, p.10. Exhibit 2, Parrett Declaration 33

Id. 34

See AVSEC DEP Exhibit 1-C, Checkpoint Operations Guide (―COG‖), Preface and pp. 5-6, 5-7, 5-9, 6-1, 6-2, 6-

15, 6-22, 8-1. Exhibit 16, Parrett Declaration 35

Id. at p. 5.7-5.9. 36

Id.


12

enforcement officer be called when menacing knives or other weapons were discovered on

passengers or in their carry-on items at security checkpoints.37

On September 11, 2001, no

ground security coordinator was called to the checkpoint to confiscate mace or pepper spray and

no law enforcement officers were called to the checkpoint to evaluate any such items found by

the screener personnel or equipment, nor were any such items logged.38

United and its checkpoint security agent, Huntleigh, were well aware of their procedures

in the COG and the ACSSP, which were intended to ensure compliance with applicable federal

regulations. As the Bavis family will show in detail below, United and Huntleigh violated their

own security procedures in the COG and the ACSSP on September 11, 2001. And it was that

failure to comply with their own procedures that enabled the hijackers to board Flight 175 with

weapons, hijack and crash that plane, killing Mark Bavis.

Government evaluations of checkpoint screening, including the screening operations at

Logan Airport, documented repeated, serious and chronic weaknesses in the system‘s ability to

effectively screen passengers and baggage for weapons or bombs.39

Shortcomings in the

screening process were regularly identified by the FAA‘s assessment process and were shared

with air carriers.40

Rapid turnover among screeners was a serious security problem identified by the FAA in

reports dating back to at least 1979.41

The General Accounting Office (GAO) identified Logan

37

Id. 38

See Deposition of Roscoe Mills pg. 71:6 through 74:5, Dec. 18, 2006. Exhibit 17, Parrett Declaration 39

―Aviation Security Long-Standing Problems Impair Airport Screeners‘ Performance,‖ General Accounting Office,

June 2000, pp. 19, 24; Exhibit 18, Parrett Declaration; see also AVSEC DEP Exhibit 32, 9/11 Commission Staff

Report, August 26, 2004, Revised September 2005, p. 74-75. Exhibit 5, Parrett Declaration, 40

9/11 Commission, Staff Statement Three, "The Aviation Security System and the 9-11 Attacks," Seventh Public

Hearing; 01-26-27-04: 7. Exhibit 19, Parrett Declaration 41

AVSEC DEP Exhibit 68, GAO Report ―Long-Standing Problems Impair Screeners‘ Performance,‖ p. 24; Exhibit

18, Parrett Declaration; see also AVSEC DEP Exhibit 32, 9/11 Commission Staff Report, August 26, 2004, Revised

September 2005, p. 75 (―Among the problems that plagued checkpoints was the high turnover among screeners…‖).

Exhibit 5, Parrett Declaration.


13

in 1999 as one of the nation‘s worst airports for retaining checkpoint screeners, with a turnover

rate of 207 percent – the fourth highest among 19 major airports.42

The average length of

employment for the checkpoint screeners working at Logan on September 11, 2001, was ―less

than four months.‖43

Between 1997 and January 1999, the FAA conducted a security test at Boston‘s Logan

International Airport and found at least 136 violations.44

One of the violations noted in the

FAA‘s report: Screeners hired by the air carriers to staff checkpoints in terminals routinely

failed to detect test items hidden in bags carried by the agents.45

As a result of the violations,

Massport and the airlines were fined $178,000 during this two-year period.46

During this same time period, an FAA requirement for screeners to conduct ―continuous‖

and ―random‖ hand searches of carry-on luggage at checkpoints had been replaced by explosive

trace detection or had simply been ignored by carriers and the security screening companies they

had hired.47

Furthermore, United did not perform secondary screening of individuals at

checkpoints except on persons who triggered the metal detectors.48

If small knives were detected

by United and Huntleigh during the screening process, they were usually returned to the

traveler.49

An audit of Logan‘s airport security conducted in 1999 noted that the number of

42

AVSEC DEP Exhibit 68, GAO Report ―Long-Standing Problems Impair Screeners‘ Performance,‖ p. 24. Exhibit

18, Parrett Declaration. 43

Expert Report of Glenn Winn (Redacted for SSI); attached as Exhibit 6, Parrett Declaration 44

AVSEC DEP Exhibit 220, ―Report of the Special Advisory Task Force on Massport,‖ December 4, 2001, p.6.

Exhibit 20, Parrett Declaration. 45

Id. 46

Id. 47



Id. at 73-76. 49

Id. at 74.


14

violations was three times the national average.50

The FAA conducted many screener

evaluations at Logan between September 11, 1999, and September 11, 2001.51

At primary

checkpoints, in aggregate, screeners met or exceeded the average for overall, physical search,

and X-ray detection, while falling below the norm for metal detection.52

Between 1998 and 2000, United was fined $3,026,825.00 for security violations.53

These

violations included, among others, the failure of screeners to detect weapons at security

checkpoints.54

Those security checkpoint failures at Logan were widely known. In February 2001, Fox

News television in Boston conducted and publicly broadcast an undercover investigation,

whereby its reporters were able to pass prohibited weapons through the security screening

checkpoints at Logan—including the same type of Leatherman multi-tool knife used by

September 11 hijackers.55

Joe Lawless, the Director of Public Safety at Massport, which

operated Logan Airport, was so dismayed by the that Fox News report that in April 2001 he

announced to the Logan Airport Managers Council, including United representatives, that he

―would be using state police, plainclothes undercover state police officers, trying to breach

security at the checkpoints, carrying weapons.‖56

Director Lawless further testified that he

wanted to do so to ―enhance the security operation of the security checkpoint.‖57

When

specifically asked by the Bavis family‘s lawyer Ron Motley what motivated him to do this,

50

AVSEC DEP Exhibit 347, MP103630-MP103633, ―Security Lapses Revealed At Logan; Federal Agents Report

At Least 136 Violations,‖ Boston Globe, September 19, 1999. Exhibit 21, Parrett Declaration. 51



Id. 53

See Statement of Mary Schiavo to the National Commission on Terrorist Attacks Upon the United States, May 23,

2003. Exhibit 22, Parrett Declaration. 54

Id. 55

AVSEC Dep Exhibit 398, Transcript of Fox News report on Logan Airport dated February, 2001. Exhibit 23,

Parrett Declaration. 56

Deposition of Joseph M. Lawless, p. 130: 22-25 (March 30, 2007). Exhibit 24, Parrett Declaration 57

Id. at p. 136:10-11.


15

Director Lawless testified:

I was motivated to do this because I knew the security checkpoints were weak,

and I knew that Fox 25 broadcast it and put this information out into the public

realm. And I was concerned that this information was out there in the public

realm, and I wanted to do something to enhance that security.58

United well knew of those weakness at its passenger-screening checkpoints and further

knew that its passenger-screening security program had been cited by the FAA for having failed

FAA tests. In comments to the FAA regarding the FAA‘s proposed additional security measures

in 2000, United stated:

United Airlines opposes this proposal of notification to the public of additional

security measures being implemented, as it would advertise our “weak link,”

cause a media frenzy, and adversely affect carrier and passenger relationships.59

United, as the air carrier operating Flight 175, was also responsible for security on board

the plane. However, on September 11, 2001, after the hijackers boarded, they faced no

remaining security obstacles.60

Before September 11, 2001, the FAA considered and warned air carriers that terrorists

would attempt to hijack a plane and use it as a weapon.61

In the spring and summer of 2001, the

FAA issued an increasing number of warnings of a possible attack on civil aviation to airports

and air carriers.62

Prior hijackings also should have alerted airports and air carriers about the

increasing threat to civil aviation by Islamic terrorists.63

In 1998 and 1999, the FAA warned

58

Id. at 136:19-24 (emphasis added) 59

AVSEC DEP Exhibit 1191, MR_AVSEC00088328, Letter from United Airlines to FAA, May 2, 2000, p. 2.


AVSEC DEP Exhibit 82, ―Transcript of Seventh Public Hearing of the National Commission on Terrorist Attacks

Upon the United States - Day Two Subject: Borders, Transportation, And Managing Risk,‖ p. 14. Exhibit 26,

Parrett Declaration 61

AVSEC DEP Exhibit 168, FAA presentation, 2001 CD-ROM Terrorism Presentation to Aviation Security

Personnel at Airports and Air Carriers, Slide 24. Exhibit 27, Parrett Declaration 62

AVSEC DEP Exhibit 26, The 9/11 Commission Report, p. 259, 535-536; Exhibit 28, Parrett Declaration.

Edmund Soliday Deposition transcript, 9/19/06, p. 421-424. Exhibit 124, Parrett Declaration. 63

For example, in December 1999, five Islamic terrorists armed with guns and knives hijacked Air India flight 814

and eventually landed in Afghanistan. See IC 2000-01 (AAL011917-AAL011919). Exhibit 29, Parrett Declaration


16

airports and air carriers of the growing specific threat posed by Osama bin Laden and al Qaeda

against civil aviation.64

On July 17, 2001, the U.S. Government publicly issued a statement

warning of the presence of terrorist cells in the United States and their interest in targeting U.S.

aviation.65

Well before September 11, 2001, United and the other airlines were aware of that

July 17, 2001 warning on the growing terrorist threat to civil aviation in the United States.66

United understood that warning well. On or about May 3, 2001, United purchased a

―Property Terrorism & Sabotage Insurance Policy,‖ policy number 653-9510, from the Insurance

Company of the State of Pennsylvania.67

The policy covered United‘s business property from

losses sustained as a result of acts of terrorism. Indeed, Defendant United‘s World Trade Center

ticket office, which was destroyed, was covered by that policy.68

TIMELINE OF THE FOUR FLIGHTS

FLIGHT 17569

At 7:58 a.m., Flight 175 pushed back from Gate 19.

At 8:14 a.m., the airplane took off.

The airplane was a Boeing 767. The airplane had two aisles and had three different

sections of cabin service: First Class, Business Class and Economy Class.

64

AVSEC DEP Exhibit 32, 9/11 Commission Staff Report, August 26, 2004, Revised September 2005, p. 53, 54.


AVSEC DEP Exhibit 69, Federal Register 14 C.F.R. Part 108 Aircraft Operator Security; Final Rule July 17,


Id. 67

United Air Lines v. Insurance Company, Case No. 03-cv-05189-RMB-MHD, US District Court Southern District

of New York. See United Air Lines v. Insurance Company of the State of Pennsylvania, Docket No. 05-2144-cv

(2nd Cir Ct. 2006): ―This policy insures against loss resulting directly from the necessary interruption of business

caused by damage to or destruction of the Insured Locations resulting from Terrorism, Sabotage, Mutiny,

Insurrection, Rebellion, or Coup d'Etat.‖ Policy, § III.C.1. (as quoted by Opinion, p. 7.) 68

United Air Lines v. Insurance Company of the State of Pennsylvania, Docket No. 05-2144-cv (2nd Cir Ct. 2006),

p. 2. 69

All of these statements on the Flight 175 timeline are taken directly from the following source unless otherwise

noted: AVSEC DEP Exhibit 32, 9/11 Commission Staff Report (―Staff Report‖), August 26, 2004, Revised

September 2005, at pp. 17-26. Exhibit 5, Parrett Declaration.


17

There were 65 people on board: two pilots, seven flight attendants, 51 passengers, and

five hijackers.

At 8:19 a.m., Flight 175 made routine radio contact with an air traffic controller at the

FAA‘s Boston Center.

At 8:37 a.m., air traffic controllers at the FAA‘s Boston Center asked the flight crew to

look for American Airlines Flight 11. At 8:38 a.m., the crew of Flight 175 contacted air traffic

control at the Boston Center and stated that they had spotted the aircraft at 28,000 or 29,000 feet.

Between 8:41 a.m. and 8:42 a.m., the flight crew of Flight 175 had its last communication

with FAA air traffic control. The flight crew of Flight 175 reported to air traffic control that they

heard a ―suspicious transmission‖ from another aircraft during their departure from Boston. They

heard someone order everyone to stay in their seats.

Between 8:42 a.m. and 8:46 a.m., the hijackers took over control of Flight 175. They

took command of the flight using knives, mace and the threat of a bomb. They stabbed flight

crew members and killed both pilots.

At 8:51 a.m., Flight 175 deviated from its assigned altitude.

At 8:52 a.m., a flight attendant on Flight 175 contacted Marc R. Policastro in United Air

Lines‘ maintenance office in San Francisco and reported that the aircraft had been hijacked. The

phone call was made from the back of the aircraft. The flight attendant reported a flight

attendant had been stabbed and both pilots had been killed.

Also at 8:52 am, Lee Hanson received a call from his son Peter Hanson stating, ―I think

they‘ve taken over the cockpit and an attendant has been stabbed, someone else up front may


18

have been killed, the plane is making strange moves, call United Air Lines and tell them it is

United 175, Boston to LA.‖70

Peter Hanson sat right next to Mark Bavis in seat 19E.71

At 8:57 a.m. Flight 175 turned to the Northeast and leveled off at 28,500 feet. One

minute later, it headed toward New York City.

At 8:59 a.m., passenger Brian David Sweeney called his wife and left a message on their

home answering machine stating his plane had been hijacked. He stated, ―Hey, Jules. It‘s Brian.

Listen, I‘m on an airplane that‘s been hijacked. If things don‘t go well, and it‘s not looking

good, I want you to know that I absolutely love you. I want you to do good, go have good times

– the same to my parents and everybody – and I just totally love you, and I‘ll see you when you

get there. Bye, Babe, I‘ll call you.‖72

At 9:00 a.m., Brian Sweeney called his mother and told her his flight had been hijacked

and that passengers were considering storming the cockpit to regain control.

At 9:00 am, Lee Hanson received a second call from his son Peter aboard the plane, who

said:

It is getting bad, Dad, a stewardess was stabbed, they seemed to have knives and

mace, they said they have a bomb, it is getting very bad on the plane, passengers

are throwing up and getting sick, the plane is making jerky movements, I don‘t

think the pilot is flying the plane, I think we‘re going down, I think we‘re going to

Chicago or someplace and flying into a building.

70

Id. and Lee Hanson FBI Interview, FBI0208-0214. Exhibit 30, Parrett Declaration. 71

UAL001400-487; UAL0001168-70; United States v. Zacarias Moussaoui, Criminal No. 01-455-A Trial Exhibit

P200018. Exhibit 3, Parrett Declaration. 72

Answering machine recording of Brian Sweeney, produced to defendants on CD on May 19, 2005. Exhibit 31,

Parrett Declaration (transcript thereof)


19

Hanson heard a woman scream just before the call cut off, abruptly. Mr. Hanson turned

on his television and watched as the second plane slammed into the South Tower of the World

Trade center.73

At approximately 9:00 a.m., the FAA‘s New York Center informed United Air Lines that

Flight 175 was missing from radar.

At 9:01 a.m., the FAA‘s New York Center contacted the FAA‘s New York terminal

approach control and asked for assistance in locating Flight 175.

At 9:02 a.m., New York terminal approach controllers located Flight 175 rapidly

descending into lower Manhattan.

At 9:03 a.m., Flight 175 crashed into the South Tower of the World Trade Center.

FLIGHT 1174

At 7:40 a.m., Flight 11 pushed back from Gate 32, Terminal B at Boston‘s Logan

Airport.

At 7:59 a.m., the aircraft took off, bound for Los Angeles International Airport.

At approximately 8:14 a.m. or shortly thereafter, the hijackers took over control of Flight

11.

At 8:19 a.m., flight attendant Betty Ong called American Airlines and reported the

hijacking. The call lasted approximately 25 minutes. Betty stated, ―The cockpit‘s not

answering. Somebody‘s stabbed in business class and . . . I think there‘s mace . . .that we can‘t

breathe. I don‘t know, I think we‘re getting hijacked.‖ She went on to state, ―Our number 1 has

73

AVSEC DEP Exhibit 32, 9/11 Commission Staff Report, August 26, 2004, Revised September 2005, pp. 22-23;

Exhibit 5, Parrett Declaration; Lee Hanson FBI Interview, FBI0208-0214. Exhibit 30, Parrett Declaration. 74

All of these statements on the Flight 11 timeline are from the following source unless otherwise noted: AVSEC

DEP Exhibit 32, 9/11 Commission Staff Report, August 26, 2004, Revised September 2005, at pp. 2-17. Exhibit 5,

Parrett Declaration.


20

been stabbed and our 5 has been stabbed… We can‘t even get into the cockpit.‖75

Later in the

call she stated again, ―we can‘t breathe in business class. Somebody‘s got mace or something.‖76

At approximately 8:32 a.m., flight attendant Amy Sweeney called American Airlines and

reached Flight Services Manager, Michael Woodward. Amy reported that the plane had been

hijacked, a man in first class had his throat slashed, and two flight attendants were stabbed. She

stated that the flight attendants were unable to contact the cockpit and there was a bomb in the

cockpit.

At 8:33 a.m., Betty Ong reported that a passenger may have been fatally stabbed.

At 8:44 a.m., Amy Sweeney told Mr. Woodward that the plane was in rapid descent and

was flying too low, stating ―Oh my God we are way too low.‖

At 8:46 a.m., the hijackers crashed Flight 11 into the North Tower of the World Trade

Center.

FLIGHT 7777

At 8:09 a.m., Flight 77 pushed back from the gate at Dulles International Airport in

Washington, D.C.

At 8:20 a.m., the aircraft took off. It was bound for Los Angeles International Airport.

Between 8:51 a.m. and 8:54 a.m., the hijackers took over control of Flight 77.

At 9:12 a.m., flight attendant Renee May called her parents and told her mother that the

flight had been hijacked by six people who moved them to the back of the plane.

Between 9:16 a.m. and 9:26 a.m., passenger Barbara Olson called her husband and

reported that the flight had been hijacked by individuals with knives and box cutters.

75

AAL006674 (CD containing partial recording of Betty Ong phone call); Exhibit 32, Parrett Declaration (transcript

thereof). 76

Id. 77

All of these statements on the Flight 77 timeline are from the following source: AVSEC DEP Exhibit 32, 9/11

Commission Staff Report, August 26, 2004, Revised September 2005, p. 27-34. Exhibit 5, Parrett Declaration.


21

At 9:37 a.m., the hijackers crashed the aircraft into the Pentagon.

FLIGHT 9378

At 8:00 a.m., Flight 93 pushed back from the gate at Newark (Liberty) International

Airport in New Jersey.

At 8:41 a.m., the aircraft took off. It was bound for Los Angeles International Airport.

At 9:28 a.m., the hijackers took over control of Flight 93.

At 9:36 a.m., a flight attendant called the United Air Lines maintenance facility and

reported that the hijackers were in the first class cabin and in the cockpit, that they announced

that they had a bomb on the plane and that they had pulled a knife. She also stated that the

hijackers had killed a flight attendant.

From 9:37 a.m. to 9:58 a.m., at least ten passengers and two crew members made phone

calls relaying information about what was occurring on the flight. Callers reported that the plane

had been hijacked and that the hijackers wielded knives, were in the cockpit, and had a bomb.

They also reported that a passenger had been stabbed and died, that two individuals – possibly

the captain and first officer - were lying on the floor of the plane either injured or dead, and that

a flight attendant had been killed. Calls toward the end of the flight revealed that the passengers

and crew planned to rush the cockpit and overpower the hijackers.

At 9:57 a.m., some of the passengers and flight attendants attempted to take control of the

aircraft from the hijackers. Their determined effort was nearly successful and prevented the

hijackers from crashing the aircraft into their intended target in Washington, D.C., the U.S.

Capitol.

78

All of these statements on the Flight 93 timeline are from the following source unless otherwise noted: AVSEC

DEP Exhibit 32, 9/11 Commission Staff Report, August 26, 2004, Revised September 2005, pp. 35-47. Exhibit 5,

Parrett Declaration.


22

At 10:03 a.m., the hijackers intentionally crashed the aircraft into the ground in

Shanksville, Pennsylvania, rather than lose control of the aircraft to the passengers heroically

storming the cockpit of Flight 93.

