Sunday, April 16, 2017

Civil disobedience and Godwin's law

Towards the end of a spirited discussion on my last post, occasional guest-blogger and long-time reader Don wrote:

[T]he pilot of an airline telling you to get off his plane, is nothing like allowing the state to take you from your home and gas you to death simply because of the circumstances of your birth. You can resist one, and not the other, without much moral confusion. I'm ashamed at you for suggesting an equivalence.
I've thought long and hard about this, and I've decided to stand by what I originally wrote.  But Don's point is well taken, and some clarification is in order.

First, let me point out that it was actually not me who Godwinized the discussion.  It was Sean Spicer, who wrongly claimed that Bashar al Assad was worse than Hitler because "even Hitler didn't use chemical weapons on his own people," though, of course, he did.  And that was one of the two events of the day that I was writing about.

Second, I was not actually comparing anything to Hitler or the Holocaust.  I was citing my personal experience to put my position on this issue into perspective.  In a perverse accident of history, I would not be alive but for Adolf Hitler.  My grandparents all fled Germany for what was then still Palestine in the early 1930s.  They came from different parts of the country and different walks of life.  If the Nazis had not risen to power they would all have stayed in Germany and none of them would have ever met.  So I am more intimately connected to this period of history than most people.  I grew up hearing first-hand accounts of what it was like in the early days, and some aspects of those accounts are chillingly reminiscent, at least to me, of some events happening today.  That is simply a fact.

So that's my defense against Godwinizing the conversation.  I would also like to address the substance of my disagreement with Don in some more detail.

To begin with, I have not been able to find any evidence that the pilot actually ordered David Dao off the plane.  I don't know if that would actually have made any difference in the end, but it would have put a different spin on things.  A pilot on an aircraft has authority that other crew members don't.  In particular, a pilot has the authority to throw someone off the plane on his or her own initiative.  Other members of the crew do not.

Second the people who actually removed David Dao from the plane were not Chicago PD officers.  They were airport police, employees of the Chicago Department of Aviation, a civilian agency which oversees airport operations.  They do have limited authority to detain people under certain circumstances, but they were not authorized to arrest David Dao, and all three have been suspended because of their actions that day.

Third, it has been alleged that United was required by federal law to bump David Dao and the other three passengers to make room for the "must-fly" crew members.
[T]his was a must fly, a positive space situation. In layman terms, it means that a crew must be flown to an airport to man a flight in order to avoid cancellation of said flight due to crew unavailability. This is a federal DOT regulation, not an airline one. The airlines are required to do so to avoid disruption of air traffic. In other words, if there are no willing volunteers and they need seats to get a crew somewhere to avoid disruption of aviation flow, they can, will, must by federal regulation bump people for the better good of the 1000’s. Why? Because one cancelled flight has a serious domino affect in the delicate, complicated world of connections and aviation law.
This is not true (or if it is, I have not been able to identify the alleged DOT regulation that requires it).  It is true that airlines are allowed to bump passengers involuntarily to make room for required crew, but they are not required to (AFAICT).  And in fact such a requirement would make no sense.  In retrospect it is clear that United would have been better off chartering a private jet to get its employees to Louisville.  Surely doing so would not have violated any federal regulations.

Finally, at least two law professors [1][2] have published legal analyses, and both of them agree with me that United was not authorized under the terms of its own Contract of Carriage to remove David Dao from the plane.  Even United Airlines has thrown in the towel on this and is no longer claiming that its actions were defensible in any way.  So I claim vindication on that issue, and that Don owes me a beer.

All this is easy to see with the benefit of hindsight and time to analyze the situation from the comfort of our armchairs on a Monday morning.  But if we look at the situation from the perspective of the participants at the time, can Dao's refusal to deplane still be justified?  Or is, as Don maintains, such defiance of authority the first step on the slippery slope to anarchy?

It is for this answer that I invoke my heritage and answer with an unequivocal: yes, Dao's actions were justified.  There are circumstances where defying authority is the right thing to do.  This was one of them.  It is important to remember that the Holocaust ended with Jews being marched to the gas chambers, but it didn't start that way.  It started with the Nazi party winning a majority plurality of the seats in Germany's parliament in 1932.  It took another two years before the Nuremberg laws were passed, and another six before the Nazis began killing Jews in earnest.   At every step, everything the Nazis did was perfectly legal.  In no small measure because of this, and because respect for authority was (and to some extent still is) woven deeply into German culture, there was barely any resistance, neither from Jews nor gentiles.  The Warsaw Uprising in 1944 was the only notable exception, and by then, of course, it was much, much too late.

