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Click here for the full text of this decision FACTS:Appellant purchased a one-way ticket with cash for a Southwest flight from St. Louis, Mo., to Houston. After passing through security but before reaching the gate, he was detained and searched by agents of the Drug Enforcement Administration. During the search agents found an unloaded handgun in appellant’s checked baggage. The Federal Aviation Administration subsequently brought a civil enforcement action against appellant for not declaring the weapon. In its notice of appearance and witness list in the civil administrative action, the FAA identified Shannon Brand, a ticket counter agent for Southwest, as a witness. Southwest alleged that it expected Brand to testify that Henson purchased a one-way ticket with cash; she accepted Henson’s bag and put it on the conveyor belt; Henson did not declare the weapon when he checked in his luggage; and she later assisted the DEA in retrieving the bag. However, the FAA subsequently withdrew the civil administrative action, and the case was dismissed. Henson then brought this suit against Southwest alleging malicious prosecution and negligence. He claims that as he checked in his luggage, the ticket counter agent placed a “red tag” on his checked bag. After he was taken to a secure room and searched, the DEA agents told him he had been stopped and searched because they were notified by the ticket counter that he looked suspicious, and a “red tag” had been placed on his checked bag. He further alleges the detention, search and subsequent FAA administrative complaint were brought about because Brand informed the DEA that he fit the profile of a potential drug courier due to his cash purchase of a one-way ticket. He claims Brand did not have any good faith basis to believe he was a drug courier, and he was the victim of “racial and pecuniary profiling.” Southwest pleaded federal pre-emption and moved for summary judgment. The trial court granted Southwest’s motion for summary judgment, denied Henson’s motion for partial summary judgment, and entered judgment that Henson take nothing. This appeal followed. HOLDING:Affirmed. Pre-emption is an affirmative defense. Unless the defendant conclusively establishes the affirmative defense, the nonmovant plaintiff has no burden in response to the defendant’s motion for summary judgment filed on the basis of an affirmative defense. Southwest argues that Henson’s malicious prosecution and negligence claims are pre-empted by �41713(b)(4)(A) of the Airline Deregulation Act (the Act), which provides: “A State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle (whether or not such property has had or will have a prior or subsequent air movement).” The court discusses several cases that guide their analysis, including: Morales v. Trans World Air Lines Inc., 504 U.S. 374 (1992), American Airlines Inc. v. Wolens, 513 U.S. 219 (1995), Continental Airlines Inc. v. Kiefer, 920 S.W.2d 274 (Tex. 1996), and Delta Air Lines Inc. v. Black, 116 S.W.3d 745 (Tex. 2003). In Kiefer, the court applied a two-part analysis to determine whether the plaintiffs’ personal injury claims were pre-empted. First, it asked whether the claims related to airline rates, routes or services. Second, the court determined whether the claims constituted the enactment or enforcement of a state law, rule, regulation, standard or other provision. The court begins with the first part of the Kiefer analysis: Do Henson’s claims relate to airline prices or service? The court believes the answer to this question is yes. Turning to the second part of the analysis, the court notes that although Black did not specifically consider malicious prosecution or negligence claims, Henson’s tort claims include elements that both Black and Kiefer suggest would constitute an impermissible state enactment or enforcement of policies. First, Henson asserts a claim for punitive damages. Second, he makes a claim for mental anguish. Third, allowing state courts to adjudicate tort law claims arising out of an airline’s use of federally mandated security screening procedures has the potential for undermining the federal regulatory scheme and subjecting airlines to inconsistent multistate litigation. What clearly distinguishes this case is not just that Henson seeks exemplary damages and asserts mental anguish, but that his claims are based on violation of state-imposed obligations, i.e. federally imposed passenger screening procedures, and not the airline’s alleged breach of its own, self-imposed undertakings. The court concludes that the summary judgment evidence in this case establishes, as a matter of law, the affirmative defense of pre-emption under �41713(b)(4)(A) of the Act. Furthermore, Henson failed to present summary judgment evidence raising an issue of fact precluding summary judgment. Therefore, the trial court did not err in granting summary judgment in Southwest’s favor. OPINION:Mazzant, J.; Lang, Lang-Miers, and Mazzant, JJ.

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