Summary of the Argument

Summary judgment cannot be granted where there is a ―genuine dispute as to any

material fact.‖ Fed. R. Civ. P. 56(a). Here, there are multiple disputes of material fact regarding

the conduct of United and Huntleigh on September 11, including:

Whether United and Huntleigh substantially complied with FAA security regulations and

Defendants‘ own procedures for implementing those regulation in the ASCCP and COG

regarding passenger screening for dangerous weapons;

Whether United and Huntleigh exercised due care in screening the hijackers for weapons;

Whether it was within the scope of United‘s duty to its passenger Mark Bavis to screen

passengers for deadly or dangerous weapons in light of risk of hijackings by armed

terrorists, and in light of the dangerous consequences that would follow;

Whether the crash of Flight 175 killing passenger Mark Bavis was within the class for

foreseeable risks resulting from negligently performed security screening by United and

Huntleigh;

Whether United or the Federal Government was in the best position on September 11,

2001, to screen those boarding and bringing weapons onto Flight 175;

Whether United or the Federal Government was in the best position to September 11,

2001, to control the actions of the hijackers aboard Flight 175;


23

Whether United breached its duty of due care to passenger Mark Bavis by failing to

substantially comply with applicable regulations and procedures for screening the

hijackers during check-in at the ticket counter;

Whether United and Huntleigh breached their duty of due care to passenger Mark Bavis

by violating applicable regulations and procedures for screening the hijackers and what

they carried with them at the security checkpoint;

Whether United breached its duty of due care to passenger Mark Bavis by violating

regulations and procedures by failing to control the hijackers aboard the plane from

taking control of and crashing the plane;

Whether the ―Common Strategy‖ required United to turn over control of Flight 175 to

hijackers wielding deadly or dangerous weapons who stabbed members of the crew;

Whether the Federal Government through the Common Strategy ―made‖ United turn over

control of Flight 175 to violent hijackers wielding deadly or dangerous weapons who

attacked members of the crew;

Whether United and Huntleigh‘s breach of due care to passenger Mark Bavis by failing to

adequately screen and control the hijackers was a proximate cause of the hijacking that

killed Mark Bavis;

Whether United could foresee that the crash of a flight causing the death of its passengers

was a foreseeable risk that would arise if armed hijackers took control of that flight;

Whether the risk of armed hijackers taking over a plane was a foreseeable risk of United

and Huntleigh failing to substantially comply with applicable regulations and procedures

for screening passengers;


24

Whether the crash of a plane causing the death of passengers was a foreseeable risk of

armed hijackers taking control of the plane;

Whether the September 11 terrorist attacks on civil aviation in the United States were

foreseeable in light of the risk of terrorist attacks as it existed on September 11, 2001;

Whether the crash of a plane by armed hijackers who United and Huntleigh let board the

plane with weapons is a ―superseding‖ cause of passenger Mark Bavis‘s death.

Moreover, there is a dispute of fact over the appropriate amount of damages that the

Bavis family is entitled to recover.

All of those disputes of fact are material, rendering trial by jury necessary. Hence,

United‘s summary judgment fails.

Argument

I. Legal Standard for Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is not

appropriate unless there exists no genuine issue of material fact and, based on undisputed facts,

the moving party is entitled to judgment as a matter of law. D’Amico v. City of New York, 132

F.3d 145, 149 (2d Cir. 1998); Fed. R. Civ. P. 56(a). As the parties moving for summary

judgment here, United and Huntleigh bear the burden of showing that no genuine issue of

material fact exists and that they are entitled to judgment now. Celotex v. Catrett, 477 U.S. 317,

323(1986). A genuine issue exists ―if the evidence is such that a reasonable jury could return a

verdict for the non-moving party.‖ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A fact is material if it ―might affect the outcome of the suit under governing law.‖ Id.

In the procedural posture of this motion, ―the evidence and the inferences drawn from the

evidence must be ‗viewed in the light most favorable to the party opposing the motion.‘‖


25

LaBarge v. Joslyn Joslyn Clark Controls, 2006 WL 2795612 at * 7 (W.D.N.Y. Sept. 26, 2006),

quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). As such, in resolving this

motion, ―any ambiguities and all inferences must be drawn in favor of the nonmovant‖—the

Bavis family. Sundaram v. Brookhaven Nat. Laboratories, 424 F. Supp. 545, 558 (E.D.N.Y.

2006), citing Institute for Shipboard Educ. v. Cigna Worldwide Ins. Co. , 22 F. 3d 414, 418 (2d

Cir. 1994). For instance, for the purposes of deciding this motion, the Bavis family is entitled to

the common-sense inference that the terrorists and the weapons they used to hijack United Flight

175 passed through United and Huntleigh‘s security checkpoint at Logan Airport on September

11, 2001, just like all the passengers boarded that plane and brought carry-on items aboard with

them.

In determining whether a material fact is genuine, ―all that is required is that sufficient

evidence supporting the claimed factual dispute be shown to require a judge or jury to resolve the

parties‘ differing versions of the truth at trial.‖ Anderson, 477 U.S. at 249. Indeed, ―a court may

grant summary judgment only when no rational jury could find in favor of the non-moving

party.‖ D’Amico, 132 F.3d at 149. As the Second Circuit instructs: ―only when reasonable

minds could not differ as to the import of evidence is summary judgment proper.‖ Bryant v.

Maffuci, 923 F.2d 979, 982 (2d Cir. 1991).

In resolving this summary judgment motion, the role of the Court is not ―to weigh the

evidence and determine the truth of the matter but to determine whether there is a genuine issue

for trial.‖ Anderson, 477 U.S. at 249. Hence, ―[i]f, as to the issue on which summary judgment

is sought, there is any evidence in the record from which a reasonable inference could be drawn

in favor of the opposing party, summary judgment is improper.‖ Rosenthal v. Ford Motor Co.,

Inc., 462 F. Supp. 2d 296 (D. Conn. 2006), citing Security Ins. Co. of Hartford v. Old Dominion


26

Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004)(quoting Gummo v. Village of Depew, 75

F.3d 98, 107 (2d Cir. 1996)).

Moreover, ―[n]egligence cases by their very nature do not usually lend themselves to

summary judgment, since, often, even if all parties are in agreement as to the underlying facts,

the very question of negligence is itself a question for jury determination.‖ Ugarizza v.

Schmieder, 46 N.Y.2d 471, 474 (1979), quoted with approval in Walker v. Eastern Air Lines,

Inc., 775 F. Supp. 111, 116 (S.D.N.Y. 1991). It is ―particularly appropriate to leave [a finding

of negligence] to the jury, not only because of the idiosyncratic nature of most tort cases . . ., or

because there was room for a difference of view as to whether [the defendant‘s] conduct in the

particular circumstances of this case did or did not evidence a lack of due care, but, perhaps

above all, because in the determination of issues revolving about the reasonableness of conduct,

the values inherent in the jury system are rightfully believed an important instrument in the

adjudicative process.‖ Stagl v. Delta Airlines, 52 F.3d 463, 470 (2d Cir. 1995)(citing Havas v.

Victory Paper Stock Co., 49 N.Y. 2d 381, 388 (1980)); see also, Kiernan v. Hendrick, 116

A.D.2d 779, 781 (N.Y. App. Div. 3d Dep‘t 1986) (―In all but the most extraordinary instances,

whether a defendant has conformed to the standard of conduct required by law is a question of

fact.‖ (citing, inter alia, Restatement [Second] of Torts § 328B [b] [1965])).

Likewise, ―[i]ssues of proximate cause are normally questions of fact for the jury to

decide.‖ Packer v. Skid Roe, Inc., 938 F. Supp. 193, 196 (S.D.N.Y. 1996). ―[I]n order to

withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether

defendant‘s conduct proximately caused plaintiff‘s injuries.‖ Williams v. Utica College of

Syracuse University, 453 F.3d 112, 119 (2d Cir. 2006).


27

As with proximate cause, the question of superseding cause is a question of fact for the

jury to decide. Parsons v. Honeywell, Inc., 929 F.2d 901, 905 (2d Cir. 1991)(citing Derdiarian

v. Felix Contracting Corp., 51 N.Y.2d 308, 315-16 (1980) (―Because questions concerning what

is foreseeable and what is normal may be the subject of varying inferences, as is the question of

negligence itself, these issues are generally for the fact finder to resolve.‖).

Yet in spite of the above Second Circuit law holding that issues of scope of duty,

foreseeability, breach of duty (by failure to comply with regulations and procedures), proximate

and superseding causation are not appropriate to resolve by summary judgment, United and

Huntleigh now demand summary judgment on those fact-intensive issues. As Plaintiff will now

show, disputes of fact on each of those issues exist—so the motion fails.

II. United and Huntleigh’s argument that it was beyond the scope of their duty to

passenger Mark Bavis to screen passengers for weapons to prevent the Flight 175

hijacking fails.

A. There are disputes of fact over whether Defendants or the Federal Government

was in the best position to screen the hijackers boarding Flight 175 with

weapons.

In spite of the fact that this Court in this case already ruled that United and Huntleigh‘s

―duty to screen passenger and items brought on board existed to prevent harms not only to

passengers and crew, but also to the ground victims resulting from the crashes of hijacked

planes, including the four planes hijacked on September 11,‖79

and in spite of the fact that

United and Huntleigh themselves already ―concede[d] that they owed a duty to the crew and

passengers,‖80

and in spite of the fact that the Court in this case already ruled that United and

Huntleigh—

controlled who came onto the planes and what was carried aboard. They had the

obligation to take reasonable care in screening precisely because of the risk of

79

In re September 11 Litig, 280 F. Supp. 2d 279, 296 (S.D.N.Y. 2003) 80

Id. at 288-289


28

terrorist hijackings, and the dangerous consequences that would inevitably follow.

The consequences that in fact followed were within the scope of the duty that the

Aviation Defendants undertook to carry out81

—

United and Huntleigh spend the first 29 pages of its summary judgment argument insisting that it

was not within the scope of their duty to passenger Mark Bavis to screen the five hijackers who

brought weapons aboard Flight 175, hijacked and crashed that plane. Def. Mem. at 9-36.

Invoking the Court‘s reasoning that ―[t]he key in each [situation] is that the defendant‘s

relationship with either the tortfeasor or the plaintiff places the defendant in the position to

protect against the risk of harm,‖82

United and Huntleigh argue that not they but the Federal

Government was in the best position to screen the passengers and prevent the hijacking of Flight

175. Def. Mem. at 9-26.

That scope-of-duty argument fails because the Bavis family sharply disputes as a matter

of fact that the Federal Government was in a better position on September 11, 2001 than United

and Huntleigh to screen passengers to protect against the risk of hijacking of aircraft including

Flight 175. Under the applicable federal regulations and procedures in effect that day, see, e.g.,

14 C.F.R. §§ 108.7 & 108.9, United and Huntleigh83

and not anyone from the Federal

Government screened the five hijackers for deadly or dangerous weapons before they boarded

the plane. Moreover, United‘s pilot-in-command and United‘s crew operated Flight 17584

and

controlled the conduct of the flight and the passengers aboard Flight175, not the Federal

Government. Indeed, there is no evidence whatsoever that anyone from the Federal Government

was at the ticket counter where the hijackers were questioned by United‘s customer service

81

Id. at 296 82

Id. at 290 (citing Hamilton v. Berretta U.S.A. Corp., 96 N.Y. 2d 222, 750 N.E.2d 1055, 1061 (N.Y. 2001)) 83

9/11 Staff Report at p. 18 (AVSEC DEP Exhibit 32). Exhibit 5, Parrett Declaration; 9/11 Commission Report at p.

2 (AVSEC DEP Exhibit 26). Exhibit 28, Parrett Declaration. 84

9/11 Staff Report at pp. 18-19 (AVSEC DEP Exhibit 32). Exhibit 5, Parrett Declaration.


29

representative when they checked in that morning,85

or that anyone from the Federal Government

was at the passenger security checkpoint that United and Huntleigh operated that the hijackers

passed through on September 11, or that anyone from the Federal Government was on board

Flight 175 when it was hijacked, let alone that anyone from the Federal Government ―made‖ the

United flight crew turn over control of that plane to armed, violent hijackers.

The scope-of-duty argument also fails because it ignores the special relationship between

common carrier United and its passenger Mark Bavis, which case after case has ruled gives rise

to a duty of due care to protect the passenger from the conduct of others, including by screening

passengers for weapons in compliance with applicable regulations and procedures to avoid

hijackings. See, e.g., Hamilton, 750 N.E.2d at 1061 (duty arises where there is a relationship

―between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of

others. Examples of these relationships include master and servant, parent and child, and

common carriers and their passengers.‖) (emphasis added); Stagl v. Delta Airlines, 52 F.3d 463,

468 n. 1 (2d Cir. 1995) (imposing ―a duty of reasonable care on Delta, as a common carrier, ‗to

protect its passengers from other travelers.‘‖). Yet here United tries to avoid and deny that duty

to its passenger Mark Bavis at every turn.

B. There are disputes of fact over whether the risk of hijackings by terrorists in the

United States was foreseeable on September 11, 2001.

United and Huntleigh next invoke Palsgraf—―the risk reasonably to be perceived defines

the duty to be obeyed‖86

— to argue that screening passengers for weapons to avoid the risk of

terrorist hijackings is beyond the scope-of-duty that United and Huntleigh owed to their

passenger Mark Bavis because (they say) the risk of a terrorist hijacking on September 11 was

85

9/11 Staff Report at p.17 (AVSEC DEP Exhibit 32); Exhibit 5, Parrett Declaration; 9/11 Commission Report at

pp. 2, 451 n. 5 (AVSEC DEP Exhibit 26). Exhibit 28, Parrett Declaration. 86

Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344 (1928)


30

not foreseeable. Def. Mem. at 30-35. Defendants here ignore this Court‘s earlier ruling that ―the

crash of airlines was within the class of foreseeable hazards resulting from negligently

performed security screening. . . . [T]he airlines reasonably could foresee that crashes causing

death and destruction would arise should hijackers take control of a plane.‖ In re Sept. 11 Litig.,

280 F. Supp.2d at 296 (emphasis added).

Defendants also ignore that the resolution of fact-intensive issue of foreseeability is

inappropriate at the summary judgment stage. Parsons, 929 F.2d at 905 (citing Derdiarian, 51

N.Y.2d at 315-16 (―Because questions concerning what is foreseeable and what is normal may

be the subject of varying inferences, as is the question of negligence itself, these issues are

generally for the fact finder to resolve.‖). And here, the parties do sharply dispute whether the

terrorist hijacking of Flight 175 was foreseeable, rendering summary judgment inappropriate.

As Plaintiff‘s experts Neil C. Livingstone, Ph.D., and Evan F. Kohlmann demonstrate in

detail in their expert reports87

served on United and Huntleigh in this case, there is abundant

evidence that the terrorist hijackings on September 11, 2001 were foreseeable (and foreseen).

As explained by Dr. Livingstone:

The risk that international suicide terrorism presents to both the international

community and targeted countries is overwhelming and constant, and has been so

for decades before September 11, 2001. Therefore, it is my opinion that the

hijacking of commercial jetliners on September 11, 2001, by al-Qaeda suicide

terrorist hijackers was foreseen and foreseeable in light of the well known,

publicly available information indicating al Qaeda‘s and other terrorists‘

capability and willingness to attack civil aviation and landmarks within the U.S.

The hijackings, imaginable and imagined before September 11, 2001, could have

been and should have been prevented. . . .

Hijackings and terrorism against civil aviation were not unknown, unforeseeable

events in 2001. Quite the contrary—the risk of aircraft being subject to hijacking,

whether by a disgruntled employee or a murderous foreign terror organization set

on launching a jihad or making a political statement, was a well-known risk and

87

The expert reports of Neil C. Livingstone, Ph.D., and Evan F. Kohlmann are attached as Exhibits 33 and 34,

respectively, to the Parrett Declaration.


31

was so at the time of the 9/11 attacks. Hijackings have happened hundreds of

times in the past. From 1970-2001, there were 823 airplane hijackings worldwide,

according to Air Safety Week and the National Air Disaster Alliance Foundation.

Of this total, 109 incidents involved U.S. aircraft hijacked on U.S. soil, 58 U.S.

airliners were hijacked on foreign soil, and 11 foreign airplanes were hijacked on

U.S. soil. During this period, there were 31 bombs found on airliners worldwide

and 30 cockpit intrusions.88

Before the attacks on 9/11, the risk of a hijacking and terrorist attack was so

prevalent and such a known risk that airlines carried terrorism and hijacking

insurance. It is because of the serious historical threat to commercial aviation that

we have laws, regulations, and minimum requirements for aviation security.

In 1997, within its publication Criminal Acts Against Civil Aviation, the Federal

Aviation Administration (―FAA‖) warned that though the number of incidents

against civil aviation had declined at that time, the decline did not indicate a

decreased threat to aviation by terrorist hijackers. Further, within their warning,

the FAA stated that there was every reason to believe that civil aviation would

continue to be an attractive target to terrorist groups seeking to make a statement

or promote a particular cause. The FAA cautioned that airlines must do their

utmost to prevent such attacks, rather than lower security measures by interpreting

any statistics as an indication of a decreasing threat.89

Livingston Report pp. at 5-7.90

After discussing in detail multiple suicide-terrorism and

aviation-related attacks that occurred for decades leading up to September 11 hijackings—

including Kamikaze Pilots in the 1940s; the 1970 Dawson‘s Field Hijackings; the 1974 plot to

crash a jetliner into the White House; the 1976 Operation Entebbe hijacking; Iranian-trained

suicide pilots targeting the West in the 1980s; the 1983 attack on the U.S. Embassy in Beirut; the

1983 attack on the U.S. Marine Barracks in Beirut; the 1985 Rome and Vienna Airport Attacks;

the 1987 LTTE suicide bombings in Sri Lanka; the 1988 bombing of Pan Am Flight 103; the

1993 World Trade Center Bombing; the 1994 Plot to destroy the Eiffel Tower; the 1994

Bombing of Philippine Airlines Flight 434; the 1995 Plot to Destroy CIA headquarters; the 1995

88

―Sept. 11 Panel Challenges Ignorance of Threat Scenario,‖ Air Safety Week, 2 June 2003. Exhibit 35, Parrett

Declaration. 89

U.S. Department of Transportation, Criminal Acts Against Civil Aviation (Washington, D.C.: U.S. Department of

Transportation, 1997), 23. MR-AVSEC00097209. Exhibit 36, Parrett Declaration. 90

Attached as Exhibit 33, Parrett Declaration.


32

Bojinka Plot by al Qaeda to explode 12 U.S commercial aircraft over the Pacific Ocean; the 1998

plot to crash a plane into the World Trade Center; the 1999 Egypt Air Flight 990 suicide

hijacking by a terrorist; and the 2000 Bombing of the U.S.S. Cole91

—Dr. Livingstone explained

further:

The widely publicized threats and risks to civil aviation in the decades leading up

to September 11, 2001, as described above, make it absolutely and unequivocally

clear that both air carriers and terrorists around the globe were aware of the

weaknesses and vulnerabilities associated with civil aviation security. The

significance of the risk was known to anyone paying attention. Yet, despite the

fact that air carriers were knowledgeable and on notice regarding this risk and the

vulnerability of aviation security, the aviation industry‘s approach to initiatives

designed to improve aviation security before September 11, 2001 was (according

to one longtime FAA security official) a policy of ―decry, deny, and delay.‖92

Further, a 1998 security directive issued by the FAA stated:

Civil aviation has been a prominent target of these [Bin Laden and radical

Islamic terrorist groups in general] and other transnational terrorists. In the

past several years, information has been received that individuals in the

United States associated with loosely affiliated extremists have discussed

targeting commercial aircraft and civil aviation facilities. Loosely

affiliated extremists have also shown a particular interest in media

reporting regarding airline and airport security.93

In my 1989 article entitled, ―Is It Really Safe to Fly,‖ I described my personal

observations and studies of air carrier screening deficiencies, noting that the last

line of defense prior to a hijacker or terrorists getting on an airplane is the

checkpoint screener—twelve years prior to the attacks of 9/11. In addition, I

focused on the astounding turnover rate characteristic of airport screeners, noting

that they were the lowest paid, least educated, and worst trained airline

employees, suggesting that if they were not working in aviation security for the

airlines they would probably be flipping burgers in a fast food restaurant. This

sentiment was echoed by numerous other observers and government agencies,

including the U.S. General Accounting Office.94

91

Livingstone Report at pp. 7-16. Exhibit 33, Parrett Declaration. 92 9/11 Commission Report at p. 85 (AVSEC DEP Exhibit 26), MR-AVSEC00093948 (emphasis added). Exhibit

28, Parrett Declaration. 93

U.S. Department of Transportation, FAA Security Directive (Washington, D.C.: U.S. Department of

Transportation, 1998), 2. AAL TSA000934. Exhibit 37, Parrett Declaration. 94

U.S. General Accounting Office, Aviation Security: Terrorist Acts Demonstrate Urgent Need to Improve Security

at Nation’s Airports (Washington, D.C.: U.S. General Accounting Office, 2001), 7. MR-AVSEC00091038. Exhibit

38, Parrett Declaration.


33

Again, in October 1990, while concluding that it was marginally safer to fly after

some steps were taken to shore up aviation security in the wake of the Pan Am

103 bombing, I nevertheless noted that many key vulnerabilities still remained in

civil aviation‘s security infrastructure and predicted that many Americans were

likely to die in aviation-related terrorist attacks unless air carriers fundamentally

upgraded aviation security. Finally, I warned that the traveling public could no

longer afford to place their trust in a flawed security system and called for tougher

security measures as soon as possible.

An FAA report produced in the summer of 2001 clearly laid out aviation security

requirements:

The objective of the civil aviation security system is to prevent terrorist

acts against civil aviation. The security system necessary to protect the

traveling public must be capable of detecting, assessing, and ensuring that

threat objects such as explosives, weapons, chemical or biological agents

are not allowed on aircraft.95

Yet, we know that the 9/11 hijackers were allowed to bring prohibited items such

as knives and MACE on board the four hijacked planes.96

Further, in its February

1999 report, the GAO described how air carriers were responsible for screening

all passengers and baggage, hiring and training their employees or contracting for

screening services, and procuring equipment to screen passengers and baggage.

