This is a follow-up to my previous diary where I argued that United was legally in the wrong when they applied the denial of boarding rules to a passenger who was already boarded.
Yesterday I was contacted by D. Michael Risinger, a professor of law at Seton Hall Law School regarding that diary. He told me that he thought I was largely right in my analysis and he proposed that we collaborate on an op-ed for a major newspaper.
After some back and forth during the day, he came to the conclusion that while I was right about United, there was enough complexity that the issue did not lend itself to the limitations of the op-ed format. I’m posting his analysis here with his permission, as I think it adds some valuable understanding. In particular, I had not thought adequately about how the information that the police had at the time affects their authority and Dr. Dao’s obligation to comply. I think this is important for us to think about if we may ever find ourselves in a position of getting what we believe to be an illegal order from a police officer (say when participating in a protest.)
Below is his email to me with his analysis:
Jan--First, as you had already explained so well, Rule 25 of the contract of carriage is fundamentally irrelevant to this situation, since it applies only to resolving overbooking issues prior to boarding. This flight was coincidentally overbooked (as are a high percentage of flights), but that situation had been resolved by volunteers (apparently including Dr. Dao’s wife), and the flight was then boarded and the passengers seated. The flight, and the rights of the seated passengers, were then exactly as they would have been if the flight had not been overbooked, but booked exactly to capacity, and then the passengers had been boarded and seated. That circumstance, as you pointed out, was governed by Rule 21, which lists numerous circumstances under which a passenger may be denied transportation or removed from the aircraft. None of those listed conditions applies to Dr. Dao’s case. There is no authority in the contract to remove a passenger in order to make room for another passenger or an employee that the company now wishes to transport and give preference to over the seated passenger. Period. When Dr. Dao refused to vacate his seat, he was not in violation of his contract of passage. Nor is there any evidence that in refusing he raised a ruckus more than emphatically declining, and not moving. This is clearly insufficient to trigger the only even semi-arguable authority to remove him under Rule 21, that is, number 8:
Safety – Whenever refusal or removal of a Passenger may be necessary for the safety of such Passenger or other Passengers or members of the crew including, but not limited to:
- Passengers whose conduct is disorderly, offensive, abusive, or violent;
- Passengers who fail to comply with or interfere with the duties of the members of the flight crew, federal regulations, or security directives
Since Dr. Dao was within his contractual rights to refuse to vacate his seat, his refusal (barring evidence of excessive profanity and unreasonable shouting or scary flailing about) cannot be said to be disorderly, offensive, abusive or violent. And neither can it be said that he “failed to comply with or interfer(ed) with the duties of the members of the flight crew” since their “duties” cannot properly encompass an illegal ejection from his seat and denial of transport. So at this point United, through its agents, was entirely in the wrong. Then they called the cops, and told them that they had a disruptive passenger that they wanted removed.
Or rather, they called the Chicago Airport Security Force (sometimes referred to as the Chicago Airport Police Force). This 300 member force exists somewhere between a police force and a private security force. It is an arm of the Chicago Department of Aviation (CDA), which administers all aspects Chicago O’Hare and Midway International Airports. Its officers cannot carry firearms, but do have ordinary police arrest powers. So when the United Airlines crew called them and said they had a “disruptive” passenger that they wanted removed, did this give them probable cause to arrest Mr. Dao?
Technically, when Rule 21 is properly triggered, the passenger is asked to leave, and when he does not, he becomes a criminal trespasser subject to arrest (and of course the right to arrest includes the right to remove). Here the crew told the security officers that he was in that status, but they were mistaken. Did that give the officers the right to arrest because, although there was no criminal trespass, they had a right to rely on the assertion of the crew that there was? The answer to this is almost certainly yes, technically. This comes up fairly commonly when a complainant turns out to have been lying, for instance. The police still have probable cause to arrest based on the complainant’s original statement to them. It would have taken a very special officer to perceive that there was a problem with treating the refusal a seated passenger to give up his seat to another involuntarily as a “disruptive passenger” when the airline personnel assured them that this was a proper trigger of the right of removal. And even if there was no authority on the part of the security officers to arrest in this circumstance, in Illinois one does not have the right to resist an arrest by an officer with the power of arrest by going limp even if the arrest is later found to have been illegal—it is still resisting arrest. So Dr. Dao did illegally resist arrest by going limp and making them pull him out.
Or maybe not. These “officers” appear to have been dressed in jeans and blue shirts with arm patches and baseball caps with some sort of inscription on the front.. It is not clear that they displayed badges and explained their authority. If they did not, then there was no way for Dr. Dao to know they were officers with the authority to arrest, and to issue orders pursuant to arrest--get up, put your hands behind your back, etc.--which must be complied with even though they comprise affirmative acts by the arrestee. From a reasonable person in Dr. Dao’s position they may have simply looked like hired goons of the airline, with no more arrest authority than a bar bouncer. If so, then I believe he had a right to passive resistance (not initiating a breach of the peace or affray), and would have acted lawfully by going limp.
Whichever way this would come out on a closer examination of the details of the episode, none of this is a defense for United, who through its agents misled the “officers” about a “disruptive” passenger they claimed they had a right to remove. And none of it makes the actions of the apparently poorly trained security officers prudent or reasonable in a general sense. But it does make the situation more complicated than it might appear at first glance.