Fugitives In Transit: Airport Arrests By State Authorities

The Fugitive Felon Act (FFA) in the United States criminalizes interstate flight to avoid prosecution or testimony in state felony proceedings. While the FFA allows federal authorities to arrest fugitives fleeing state charges, it does not address the issue of state law enforcement's inability to cross state lines in pursuit of a fugitive. Extradition is the process of returning a fugitive to the state where they allegedly committed a crime, and it is governed by the Uniform Criminal Extradition Act (UCEA) or similar laws adopted by individual states. During extradition, a fugitive may be arrested in transit at an airport by airport police or federal law enforcement, who may be armed. The process of extradition can be complex and time-consuming, and it is often necessary to notify and request assistance from the authorities of the receiving state.

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Extradition laws and procedures

Extradition is the formal process by which a person found in one country is surrendered to another country for trial, punishment, or rehabilitation. It is a cooperative law enforcement procedure between the two jurisdictions involved and depends on the arrangements made between them. The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state, as a key principle of sovereignty is that every state has legal authority over the people within its borders.

However, the absence of such an international obligation, and the desire for the right to demand criminals from other countries, has led to the creation of a web of extradition treaties or agreements. These treaties can be of two types: list and dual criminality. The most common type is the list treaty, which contains a list of crimes for which a suspect can be extradited. Dual criminality treaties allow for extradition if the punishment is more than one year of imprisonment in both countries. Some countries may grant extradition without a treaty, but most require an offer of reciprocity.

In the United States, extradition law is a collection of federal laws that regulate extradition. The process is considerably different from interstate or intrastate extradition. If requested by the charging state, US states and territories must extradite anyone charged with a felony, misdemeanor, or petty offense in another US state or territory, even if the offense is not a crime in the custodial state. The US has extradition treaties with 116 countries, most of which are dual criminality treaties.

The extradition process involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction. Once a fugitive is taken into custody, the Criminal Division's Office of International Affairs (OIA) is informed, and they then inform the prosecutor and arrange for the transfer of the fugitive. The OIA provides information and advice to federal and state prosecutors about the procedure for requesting extradition from abroad. OIA also advises and provides support to federal prosecutors handling foreign extradition requests for fugitives found in the United States. Every formal request for international extradition based on federal criminal charges must be reviewed and approved by the OIA.

The Fugitive Felon Act (FFA) is a US federal law that criminalizes interstate flight to avoid prosecution or giving testimony in state felony proceedings. It was introduced to expedite the process of apprehending and prosecuting members of armed gangs who could easily move across state lines. The FFA allows federal authorities to arrest fugitives fleeing state charges, and it lists a punishment for unlawful flight, although actual prosecutions under it are rare.

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Transit authorisations and delays

The extradition of fugitives often involves transit through third countries. Transit authorisations are required from these countries, which may cause delays in the transfer of the fugitive. Some countries only require basic information to grant transit authorisation, while others require translated documents to be submitted in support of the request. The US Marshals Service (USMS) typically tries to select routes that do not require such authorisation, but the transit country must still be notified of the passage of the fugitive and escorts, and assistance may be requested from airport police for security during aircraft changes.

In terms of the actual transfer process, the USMS has primary responsibility for the transfer of fugitives and may authorise another agency, such as the FBI or DEA, to take the lead on a particular removal. The USMS typically sends at least two escort agents for each fugitive, one of whom will be female if the fugitive is female. If escorts must be armed, the USMS will provide a description and serial number of each firearm to the relevant authorities. In extreme security situations, the USMS may arrange for the use of a military aircraft for the transfer.

The process of obtaining transit authorisation and coordinating the transfer of a fugitive can be complex and time-consuming. There may be delays in obtaining the necessary approvals and coordinating the logistics of the transfer, especially when multiple countries and agencies are involved. The fugitive's travel arrangements, including accommodations and transportation, must be acceptable to the government of the receiving state, and full information must be provided to the USMS.

To avoid alerting the fugitive and hindering the extradition process, the US government maintains a noncommittal response to public inquiries about provisional arrests or extradition requests. This is to prevent the fugitive from fleeing or avoiding apprehension. Additionally, the government will not disclose any information about the surrender, including timing, process, or itinerary, until the fugitive is safely in the requesting state.

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Armed escorts and firearm regulations

The USMS (United States Marshals Service) is responsible for the transfer of fugitives and may authorize another agency, such as the FBI or DEA, to take the lead on a particular removal. The USMS typically sends at least two escort agents for each fugitive, one of whom will be female if the fugitive is female.

Most governments will not permit foreign police officers to enter their countries with firearms. If escorts must be armed to accompany a fugitive, the USMS will provide the description and serial number of each firearm and include this information in their message to the Office of Overseas Citizen Services (CA/OCS). Typically, the USMS proposes that escort agents leave their firearms with airport authorities on arrival and retrieve them on departure. The post must advise local authorities of the proposal and inform the Department of the receiving state's response.