The report also made clear that the screening of passengers and baggage was a

critical element in the strategy against terrorism.97

In a March 2000 publication, the GAO concluded that a single lapse in aviation

security could result in hundreds of deaths and extensive destruction, and have a

profound negative impact on the economy.98

Before 9/11, numerous audits and investigations of airline security cited

significant persistent deficiencies in all areas of aviation security, concluding that

the ―layered system‖ approach to security used by airlines was ineffective in

providing sufficient protection to passengers and aircraft.99

The FAA produced numerous documents prior to 9/11 highlighting the threat

posed by terrorists in general and Osama bin Laden in particular. These

95

9/11 Staff Report at p.59 (AVSEC DEP Exhibit 32); Exhibit 5, Parrett Declaration. 96


U.S. General Accounting Office, Aviation Security: FAA’s Actions to Study Responsibilities and Funding for

Airport Security and to Certify Screening Companies (Washington, D.C.: U.S. General Accounting Office, 1999), 2.

MR-AVSEC00088488. Exhibit 39, Parrett Declaration. 98

U.S. General Accounting Office, Aviation Security: Slow Progress in Addressing Long-Standing Screener

Performance Problems (Washington, D.C.: U.S. General Accounting Office, 2000), 1. MR-AVSEC00087847.


9/11 Staff Report at p.60 (AVSEC DEP Exhibit 32); Exhibit 5, Parrett Declaration.


34

documents also included warnings regarding bin Laden‘s direct threats against

civil aviation, especially with respect to the hijacking of commercial aircraft.100

Further, as reported in The 9/11 Commission Report, before 9/11 an FAA

intelligence liaison reported to the intelligence community that ―something was

going to happen‖ that summer [June and July 2001].101

As reported by the FAA,

intelligence sources had long acknowledged the possibility of a suicide hijacking

in its intelligence assessments, underscoring the fact that Middle Eastern terrorists

were increasingly willing to carry out suicide attacks and that, historically, civil

aviation was a prime target for suicide hijackings and other terrorist attacks.102

In the months prior to 9/11, air carriers, including United Airlines (―United‖),

were provided informational circulars designed to warn airports and airlines about

various threats to civil aviation. The first of these circulars—which was

distributed in July 2001—contained an alert to the aviation community regarding

near-term terrorist operations. The circular encouraged all U.S. air carriers to

―exercise prudence and demonstrate a high degree of alertness‖ with respect to

security.103

Several related reports also described the possibility of terrorist

attacks on civil aviation and described the methods that should be adopted to

thwart and deter such attacks.

In the spring of 2001, the FAA released another security directive calling

attention to the very real threat posed by suicide terrorists to civil aviation:

...If, however, the intent of the hijacker is not to exchange hostages for

prisoners, but to commit suicide in a spectacular explosion, a domestic

hijacking would probably be preferable.104

In addition, in spring 2001, the FAA presented a CD-ROM to air carriers

describing increased threats to civil aviation. The presentation highlighted the

possibility of suicide attacks105

and noted that if a hijacker was intending to

commit suicide in a spectacular explosion, the terrorist would likely prefer a

domestic hijacking.106

Livingstone Report at pp. 26-29. It is also important to note that Dr. Livingstone wrote

as early as 1982 about the threat of terrorists turning commercial aircraft into ―flying bombs:‖

In the 1970s, while completing my Ph.D. dissertation on terrorism and terrorist

threats within the U.S. (later my first book on terrorism entitled The War Against

100




9/11 Staff Report at pp. 56-57 (AVSEC DEP Exhibit 32); Exhibit 5, Parrett Declaration. 104


9/11 Commission Report at p. 264 (AVSEC DEP Exhibit 26). Exhibit 28, Parrett Declaration. 106

9/11 Commission Report at p. 535(AVSEC DEP Exhibit 26). Exhibit 28, Parrett Declaration.


35

Terrorism), I was one of the first to describe the threat of a plane being turned

into a flying bomb—explaining that the average Boeing 737 burns approximately

3700 gallons of high octane fuel an hour, and could be used as a ―flying bomb.‖[1]

Within that work, I highlighted that commercial airliners were inviting targets

because of their embodiment of national prestige and power unlike any other

high-technology product, and the hijacking of an airliner inevitably becoming

front-page news.107

Likewise, Plaintiff‘s expert Evan Kohlmann explains the threat of an Al Qaeda terrorist

attack on civil aviation within the United States was foreseeable, foreseen, and well broadcast by

the U.S. public media before September 11, 2001:108

The terrorist organization Al-Qaida has had a longstanding and well-known desire

to launch catastrophic terrorist attacks targeting the United States. In fact, they

have succeeded on more than one occasion in carrying out attacks on U.S. soil

and on U.S. forces and interests abroad. Consequently, even prior to September

11, 2001, there was substantial publicly-available information indicating that Al-

Qaida had the intent and capability of attacking the United States. In August

1996, Usama bin Laden issued a fatwa against the United States entitled

―Declaration of War Against the Americans Occupying the Land of the Two Holy

Places.‖109

The fatwa was first published in Al Quds Al Arabi, a London-based

newspaper, but was later republished and analyzed in many mainstream English

language sources prior to September 11, 2001.110

As early as 1997, bin Laden

publicly declared jihad against the United States to U.S. audiences on CNN,

calling for attacks on the U.S. and its citizens. One year later, in an interview with

John Miller of ABC News in 1998, bin Laden publicly explained his fatwa

―calling on all Muslims to kill Americans where they can, when they can,‖

stating:

―We do not differentiate between those dressed in military uniforms and

civilians; they are all targets of this fatwa. Especially since American

officials were released after the Khobar bombing, asking all American

citizens to contact the security department in the embassy with

information on Muslims and activists. The fatwa included all that share

107

Livingstone Report at pp. 4-5. Exhibit 33, Parrett Declaration 108

Expert Report of Evan F. Kohlman at pp. 13-23. Exhibit 34, Parrett Declaration 109

―Bin Laden's Fatwa; declaration of war, by Osama bin Laden first published in Al Quds Al Arabi, in August

1996,‖ PBS.org, MR_AVSEC00168020. Exhibit 41, Parrett Declaration. 110

See e.g., ―Jurors hear bin Laden threats to kill Americans,‖ CNN, February 15, 2001. Exhibit 125, Parrett

Declaration.


36

or take part in killing of Muslims, assaulting holy places, or those who

help the Jews occupy Muslim lands.111

‖

In a lead-up to the airing of this segment on ABC News, then-National Security

Advisor Sandy Bergen declared, ―Osama bin Laden may be the most dangerous

non-state terrorist in the world and we certainly have discussed this with the

Saudis…This is a man who has a demonstrated capacity and will to carry out acts

of terrorism and we take this seriously.‖112

Bin Laden‘s interest in striking the U.S. was particularly poignant when it came to

commercial air transport, seen as a key economic lifeline for globalized Western

nations. Recognizing the value of spreading fear amongst the American public,

Al-Qaida and its jihadist allies have made no secret of their shared interest in

passenger aircraft and airports as potential terrorist targets.

1. The Broader Context: The Al-Qaida Threat to Western Civil

Aviation

The threat of criminal attacks on Western civil aviation saturated the American

public sphere throughout the years leading up to September 11, 2001. This

information was trumpeted by academics and civil aviation industry employees

alike. In 1985, Brian Michael Jenkins of the Rand Corporation‘s ―The Future

Course of International Terrorism,‖ advised that airplanes both offered terrorists

―unprecedented worldwide mobility‖ and were themselves particularly vulnerable

to terrorist attacks. Notably, the paper acknowledged that the United States was

among ―the favorite targets of terrorists.‖113

Also beginning in 1985, the Federal

Aviation Administration‘s (―FAA‖) annual publication, Criminal Acts Against

Civil Aviation, recorded incidents that took place against civil aviation worldwide.

The reports were available to the public on the FAA‘s website. The 2000 issue,

which recorded 42 criminal incidents, demonstrated that attacks against civil

aviation were on the rise, stating: ―the sharp increase in incidents in 2000 was the

result of more hijackings (20 vice 11 in 1999) and airport attacks (13 vice 0).‖114

111

Al-Qaida targeted U.S. troops stationed at the Khobar Towers in Saudi Arabia on June 25, 1996.; ―To Terror‘s

Source: John Miller‘s 1998 Interview With Osama Bin Laden,‖ ABC News, Interview conducted on May 28, 1998.


―America's Most Dangerous Enemy--John Miller's 1998 Interview with Osama Bin Laden,‖ John Miller, ABC

News, Transcript, June 10, 1998. Exhibit 43, Parrett Declaration. For additional public warnings about al Qaida in

1998, see also, ―Osama Bin Laden is preparing for war,‖ Adrian Levy and Cathy Scott-Clark, The Sunday Times,

London, December 20, 1998 (Intelligence and Diplomatic Sources in Pakistan fear that Al Qaida may be about to

send teams of militants on missions to bomb American targets in the Middle East…‘the region has never been more

unstable,‘ said an ISI [Pakistan‘s Inter-Services Intelligence Agency] source. Bin Laden has never been more

dangerous.‘‖). Exhibit 44, Parrett Declaration. 113

―The Future Course of International Terrorism,‖ Brian Michael Jenkins, MR_AVSEC00086333 -

MR_AVSEC00086334. Exhibit 45, Parrett Declaration. 114

―2000 Criminal Acts Against Civil Aviation,‖ MR_AVSEC00097497 - MR_AVSEC00097574. Exhibit 46,

Parrett Declaration


37

Moreover, the report stated that ―as in years past, hijackings accounted for the

highest percentage of incidents (47.6%) in 2000.‖115

The threat of al-Qaida specifically to the civil aviation industry of Western

nations was also recognized prior to September 11, 2001. In December 1994, a

group of militants loyal to the Algerian Armed Islamic Group (GIA)—a group

supported and financed by Al-Qaida—seized control of an Air France jetliner in

Algiers in an unsuccessful bid to suicide crash it into the Eiffel Tower on

Christmas Day.116

The group demanded ―the release of Dr. Omar Abdel Rahman

and [Shaykh] Salman al-Awdah.‖117

Rahman, known as the ―Blind Shaykh‖, was

imprisoned in the U.S. for his role in the ―New York Jihad Plots‖ case; likewise,

al-Awdah was a prominent Saudi Islamist whose arrest by authorities in Saudi

Arabia was the subject of public condemnations from Usama Bin Laden.

The Air France hijacking was eventually foiled by French counter-terrorist

commandos who stormed the airliner after it stopped for additional fuel in

Marseilles.118

Both during and after the hijacking, the GIA issued a number of

communiqués addressed to their supporters concerning the failed operation.119

The group boasted of its responsibility ―for this first Martyrdom operation and for

its original plan to blow up the Air France flight with its two groups of passengers

over Paris… The operation is the start of a new phase which is the Martyrdom

phase in which the enemy will be completely overwhelmed by the attacks. This is

a result of an organized Mujahedeen army which now includes a huge number of

Muslim youths.‖ In its final public statement on the hijacking, the GIA also

acknowledged two critical errors that the group had made which ―would have

saved precious time (as time is crucial for strength of Mujahedeen).‖ First, the

terrorists ―announced the hijacking after closure of doors and before the ladders

were moved off the plane.‖ Second, ―they landed in Marseille, under the reason

of taking on more fuel, although the plane had enough fuel… Mujahedeen may

have wanted to fill up the tanks of the plane for later blowing it up over Paris…

These will be lessons learned for future operations.‖120

In the year 1999, there were at least two separate incidents which reinforced

public concerns about attacks on Western commercial aviation by jihadist groups,

particularly Al-Qaida. On October 31, 1999, Egypt Air Flight 990 from New

York to Cairo crashed in the Atlantic Ocean approximately 60 miles south of

Nantucket Island. Though the exact cause is unknown, as noted by the final

115

Id. 116

―Anatomy of a Hijack,‖ Thomas Sanction, Time Magazine. January 9, 1995. MR_AVSEC00132723. Exhibit

47, Parrett Declaration 117

―Islam Report (Urgent! Air France Incident-Part 1),‖ American Islamic Group (AIG). December 31, 1994,

MR_AVSEC00089116 - MR_AVSEC00089121. Exhibit 48, Parrett Declaration 118

―Anatomy of a Hijack,‖ Thomas Sanction, Time Magazine. January 9, 1995. Exhibit 47, Parrett Declaration 119

At the time, the communiqués were translated into English and posted publicly on the Internet by the San Diego-

based ―American Islamic Group.‖ 120

―Islam Report (Urgent! Air France Incident-Part 1),‖ American Islamic Group (AIG). December 31, 1994,

MR_AVSEC00089116 - MR_AVSEC00089121. Exhibit 48, Parrett Declaration;


38

report of the Congressional 9/11 Commission, ―the most plausible explanation

that emerged was that one of the pilots had gone berserk, seized the controls, and

flown the aircraft into the sea.‖121

The theory of a religiously-motivated suicide

crash by First Officer Gameel Al-Batouti—accurate or not—was widely aired on

nationally-televised news programs.122

According to the 9/11 Commission, it was

one of the principle reasons that National Security Council (NSC)

Counterterrorism Czar Richard Clarke convened a meeting of his

Counterterrorism Security Group in early 2000 ―devoted largely to the possibility

of a possible airplane hijacking by al Qaeda.‖123

In December 1999, a splinter faction of Pakistani Islamic militants loyal to radical

cleric Maulana Masood Azhar hijacked Indian Airlines Flight 814 and eventually

flew the aircraft to Taliban-controlled Kandahar, Afghanistan in a bid to win

freedom for Azhar from an Indian prison cell.124

During the protracted week-long

ordeal, the five hijackers fatally stabbed one passenger, and wounded several

others. Eventually, Azhar and two other imprisoned extremists were freed by the

Indian government in exchange for the lives of the remaining hostages.125

Although the Taliban denied any involvement in the hijacking, suspicions were

raised over the friendly reception given to the hijackers in Kandahar and the

undeniable fact that the Taliban had helped them to escape from the airport

afterwards.126

2. The Al-Qaida Threat to U.S. Civil Aviation

The threat al-Qaida posed directly to the United States was also known and

broadcast widely to the American public prior to 9/11. This was largely due to

the fact that al-Qaida and its affiliates succeeded in carrying out several attacks

against the U.S. at home and abroad. Following the Pan Am 103 bombing over

Lockerbie, Scotland in 1988, the U.S. Congress authorized the Department of

State to publicly offer rewards of up to $5 million for information regarding

international terrorism.

On February 26, 1993, Ramzi Yousef, the nephew of admitted 9/11 mastermind

Khalid Shaykh Mohammed (―KSM‖), orchestrated an attack on the World Trade

Center in New York City. The truck bombing, which killed 6 people and injured

121


See, e.g.: ―Sources: Egypt Air voice recorder doesn‘t change theory of deliberate crash.‖ CNN. December 8,

1999. Exhibit 49, Parrett Declaration; see also, ―U.S. officials: Egyptians ‗privately accept‘ co-pilot role in crash.‖

CNN. June 25, 2001; Exhibit 50, Parrett Declaration; see also: ―I Put my Trust in God.‖ Newsweek. November 29,



―Indian Pilot Tells Why He Had to Obey Hijackers.‖ The New York Times. January 5, 2000. Exhibit 52, Parrett

Declaration 125

―Hijack Over as Rebels Traded for Hostages.‖ The Independent. January 1, 2000. Exhibit 53, Parrett

Declaration 126

Maulana Masood Azhar. ―From Imprisonment to Freedom.‖ Released: 2000. Exhibit 54, Parrett Declaration;

see also: ―2000 Criminal Acts Against Civil Aviation.‖ MR_AVSEC00097543. Exhibit 46, Parrett Declaration


39

more than 1,000, was considered by Congress to be a ―watershed event‖ in U.S.

history.127

Ramzi‘s attack was but a precursor to larger operations which would

target civil aviation, and set the stage for the 9/11 operation, which would again

strike at the World Trade Center. After the 1993 World Trade Center bombing,

the Air Transport Association, of which United Air Lines was a part, offered a

reward of $5 million for the capture of Yousef. This public offer ultimately

resulted in Yousef‘s arrest in February 1995.128

Five years later, on August 7, 1998, al-Qaida once more attacked the U.S., this

time successfully executing two nearly simultaneous suicide truck bombings at

U.S. embassies in Kenya and Tanzania. These attacks killed 224 people and

wounded thousands.129

Testimony of al-Qaida affiliates in this trial, which

revealed al-Qaida‘s interest in training pilots and familiarizing operatives with air

traffic control procedures, also served to foreshadow larger operations to come.130

In addition to the publicity surrounding al-Qaida‘s successful attacks throughout

the years leading up to September 11, 2001, the FAA issued public warnings of

bin Laden‘s continued threat to U.S. civil aviation. The FAA‘s 1999 issue of

Criminal Acts Against Civil Aviation stated that Usama bin Laden was a threat to

civil aviation, citing a May 1998 interview in which ―Bin Laden implied that he

could use a shoulder-fired surface-to-air missile to shoot down a military

passenger aircraft transporting U.S. military personnel. He reiterated that his

attacks would not distinguish between U.S. civilians and military personnel.‖

Additionally, the 1999 issue reported that an exiled Islamic leader in the United

Kingdom warned in August 1998 that ―Bin Laden would ‗bring down an airliner,

or hijack an airliner to humiliate the United States.‘‖131

One year later, the 2000

issue of Criminal Acts Against Civil Aviation once more heralded Usama bin

Laden and his followers ―a significant threat‖ to U.S. civil aviation, citing his

indictment for the 1998 U.S. embassy bombings in Tanzania and Kenya; his

―anti-Western and anti-American‖ attitudes; and his ―motivation and

wherewithal.‖132

127

―Foreign Terrorists in America: Five Years after the World Trade Center,‖ 1998 Congressional Hearings

Intelligence and Security, February 24, 1998, MRAB00064880; Exhibit 55, Parrett Declaration; see also, ―World

Trade Center Suspect Linked to Plan to Blow Up 2 Planes,‖ New York Times. March 26, 1995. Exhibit 56, Parrett

Declaration 128

United States of America vs. Ramzi Ahmed Yousef, Abdul Hakim Murad, Wali Khan Amin Shah, dated August 12,

1996. Exhibit 57, Parrett Declaration (trial transcript). 129

―Bin Laden Linked to Embassy Blast By an Ex-Soldier,‖ October 21, 2000. Exhibit 58, Parrett Declaration. See

also,―Embassy Bombing Trial Witness Recounts Birth of Terror Group,‖ Vitrade. February 6, 2001. Exhibit 59,


USA v. Usama Bin Laden, Trial Transcript, Day 8, 1153, 1164; see also: USA v. Usama Bin Laden, Trial

Transcript, Day 10, 1353-1355; USA v. Usama Bin Laden, Trial Transcript, Day 37, 5256-5258. Exhibit 60, Parrett

Declaration 131

―1999 Criminal Acts Against Civil Aviation,‖ MR_AVSEC00097457. Exhibit 61, Parrett Declaration 132

―2000 Criminal Acts Against Civil Aviation,‖ MR_AVSEC00097543. Exhibit 46, Parrett Declaration


40

a) Plots Targeting U.S. Civil Aviation

As early as 1994, the first evidence began to emerge of an interest among

extremist Arab-Afghan veterans in attacking aircraft within U.S. borders. A

group of Islamic militants in the New York metropolitan area linked to the 1993

World Trade Center bombing were caught by the FBI planning a new wave of

terrorist attacks on local landmarks, including the United Nations building, 26

Federal Plaza, and the Holland and Lincoln Tunnels. The ―New York Jihad

Plots‖ case received intense media attention, and was eventually adjudicated in

federal court—where much of the government‘s case against the conspirators was

revealed to the public. Part of that evidence included FBI wiretaps of

conversations involving lead plotter Siddig Ali and his associates, who had—

among other things—carefully studied the security routes taken by world political

leaders during visits to New York. The men discussed the prospect of using

mobile anti-aircraft weapons to assassinate global leaders, including President

Clinton and former Egyptian leader Hosni Mubarak. Siddig explained in one FBI

wiretap:

―When Clinton comes here, how he comes? They come, this is their system now,

he comes with a helicopter from the airport, La Guardia Airport… or there are

private airports, there is an airport in New Jersey called Outerboro. It is a small

private airport, right here, aircraft like U.S. 1, U.S. Air Force 1… So there are

small helicopters which pick them up from the airport and take them to… the one

next to the [South] Ferry.‖133

In 1995, another group of Arab-Afghan jihadists with close links to KSM were

also conspiring to attack Western commercial airliners, including by suicide

crashing them into targets inside the United States. The plot in this case was led

by KSM‘s nephew Ramzi Yousef, who was already on the run from law

enforcement due to his involvement in the February 1993 World Trade Center

bombing.134

Working directly with KSM while hiding in the Philippines, Yousef

conceived an elaborate plot to bomb twelve U.S. airliners carrying over 4,000

civilians simultaneously over the Pacific, which would become known as

―Operation Bojinka.‖135

The primary target of Operation Bojinka was United

Airlines, which was the largest airline in the region with the most flights departing

133

FBI Transcript of conversation between Emad Salem and Siddig Ibrahim Siddig Ali. United States v. Omar

Ahmad Ali Abdel Rahman et al. S3 93 Cr. 181(MBM). Government Exhibit 308-T. May 19, 1993. Exhibit 62,


―Web of Terrorism Targeted U.S. Jets Foiled Plan Would Have Blown Up 11 Planes in One Day,‖ Toronto Sun.

