His Good Name Goes Up in Smoke

The prospect of six hours without a cigarette still gives James J. Tabacca a twinge--even though his craving for nicotine may mean going to jail.

Tabacca, whose last name is the Italian word for tobacco, is the 34-year-old Los Angeles mortician who flew into a legal tangle last Dec. 30 when he became embroiled in a plane-wide dispute over a smoking ban on a transcontinental flight.

“I mean, when you smoke, six hours is a long time not to be able to have a cigarette,” Tabacca said in the first interview he has given about the incident, for which he was sentenced last month to 15 days in jail, fined $500 and put on two years’ probation. He also was ordered to perform 100 hours of community service.

The case, now on appeal, was widely publicized because it focused attention on federal regulations permitting smoking to be banned on flights if enough passengers are nonsmokers.

Placing his hand over the center of his chest as he recalled the no-smoking announcement, he added: “You could just feel your heart the minute the guy said that. What do you mean six hours? . . . I had a contract with TWA for a smoking seat.”

Normally, Tabacca said, he does not insist on smoking, sitting peacefully in no-smoking sections of restaurants and respecting his friends’ wishes not to smoke in their homes.

But today Tabacca--convicted in September of one count of interfering with the duties of a flight crew member in the melee on the TWA flight from Boston to Los Angeles--maintains he is a “scapegoat,” trapped by society’s growing impatience with smokers.

On arrival in Los Angeles, he was “singled out” because he was “easily accessible” in the business-class section, while other vociferous, coach passengers stampeded off the plane and out of the law’s reach, Tabacca maintained.

Tumultuous Scene

“They just picked out people they had seen who were arguing about smoking,” said Kerry Bensinger, a deputy federal public defender who served as Tabacca’s counsel.

Accounts of the flight depict a confused, tumultuous scene with many passengers involved and a flight attendant stalking the aisle with a fire extinguisher declaring, “Where are the smokers? I’ll put ‘em out.”

Even Tabacca, who was seated between first class and coach, agreed that the flight was not an exercise in civility and decorum. “It was unbelievable back there (in coach), unbelievable,” he said. “There was just so much going on in the coach section. . . . This is why I have the question of why I was singled out when I wasn’t any more, if not less, verbal than any of these other people.”

‘Never Yelled’

But, in the interview, Tabacca insisted that he “never yelled” at a flight attendant; he “just had a normal conversation with her, seeing if we could get seats switched” so that smoking would be allowed.

During the trial, however, Tabacca--who lit a cigarette about 45 minutes into the flight--admitted that he engaged in a “heated” argument that began when the attendant asked him to put out his cigarette.

The jury found that Tabacca had intimidated the attendant but did not support the prosecutors’ contention that he had assaulted her by wrenching her arm and shoving her into a bulkhead.

U.S. District Judge A. Wallace Tashima, when sentencing Tabacca, observed: “I think it’s obviously essential for the safety of the flying public that all passengers abide by the regulations involved with flight conduct, and not, in effect, try to take the law into their own hands.”

Whatever the outcome of his appeal, expected to drag on at least a year, Tabacca believes that he already has paid a high price for his yen for a puff aloft.

“It’s been devastating, it literally has been devastating,” he said.”. . . The trauma of going through all the motions we’ve had to go through, the different (court) appearances that I’ve had to make here, feeling frustrated because I’m not familiar with and don’t have knowledge about certain procedures and certain laws.”

First Time in Court

It has been his first brush with the courts, he said, and he is prepared to fight his conviction to the Supreme Court.

“It doesn’t matter to me how long it takes,” he said. “The reason I say that is because of the principle of it and my feelings--how I feel about having no record of any kind whatsoever throughout my whole life.

“My good name means a lot to me and my family. . . . It’s the worst thing that’s ever happened to me in my life. It’s that serious because what it means is that if the appeal doesn’t go in our favor I have to contend with a felony on my record for the rest of my life.”

Although he believes that his behavior on the flight was not “out of line in any way, shape or form,” Tabacca said he now feels uneasy when he must fly, as he has done a couple of times this year.

“I’m afraid that even if I have a drink and the stewardess makes it wrong or I don’t like the way it’s been made or whatever, the same thing could happen. . . . Whatever happened to free speech?” he said.

Basis for Appeal

Among other things, Tabacca’s case is under appeal on grounds that the no-smoking law is unfairly vague, attorney Bensinger said, explaining that “any kind of argument (with an attendant) under this statute could conceivably open you up to prosecution.”

Despite everything, Tabacca, who smokes less than a pack a day, said he has no plans to quit. “I enjoy smoking, I thoroughly enjoy it,” he said.

But if Tabacca ever has to serve his 15 days, he may be in for a shock. His attorney noted that his client could be forced to do the time in a no-smoking jail.