In the United States, firearm regulations vary by local, state, and international governments. The TSA considers a firearm to be loaded when both the firearm and ammunition are accessible to the passenger. Only the passenger should retain the key or combination to the lock unless TSA personnel request the key to open the firearm container to ensure compliance with TSA regulations. Any brand or type of lock can be used to secure a firearm case, including TSA-recognized locks. Bringing an unloaded firearm with accessible ammunition to the security checkpoint carries the same civil penalty/fine as bringing a loaded firearm to the checkpoint.

When flying with a firearm, it must be unloaded and locked in a hard-sided container and transported as checked baggage only. Firearm magazines and ammunition clips, whether loaded or empty, must be securely boxed or included within a hard-sided case containing an unloaded firearm. Small arms ammunition must be packaged in a fiber (such as cardboard), wood, plastic, or metal box specifically designed to carry ammunition and declared to your airline. Ammunition may be transported in the same hard-sided, locked case as a firearm if it has been packed as described above. Passengers must declare each firearm each time they present it for transport as checked baggage.

For law enforcement officers (LEOs) flying armed, American Airlines requires them to check in with an agent at the airport before boarding the flight. State, local, and territorial LEOs flying armed must submit a National Law Enforcement Telecommunications System (NLETS) message during airport check-in. All armed LEOs must notify the aircraft operator of the flight(s) on which they need to have the weapon accessible at least 1 hour, or as soon as practicable in an emergency, before departure. They must identify themselves to the aircraft operator by presenting credentials that include a clear full-face picture, the signature of the armed LEO, and the signature of the authorizing official of the agency, service, or department, or the official seal.

Fugitive surrender and transfer protocols

The transfer of fugitives between states is a complex process that requires careful coordination and adherence to legal protocols. Here is an overview of the key considerations and procedures involved in fugitive surrender and transfer:

Fugitive Surrender Protocols:

• Fugitive Safe Surrender (FSS) Program: This is a unique initiative that encourages individuals wanted for non-violent felony or misdemeanour crimes to voluntarily surrender to law enforcement in a faith-based or neutral setting. The program aims to build trust between law enforcement and the community, providing a safe and non-threatening environment for surrender. It has proven successful, with over 75,000 peaceful surrenders, and has expanded nationally.
• Provisional Arrests: In urgent cases, a state may request a provisional arrest, which can alert the fugitive to the possibility of extradition. This may be done quickly, and a formal extradition request can follow. However, some countries and magistrates are reluctant to issue provisional arrest warrants, especially if the fugitive is a citizen or resident of the receiving state.
• Extradition of Fugitives: The extradition process involves the formal request and transfer of a fugitive from one state or country to another. The requesting state must provide supporting documents, such as an arrest warrant and a summary of the case. Obtaining transit authorisation may delay the transfer.

Transfer Protocols:

• US Marshals Service (USMS): The USMS has primary responsibility for the transfer of fugitives and typically sends at least two escort agents, including a female escort for female fugitives. They may also authorise another agency, such as the FBI or DEA, to take the lead. The USMS may propose that escort agents leave their firearms with airport authorities and retrieve them upon departure.
• Notification and Coordination: Once travel arrangements are acceptable to the receiving state, the post must notify the USMS with full information on accommodations and transportation. This includes details such as hotel information and the name and rank of the meeting officer(s). The USMS also notifies airport police to ensure security during aircraft changes.
• Special Circumstances: In extreme security situations, the USMS may arrange for the use of a military aircraft with the Department of Defense. Additionally, some countries require translated documents for transit requests, while others grant authorisation based on information only. The USMS tries to select routes that do not require transit authorisation.

Provisional arrest requests and challenges

A provisional arrest request is an urgent request to arrest a fugitive pending the receipt of an extradition request. This is done to prevent the fugitive from fleeing the jurisdiction. A provisional arrest request may be made when the requesting state believes that the fugitive may flee the jurisdiction before a formal extradition request can be made. The requesting state must provide a statement that the person is accused or convicted of an extraditable crime, a brief summary of the facts, proof of identity, and an assurance that the complete extradition request will be submitted within the period specified in the treaty, which is usually within 40 to 60 days.

The process of a provisional arrest request begins with the Office of International Affairs (OIA) contacting the prosecutor in the district where the fugitive is located. The OIA provides information such as the name, identity, and whereabouts of the fugitive, the crime they have been charged with, and the foreign warrant for their arrest. The prosecutor then drafts a complaint for provisional arrest and executes it before a magistrate judge or district judge. The judicial officer issues a warrant for the arrest, and the fugitive is brought before the judge, who informs them of the reason for their arrest.

However, not all countries welcome requests for provisional arrest. Some foreign magistrates may be reluctant to issue arrest warrants, especially if the fugitive is a citizen or resident of the receiving state or if family members may be adversely affected. In such cases, the prosecutor is informed that provisional arrest is not appropriate.

There have been challenges to provisional arrest warrants, as explored in the article "Foreign Extradition, Provisional Arrest Warrants, and Probable Cause" by Roberto Iraola. The article analyzes the developing case law around the probable cause standard found in the Fourth Amendment and its application by courts in criminal cases and extradition hearings. It also explores how courts have analyzed challenges to provisional arrest warrants.

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