May 28, 1995. Exhibit 63, Parrett Declaration 135

―United States of America v. Ramzi Ahmed Yousef, Eyad Ismoil, Abdul Hakim Murad, Walikhan Amin Shah,‖

May 29, 1996. Page 22. Exhibit 57, Parrett Declaration; see also, ―2000 Criminal Acts Against Civil Aviation,‖

MR_AVSEC00097543. Exhibit 46, Parrett Declaration; see also, ―1999 Criminal Acts Against Civil Aviation,‖




MR_AVSEC00097144. Exhibit 65, Parrett Declaration


41

from the region. Evidence found on Yousef‘s computer and in his room at the

time of his arrest in Islamabad, Pakistan included flight times, itineraries, stopover

cities, timer settings and explosion times for United Airlines.136

Assisting in the ―Bojinka‖ conspiracy was another intimate confidant of Usama

Bin Laden, Wali Khan Amin Shah (a.k.a. Usama Azmarai). Bin Laden‘s former

personal secretary described Wali Khan as ―very close friends to [Bin Laden] and

he has most of his secrets, most of Mr. Bin Laden‘s secrets.‖137

Testimony

leading up to Yousef‘s public trial in 1997 revealed that although Yousef was able

to carry out a successful test detonation of a bomb on board a Philippine Airlines

flight, the plot was later aborted when Yousef and his comrades botched the

fabrication of explosives and were forced to flee their wrecked hideout in

Manila.138

According to testimony given in 1996 by Secret Service Agent Brian

Parr, Yousef informed him he had learned about airport security and its

limitations in detecting explosives from a CNN Special Report.139

In preparing Operation Bojinka, Khalid Shaykh Mohammed, Ramzi Yousef, and

other conspirators also arrived at other possible terror schemes, including suicide

crashing commercial aircraft into the CIA Headquarters in Langley, Virginia and

various nuclear power plants around the U.S. Detailed information about

―Operation Bojinka‖ and these accompanying terror plots was offered to police by

a co-conspirator, trained pilot Abdelhakim Murad, and was widely published in

global media outlets.140

To emphasize the role played by Philippine police in

thwarting the plot, authorities in Manila even shared copies of Murad‘s debriefing

report with American journalists.141

The report laid out a precise blueprint for a

9/11-style suicide mission targeting the CIA in Langley:

―With regards to their plan to dive-crash a commercial aircraft at the CIA

Headquarters in Virginia, [Murad] alleged that the idea of doing same came out

during his casual conversation with [Ramzi Yousef] and there is no specific plan

yet for its execution. What the subject have [sic] in his mind is that he will board

any American commercial aircraft pretending to be an ordinary passenger. Then

he will hijack said aircraft, control its cockpit and dive it at the CIA Headquarters.

There will be no bomb or any explosive that he will use in its execution. It is

simply a suicidal mission that he is very much willing to execute. That all he

136

United States of America vs. Ramzi Ahmed Yousef, Abdul Hakim Murad, Wali Khan Amin Shah, August 12,

1996, Trial Transcript at pp. 4058, 4093-4094. Exhibit 57, Parrett Declaration 137

United States v. Usama bin Laden, et al. S(7) 98 Cr. 1023 (LBS), U.S. District Court, S.D.N.Y., February 15,

2001, Trial Transcript at p. 811. Exhibit 60, Parrett Declaration 138

United States of America v. Ramzi Ahmed Yousef, Eyad Ismoil, Abdul Hakim Murad, Walikhan Amin Shah, May

29, 1996, Trial Transcript at pp. 16-18. Exhibit 57, Parrett Declaration 139

United States of America vs. Ramzi Ahmed Yousef, Abdul Hakim Murad, Wali Khan Amin Shah, August 12,

1996, Trial Transcript at p. 4095. Exhibit 57, Parrett Declaration 140

See, e.g.: ―Philippine Leader Calls For Joint Campaign Against Terrorism.‖ The Washington Post. October 26,

1995. Exhibit 66, Parrett Declaration; see also, “3 Convicted of Plotting to Bomb U.S. Jets; Trial Opened Window

On High-Tech Terror.‖ The Washington Post. September 6, 1996. Exhibit 67, Parrett Declaration 141

See, e.g.: ―CIA Said to be Aim of Suicide Plot: Islamic Militants‘ Plans Involve Alleged N.Y. Bomb

Mastermind.‖ Reuters. May 27, 1995. Exhibit 68, Parrett Declaration


42

need is to be able to board the aircraft with a pistol so that he could execute the

hijacking.‖142

Murad further claimed that, while together in Pakistan, Ramzi Yousef had

discussed with him his intense desire to ―attack any nuclear facilities in the

US.‖143

Long before Usama Bin Laden had become a household name, Murad

was also insistent about a connection between the ―Operation Bojinka‖ plots and

Bin Laden‘s terror network. During interrogations by Philippine police and

intelligence officials in 1995, Murad admitted that he always felt Ramzi Yousef

was ―hiding something from him. He suspects that [Ramzi] is connected with

OSAMA BIN LADIN since he remembers that he had once asked [Ramzi] if the

latter is connected with or receiving financial support from BIN LADIN, he had

observed that [Ramzi] is avoiding the question.‖144

On December 14, 1999, Algerian national Ahmed Ressam was stopped by U.S.

border patrol agents at the Port Angeles crossing near Vancouver. In his car,

investigators found the pre-cursors to terror: 100 pounds of explosives and simple

timing devices.145

One Customs agent recalled, ―I was looking right at him, had

my weapon pointed in his direction… He quickly darted into traffic, bounced off

a car, continued to run hard. And that was what really triggered me, caused me to

get very nervous, when he came up to a passenger vehicle and tried to

commandeer it or open the car door. I thought, ‗This guy really wants to get

away, and he‘s dangerous.‘‖ Ressam‘s attempt at escape failed and he eventually

agreed to cooperate with U.S. law enforcement.

Ressam conceded to investigators that the explosives in his trunk were destined

for a ―terrorist attack on a U.S. airport.‖146

Specifically, under orders from Al-

Qaida-linked terrorist commanders in Pakistan and Europe, Ressam had been

instructed to set off a massive explosion at Los Angeles International Airport

coinciding with the start of the new millennium. According to Ressam, the choice

was made because ―an airport is sensitive politically and economically.‖147

During the early summer of 2001, Ressam testified as a cooperating witness in

federal court and revealed the chilling details of his plan: ―I will go to the city of

142

―After Intelligence Operation Report re Neutralization of International Terrorists.‖ Memorandum sent to the

Chief of the Philippine National Police. Republic of the Philippines, Department of the Interior and Local

Government; National Police Commission, National Headquarters Philippine National Police Intelligence

Command. Camp Crame, Quezon City. February 27, 1995. Exhibit 69, Parrett Declaration; 143

Id. 144

―After Intelligence Operation Report re Neutralization of International Terrorists.‖ Memorandum sent to the

Chief of the Philippine National Police. Republic of the Philippines, Department of the Interior and Local

Government; National Police Commission, National Headquarters Philippine National Police Intelligence

Command. Camp Crame, Quezon City. February 27, 1995. Exhibit 69, Parrett Declaration. 145

―U.S. Puts Border on High Alert; Hunt for Terrorists Shifts from Abroad After Seattle Arrest.‖ The Washington

Post. December 19, 1999. Exhibit 70, Parrett Declaration 146

Cross Examination of Ahmed Ressam. United States v. Mokhtar Haouari. United States District Court Southern

District of New York. Case: 00CR15. June 27-July 6, 2001, at p. 649. Exhibit 75, Parrett Declaration 147

Direct Examination of Ahmed Ressam. United States v. Mokhtar Haouari. United States District Court

Southern District of New York. Case: 00CR15. June 27-July 6, 2001, at p. 572. Exhibit 71, Parrett Declaration


43

Los Angeles. I will surveil the airport. I will survey the airports until I find

one—a good one, and then I will bring a cart that is used for luggage. I will put

the cart in a place that is not suspicious and then I will observe the reaction of

security, how long it took them to observe it… this was for rehearsal only.‖ Upon

the execution of the actual plot, ―I will first try to put the explosives in one

suitcase and if there was not enough room in one suitcase, then I would use

another suitcase.‖148

Ressam‘s intention of targeting Los Angeles International

Airport with a suitcase bomb was the subject of intense media coverage for many

months following his arrest and subsequent appearance in federal court.149

Additionally, during his public sworn testimony in the summer of 2001, Ressam

recalled conversations with his Millennium Plot accomplice, Mokhtar Haouari,

regarding the 1998 Embassy Bombings. He stated that that the two were in

agreement that an attack inside the U.S. itself was preferable to an attack on U.S.

interests abroad: ―The bombing against America, it was a good thing; however, it

would have been preferable to have carried out in the country itself.‖150

Ahmed Ressam also offered an inside glimpse into the type of terrorist training

being given Al-Qaida operatives in Afghanistan during his testimony.151

He

explained that, at the Khalden training camp in southeastern Afghanistan, ―the

main training that we got was the explosives with T.N.T. with the usage of timing

devices…. We learned the kind of putting the compounds together… How to use

those… in a place where there are airplanes.‖ Ressam recounted in court how

students enrolled at Khalden learned ―how to blow up the infrastructure of a

country‖, including targeting railroads and airports—―we were speaking about

America as an enemy of Islam.‖152

b) Religious Edicts Encouraging the Targeting of U.S. Civil

Aviation

The Al-Qaida threat to civil aviation also took the form of public religious edicts

issued by jihadist clerics, such as the Blind Shaykh Omar Abdel Rahman. In

response to retaliatory U.S. missile strikes on Al-Qaida camps in Afghanistan in

August 1998, Rahman issued a new call to arms, smuggled out of his American

prison cell. The fatwa urged all Muslims:

148

Direct Examination of Ahmed Ressam. United States v. Mokhtar Haouari. United States District Court

Southern District of New York. Case: 00CR15. June 27-July 6, 2001, at pp. 573-574. Exhibit 71, Parrett

Declaration. 149

See e.g.: ―Bomb Plot Insider Details Training.‖ New York Times. July 4, 2001. Exhibit 69, Parrett Declaration;

see also, ―Los Angeles Airport Intended Target, Terrorism Plot Defendant Tells Jury.‖ Washington Post. July 4,

2001. Exhibit 72, Parrett Declaration 150

Direct Examination of Ahmed Ressam. United States v. Mokhtar Haouari. U.S. District Court, S.D.N.Y, Case:

00CR15. June 27-July 6, 2001, at pp. 590-591. Exhibit 71, Parrett Declaration 151

―Testimony at Bomb Trial Outlines Recipe for Mayhem.‖ New York Times. July 6, 2001. Exhibit 74, Parrett

Declaration; 152

Cross-examination of Ahmed Ressam. United States v. Mokhtar Haouari. U.S. District Court, S.D.N.Y. Case:

00CR15. June 27-July 6, 2001, at p. 626; Exhibit 75, Parrett Declaration; ―Los Angeles Airport Intended Target,

Terrorism Plot Defendant Tells Jury.‖ Washington Post. July 4, 2001. Exhibit 70, Parrett Declaration.


44

―[The Jews and Christians] are the ones that are fighting every Muslim

resurrection in the whole world, they act to spread prostitution, usury, and other

kinds of corruption all over the land. Oh, Muslims everywhere! Cut the

transportation of their countries, tear it apart, destroy their economy, burn their

companies, eliminate their interests, sink their ships, shoot down their planes, kill

them on the sea, air, or land. Kill them when you find them, take them and

encircle them, paralyze their every post. Kill those infidels… Allah will torment

by your hands those who wish to kill you; Allah will put shame upon them, he

will blow wind in the chests of the believers and show the anger of their

hearts.‖153

Al-Qaida terrorist Ahmed Ressam later recalled the same fatwah distributed

widely in the Afghan military training camps in 1998-1999 ―issued by Sheikh

Omar Abdel Rahman with his picture on it… It said it was a fatwah by Omar

Abdel Rahman from prison. It says fight Americans and hit their interest

everywhere.‖154

The London-based Abu Hamza al-Masri—Imam at the Finsbury Park Mosque—

was another outspoken clerical supporter of jihadi terrorist attacks on American

civil aviation. In 1999, Abu Hamza was profiled in a primetime Channel 4 U.K.

documentary by reporter Deborah Davies. The documentary included video

footage of Abu Hamza at a jihadi conference explaining a diagram for the

―Muslim Anti-Aircraft Net‖—a proposed design for a floating net laced with

mines intended to randomly entrap and destroy civilian passenger aircraft in Great

Britain and the U.S In a later press release about the conference, Abu Hamza‘s

representatives acknowledged that the anti-aircraft net he was promoting had

actually been ―designed by our Brothers in Afghanistan‖:

―These nets will increase the hazard and risk to flying, and are a response to the

destructive inventions of the infidel West… These nets, if mass produced, can

cost less than £10, and are undetected by radar. They can be launched from any

point, and move to anywhere in the world. We urge all brothers and sisters to also

begin thinking of designs and techniques such as these, because the time for

talking has long since passed.‖155

c) Al-Qaida’s Final Warnings Before September 11, 2001

In the final months leading up to the September 11, 2001 terrorist attacks on the

United States, there were a handful of additional public warnings regarding the

153

Excerpts of Shaykh Omar Abdel Rahman will and testament, including his plea to followers to ―‗extract the most

violent revenge‘ should he die in U.S. custody,‖ were also circulated widely in U.S. newspapers, see, e.g., ―Long

Awaited Witness in Plot to Bomb LA Airport Takes Stand,‖ The Associated Press, July 4, 2001. Exhibit 76, Parrett

Declaration 154

Direct Examination of Ahmed Ressam. United States v. Mokhtar Haouari. U.S. District Court, S.D.N.Y. Case:

00CR15. June 27-July 6, 2001, at. p. 552. Exhibit 71, Parrett Declaration. 155

―Supporters of Shariah‖ Newsletter. Vol. 2; Issue 2. March/April 1999, MR_AVSEC00094353 -

MR_AVSEC00094360. Exhibit 77, Parrett Declaration


45

Al-Qaida terrorist threat to U.S. aviation interests. During the spring of 2001, Al-

Qaida‘s main media wing—the As-Sahab Media Foundation—released its first

official propaganda video, titled ―State of the Ummah‖ (a.k.a. ―The Destruction of

the U.S.S. Cole.‖) Since its release, this video recording has been widely and

repeatedly publicized and aired on Arabic and English-language news channels.156

It includes memorable speeches by Usama Bin Laden and classic extended

footage of the Al-Faruq and Tarnak Farms training camps near the Afghan city of

Kandahar. Amidst the scenes of training and calls for attacks on the United

States, the music suddenly fades out and the camera focuses for several minutes

on a masked instructor giving recruits a step-by-step lesson in the operation of a

SA-7 shoulder-fired surface-to-air missile launcher.

In May 2001, intelligence reports began circulating in the U.S. regarding a

―possible hostage plot against Americans abroad to force the release of prisoners,

including Sheikh Omar Abdel Rahman, the ‗Blind Sheikh‘… The reporting noted

that operatives might opt to hijack an aircraft or storm a U.S. embassy.‖157

Usama Bin Laden and other Al-Qaida leaders had been deeply angered by the

conviction and imprisonment of the ―Blind Shaykh.‖ According to Al-Qaida

turncoat Jamal al-Fadl, ―they talk about Sheikh Omar he arrest[ed] and we have to

do something, and that‘s very sad and that‘s very bad… They talk about what we

have to do against America because they arrest Sheikh Omar Abdel Rahman.‖158

This threat reporting regarding the ―Blind Shaykh‖ was serious enough for the

FAA to issue an information circular to airlines specifically warning of the

potential for ―an airline hijacking to free terrorists incarcerated in the United

States.‖ Al-Qaida has since boasted of how, in the lead-up to 9/11, Bin Laden‘s

increasing public threats to the U.S. homeland ―motivated the enemy to declare a

state of high alert.‖

Thus, as demonstrated by the above analysis and a litany of available evidence—

even prior to September 11, 2001—there was substantial publicly-available

information to indicate that the Al-Qaida terrorist network had both the sharply-

focused intent and the necessary resources to launch terrorist attacks on civil

aviation in the United States. Moreover, the sources of this information are

highly visible, credible, and influential—including the sworn testimonials of

confessed Al-Qaida members, propaganda video recordings and public magazines

produced by Al-Qaida and its allies, stories published in major newspapers and

television media, and even official formal warnings from the U.S. government.159

156

See e.g.: ―A Claim For The Cole.‖ CBS News. June 20, 2001; Exhibit 78, Parrett Declaration; ―Bin Laden troops

brag about Cole; Recruitment tape claims disciples bombed U.S. ship.‖ Chicago Tribune. June 20, 2001; Exhibit

79, Parrett Declaration 157


United States v. Usama bin Laden, et al. S(7) 98 Cr. 1023 (LBS). U.S. District Court, S.D.N.Y. Trial

Transcript, February 6, 2001. Exhibit 60, Parrett Declaration. 159

Expert Report of Evan F. Kohlman at pp. 13-23. Exhibit 34, Parrett Declaration


46

To be sure, in spite of all of those warnings before September 11, 2001 on the threat of

terrorists targeting civil aviation in the United States, defendants still strenuously and doggedly

disagree that the 9/11 hijackings were foreseeable. Def. Mem. at 30-36. Yet that fact-driven

dispute is inappropriate to resolve at the summary judgment stage. Hence, the Bavis Family

suggests that Defendants make their foreseeability case to the jury, which will decide if the 9/11

hijackings were foreseeable by United and Huntleigh.

C. United and Huntleigh’s argument that it is “unfair” to impose a duty on them to

protect their passenger Mark Bavis from terrorist hijackings when foreign

sovereigns and financial supporters of al Qaeda do not have that duty is absurd.

In its final scope-of-duty argument, United and Huntleigh shockingly say that “the law

would have to be „a ass‟” to impose on them a duty to screen passengers coming aboard their

plane to prevent the terrorist hijacking of Flight 175 when no such duty was imposed on

defendants in separate litigation arising out of the September 11 attacks — a pending intentional

tort action arising under the Anti-Terrorism Act (―ATA‖), 18 U.S.C. §§ 2331, et seq., and (as to

some defendants) the Foreign Sovereign Immunities Act (―FSIA‖), 28 U.S.C. §§ 1602, et seq.,

against foreign sovereigns, ostensible Islamic charities, financial institutions, and other

businesses and individuals for providing financial support to al Qaeda. Def. Mem. at 26-29.

Given the differences between the cases, not the least of which is the difference in the law upon

which the cases are premised, the Bavis family disagrees with the strained analogy that

defendants offer here.

FAA regulations explicitly require United and Huntleigh (as United‘s security agent) to

provide for the protection of passengers and property on aircraft in the event of hijackings. See

49 U.S.C. § 44903(b)(mandating the promulgation of ―regulations to protect passengers and

property on an aircraft‖ against acts of criminal violence or aircraft piracy); 14 C.F.R. § 108.7


47

(2001)(a)(1) (air carrier security programs shall ―provide for the safety of persons and property

traveling in air transportation and intrastate air transportation against acts of criminal violence

and air piracy‖). It is not at all surprising, let alone ―fundamentally unfair‖ as United cries, that

those FAA regulations do not impose these duties on ―Saudi Princes, Sultan and Turki‖ or on

private financial institutions or other financiers in ―Saudi Arabia.‖ Def. Mem. at 26-27. Why?

Because those defendants were not air carriers and Mark Bavis was not their passenger traveling

in air transportation. Moreover, because United and Huntleigh were neither sovereigns nor

agents of sovereigns on September 11, 2001, their argument about ―discretionary function

immunity as provided by the FSIA‖ is absurd. Id. Regardless of whether ―actual knowledge‖ of

the terrorists‘ conduct is the right standard to impose ATA aiding and abetting liability against

financial supporters of terrorism, id. at 28, it is quite appropriate to apply FAA security

regulations and procedures requiring United and Huntleigh to screen passengers for weapons to

prevent hijackings.

III. As the Court has ruled that the issue at trial is over Defendants’ substantial

compliance with applicable federal regulations and procedures implementing those

regulations, Defendants’ false argument that New York common-law imposes only a

duty to provide “minimal security” is irrelevant.

