Update on August 13 at 4:30 p.m.: Brafford has pleaded guilty to one count of misdemeanor assault for "offensively touching" the female passenger seated next to him on her leg and feet. A federal magistrate judge in New Mexico sentenced him on the same day to five years' probation. Brafford also must also undergo substance abuse treatment.

When does being a jerk rise to the level of becoming a felony when you're 30,000 feet in the air?

A federal judge has been asked to decide the matter.

Justin Riley Brafford's behavior in the sky while aboard a Southwest Airlines flight last October is the conduct in question. The 29-year-old Denton man flirted with a woman next to him, touching and "playing footsies" with her, according to an FBI complaint. When she rebuffed his advances and requested a new seat, a flight attendant scolded him.

Brafford, 29, didn't take it well. He threw a profanity-laced tantrum in the attendant's face for about 30 seconds and then sat down and kept quiet for the duration of the flight, according to court records.

The flight attendant, passengers and other crew members were intimidated by Brafford's "belligerent manner," federal authorities say, leading the pilot to divert the Dallas-bound flight to Albuquerque, where the FBI arrested him.

Brafford has remained behind bars since, unable to obtain release on bond. He's charged with interfering with a flight crew, a felony.

While the FBI said in the complaint that Brafford also assaulted the woman by touching her, that charge was not included in the indictment.

But in legal filings, Brafford's attorney says the government wants to punish him merely for "deviating from the socially acceptable norms of airline travel."

John Van Butcher, his attorney, said his client didn't make any threats and didn't lay a finger on the flight attendant, who is physically larger, during the brief encounter. He is challenging the federal law, arguing that it's vague and unconstitutional. Brafford has requested a bench trial, which was scheduled for the end of the month.

"I've seen some things that were a lot worse that didn't lead to charges," Butcher said. "Being obnoxious and boorish is not a crime."

On Wednesday, the judge scheduled a plea hearing for Friday, which typically indicates a case may be resolved with a plea agreement. No other details were available.

Prosecutors say Brafford's "volatile reaction" intimidated the flight attendant and others.

The flight attendant believed Brafford was "not acting like a normal person and seemed to have gone from 'zero to sixty in nano-seconds,'" said Assistant U.S. Attorney Presiliano A. Torrez of the District of New Mexico.

Justin Brafford is shown being arrested by police after his behavior forced a Dallas-bound Southwest Airlines flight to make an emergency landing last October in Albuquerque. (KRQE, CBS-13)

Torrez said in a court filing that the federal law properly criminalizes speech or conduct on board an aircraft during flight if it interferes with the ability of crew members to perform their duties. The indictment says Brafford did just that, by "behaving in an uncooperative, aggressive and belligerent manner."

Civility in air travel seems more of a rarity these days. The internet is full of videos of unruly airline passengers flipping out, fighting and being dragged off planes. Butcher said, however, that he's not aware of any cases of a passenger being convicted for a brief outburst. He says the hassles of air travel have stressed passengers and crew members to such an extent that blowups are inevitable.

If convicted, Brafford would face up to 20 years in prison.

A call left with the U.S. attorney's office in New Mexico was not returned.

'Erratic behavior'

Brafford, an admitted drug addict, had been released from a California state prison on parole, days before his scheduled travel to Dallas to stay with his aunt, according to court records.

As the Southwest plane prepared to depart Los Angeles on Oct. 16, 2018, Brafford put his arm on the leg of a woman sitting next to him, according to the criminal complaint.

The woman asked him to stop but he continued, resting his head on her shoulder, tugging at her sweater and rubbing his feet against hers, the complaint said. He also asked her for her name, where she lived, and if she was "staying alone in her hotel room." Brafford's request for a date was turned down, and he began whispering threats at her, according to the complaint.

The woman asked a flight attendant for a seat change and was moved toward the back of the plane, the complaint said.

The flight attendant, who is identified by his initials in court documents, got her a free drink and noticed she was crying when he returned. The woman told him that Brafford had walked to the back of the plane and confronted her. The flight attendant said he told Brafford to "leave it alone" in a quiet voice.

Brafford jumped to his feet and yelled at him, shouting something like, "this is not happening, we're not doing this," the complaint said. His "erratic behavior" led the flight attendant to think Brafford was on drugs. The attendant spoke to the pilot and said he thought they needed to divert the flight and remove Brafford "before anything else happened," the complaint said.

The emergency landing delayed the flight by an hour and a half and disrupted the travel plans of some passengers, the complaint said.

Brafford told police after the plane landed that the female passenger had put her arm on his and that he thought she was flirting.

"Brafford said he felt like they were connecting and decided to put his hand on the side of [victim's] leg, but felt like he went too far, may have misread the situation and removed it," the complaint said.

Brafford told police that after the woman was moved, he approached her and told her that "if he was bothering her, all she needed to do was tell him." Then he returned to his seat.

When the flight attendant told him to leave her alone, Brafford replied that he wasn't bothering her and said, "You leave me the f--- alone." He then addressed the other passengers, saying, "As a matter of fact, all you guys leave me the f--- alone."

He told police he had used methamphetamine the day before and had overdosed on heroin three days before the flight, the FBI complaint said.

Legal challenge

Butcher filed a motion to dismiss the indictment in late June. The judge hasn't ruled on it.

In the motion, Butcher said his client "acted rudely" but did not disobey any direct order from the flight crew and didn't touch any of them during the 30-second outburst. He then calmed down and caused "no further disturbance," Butcher said in the motion.

Brafford's actions, "while immature and obnoxious," don't rise to the level of an assault, Butcher said, even when "using prolific profanity."

"The relationship between tired, frustrated and disgruntled airline travelers and flight attendants, who unfairly bear the brunt of passenger frustration about delays and airline policies over which they have no control, inevitably results in outbursts," Butcher said in the motion. "A quick internet search demonstrates that most of these disruptions do not result in charges."

He cited the much-publicized 2017 incident in which police were called to remove a doctor, David Dao, when he refused to give up his seat on an overbooked United Airlines flight. Dao was never charged and instead successfully sued United over his treatment.

"Some passengers will use profane language and make unreasonable demands on flight attendants," Butcher said in the motion. "Flight attendants will lose patience and treat some passengers rudely."

He said how a flight crew feels about a passenger who is complaining appears to determine whether their behavior is a felony or "merely impolite."

In his response, Torrez, the prosecutor, said most people would know that they can't behave in an intimidating manner during a flight. "In this case, the actions of the defendant caused the airline flight attendant to move a passenger for her safety," he said in the filing.

Bond denied

Brafford is appealing a magistrate judge's October order denying him bond, arguing that he's not a threat and won't fail to show for his trial.

Butcher said his client had an unstable home life and became involved with drugs and alcohol.

The government opposes his release, citing what a prosecutor called his lengthy criminal history.

Butcher said Brafford's prior charges mostly stem from his drug use.

But Torrez also said Brafford has previously failed to appear in court and violated his parole at least twice. He has "little incentive" to remain in New Mexico, he said.

Butcher said his client is eager to clear his name.

"Being obnoxious and boorish is not a crime," he said.