United and Huntleigh take a cheap shot at the Bavis family by ripping a line out of

context from Plaintiff‘s separate brief in opposition to Massport‘s motion for summary

judgment, which was discussing in passing the duties of landlords to provide security, and then

pretend that ―Plaintiff concedes that there is only a duty to provide minimal security precautions

under New York law.‖ Def. Mem. at 36-37. Plaintiff conceded no such thing. For the record,

Defendants‘ attempt to create confusion as to the standard of care in this negligent security case

is false because: (1) even in the landlord-tenant context, New York law is clear that the landlord

has the duty to exercise reasonable care under the circumstances to maintain the premises in a


48

safe condition, In the Matter of World Trade Center Bombing Litig., 776 N.Y.S.2d 713, 734

(2004); and (2) caselaw applying New York common-law law in the negligent aviation-security

context imposes a standard of reasonable care on air carriers to provide the highest possible

degree of safety in the public interest—Stanford v. Kuwait Airways Corp., 89 F.3d 117, 124 (2d

Cir. 1996); In re Air Crash Disaster at John F. Kennedy Int’l Airport on June 24, 1975, 635 F.2d

67, 77 (2d Cir. 1980); In Williams v. Trans World Airlines, 509 F.2d 942, 946 (2d Cir.

1975)160

—and not mere ―minimal security‖ as United and Huntleigh now insist is all they owed

to Flight 175 passenger Mark Bavis. Def. Mem. at 36-40.

In light of this Court‘s recent ruling, however, that ―[t]he federal statutes, and the

regulations promulgated thereunder, make clear that there is no room for such state law,‖ and

thus that the ―issue at trial rests on Defendants‘ substantial compliance with governing [federal]

regulations, and security programs,‖ Order at 11-12, 21 MC 101 Dkt. 1545 (Sept. 7, 2011),

Defendants‘ distortion of New York common-law law is now not only wrong but also irrelevant.

IV. There are disputes of fact over whether United and Huntleigh failed to substantially

comply with federal regulations and procedures on September 11, 2001

The cardinal principle of both general and commercial aviation is safety. Through the

Federal Aviation Regulations, the Federal Government mandates the duties of commercial

airlines to its passengers. Defendants United Airlines and Huntleigh had a duty to provide for

the safety of persons and property traveling in air transportation and intrastate air transportation

against acts of criminal violence and air piracy. 14 C.F.R. § 108.7(a)(1) (2001). Defendants

owed a duty to Mark Bavis to protect him from acts of criminal violence and air piracy. The

Code of Federal Regulations applicable in the present case are derived from 49 U.S.C. §

160

See also, DiBenedetto v. Pan Am World Service, Inc., 359 F.3d 627, 630 (2d Cir. 2004)(applying New York law,

in a case alleging negligence arising out of security operations at an airport, the Second Circuit affirmed that there is

―no doubt‖ that awareness and reasonable action beyond mere compliance with minimum standards are the hallmark

of the required level of care).


49

44701(b)(1), which states the ―Administrator of the Federal Aviation Administration shall

promote safe flight of civil aircraft in air commerce by prescribing minimum safety standards for

an air carrier to whom a certificate is issued under section 49 U.S.C. § 44705.‖ The Regulations

derived from 49 U.S.C. § 44701(b)(1) were codified under 14 C.F.R. § 108 (2001), which set the

basic framework for airplane operator security.

Section 108.5(a)(1) of the Federal Aviation Regulations provides as follows: ―Each

certificate holder shall adopt and carry out a security program that meets the requirements of §

108.7 for each of the following scheduled or public charter passenger operations.‖ This security

program is drafted by the air carrier and submitted to the FAA. This plan is known as the Air

Carrier Standard Security Program (―ACSSP‖). United had created an approved ACSSP for

Boston Logan that was in effect on September 11, 2001. The ACSSP mandates the details by

which United was to carry out its security program. The role of the FAA following the approval

of the ACSSP is to enforce United‘s compliance. Additional guidance to the air carrier regarding

screening is found in the Checkpoint Operations Guide (COG). The COG is instructive on the

operation of a passenger screening checkpoint, which is written by the Air Transport Association

and the Regional Airline Association, two air carrier trade groups. A copy of the COG was

required to be physically present at each security checkpoint, including those at Logan Airport,

so that screeners had a reference on which to rely. Hence, the COG and the ASCSSP were

United and Huntleigh‘s own procedures crafted to comply with the FAA security regulations on

passenger screening for weapons. Unfortunately, the FAA employee who was the Principal

Security Inspector for United from 1991 to 1999 testified she never looked to see if the COG was

each checkpoint and ―I never seen anybody actually using it.‖161

161

Deposition of Frances Lozito, p. 174:10-22 (January 27, 2011). Exhibit 7, Parrett Declaration


50

Under 14 C.F.R. § 108.5(a) (2001), United was required to adopt and carry out a security

program meeting the requirements of 14 C.F.R. § 108.7 for it scheduled flights and specifically

Flight 175 on September 11, 2001. United argues that because their security program was

approved by the FAA, they cannot be held liable for the death of Mark Bavis. Def. Mem. at 13-

23, 40-48. That narrow view of the federal regulations is error. Approval by the FAA is only

one of four requirements detailed in 14 C.F.R. § 108.7(a) (2001), which requires that each

security program: (1) provide for the safety of persons or property traveling in air transportation

against acts of criminal violence and air piracy; (2) be in writing and signed by the airline; (3)

include the procedures to be used to comply with applicable security regulations; and (4) be

approved by the FAA. United was required to comply with all four provisions. Although the

ACSSP in effect on September 11, 2001 was in writing, included the procedures, and was

approved by the FAA, genuine issues of material fact exists as to whether United security

program provided for the safety of its passengers. Five hijackers commandeered Flight 175 on

September 11, 2001, using weapons brought through the screening checkpoints which were the

responsibility of United.

As a result of the hijacking, Mark Bavis, along with the other passengers and crew were

killed. Even if United had followed its security plan to the letter, which Plaintiff disputes as

further described below, it did not provide for Mark Bavis‘ safety and failed to prevent acts of

criminal violence and air piracy. As such, a genuine issue of material fact is present and

United‘s Motion for Summary Judgment should be denied.

Moreover, Defendants argue that their ―ability to control the boarding of terrorists was

limited by the federal security system that they were mandated to follow. . . . [T]he defendants

were drastically limited by federal mandate in what they could do to ‗control‘ these


51

passenger/terrorists.‖ Def. Mem. at 13. This argument suggests that even if United wanted to

enhance certain aspects of the security system they were prevented by law from doing so.

The Air Transport Association, the trade association for United Airlines (and other

carriers), submitted the first proposed security program to the FAA for approval. Deposition of

Robert Cammaroto, pp. 303-308 (February 11, 2008).162

The FAA ultimately approved a

security program very close to the one submitted by United Airlines trade association. Id. at

308. Thus, the first security program was based on the model security program that the industry

itself prepared and submitted. Id. at 307.

Importantly, as explained above, the ACCSP required the airlines to submit a proposed

security program to the Assistant Administrator of the FAA for approval. 14 C.F.R. §

108.105(a). The FAA did not dictate every element of each individual airline‘s security

program. It was the airline which submitted the program for approval to the FAA. Moreover,

the ACSSP broadly permits the airlines to seek approval of the FAA to amend its security

programs. 14 C.F.R. § 108.105(b); see also, Deposition of Robert Cammaroto, p. 314.

Amendments may be approved if the Assistant Administrator determines that safety and the

public interest will allow it. 14 C.F.R. § 108.105(b)(3).

In fact, according to the Deputy Director of the FAA‘s Office of Civil Aviation Security

Policy and Planning, Quinten Johnson (who is one of Plaintiff‘s experts in this case), United

Airlines, Huntleigh and the FAA all understood that with permission from the FAA the airlines

and security screening companies could enhance their security programs to address security

weaknesses.163

Importantly, Mr. Cammaroto testified that each of the countermeasures which

162

Attached as Exhibit 15, Parrett Declaration. 163

Expert Report of Quinten Johnson, pp. 8-12. Exhibit 80, Parrett Declaration


52

may have been implemented in the aviation security programs to prevent the September 11th

attacks including:

Changing the sensitivity of the walk-through metal detectors

Prohibiting all blades under four inches

Requiring all passengers to be given a pat down search at the checkpoints

Requiring all hand held luggage to be physically examined

could have been implemented by the air carriers if common sense and good judgment required it

provided they communicated that request and permission was given by the FAA. Deposition of

Robert Cammaroto, pp. 368-369.

Therefore, it is an incorrect statement of fact and law for United Airlines to state that it

was mandated to follow a flawed aviation security program. The security program in place at

Logan International Airport for Flight 175 was its own security program that was merely

approved by the FAA. The FAA employee who was the Principal Security Inspector for United

confirmed United could amend its program.164

If United requested to amend the program to

enhance safety of the flying public, the FAA would have welcomed those suggestions and, if

appropriate, approved them.

That said, even focusing solely on the applicable regulations, programs and procedures in

place on September 11, there are substantial disputes of fact over whether United and Huntleigh

substantially complied with them.

164 Deposition of Frances Lozito, p. 161:10-19 (January 27, 2011). Exhibit 7, Parrett Declaration


53

A. Failures to substantially comply with 14 C.F.R. § 108.9 and procedures—

the checkpoint screening failures

On September 11, 2001, Defendant United Airlines was required to screen all passengers

and property boarding their flights. 14 C.F.R. § 108.9(a). Specifically, United was required to

conduct screening under the ―procedures included, and the facilities and equipment described, in

its security program to prevent or deter the carriage aboard airplanes of any explosive,

incendiary, or a deadly or dangerous weapon on or about each individual‘s person or accessible

property.‖ Id. (emphasis added) Defendants neither prevented nor deterred the hijackers from

boarding the aircraft with knives and mace. Both knives and mace are listed as deadly and

dangerous weapons in United‘s security plan.165

Defendants have argued that small knives were

not detectable; however, this argument is premised on the position the knives on board Flight

175 were small. The evidence, as demonstrated through the phone calls placed from Flight 175,

is that the terrorists had knives, without any further description. As such, genuine issues of

material fact exist and Defendant‘s Motion for Summary Judgment should be denied.

The hijackers on board used mace to force the passengers of Flight 175 to the rear of the

aircraft.166

On September 11, 2001, mace was a prohibited item.167

Mace was also considered

hazardous material and was not even allowed in checked baggage that was stored in the cargo

hold.168

Accordingly, pre-board screeners should have been able to identify mace so as to

prevent it from going on board an aircraft. Four screeners working the Flight 175 checkpoint did

not even know what mace was.169

One of the screeners was still unable to identify mace when

165

ACSSP Appendix I. Exhibit 2, Parrett Declaration. 166

AVSEC Monograph pg. 21-23; Exhibits 5, Parrett Declaration. 167

ACSSP Appendix I; Exhibit 2, Parrett Declaration. 168

COG pp. 5-6; Exhibit 16, Parrett Declaration. 169

Deposition of Mohammed Shariff pg. 57:14-25, 58:1-15, 59:1-3; Deposition of Brahim Ramzy pg. 43:10-25

through pg. 48:1-10; Deposition of Guadalupe Ventura-Cordero pp. 43:20-25, 44:1-19; Deposition of Yosmaris

Guerrero p. 72-73. Exhibits 81, 82, 83, 84, Parrett Declaration.


54

handed the mace canister.170

Another screener did not understand the word mace and required a

translator to explain to her what it was.171

It would have been impossible for Huntleigh screeners

to prevent or deter mace from getting past the checkpoint if the screeners did not know what it

was. Clearly, not knowing what was a prohibited item is a direct violation of the FAR‘s, ACSSP

and COG.

Further, Defendants were to inspect each person and their accessible property, i.e., carry-

on bags, before allowing the passenger to enter the sterile area of the airport. 14 C.F.R. §

108.9(c). It is undisputed that all hijackers on Flight 175 passed through the security checkpoint

under the responsibility of the Defendants. None of the hijackers who went through the Flight

175 checkpoint were prevented or deterred from bringing dangerous weapons on board the flight.

Because weapons were brought on board, a genuine issue of material fact exists as to whether

Defendants properly inspected and screened the hijackers according to applicable regulations and

procedures.

Defendants were required to staff the checkpoints with supervisory and non-supervisory

personnel in accordance with the ACSSP.172

One of those requirements was for a Checkpoint

Security Supervisor (CSS) to be available at the screening point at all times of operation, with

the exception of meal periods, scheduled breaks and emergency situations beyond the control of

the air carrier.173

On the morning of September 11, 2001, when the hijackers went through the

checkpoint, Defendants had two CSSs on duty. One of the CSSs was not present when the

hijackers were screened. That CSS had been sent by the Huntleigh Duty Manager, along with

170

Deposition of Brahim Ramzy p. 43:10-25 through p. 48:1-10; Exhibit 82, Parrett Declaration. 171

Deposition of Guadalupe Ventura-Cordero pp. 43:20-25, 44:1-19; Exhibit 83, Parrett Declaration. 172

14 C.F.R. § 108.9(d)(2001). Exhibit 1, Parrett Declaration. 173

ACSSP at p. 20. Exhibit 2, Parrett Declaration.


55

another screener, to look for wheelchairs that belonged to Huntleigh in the airport.174

Defendants‘ security program states that during peak periods of screening activity, efficient

screening may necessitate staffing levels which exceed the minimum.175

A jury could reasonably

find that sending a CSS and another screener to search for wheelchairs during the morning peak

screening times as a failure to adequately staff the checkpoint.

The lone CSS left at the checkpoint was a nineteen year old with only approximately

three months of screening experience.176

The CSS at the checkpoint had been initially certified

as a screener on May 22, 2001.177

The CSS testified she was asked to qualify as a CSS in late

July or early August of 2001, approximately 60 days after becoming initially qualified as a pre-

board screener, however, her training record does not reflect CSS training.178

Huntleigh during

this time had a 90-day probationary period for new hires.179

A reasonable jury could find that

Defendants failed to adequately staff the checkpoint by utilizing one nineteen-year-old

employee, with approximately three months total experience and who had been promoted after

only being qualified as a screener for 60 days.

The fact is that despite the premier importance of the security screening checkpoint,

United and Huntleigh failed to substantially comply with federal regulations regarding the

screening of passengers for Flight 175 on the morning of September 11, 2001.180

According to

Glen Winn (one of Plaintiff‘s experts in this case, the former Staff Executive for Operational

Security for United Air Lines, who from 1997 to 2005 oversaw United‘s operational security as

Regional Security Manager for its operations west of Denver in the U.S. and across the Pacific

174

Deposition of William Thomas at p. 120-123:15. Exhibit 85, Parrett Declaration. 175

ACSSP at p. 21. Exhibit 2, Parrett Declaration. 176

Deposition of Jennifer Gore at pp. 93-94. Exhibit 86, Parrett Declaration. 177

HUSA 002272, excerpt from Jennifer Gore‘s Employment History, Exhibit 84, Parrett Declaration. 178

Deposition of Jennifer Gore at p. 93-94. Exhibit 87, Parrett Declaration. 179

HUSA 002784, excerpts from Brahim Ramzy‘s Employee History, Exhibit 88, Parrett Declaration. 180 Expert Report of Glenn Winn (Redacted for SSI) at p. 12, Exhibit 6, Parrett Declaration.


56

Rim of Asia), the presence of Mace and pepper spray on Flight 175, as items prohibited from

being carried on board the cabin of an aircraft on September 11, 2001, was a FAA security

violation.181

―Similarly, United and Huntleigh‘s failure to detect the knives used by the

hijackers, regardless of the knives‘ blade length, resulted in dangerous and deadly weapons

entering the aircraft. The failure to prevent or deter these items from entering the aircraft was a

security violation‖ based on the Federal Regulations outlined in the ACSSP, the COG and

United‘s internal manuals.182

As was the case with their CSRs at the ticket counter and the departure gate, United and

Huntleigh failed to hire and retain qualified screeners and to adequately train and prepare them to

face mounting threats to civil aviation.183

That the screeners on duty on 9/11 were not prepared

to implement the necessary security procedures was a function of United‘s carelessness in

complying with Federal Regulations. While the hijackers may have passed through screening

checkpoints operated by individuals, those screeners were decent people who were set up by

United and Huntleigh to fail. Many of the screeners on duty on the morning of 9/11 could not

speak English and received inadequate compensation and training.184

Because of United‘s failure to adequately compensate its employees, its screener turnover

rate was unacceptable. ―The General Accounting Office identified Logan Airport in 1999 as one

of the nation‘s worst airports for retaining checkpoint screeners, with a turnover rate of 207

percent – the fourth highest among 19 major airports.‖185

In fact, most of United‘s screeners on

duty at the checkpoint on the morning of September 11th

had worked in security screening for

181

Expert Report of Glenn Winn (Redacted for SSI) at p. 16, Exhibit 6, Parrett Declaration. 182

Id., p. 16. 183

Id., p. 13-14. 184

Id., p. 13. 185 Id., p.13-14 (citing to ―GAO Aviation Security: Long-Standing Problems Impair Airport Screeners Performance,‖

General Accounting Office, June 2000, MR_AVSEC00092729. Exhibit 18, Parrett Declaration)


57

less than four months.186

―According to Huntleigh‘s General Manager at Logan, ‗less than five'

Huntleigh screeners or Checkpoint Security Supervisors (‗CSS‘) on duty at Logan Airport on

September 11, 2001 were employed by Huntleigh on February 21, 2001, just under 7 months

prior.‖187

In Winn‘s experience, insufficient training was a systematic problem that extended to

employees occupying advanced positions within United‘s Customer Service Department,

including the Ground Security Coordinators (―GSC‖).188

United‘s GSC on duty was responsible

for the safety of all of its domestic departures on a given day. At the start of each shift, ―the

GSC was responsible for opening the checkpoint and ensuring that all of the equipment was on

and operating correctly. This included conducting a test of the x-ray machine with the step

wedge and testing the walk through metal detector with the Operational Test Piece (―OTP‖). A

log was to be filled out detailing that the tests were successfully completed and listing the names

of the employees on duty. The GSC then called the operations center to inform them that the

checkpoint was open for passengers.‖189

In addition to these duties, the GSC was responsible for

monitoring the screening of passengers for UAL Flight 175, ensuring the control of access to the

airplane, ensuring the monitoring of airlines servicing, ensuring the area on and around UAL

Flight 175 was being monitored, ensuring the security of the baggage and cargo was monitored,

monitoring any extraordinary ground procedures and communicating with the in-flight security

coordinator for UAL Flight 175.190

186 Expert Report of Glenn Winn (Redacted for SSI) at p. 14, Exhibit 6, Parrett Declaration. 187 Id., p.14 (citing to Simon Robinson was the General Manager for Huntleigh at Logan Airport from approximately

October 2000 to August 2001. Deposition of Simon Robinson, February 22, 2007, p. 126-127. Exhibit 89 Parrett

Declaration) 188

Id, p. 25. 189

Id., p. 14. 190

Id., p. 25-26.


58

Roscoe Mills was the GSC on duty on September 11, 2001. Mills admits that he did not

perform all of these duties on the morning of September 11th, because he was simultaneously

working as a Customer Service Representative.191

In Winn‘s opinion, all Category X airports,

including Logan Airport, should have a dedicated GSC working each shift. Therefore, Mills

should not have also been responsible for working as a CSR on the morning of September

11th.192

Moreover, Mills received only three days of training and was given a 300 page

document to refer to, having no previous clear understanding of the position and responsibilities

of a GSC.193

He was not given a pay raise to compensate for his added duties as a GSC despite

his complaints, nor was he given a uniform to distinguish him from the other CSRs on duty at a

given time.194

In Winn‘s opinion, ―Mills was unable to fulfill his duties as a GSC because he

was not given the tools to do so. In other words, he was expected to understand and implement

an entirely new procedural code immediately upon his return from Chicago O‘Hare with no

additional on-the-job training, with limited peer guidance and for no added monetary benefit.‖195

Checkpoint Screener Supervisor Jennifer Gore testified that ―Huntleigh‘s duty manager

sent Thomas to look for wheelchairs leaving Gore as the sole CSS on duty. Gore believed

Thomas was gone for more than an hour estimating that he left the checkpoint about 6:00am and

returned by around 7:30am.‖196

Winn concludes that there was inadequate screener supervision

for tended periods of time at the checkpoint that morning. He also concludes that the timing of

the UAL hijackers check-in and boarding on the plane suggests they made their way through the

191

Expert Report of Glenn Winn (Redacted for SSI) at p. 25-26, Exhibit 6, Parrett Declaration (citing to Deposition

of Roscoe Mills, December 18, 2006, pp. 70-75. Exhibit 17, Parrett Declaration.) 192

Id., p. 26. 193

Id., p. 25, citing to Deposition of Roscoe Mills, December 18, 2006, p. 37. Exhibit 17, Parrett Declaration. 194

Id., p. 25 (citing to Deposition of Roscoe Mills, December 18, 2006, pp. 38-39. Exhibit 17, Parrett Declaration.) 195

Id., p. 25 (citing to Deposition of Roscoe Mills, December 18, 2006, pp. 48-49. Exhibit 1, Parrett Declaration.) 196

Id,. p. 27 (citing to Deposition of Jennifer Gore, October 19, 2006, pp. 103-105. Exhibit 86, Parrett Declaration.)


59

Terminal C checkpoint between 6:20am and 7:30am,197

and that these times coincide with Gore

being the lone CSS on duty.

At a minimum, employees hired to work as checkpoint screeners must be able to speak,

read and understand English.198

In addition, Winn maintains that screeners should also be able to

adequately screen passengers, detect certain items by x-ray, magnetometer and hand-wand.199

Many of United and Huntleigh‘s security screeners on duty on 9/11 were unable to speak or

understand English; one screener even required a translator for her depositions in this litigation,

and others gave testimony that was extremely difficult to understand.200

In order to understand

exactly what they are screening passengers for, screeners should also be able to identify items

prohibited by the ACSSP and the COG, such as Mace, pepper spray and menacing knives.201

However, many of the screeners on duty on 9/11 did not know what Mace and pepper spray

were, as evidenced by their depositions in this litigation.202

In addition to inadequate procedural training, United and Huntleigh screeners were not

properly informed of the threat level in effect at Logan Airport on September 11th. Logan

Airport was at threat Level III on September 11, 2001:

the Aviation Security Contingency Plan designated the national threat level at

Level III. Alert Level III means that existent ‗Information indicates a terrorist

group or other hostile entity with a known capability of attacking civil aviation is

197

Expert Report of Glenn Winn (Redacted for SSI) at p. 27, Exhibit 6, Parrett Declaration. (citing to ―9/11

Commission Staff Report,‖ August 26, 2004, Revised September 2005, MR_AVSEC00131611 –

MR_AVSEC00131612. Exhibit 5, Parrett Declaration). 198

Id., p. 13, 29 (citing to ASCCP, UAL026439, UAL026566, Exhibit 2, Parrett Declaration). At a minimum,

screeners should be able to (1) Read English-language identification badges, law enforcement credentials, airline

tickets, and labels on bottles, aerosol cans, and packages. (2) Understand and carry out instructions written in

English regarding the proper performance of their screening functions. (3) Speak and understand English sufficiently

to understand and answer questions and to give comprehensible directions in English. (4) Write in English when

assigned duties requiring written record keeping. 199

Id., p. 13. 200 Videos from the Depositions of Guadalupe Ventura-Cordero, April 20, 2007; Brahim Ramzy, June 11, 2008;

Mohamed Sharrif, December 14, 2006. Exhibits 81, 82, 83, Parrett Declaration (transcript thereof). 201

Id, p. 29 202

Videos from the Depositions of Guadalupe Ventura-Cordero, April 20, 2007; Brahim Ramzy, June 11, 2008;

Mohamed Sharrif, December 14, 2006. Exhibit 81, 82, 83, Parrett Declaration (transcript thereof).


60

likely to carry out attacks against U.S. targets; or civil disturbances with a direct

impact on civil aviation have begun or are imminent.‘ Significantly, the next and

last threat level in the contingency plan required a complete shutdown of the civil

aviation system.203

While the ACSSP, the COG and United‘s internal manuals repeatedly called on screeners

to exercise ―common sense‖ and ―good judgment‖ in their daily implementation of procedures,

United set its screeners up to fail by not adequately informing them of existent threats to civil

aviation. Without the proper context of the threat, screeners could not fully implement sound

judgment and common sense. At least nine screeners on duty on 9/11 were unaware of the threat

level in effect that morning.204

Shockingly, employees at the management level were also in the

dark: Huntleigh Director of Training Robert Hudspeth, Huntleigh General Manager at Logan

William Bourque, Huntleigh Duty Manager at Logan, Francesco Digirolamo, and Checkpoint

Screener Supervisor Jennifer Gore were also unaware of the threat level.205

In addition, at least

nine screeners on duty on the morning of 9/11 had never heard of Osama bin Laden or al-

Qaeda.206

Astoundingly, neither had Huntleigh Director of Product Development Richard Sporn,

Huntleigh Director of Training Robert Hudspeth, Huntleigh General Manager at Logan William

Bourque ever heard of Osama bin Laden or al-Qaeda.207

After 9/11, several United and Huntleigh employees testified that they had noticed

Middle Eastern men exhibiting strange or unusual behavior leading up to and on the morning of

203

Expert Report of Glenn Winn (Redacted for SSI) at p. 30, Exhibit 6, Parrett Declaration (citing to ―Air Carrier

Standard Security Program,‖ UAL026550, Exhibit 2, Parrett Declaration) 204

Depositions of Trandafile Bala at pp. 38-39, December 14, 2006; Brahim Ramzy at p. 97, June 11, 2008;

Kathleen Bendami at p. 80, May 21, 2007; Mohamed Shariff at pp. 71-76, December 14, 2006; Mohamed Osman at

pp. 71-72, May 23, 2007; Claudia Richey at pp. 130-135, June 27, 2007; Theresa Spagnuolo at p. 54, February 20,

2009; Yosmaris Guerrero at p. 111, October 18, 2007; Gladimir LaForest at p. 54, May 21, 2007. 205

Depositions of Robert Hudspeth at p. 115, October 18, 2006; William Bourque at pp. 155-156, April 19, 2007;

Francesco Digirolamo at pp. 103-105, August 15, 2007; Jennifer Gore at pp. 135-136, October 19, 2006. 206

Depositions of Trandafile Bala at pp. 38-39, December 14, 2006; Brahim Ramzy at p. 97, June 11, 2008;

Kathleen Bendami at p. 80, May 21, 2007; Mohamed Shariff at pp. 71-76, December 14, 2006; Mohamed Osman at

pp. 71-72, May 23, 2007; Claudia Richey at pp. 130-135, June 27, 2007; Theresa Spagnuolo at p. 54, February 20,

2009; Yosmaris Guerrero at p. 111, October 18, 2007; Gladimir LaForest at p. 54, May 21, 2007. 207

Depositions of Richard Sporn at p. 112, October 23, 2007; Robert Hudspeth at p. 115, October 18, 2006; William

Bourque at pp. 155-156, April 19, 2007.


61

September 11th. Winn describes screener Claudia Richey‘s observation of a passenger‘s unusual

behavior:

She recalled in her deposition for this case that while she was at the x-ray station

she noticed this man, who did not have a carry-on bag, walk through the

magnetometer with his hands in his pockets. Since a passenger could hide metal

in their hands, Richey informed her co-worker, Chris Fernandez, who was

stationed at the magnetometer, to have the passenger remove his hands from his

pockets and re-enter the magnetometer. She claims this passenger did not alarm

the magnetometer. Richey found the passenger odd since he did not ask why he

was required to go back through the magnetometer.208

Richey later identified that man as Flight 175 hijacker Marwan al-Shehhi.

In some cases, such as that of Huntleigh screener Theresa Spagnuolo, formerly a

Checkpoint Screener Supervisor for Globe Aviation Services, a report was filed about a man

videotaping the checkpoint several months prior to 9/11. However, Spagnuolo‘s report had gone

unheeded by her supervisors, who ―believed that there was nothing he could do about it.‖ She

later identified the man as Flight 11 hijacker Mohammed Atta.209

The testimonies of screeners

on duty on 9/11 demonstrate that screeners and supervisors alike were not adequately informed

of the threat to civil aviation and were not told that terrorists often openly case or study airports

before striking.210

B. Failures to substantially comply with 14 C.F.R. § 108.10 and procedures

United was required to have a Ground Security Coordinator (―GSC‖) assigned for all

domestic and international flights. 14 C.F.R. § 108.10(a)(1) The GSC was mandated to carry

out the GSC duties found in United‘s ACSSP. 14 C.F.R. § 108.10(b) The GSC was to ensure

that all security requirements of each flight were monitored prior to departure. Those

208

Expert Report of Glenn Winn (Redacted for SSI) at p. 26, Exhibit 6, Parrett Declaration (citing to Deposition of

Claudia Richey, June 27, 2007, pp. 88-93. Exhibit 91, Parrett Declaration). 209

Id., p. 26 (citing to ―Report on Theresa Spagnuolo on 9/29/01,‖ FBI0150-FBI0151. Exhibit 92, Parrett

Declaration) 210

Id., p. 27, Deposition of James Miller, May 23, 2008, pp. 85-90. Exhibit 93, Parrett Declaration.


62

requirements included: (1) screening passengers and their personal property for the flight; (2)

controlling access to the airplane; (3) airplane servicing; (4) ground support for in-flight

emergency response; (5) the security of the air operations area; (6) the security of baggage and

cargo acceptance and loading; (7) the monitoring of any extraordinary ground security

procedures where they are in effect; and (8) communicating to the In-flight Security Coordinator

(Pilot) before the flight departs all information that could affect the security of that flight.211

The

GSC for Flight 175 admitted he did none of these required duties the morning of September 11,

2001.212

The GSC assigned to Flight 175 was working primarily as a customer service

representative and his GSC duties were secondary.213

The GSC was so consumed with his

customer service duties that morning, that despite noticing a suspicious passenger near Flight

175‘s gate, he did not investigate further, as he was focusing on his customer service duties.214

United was not in compliance with the 14 C.F.R. § 108.10, and as such, United placed customer

convenience over security.

C. Failures to substantially comply with 14 C.F.R. § 108.18(d)(1-2) and procedures

The Defendants and specifically, United Airlines, were required to disseminate

information from Security Directives and Information Circulars to persons with an operational

need to know. 14 C.F.R. § 108.18(d)(1-2). The Federal Aviation Administration issued 16

Information Circulars in the year 2001. An Information Circular issued on July 31, 2001,

specifically addressed hijacking and stated, ―The FAA encourages all U.S. carriers to exercise

prudence and demonstrate a high degree of alertness.‖ Not one of the pre-board screeners

211

ACSSP pg 139g and 139h. Exhibit 2, Parrett Declaration. 212

See Deposition of Roscoe Mills pg. 71:6 through 74:5, Dec. 18, 2006. Exhibit 17, Parrett Declaration. 213

Id. 214

Id. at pg 137-138.


63

deposed in this matter was aware of this information. Even United‘s Senior Operating Executive,

Andy Studdert, was unaware of the high threat during the Summer of 2001.215

D. Failure to substantially comply with 14 C.F.R. § 108.29 and procedures

Defendants were required to ensure that each person performing a security function had

knowledge of the provisions of part 108, applicable Security Directives and Information

Circulars as well as the ACSSP. 14 C.F.R. § 108.29(a)(1). Although Defendants focused on the

screeners, one set of employees they overlooked were their own customer service

representatives. Defendant United, pursuant to their ACSSP, was required to ask the following

two questions at the initial point of contact with each passenger.

1) Has anyone unknown to you asked you to carry an item on this flight?

2) Have any of the items you are traveling with been out of your immediate control since

the time you packed the items?216

Defendants incorporated this provision into their Customer Service Training Manual.217

The Customer Service Training Manual specifically states passengers should be selected for

additional screening if they have trouble answering the security questions or if they show an

inability to communicate with the customer service representative.218

On the morning of

September 11, 2001, United‘s customer service computer program FastAIR provided the security

questions word for word, imploring the agents to ask the questions word for word to all

passengers, whether customers, employees, or government agents.219

215

9/11 Staff Report p. 57, footnotes 446 and 447. Exhibit 5, Parrett Declaration. 216

ACSSP at pp. 78. Exhibit 2, Parrett Declaration. 217

UAL Customer Service Training Manual, UAL 002875. Exhibit 94, Parrett Declaration. 218

Id. 219

UAL Customer Service Training Manual, TSA UAL 004459, Exhibit 94, Parrett Declaration.


64

1. Failures at the check-in ticket counter

United and Huntleigh failed to substantially comply with Federal Regulations regarding

the check-in of passengers for United Airlines Flight 175 on the morning of September 11, 2001.

At least three United Customer Service Representatives (―CSR‖) on duty at the ticket counter

and departure gate on 9/11 encountered hijackers Ahmed and Hamza al-Ghamdi and failed to

implement the proper procedures called for by the ACSSP, the COG and United‘s internal

training manuals.220

United employees Gail Moona-Nevulis and Manuel Carreiro encountered the al-Ghamdi

brothers at United‘s ticket counter. The men were directed to switch lines several times, as they

continued to insist that they needed to buy a ticket while in fact they held their tickets in hand.221

When Moona-Nevulis asked the al-Ghamdis the two standard security questions required by the

ACSSP, neither of the two hijackers could understand English, nor could they adequately

communicate with her to answer the questions.222

Moona-Nevulis then repeated the questions

―slowly until they gave the routine, reassuring answers.‖223

United did not provide Moona-Nevulis with training courses on the proper procedures for

asking passengers the standard security questions during check-in or on handling selectee

passengers.224

Plaintiff‘s expert Glen Winn concludes that ―she understood the standard security

questions first and foremost as a mechanical task, detached from the act of observing a passenger

220 Expert Report of Glenn Winn (Redacted for SSI) at pp. 19-23 Exhibit 6, Parrett Declaration. 221

Id., p. 21 (citing to Deposition of Gail Moona-Nevulis, December 20, 2006, p. 76, Exhibit 95, Parrett

Declaration). 222


Declaration). 223

Id., p. 21 (citing to ―The 9/11 Commission Report,‖ MR_AVSEC00093415; Exhibit 28, Parrett Declaration); se

also, ―Federal Bureau of Investigation Report on Gail Jawahir on 9/21/01,‖ FBI0182. Exhibit 96, Parrett

Declaration. 224

Id., p. 20, (citing to Deposition of Gail Moona-Nevulis, December 20, 2006, pp. 59-60, 130 Exhibit 95, Parrett

Declaration)


65

and his or her behavior: ‗that‘s what they give us to ask, and I ask those questions.‘‖225

Consequently, ―Moona-Nevulis did not assess the manner in which the two questions were

answered nor did she ask each man the questions individually as called for by ACSSP

procedure.‖226

In fact, Winn states, ―her conduct suggests that she guided or coached the men to

provide the desirable answers, which would allow them to pass through security with expediency

and minimal effort. Her actions in handling Hamza and Ahmed al-Ghamdi are consistent with

the feedback she received during her annual performance reviews, during which she was extolled

for being ‗quick, fast and efficient.‘‖227

Winn notes that: ―According to her interview with the FBI, Moona-Nevulis asked the al-

Ghamdi brothers if it was okay to place both boarding passes in the same envelope. It was

unclear to her whether they understood her question, but she otherwise understood them to say

yes.‖228

However, it became clearer at the departure gate later on that morning that neither of the

al-Ghamdi brothers understood English sufficiently. ―United gate agent Devin Sullivan, who

worked the gate for UAL Flight 175, encountered a young male of Middle Eastern descent who

‗spoke very poor English‘ and identified himself as ‗Mr. Al-ghamdi.‘ He explained that his

brother had boarded the flight and had accidentally taken his boarding pass with him. Mr.

Sullivan confirmed there were two passengers with the name Al-ghamdi scheduled to board

UAL Flight 175 and subsequently issued a second boarding pass to Mr. Al-ghamdi. Sullivan

confirmed the boarding pass he issued was for ‗A. Al-ghamdi.‘ Because United‘s boarding pass

225 Expert Report of Glenn Winn (Redacted for SSI) at p. 21, Exhibit 6, Parrett Declaration (citing to Deposition of

Gail Moona-Nevulis, December 20, 2006, p. 130, Exhibit 95, Parrett Declaration). 226


Declaration). 227

Id., p. 21 (citing to Deposition of Gail Moona-Nevulis, December 20, 2006, p. 186-187, Exhibit 95, Parrett

Declaration). 228

Id., p.21 (citing to ―FBI interview of Gail Jawahir (Moona-Nevulis),‖ September 21, 2001, FBI0180. Exhibit 96,

Parrett Declaration).


66

scanner had not been working for the past several days, Mr. Sullivan manually entered the

boarding pass‖ and, despite these red flags, Ahmed al-Ghamdi freely boarded Flight 175 without

further questioning.229

It was the responsibility of a CSR to notify the GSC on duty if they encountered any

issues or problems such as passengers exhibiting suspicious behavior.230

Despite the suspicious

behavior exhibited by the two hijackers, as well as their inability to communicate with Moona-

Nevulis and answer the required security questions, none of the CSRs on duty exercised common

sense, reported their interactions to a supervisor or manually selected the hijackers for further

security screening as called for by the ACSSP and United‘s customer service manuals.231

This

was due in part to that fact that even if they had intended to report their concerns to a supervisor,

neither Moona-Nevulis nor Manuel Carreiro knew who the GSC on duty was or where to find

him on the morning of September 11th

.232

According to Winn, CSRs had the authority to designate passengers as selectees for

additional screening.233

Winn‘s understanding is corroborated by that of Irene Kimball, a CSR

trainer and the CSR Supervisor on duty on 9/11. Kimball states that manual selection ―would be

done by the ticket agent right there at the ticket counter.‖234

Indeed, three of the 19 hijackers

were manually designated for further security screening due to suspicious behavior while

checking in for other flights. Ticket agents selected American Airlines Flight 77 hijackers Salem

229 Expert Report of Glenn Winn (Redacted for SSI) at pp. 22-23, Exhibit 6, Parrett Declaration (citing to ―Report on

Devin Sullivan on 9/12/01,‖FBI0188,‖ Exhibit 98, Parrett Declaration). 230

Id., p. 25 (citing to Deposition of Roscoe Mills, December 18, 2006, pp. 62, 100-101, Exhibit 17, Parrett

Declaration). 231

Id., p. 21, 23 (citing to Deposition of Gail Moona-Nevulis, December 20, 2006, p. 45, 69. Exhibit 95, Parrett

Declaration); see also, ―Air Carrier Standard Security Program,‖ UAL026394, UAL026396, UAL026399 (Exhibit

2, Parrett Declaration); ―Re: United Airlines manual for customer check in,‖ UAL002875 (Exhibit 94 Parrett

Declaration)(UAL Customer Service Training Manual). 232

Id., p. 22-23 (citing to Deposition of Manuel Carreiro, March 13, 2007, p. 111. Exhibit 101, Parrett Declaration). 233

Id., p. 22. 234

Expert Report of Glenn Winn (Redacted for SSI) at p. 22 (citing to Deposition of Irene Kimball, October 25,

2007, p. 17-18, 20, 192-194 ((Exhibit 99, Parrett Declaration)).


67

and Nawaf al-Hazmi as selectees on the morning of September 11th

, due to ―irregularities in

identification documents.‖235

Ticket agents for American Airlines Flight 11 also manually

selected one of the hijackers ―because he was traveling with a questionable individual.‖236

Due to their inability to answer the standard security questions and communicate with

United‘s CSRs in compliance with the ACSSP, United should have selected the hijackers for

additional screening. Kimball‘s testimony further proves the appropriateness of this procedure‘s

application on the morning of September 11, 2001. The additional screening which the hijackers

would have undergone would have included a hand search of their carry-on bags, which could

ultimately have led to the discovery of the knives, Mace and pepper spray they carried on board

Flight 175.237

The violation of proper procedures by United‘s CSRs is the direct result of United‘s

failure to adequately train them and prepare them to face the increasing threat to civil aviation.

Moona-Nevulis and Carreiro were among the CSRs on duty on 9/11 that did not know what the

ACSSP was; nor were they apprised of the Aviation Security Alert Level in place that

morning.238

In addition, they were unaware of the threat of al-Qaeda and Osama bin Laden to

civil aviation in general, and the historical threat to United specifically.

By failing to comply with both the ACSSP and United‘s own Customer Service Training

Manual, a genuine issue of material fact exists as to whether United complied with 14 C.F.R. §

108.29(a)(1), and therefore, Defendants‘ Motion for Summary Judgment should be denied.

235

―TSA Document Request No. 3 - National Commission on Terrorist Attacks Upon the United States; Item #14;

Binder 14: CAPPS and the "Selectee" Status of 9/11 Hijackers,‖ TSA0521 – TSA0524; 9/11 Report, 1. Exhibit 100,


It is unclear which of the Flight 11 hijackers was designated as a manual selectee. ―TSA Document Request No.

3 - National Commission on Terrorist Attacks Upon the United States; Item #14; Binder 14: CAPPS and the

"Selectee" Status of 9/11 Hijackers,‖ TSA0521. Exhibit 100, Parrett Declaration. 237

See ACSSP pg 79(d). Exhibit 2, Parrett Declaration 238

Expert Report of Glenn Winn (Redacted for SSI) at pp. 20-22, Exhibit 6, Parrett Declaration (citing to Deposition

of Manuel Carreiro, March 13, 2007, pp. 84, 88, 117 (Exhibit 101, Parrett Declaration); Deposition of Gail Moona-

Nevulis, December 20, 2006, pp. 127-128, 188, 214-215 (Exhibit 95, Parrett Declaration)).


68

E. Failures to substantially comply with 14 C.F.R. § 108.31 and procedures

Due to the importance of the role of pre-board screeners in the aviation security paradigm,

minimum employment standards were mandated. 14 C.F.R. § 108.31. Each pre-board screener

was: (1) to have been a high school graduate, received a GED, or have an equivalent

combination of education and experience; (2) to have basic aptitude and physical abilities; (3) to

have the ability to read, speak, and write English; and (4) to have satisfactorily completed initial,

recurrent, and appropriate specialized training. Id.

A glaring weakness of the Huntleigh pre-board screeners was their inability to speak English. A

majority of the pre-board screeners working the Flight 175 checkpoint on September 11, 2001

were immigrants who spoke limited English. One of the CSSs on duty September 11, 2001,

stated he had trouble communicating with a handful of the pre-board screeners due to their

limited English.239

One pre-board screener had such a poor grasp of the English language that

she required an interpreter during her deposition.240

This same screener, following her

separation from Huntleigh in 2002, attended medical assistant classes but was terminated from

that subsequent job due to her lack of English ability.241

Another screener during his deposition

had to have questions repeated multiple times due to his inability to understand English.242

His

lack of English skills was documented in his training folder, yet he still was certified.243

Other

screeners‘ training records failed to show their ability to read airline tickets and marking

labels.244

239

Deposition of William Thomas pg. 117:14-25, 118:1-8; Exhibit 85, Parrett Declaration. 240

See Deposition of Guadalupe A. Ventura-Cordero, conducted April 20, 2007. Exhibit 83, Parrett Declaration. 241

See Deposition of Guadalupe A. Ventura-Cordero pg. 82:7-25, 83:1-22. Exhibit 83, Parrett Declaration. 242

Deposition of Brahim Ramzy pg. 43:10-25 through pg. 48:1-10. Exhibit 82, Parrett Declaration. 243

See HUSA002808, Brahim Ramzy‘s Employee History (excerpts). Exhibit 102, Parrett Declaration. 244

See HUSA 002654, Mohammed Osman‘s Screener Qualification-Training and Certification Record; HUSA

002145, Francesco Digoloramo Fitness for Duty Checklist. Exhibits 103, 104, Parrett Declaration.


69

Huntleigh failed to comply with 14 C.F.R. § 108.31 and the ACSSP, which required

personnel performing screening functions to be able to communicate in English.

F. Failures to substantially comply with 14 C.F.R. § 108.33 and procedures

Not only were pre-board screeners required to have the minimum skills stated above,

each person employed to screen passengers was required to undergo a mandatory verified

employment history and depending on the circumstances, a criminal background check. 14

C.F.R. § 108.33. All applicants were to provide full names, full employment history of the

previous ten year period with explanations for any gaps in employment of 12 consecutive

months, and criminal convictions. Id. As the employer, the Defendants, were required to verify

the identity of the applicant and the most recent five years of employment. If an applicant could

not satisfactorily account for a period of 12 months of unemployment in the last 12 years,

support statements made on the application, or if there were significant inconsistencies, the

Defendants were required to perform a criminal background check by sending the applicants‘

fingerprints to the Federal Bureau of Investigation. Id. Defendant argues they not only complied

with this regulation, but exceeded it by hiring a person dedicated to verifying employment

information. A mere cursory review of Huntleigh personnel demonstrates non-compliance with

this regulatory requirement.

Several of the screeners working the Flight 175 checkpoint the morning of September 11,

2001 had discrepancies in their employment history or had significant inconsistencies on their

employment applications. A Somali screener identified above claimed to have been in a refugee

camp from 1991 to 1998 and came to the United States illegally in 1998.245

This same screener

submitted a letter from someone from the local Somali Community Center verifying his identity

245

Deposition of Mohamed A. Sharrif conducted December 14, 2006, pg. 120:16-25, 121:1-14. Exhibit 81, Parrett

Declaration.


70

and information; however, at his deposition, the screener initially was unable to identify this

person by name and then stated inconsistencies with this person‘s verification letter.246

Another

screener stated in her application that she was under the age of 18 even though she was not, that

she was not legally authorized to work in the United States, and did not respond to the question

of whether she had ever been convicted of a felony.247

The duty manager for Defendant

Huntleigh, who grew up in Italy, returned to the United States in 2000. He claimed to have

worked a number of jobs in Italy and Great Britain and was unable to provide contact

information for those employers at the time of application.248

His application also stated he

worked for an attorney in Italy from 1989-2000, albeit part-time and ―on and off.‖249

Although

Huntleigh initially asked him for his employers‘ contact information, and the applicant stated he

would provide them at a later date, he was hired and started training.250

The duty manager never

provided that information nor was he ever asked for it subsequently.251

Defendants argue the checkpoint was running efficiently the morning of September 11,

2001, based on the passing of screening tests that morning. Def. Mem. at 40-48. These

screening tests were not more than going through the motions. Defendant points out how the

four screeners identified restricted items on the CSS and GSC on duty that morning. It is

obvious even to an outside observer that a supervisor who stops working to place a bag through

an x-ray or to walk through the magnetometer is testing the worker‘s competence. Naturally, a

screener would search extra-carefully if they observed supervisory personnel being screened.

Defendant United was to test each screener for each screening function they were qualified to

246

Id. pp. 115:20-25, 116:1-20 247

Deposition of Guadalupe A. Ventura-Cordero, conducted April 20, 2007, pp. 109:7-25, 110:1-19. Exhibit 83


Deposition of Francesco DiGirolamo, conducted August 15, 2007, pp. 11:19-25, 12:1-21. Exhibit 108, Parrett

Declaration. 249

Id. at pp. 23:14-25, 24:1-9 250

Id. at pp. 155:20-25, 156:1-17 251

Id.


71

perform once every six calendar months.252

The results of these tests were to be documented in

the screeners training and qualification records.253

Only one screener had documented tests in

his training folder, which were given in January and February of 2001. Due to the lack of

records in Huntleigh‘s personnel files, a genuine issue of material fact exists as to whether

Defendants complied with the ACSSP. Failure to maintain such records was a violation of the

applicable regulations.

Defendants take the position that no weapons were found on any of the hijackers who

passed through the checkpoints; ―thus‖ screeners were doing their job diligently. This logic is

reminiscent of the Alice in Wonderland—down is up and up is down—premise. Just because

Huntleigh screeners failed to detect anything does not mean that nothing came through. As

outlined above, the screeners were poorly trained, were unaware of prohibited items, and

historically had failed a number of operational tests by both the FAA and the Defendants.

Defendants then make the alternative argument that if weapons did get through the

checkpoint, such as the knives and mace reported by passengers aboard Flight 175, then they

were undetectable. Def. Mem. at 44-45. But the Bavis Family sharply disputes that those

weapons were undetectable. As set forth in the report of their expert Steven Murray, Ph.D.,

P.E., served on United and Huntleigh during discovery in this case:

It was technologically feasible to detect mace and other weapons used during the

September 11, 2001 hijackings with the equipment available at the time. The

Sentry HS-4W metal detector (magnetometer) was capable of detecting objects

such as mace and box cutter knives either by adjusting the sensitivity setting on

the program in use at the time, or by switching programs.

The sensitivity on the Sentrie HS-4W machines in use at checkpoint C3 in Boston

Logan airport was set at 35 on Program 5 (a program designed to detect stainless

252

ACSSP p. 139b. Exhibit 2, Parrett Declaration. 253

ACSSP p. 139c. Exhibit 2, Parrett Declaration.


72

steel handguns). At this setting, an operational test piece (OTP), a Leatherman

tool, mace and a box cutter knife were detectable.254

Defendants also state that there is no evidence of the type of knife on board Flight 175,

then inexplicably suggests that if a knife was on board, it was less than four inches, claiming

these were allowed. This is an incorrect statement regarding the ACSSP and the COG. Def.

Mem. at 46-48. But the ACSSP states: ―The following guidelines are furnished to assist in

making a reasonable determination of what property in the possession of a person should be

considered a deadly or dangerous weapon. They are only guidelines, however, and common

sense should always prevail.‖255

Hence, a knife of less than four inches was not unequivocally

allowed; the screener had to use common sense to make a reasonable determination of what was

a dangerous weapon. Screeners were provided further guidance in the COG. The COG

specifically stated that while knives less than four inches may generally be allowed, however,

some knives less than four inches could be considered ―menacing,‖ and should not be allowed

inside the sterile area.256

One of the screeners working the Flight 175 checkpoint did not know

what the word ―menacing‖ meant, yet she was charged with making the reasonable

determination whether a menacing knife was allowed past the checkpoint!257

Defendants attempt to bolster their argument that the magnetometers as calibrated could

not detect small knives and mace. Def. Mem. at 44-48. Defendant presumes the hijackers

carried their weapons through the magnetometer and not in their carry-on luggage which would

have been x-rayed and potentially hand searched. Despite their assertion, a screener who was

handed weapons during her deposition stated all of the weapons were detectable and had been

254

Expert Report of Steven Murray, Ph.D., P.E., at p. iv (Summary of Opinions). Exhibit 109, Parrett Declaration. 255

ACSSP Appendix I. Exhibit 2, Parrett Declaration. 256

COG 5-7. Exhibit 16, Parrett Declaration. 257

Deposition of Trandafile Bala p. 32:4-13. Exhibit 110, Parrett Declaration.


73

detected on previous occasions.258

If United or Huntleigh had concerns about the ability of their

equipment to detect weapons, and therefore, to provide for the safety of its passengers,

Defendants could have requested that the FAA increase the sensitivity of the equipment or

conduct further inspections of persons and baggage.259

In the nine plus years of this litigation,

not one document has been produced by Defendants to demonstrate that they ever issued a

request to enhance the security checkpoint program in place on September 11, 2001.

As detailed above, evidence is present that Defendants violated not only their own

security program and procedures, but also the FAA regulations. As the FAA administrator had

previously ordered, ―the air carrier remains responsible for the quality of security screening

provided by its contractors, and it is up to the carrier to ensure the high quality of its screeners

and security training programs.‖260

The FAA administrator has stated, ―By holding air carriers

responsible for violations committed by their employees, the public is assured that air carriers

will do everything in their power to ensure that their employees comply with the security and

safety regulations. No one is in a better position to bring pressure to bear on air carrier

employees to comply with the regulations than the air carriers themselves. For these reasons,

permitting carriers to transfer away their crucial safety and security responsibilities would be

contrary to the public interest.‖261

Defendants were responsible for the pre-board passenger

screening and owed a duty to Mark Bavis to protect him from acts of criminal violence and air

piracy. This they failed to do. There are a number of genuine issues of material fact as to the

Defendants‘ compliance with the applicable regulations, ACSSP, and COG. As such,

Defendants‘ motion for summary judgment should be denied.

258

Deposition of Trandafile Bala p. 96:12-24 through p. 105:15. Exhibit 110, Parrett Declaration. 259

14 C.F.R. § 108.25. Exhibit 1, Parrett Declaration. 260

In the Matter of [Air Carrier], FAA Order No. 96-19 (June 4, 1996). 261

In the Matter of TWA, FAA Order No. 99-12 (October 7, 1999)


74

V. Defendants’ argument that there were no deadly or dangerous weapons aboard

Flight 175 raises disputes of fact that the jury should resolve.

Realizing that there is abundant evidence in the record raising disputes over whether United

and Huntleigh failed to carry out applicable regulations and procedures to stop deadly and

dangerous weapons from coming aboard Flight 175, defendants shift ground and argue that there

is no evidence that deadly and dangerous weapons were, in fact, aboard Flight 175. Def. Mem.

at 47 (―No one knows what was used to ‗stab‘ the flight attendant or kill the pilots.‖). The Bavis

family and the record of evidence say otherwise.

In fact, there is a litany of evidence suggesting that the hijackers on Flight 175 used

knives, Mace and pepper spray to overtake and intentionally crash the aircraft.262

Plaintiff‘s

expert Evan Kohlmann is a renowned expert on al Qaeda and other terrorist organizations and

has served as an expert witness in dozens of civil, criminal and military cases. Kohlmann

concludes that the hijackers specifically targeted the checkpoint, as the weak point of United‘s

security system, through which to sneak in these weapons.263

His assertion is based on the

similarity of passenger accounts from the four flights, the training received by the nineteen 9/11

hijackers, the Last Night instructions discovered at multiple sites after September 11th

, the

contents of American Airlines Flight 11 hijacker Muhammad Atta‘s lost bag, the findings of the

9/11 Commission, and his extensive experience in studying al-Qaeda‘s organization, training and

terrorist attacks.

On each flight, the use of mace and weapons to storm the cockpit and intentionally crash

the airplanes was employed in a relatively precise, parallel manner. Specifically, the 9/11

hijackers used knives, box cutters and mace to hijack the four aircraft. The selection of these

262

Expert Report of Evan Kohlmann, private International Terrorism Consultant. Exhibit 34, Parrett Declaration. 263

Expert Report of Evan Kohlmann at 9, Exhibit 34, Parrett Declaration.


75

weapons was an intentional tactic employed by Al-Qaida at its camps in Afghanistan.264

Records of purchases by the hijackers, as well as evidence discovered at certain crash sites

indicate that the primary weapons of choice were knives. The use of knives was cited on all four

flights by flight crew and passengers. In addition, merchant records subsequently recovered by

U.S. law enforcement show multiple purchases of knives box cutters and ―multi-tool‖

instruments by 9/11 hijackers all between July 8 and August 30, 2001.265

Passenger accounts for the three other flights hijacked on September 11th

– American

Airlines Flight 11, American Airlines Flight 77 and United Airlines Flight 93 – outline a uniform

strategy adhered to by all nineteen hijackers and corroborate the events of the hijacking of

United Airlines Flight 175.266

Flight 11: Flight attendant Betty Ong, stated in a telephone call, ―Our first class… galley

flight attendant and our purser has been stabbed.‖267

Betty Ong also told airline personnel, ―we

can‘t breathe in business class. Somebody‘s got mace or something.‖268

A third individual on

Flight 11, passenger Daniel Lewin—seated in business class directly in front of hijacker Satam

al-Suqami—was also attacked and reportedly his throat had been slashed.269

264

Expert Report of Evan Kohlmann at 9, Exhibit 34, Parrett Declaration. As part of their training ―to properly

prepare them to join their brothers who preceded them to the land of the enemy, where the battle would be fought‖,

the hijackers were expected to practice killing using knives and blades ―by slaughtering camels.‖ citing to ―As-

Sahab Presents 9-11 Videos,‖ September 10, 2006). 265

Id., p. 9, citing to 9/11 Staff Report (AVSEC DEP Exhibit 32) (Exhibit 5, Parrett Declaration) at Part 1 "We

Have Some Planes": The Four Flights-a Chronology and Part 2. Civil Aviation Security and the 9/11 Attacks; (2005

release),‖ MR_AVSEC00131611, MR_AVSEC00131695, MR_AVSEC00131707. 266

Id., pp. 4, 8-11. 267

Expert Report of Evan Kohlmann at 9, Exhibit 34, Parrett Declaration (citing to ―Betty Ong to Vanessa Minter,

Winston Sadler, and Nydia Gonzalez (AA Raleigh Reservations Office),‖ AAL017745 - AAL017748 (Exhibit 111,

Parrett Declaration)). 268

Id., p. 9, citing to ―Betty Ong to Vanessa Minter, Winston Sadler, and Nydia Gonzalez (AA Raleigh Reservations

Office),‖ AAL017745 - AAL017748. (Exhibit 111, Parrett Declaration). 269

Id., p. 9, citing to 9/11 Staff Report (AVSEC DEP Exhibit 32) (Exhibit 5, Parrett Declaration) at Part 1 "We Have

Some Planes": The Four Flights-a Chronology and Part 2. Civil Aviation Security and the 9/11 Attacks; (2005

release),‖MR_AVSEC00131602.


76

Flight 175: At 8:52 a.m., Peter Hanson called his father, Lee Hanson and said: ―I think

they‘ve taken over the cockpit— An attendant has been stabbed —and someone else up front

may have been killed. The plane is making strange moves. Call United Air Lines—Tell them it‘s

Flight 175, Boston to LA.‖ Also at 8:52 a.m., a male flight attendant placed a call to Marc

Policastro at the United Air Lines Maintenance Office in San Francisco. He reported that the

flight had been hijacked, a flight attendant had been stabbed, both pilots had been killed, the

plane was being flown by the hijackers, and that he feared for his life.

At 9:00 a.m., only 14 minutes after American Airlines Flight 11 crashed into the north

tower of the World Trade Center, passenger Brian Sweeney called his mother and reported that

his flight had been hijacked, he thought they were flying somewhere over Ohio and that

passengers were thinking of storming the cockpit to wrest control of the aircraft from the

passengers.270

Simultaneously at 9:00 a.m., passenger Peter Hanson called his father a second

time and told him, ―It‘s getting bad, Dad— A stewardess was stabbed—They seem to have

knives and Mace—They said they have a bomb—It‘s getting very bad on the plane—Passengers

are throwing up and getting sick—The plane is making jerky movements—I don‘t think the pilot

is flying the plane—I think we are going down—I think they intend to go to Chicago or

someplace and fly into a building.‖271

Flight 77: Passenger Barbara Olson called her husband and reported that the flight had

been hijacked by individuals ―wielding knives and box cutters.‖272

Importantly, the security

screening tapes seized from Washington Dulles International Airport, the airport from which

270


Exhibit 5, Parrett Declaration 271 Expert Report of Evan Kohlmann at 22-23, Exhibit 34, Parrett Declaration 272

Id., p. 10, citing to Deposition of Theodore Olson, October 12, 2007, pp. 22-23 (Exhibit 109, Parrett

Declaration).; ―Staff Report; 8/26/04; Part 1 "We Have Some Planes": The Four Flights-a Chronology and Part 2.

Civil Aviation Security and the 9/11 Attacks; (2005 release),‖ MR_AVSEC00131626. Exhibit 5, Parrett

Declaration)


77

American Airlines Flight 77 departed on the morning of September 11th

, also shed light on the

events of that morning. The tape clearly shows that some of the hijackers were inadequately

screened, despite the fact that they set off the metal detectors multiple times and the issues

remained unresolved.273

Significantly, United was the custodial carrier for this checkpoint on the

morning of September 11, 2001.

Flight 93: According to passenger telephone calls, at least one flight attendant had been

reportedly stabbed ―and the captain and first officer were lying on the floor of the first-class

cabin and were injured or possibly dead.‖274

Passenger Tom Burnett told his wife over the

telephone, ―The hijackers have already knifed a guy… The guy they knifed is dead… I tried to

help him, but I couldn‘t get a pulse.‖275

The August 2004 staff report by the 9/11 Commission

noted that passenger eyewitnesses aboard Flight 93 ―provided information very similar to that

received from the other hijacked aircraft, including the hijackers‘ use of knives, violence . . .

relocation of passengers to the back of the aircraft and cockpit intrusion.‖276

The hijacking of United Airlines Flight 175 shared similarities with all of the other

flights, but it appears especially to have ―unfolded in much the same manner as on Flight 11.‖277

The final published report of the 9/11 Commission noted: ―given similarities to American 11 in

hijacker seating and in eyewitness reports of tactics and weapons, as well as the contact between

273

―Washington Dulles International Airport Security Video of hijackers at checkpoint 9/11/2001; Government

Exhibit NT00211, USA v. Zacharias Moussaoui (NT00211),‖ MR_AVSEC00181931. 274

Id., p. 10, citing to ―Staff Report; 8/26/04; Part 1 "We Have Some Planes": The Four Flights-a Chronology and

Part 2. Civil Aviation Security and the 9/11 Attacks; (2005 release),‖ MR_AVSEC00131637. (Exhibit 5, Parrett

Declaration). 275

Id., p. 10, citing to ―Phone Call From Tom to Deena Burnett During the Hijacking on 9/11/2001,‖

MR_AVSEC00119881 - MR_AVSEC00119883. (Exhibit 113, Parrett Declaration). 276 Expert Report of Evan Kohlmann at 10, Exhibit 34, Parrett Declaration, citing to ―Staff Report; 8/26/04; Part 1

"We Have Some Planes": The Four Flights-a Chronology and Part 2. Civil Aviation Security and the 9/11 Attacks;

(2005 release),‖ MR_AVSEC00131634. (Exhibit 5, Parrett Declaration). 277

Id. p. 9, citing to ―Staff Report; 8/26/04; Part 1 "We Have Some Planes": The Four Flights-a Chronology and Part

2. Civil Aviation Security and the 9/11 Attacks; (2005 release),‖ MR_AVSEC00131615. (Exhibit 5, Parrett

Declaration).


78

the presumed team leaders, Atta and Shehhi, we believe the tactics were similar on both

flights.‖278

In the days leading up to 9/11, hijacker Marwan al-Shehhi purchased a Cliphanger Viper

and an Imperial Tradesman Dual Edge; hijacker Hamza al-Ghamdi purchased a Leatherman

Wave Multi-Tool; and hijacker Fayez Banihammad purchased a Stanley two piece knife snap

set.279

Using these knives, multi-tools and box cutters, mace and the threat of a bomb, the men

began their hijacking and seized Flight 175‘s cockpit between 8:42 a.m. and 8:46 a.m.,

approximately half an hour after takeoff.280

The hijackers stabbed a flight attendant, killed both

pilots and maintained control of the aircraft.281

According to Kohlmann, each of the hijackers

passed with the weapons undetected through the United Airlines checkpoint at Logan Airport

and intentionally crashed the aircraft.

In addition to passenger accounts of the weapons on board the planes, it is well

documented that the hijackers were strategically instructed and trained to use knives to seize

control of the airplanes. Indeed, knives and pepper spray matching the passenger accounts of

those on board the aircraft were discovered in the lost luggage of one of the 9/11 hijackers

following the attacks.

According to Kohlmann, the hijackers received critical training from an individual named

―Abu Turab the Jordanian,‖ who had ―long experience in al-Qaeda‖ and ―had full knowledge [of

9/11] because of his job as trainer of ten of the ‗muscle‘ hijackers at the al-Matar complex during

278

Id. p. 9, citing to ―The 9/11 Commission Report,‖ July 22, 2004, MR_AVSEC00093420. (Exhibit 28, Parrett

Declaration). 279

One of the hijackers on Flight 77 also purchased a Leatherman Wave Multi-Tool. ―Summary of Penttbom

Investigation,‖ 000003896-000003897. Exhibit 114, Parrett Declaration. 280

Expert Report of Evan Kohlmann at 12, Exhibit 34, Parrett Declaration (citing to Passenger Peter Hanson

reported the presence of Mace in a phone call to his father. ―Staff Report; 8/26/04; Part 1 "We Have Some Planes":

The Four Flights-a Chronology and Part 2. Civil Aviation Security and the 9/11 Attacks; (2005 release),‖

MR_AVSEC00131616 – MR_AVSEC00131617. (Exhibit 5, Parrett Declaration)). 281

Id. p. 12, citing to ―Report on Marc R. Policastro on 9/11/01 - Reference Lead Control Number SF29,‖ FBI0184.

(Exhibit 115, Parrett Declaration).


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late 2000-early 2001.‖282

Later, 9/11 mastermind Khalid Sheikh Mohammed would describe

how ―Abu Turab trained them in conducting hijackings – including how to take over the

navigation cabin, enabling the pilots to fly the planes towards the targets and ensuring protection

for the pilots until the moment of impact – and in the use of basic English words and phrases‖:

At al-Faruq camp, Abu Turab also had each hijacker butcher a sheep and camel

with a Swiss knife to prepare them for using their knives during the hijackings.

Abu Turab, in consultation with Sheikh Mohammed, instructed the muscle

hijackers to focus on seizing the cockpit first and then worry about seizing control

over the rest of the plane. The hijackers were told to storm the cockpit at the

moment that the pilot cabin door opened, and to avoid trying to break down the

door if necessary.283

Lead 9/11 hijacker Mohammed Atta‘s lost luggage from his earlier connecting flight

from Portland to Boston also offers strong evidence of the planning and preparation undertaken

by the hijackers in the hours leading up to the suicide hijackings. Inside a black bag that Atta

intended to be loaded on American Airlines Flight 11 was a four-page handwritten Arabic-

language letter titled, ―The Last Night.‖284

Copies of the same letter were also found at the

Flight 93 crash site in Shanksville, Pennsylvania and in Flight 77 hijacker Nawaf al-Hazmi‘s car

left at Dulles.285

The letter appears to be instructions and guidance for the hijackers, whose

282 Expert Report of Evan Kohlmann at 7, Exhibit 34, Parrett Declaration (citing to ―Substitution for the Testimony

of Khalid Sheikh Mohammed,‖ United States v. Zacarias Moussaoui, MR_AVSEC00130916 -

MR_AVSEC00130973. Exhibit 116, Parrett Declaration.) 283

Id. p. 7, citing to ―Substitution for the Testimony of Khalid Sheikh Mohammed,‖ United States v. Zacarias

Moussaoui, MR_AVSEC00130916 - MR_AVSEC00130973. Exhibit 116, Parrett Declaration. 284 Expert Report of Evan Kohlmann at 4-5, Exhibit 34, Parrett Declaration (citing to ―Memorandum for the Record:

Review of investigation conducted by the FBI of Atta‘s suitcases at Boston, MA,‖ prepared by: Quinn John Tamm,

Jr., dated February 10, 2004 (Exhibit 117, Parrett Declaration.)) 285

Id. p. 5, citing to ―Four page hand-written letter with Arabic writing, found in luggage recovered at Logan

Airport, Boston, Massachusetts - RE: The Last Night (Translation) (BS01101T),‖ MR_AVSEC00119901l; Exhibit

14, Parrett Declaration; see also, ―Four (4) page handwritten letter with Arabic writing, found in outermost pouch of

bag from K124 (item 1, 1B3) (Barcode E02092446); The following specimens were obtained from recovered

luggage and were personally delivered to the FBI Laboratory by SA Kenneth Heitkamp of the Boston Field Office

(010917003HCHLHOEZEAGQFY),‖ FBI23301-FBI23304; Exhibit 118, Parrett Declaration. ―Two (2) sheets of

paper stapled together bearing possible Arabic writing (your 1B340, barcode E02060209); The following items were

recovered from the search of a Toyota Corolla on September 12, 2001, located at Dulles International Airport,‖

FBI23736-FBI23739. Exhibit 119, Parrett Declaration.; ―Small pieces of burned paper with possible Arabic writing

(1B292, barcode E0191583); The following specimens were recovered from the Shanksville, PA crash site and

personally delivered to the Laboratory by SA Steven N. Beilich, from the Pittsburgh Field Office


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words are strongly reflected in the subsequent events on 9/11. The letter urges readers to

―embrace the will to die and renew allegiance . . . familiarize yourself with the plan well from

every aspect, and anticipate the reaction and resistance from the enemy. . . . Spray on yourself,

the suitcase, clothes, the knife, your tools, your Ids, your (Tick), your passport, and all your

documents. Examine your weapon before departure, and it was said before the departure, ‗Each

of you must sharpen his blade and go out and wound his sacrifice.‘‖286

When Atta‘s luggage was later seized and searched by law enforcement authorities, it

confirmed the weapons described in the passenger accounts. Atta‘s bag contained flight training

materials, a folding knife and a container of ―Brand name ‗First Defense‘ Cayenne (red pepper)

spray.‖287

Clearly the use of weapons was central to the plot.

Kohlmann concludes the following based on the above-mentioned evidence: ―What is

known about the 9/11 hijackers‘ training, their weapons purchases, and plot instructions,

including how to pack weapons in their carry-ons, how they choose to dress for the flights, the

types of weapons they choose, their repeated surveillance of checkpoints, and their test runs

earlier in the summer, suggest, in my opinion, that the hijackers targeted the checkpoints as the

weak point in the security system through which to bring their weapons. There is no convincing

(010919042HCHLHFYEZEAAI),‖ FBI24009; Exhibit 120, Parrett Declaration ―Small pieces of burned paper w/

possible Arabic writing (1B292, Barcode E01991583); The following specimens were recovered from the

Shanksville, PA crash site and personally delivered to the Laboratory by SA Steven N. Beilich, from the Pittsburgh

Field Office (010919042 HC HL H FY EZ EA AI),‖ FBI26553-FBI26554; Exhibit 121, Parrett Declaration ―Paper

fragments with Arabic text (your 1B2315, barcode E01991806); The following specimens were recovered from the

United Airlines Flight 93 crash site in Somerset County, Pennsylvania and submitted to the Laboratory under cover

of communication dated October 5, 2001 (011012010HCHLHOEZEA),‖ FBI28782-FBI28783. Exhibit 122, Parrett

Declaration. 286

Id. p. 5, citing to ―Four page hand-written letter with Arabic writing, found in luggage recovered at Logan

Airport, Boston, Massachusetts - RE: The Last Night (Translation) (BS01101T),‖ Exhibit 14, Parrett Declaration. 287

Expert Report of Evan Kohlmann at 10, Exhibit 34, Parrett Declaration (citing to ―Memorandum for the Record:

Review of investigation conducted by the FBI of Atta‘s suitcases at Boston, MA.‖ Prepared by: Quinn John Tamm,

Jr. Dated February 10, 2004 (Exhibit 117, Parrett Declaration).


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evidence in their training or activities leading up to the attacks that they intended to sneak

weapons through other access points at the airports.‖288

Accordingly, the evidence raises disputes of fact over whether deadly and dangerous

weapons were aboard the plane and used by the terrorists to carry out the hijackings. As such,

summary judgment is inappropriate.

VI. Defendants’ argument that the Federal Government’s Common Strategy, and not

Defendants’ own security failures, was the proximate cause of the Flight 175

hijacking raises disputes of fact that are inappropriate to resolve by summary

judgment.

United and Huntleigh next argue that even if they allowed the hijackers with detectable,

deadly and dangerous weapons through the screening checkpoint and aboard Flight 175, such

failures as a matter of law cannot be found to be a proximate cause of the Flight 175 hijacking.

Def. Mem. at 48-50. Nonsense. A rational jury could find that defendants‘ failure to

substantially comply with security regulations and procedures to prevent the hijackers from

boarding the plane with deadly or dangerous weapons was a substantial factor that enabled the

hijackers to take control of and crash that plane. D’Amico, 132 F.3d at 149 (―a court may grant

summary judgment only when no rational jury could find in favor of the non-moving party‖). In

fact, this Court has already explained that ―the crash of the airplanes was within the class of

foreseeable hazards resulting from negligently performed security screening. . . . [C]rashes

causing death . . . was a hazard that would arise should hijackers take control of a plane.‖ In re

Sept. 11 Litig., 280 F. Supp.2d at 296 (emphasis added). And ―‗[b]ecause questions concerning

what is foreseeable and what is normal may be the subject of varying inferences, as is the

question of negligence itself, these issues are generally for the fact finder to resolve.‘ The

288

Id. p. 9.


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question of proximate cause in this case remains an issue for the jury to resolve.‖ Stagl v. Delta

Airlines, 52 F.3d at 474 (quoting Derdiarian, 51 N.Y.2d at 316).

Defendants argue that their negligent security in allowing the hijackers to board Flight

175 with deadly weapons was not a proximate cause of the hijacking, but rather that the Federal

Government‘s ―Common Strategy training of cooperating with terrorists‖ was the proximate

cause of the Flight 175 hijacking and crash that killed Mark Bavis. Def. Mem. at 48-49. Simply

put, Defendants argue the Federal Government did it.

While United and Huntleigh will no doubt at trial seek to blame the Federal Government

for causing the Flight 175 hijacking and crash that killed Mark Bavis, resolution of United‘s

blame-the-Government defense is inappropriate in the context of this summary judgment motion.

Plaintiff disputes as a factual matter based on the evidence of this case that the Common Strategy

―required‖ United to turn over control of Flight 175 to armed hijackers who had violently

attacked the flight crew in an act of criminal air piracy. Plaintiff disputes and is offended by

United‘s suggestion that when those violent, armed hijackers invaded the cockpit of Flight 175,

all United was ―allowed‖ to do under the Common Strategy was ―offer the hijackers a non-

alcoholic beverage.‖ Def. Mem. at 20. In fact, Michael A. Morse, whom the TSA and FAA

produced in this litigation to testify about the ―origin, substance, objectives and mandatory

nature of the Common Strategy for addressing aircraft hijackings as in effect on September 11,

2001,‖289

repeatedly testified during this litigation that the Common Strategy did not require

United to turn over control of Flight 175 to the armed hijackers:

BY MR. PODESTA:

Q. Under the common strategy in effect

on and before 9/11, Mr. Morse, what was the

cockpit crew trained to do if a hijacker held a

289

Deposition of Michael A. Morse at p. 9, lines 20-23 (Jan. 8, 2009). Exhibit 123, Parrett Declaration.


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knife or a gun to the throat of a passenger or

flight attendant and threatened to kill them if

he were denied entry to the cockpit?

***

A. I don't believe we had specific

guidelines for that eventuality.290

***

Q. Well, let's pose -- let me ask you

this: Let's say, assume a hijacker puts a knife

or gun to a passenger or flight attendant's

throat, and demands that he be given access to

the cockpit key so that he can enter the

cockpit. What was the flight attendant trained

to do, if anything, under the common strategy in

effect on 9/11?. . . .

A. What the common strategy called for

is it did not specify any action in that regard.291

***

Q. Before 9/11, did FAA provide any

training to aircrews about what they should do

in situations in which the hijackers instead of

just threatening to say stab a flight attendant

or a passenger, had actually stabbed a passenger

or flight attendant?

***

A. In the context of a hijacking or a

criminal act, the answer is no.292

***

Q. Did the common strategy offer any

guidance to flight crew on actions they might

take or consider taking in the event that a

hijacker without making any demand began to slit

the throats either of crew or passengers on the

plane?

290

Id. at pp. 50-51, lines 21-5 291

Id. at pp. 64-65, lines 24-17. 292

Id. at p. 127, lines 8-17.


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***

A. No.293

***

Q. Is there anything in the common

strategy or in FAA regulation which precludes

… pilots and crew from

restraining passengers who potentially threaten

the safety of a flight or other passengers?

***

A. Not to my knowledge.294

***

Q: Is there anything in the common

strategy as it existed on the morning of

September 11, 2001 or otherwise an FAA

regulation that precludes a United captain or

his designee from restraining a passenger who is

committing an in-flight assault?

A. Not to my knowledge, no.295

***

Q. On the morning of September 11,

2001, was there anything in the common strategy

or in any FAA regulation which precluded a

United pilot from intervening directly, both

verbally and physically, in the event of an

incident of passenger aggression?

A. There is nothing in the common

strategy that prohibits that.296

***

Q. Is there anything in the common

strategy that prohibits a captain from taking

action necessary to protect the safety of the

flight?

A. No.297

293

Id. at p. 307, lines 3-13 294

Id. at p. 310, lines 7-12 295

Id. at pp. 311-312, lines 23-5 296

Id. at pp. 312-313, lines 21-4


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In light of that sworn testimony that the Federal Government through the Common

Strategy did not ―require‖ United to turn over control of Flight 175 to violent, armed hijackers,

United‘s argument that the Government caused the Flight 175 hijacking raises disputes of fact,

rendering it inappropriate to resolve proximate causation at the summary judgment stage.

Moreover, the evidence shows that the hijackers immediately killed a passenger, crew

members, and pilots.298

There is no evidence of any ―common strategy‖ negotiations by United

or the Flight 175 hijackers. In fact, much like Flight 93, the passengers discussed attempting to

regain control of the cockpit by force.299

VII. Defendants’ argument that the acts of the armed terrorists in hijacking Flight 175

as well as the Federal Government’s Common Strategy are superseding causes of

the Flight 175 hijacking raises disputes of fact that are inappropriate to resolve by

summary judgment.

As with proximate cause, ―[t]he question of superseding cause itself is generally one for

the jury.‖ Parsons v. Honeywell, 929 F.2d 901, 905 (2d Cir. 1991)(citing Derdiarian,, 51

N.Y.2d at 315). ―[I]n determining whether an intervening act disrupts the causal nexus between

a defendant‘s negligent conduct and the plaintiff‘s injury, liability turns upon whether the

intervening act is a normal or foreseeable consequence of the situation created by the defendant‘s

negligence.‖ Becker v. Poling Transp. Corp., 356 F.3d 381, 392 (2d Cir. 2004). And ―questions

concerning what is foreseeable . . . are for the fact finder to resolve.‖ Id.

297

Id. at p. 314, lines 15-19. 298


Exhibit 5, Parrett Declaration. (―at 8:52 a.m., Lee Hanson received a phone call from his son, passenger Peter

Burton Hanson, who told him that Flight 175 was being hijacked: ―I think they‘ve taken over the cockpit – An

attendant has been stabbed – and someone else up front may have been killed. The plane is making strange moves.

Call United Air Lines – Tell them it‘s Flight 175, Boston to LA.‖ ) 299 AVSEC DEP Exhibit 32, 9/11 Commission Staff Report, August 26, 2004, Revised September 2005, p. 22.

Exhibit 5, Parrett Declaration (―9:00 A.M. 184 Passenger Brian David Sweeney called his mother and told her that

his flight had been hijacked. He said that the passengers were thinking about storming the cockpit

to wrest control of the plane away from the hijackers. He thought they were flying somewhere over Ohio.

Immediately after the call from her son, Mrs. Sweeney turned on the television and saw the second aircraft crash

into the South Tower of the World Trade Center185.‖)(emphasis added)


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Here, a factual dispute exists as the Bavis family asserts that the act of the hijackers

armed with deadly weapons aboard Flight 175 hijacking that plane is a foreseeable consequence

of the situation created by Defendants‘ negligent failures to screen and prevent those hijackers

from boarding that plane with deadly weapons. To be sure, United vigorously disagrees. Def.

Mem. 50-52. Yet, precisely because that dispute of fact exists, summary judgment on the issue

of superseding cause is inappropriate.

Regarding the Common Strategy, as explained above, the testimony of Michael Morse

strongly disputes that the Common Strategy of ―cooperation‖ even applied during the situation of

this hijacking by violent, armed terrorists attacking the flight crew. Resolution of the fact-

intensive issue of the ―consequences of the common strategy training‖ on the Flight 175

hijacking should await trial by jury. Def. Mem. at 50-51.

Moreover, the Bavis family disputes United‘s argument that: ―Common strategy training

required cooperation. . . . The consequences of this training caused the damages complained

of. That is because, unlike the passengers on United Flight 93, who had more information than

the passengers on United Flight 175, United Flight 175 hit its target while United Flight 93 did

not.‖ Def. Mem. at 51 (emphasis added). In fact, (1) the Common Strategy did not require

United to turn over control of Flight 175 to armed, violent armed hijackers (see Michael A.

Morse testimony above), (2) the passengers aboard Flight 175 were not ―cooperating‖ but

according to passenger Brian Sweeney planning to ―storm[] the cockpit to wrest control of the

plane away from the hijackers‖300

in the seconds before the crash, and (3) the ―damages

complained of‖ in the Bavis case are the wrongful death of a person, Mark Bavis—not about

damage to buildings hit or not hit. The damages and suffering of the Bavis family have nothing

300


Exhibit 5, Parrett Declaration (―9:00 A.M. 184 Passenger Brian David Sweeney


87

to do with whether Flight 175 ―hit its target‖ and Flight 93 did not. Every person on board both

of those flights died because United failed to substantially comply with regulations and

procedures requiring United to prevent weapons from getting aboard that were used to hijack

those planes.

VIII. Defendants’ argument that the Southern District of New York lacks jurisdiction to

hear this wrongful-death case arising out of the hijacking and crash of Flight 175 is

frivolous.

After insisting for over 50 pages in their brief that they are not liable, United and

Huntleigh in a bizarre final argument insist that this Court lacks jurisdiction over this case

because they suddenly want to concede liability—that their negligent security caused the

hijacking and crash of Flight 175 that killed Mark Bavis. Def. Mem. at 53-56.

That argument fails badly.

First, the Southern District of New York has subject-matter jurisdiction over this

wrongful death action arising out of the hijacking and crash of Flight 175 because the U.S.

Congress in the Air Transportation Safety and System Stabilization Act of 2001 explicitly

created this cause and gave this Court ―original and exclusive jurisdiction over all actions

brought for any claim (including any claim for loss of property, personal injury, or death

resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001.‖

ATSSSA § 408(b)(1)&(3). As such, federal-question subject-matter jurisdiction clearly exists.

28 U.S.C. § 1331 (jurisdiction exists for civil actions arising under the laws of the United States).

Second, while United and Huntleigh will evidently say anything at this point to avoid

having a jury of New Yorkers decide, determine, and reveal the truth that United and Huntleigh‘s

failure to substantially comply with federal regulations and United and Huntleigh‘s own security

procedures enabled the terrorists to board Flight 175 with weapons, hijack and crash that plane,


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this Court has already rejected Defendants‘ plea for a ―damages-only‖ trial. Order at 2, 21 MC

101 Dkt. 1057 (Feb. 2, 2010). The Bavis family and the public have a keen and legitimate

interest in United and Huntleigh‘s liability for the Flight 175 hijacking being tried by a jury in

open court. As nicely put by this Court, in a full trial of liability and damages, United and

Huntleigh will have ―to show what they did and why they did it‖ on September 11, 2001. Order

at 17, 21 MC 101 Dkt. 1545 (Sept. 7, 2011)(emphasis added).

Third, Defendants‘ argument that no ―live controversy‖ exists regarding liability is not

well taken. As shown throughout these papers opposing Defendants‘ summary judgment

motion, sharp disputes of fact exist on the issues of Defendants‘ scope of damages to passenger

Mark Bavis, and on Defendants‘ breach of duty of due care to Mark Bavis by failing to

substantially comply with applicable security regulations and procedures, and on proximate and

superseding causation—all issues of liability to be resolved by trial by jury.

At bottom, United and Huntleigh‘s last-ditch effort to avoid trial by conceding liability in

the final pages of their brief after contesting liability for over 50 pages (and indeed for over a

decade) should be seen for what it is—an A.O.D.—an Act Of Desperation.

Conclusion

In light of the disputes of material fact shown above and in the Bavis Family‘s S.D.N.Y.

Rule 56.1 Statement of Material Facts and supporting exhibits, United and Huntleigh‘s motion

for summary judgment fails.


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Dated: September 16, 2011 Respectfully submitted,

MOTLEY RICE LLC

By: /s/ Vincent I. Parrett _

Ronald L. Motley

Joseph F. Rice

Donald A. Migliori

Mary Schiavo

Jodi Westbrook Flowers

Michael E. Elsner

Vincent I. Parrett

Robert T. Haefele

Elizabeth Smith

James R. Brauchle

Motley Rice LLC

28 Bridgeside Boulevard

Post Office Box 1792

Mount Pleasant, SC 29465

Telephone: (843) 216-9000

Facsimile: (843) 216-9450

Attorneys for Plaintiff Bavis


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