Let me be clear: I am absolutely not advocating for civil disobedience as a matter of course.  All else being equal it is better to obey the police.  But all else is not always equal, particularly if you're not a rich white male like Don and I are.  Sometimes is can be easy to forget that not everyone lives such a privileged life.  The sad fact of the matter is that the police do discriminate against people with dark skin.  (Can you seriously imagine this happening to a rich white guy? Or this?  Or this?  Or this?  Or this?)  It is easy to advocate for compliance and sorting out the legalities later when your risk of physical injury is low and you present a credible threat of being able to afford high-powered lawyers.  But for many people, compliance is tantamount to capitulation.  This may even have been true in David Dao's case.  We will never know now, but it is possible that his non-compliance was necessary in order for him to maintain his rights under the terms United's contract of carriage.  If Dao had left the plane voluntarily then United could argue that he had no cause of action for a violation of Rule 21 because he left the plane voluntarily, thereby tacitly admitting that United had the right to remove him.  It was only by resisting -- passively and peacefully, it should be well noted -- that he could maintain his right to sue.

Accepting peaceful civil disobedience is not the first step towards anarchy.  On the contrary, it is the unquestioning acceptance of authority that is the first step towards tyranny.  The decision to employ civil disobedience should never be made lightly.  But sometimes the only way to stand up for your rights is to remain seated.

51 comments:

Don Geddis said...

Ron, I appreciate the careful thought you put into this response. I still maintain the position I advocated in the comment thread on the previous post, but I'm not sure that I wish to continue debating with you this difficult and emotional topic. Nonetheless, I thank you for your efforts and writing.

(I also appreciate you reminding me that your previous post already mentioned Spicer and Hitler. I only responded to the United part, and then had the mistaken impression that you were the one who introduced Hitler during the comment thread. But you're quite right, it was there from the beginning in your writing about Spicer.)

Minor point: I believe that the Nazi party only achieved a plurality, not a majority, in the 1932 election. It appears that the Nazis finished with 37% of the seats in parliament. (And Hitler lost the race for Presidency in that same election.)

Blogger said...

Ron, David Dao's act was not one of civil disobedience because it was not tied to a cause. He was not trying to demonstrate the unfairness of contract of carriage terms. He was not trying to highlight the different treatment minorities get from police.

These stand in stark contrast to many of the examples you link to. The Woolworth's counter or the Rosa Parks bus were examples of people not just trying to get to their destination of have something to eat, but rather people acting in a way that brought attention to a larger issue.

David Dao simply wanted to get home for work. He is not part of a larger civil movement. And the right choice should have been to get off the plane when asked by crew or the Department of Aviation.

I don't think the crew or the department acted correctly either. They are at fault also. But this doesn't mean Dao is not at fault, which he was.

Ron said...

@Don

> Minor point: I believe that the Nazi party only achieved a plurality, not a majority, in the 1932 election.

True. Fixed.

@Blogger

> David Dao's act was not one of civil disobedience because it was not tied to a cause.

I dont want to quibble over terminology. How would you like me to refer to it?

> And the right choice should have been to get off the plane when asked by crew or the Department of Aviation.

Why?

Peter Donis said...

> I am absolutely not advocating for civil disobedience as a matter of course. All else being equal it is better to obey the police.

I think characterizing what Dao did as "civil disobedience" actually weakens your argument. As you correctly point out, the people who ejected Dao from the plane were not "police". They were private security personnel who had no police authority. That means that resisting them when they are violating the terms of a private contract you have with their employer is not "civil disobedience"; it's just asserting the terms of your private contract.

In fact, your describing this as "civil disobedience" seems to me to be a better indicator of an underlying social problem than this incident. You are basically talking as thought United Airlines and the Chicago Department of Aviation's private security were the government. This sort of attitude seems to me to be common in our society, and in fact in developed countries in general: we lump all kinds of private entities in with the government and view them all the same, even though they're not. And that lumping together in itself weakens our ability to maintain our rights.

Jonathan said...
This comment has been removed by the author.
Jonathan said...

(previously Blogger)
> I dont want to quibble over terminology. How would you like me to refer to it?
I'm trying to make more than a semantic point, but perhaps I wasn't clear - or perhaps actually don't disagree with most of what you said.

> There are circumstances where defying authority is the right thing to do. This was one of them.
Here's where I disagree. Why? I (and most) would agree that there are some situations where defying authority is the right thing to do. This was not one of them because the defiance had no larger meaning, no larger contribution to society, advanced no larger cause.

Let's take parading down the street blocking traffic. Is that ok? You'd immediately ask, well why are you parading down the street. If it's because you want to get home faster, we'd all agree not ok. If it's because you're holding a sign advocating women's rights protesting our new president, then yes probably ok.

An act of defiance needs to be attached to some moral stand or social movement to be productive and ok. Do you think this one was? And if not, why does David Dao's defiance deserve a comparison to Rosa Parks?

Ron said...

> An act of defiance needs to be attached to some moral stand or social movement to be productive and ok. Do you think this one was?

Yes. David Dao was standing up for the principle that corporations should honor their contractual obligations, and they should not try to fix their own screwups on the backs of their customers.

United's screwup was allowing Dao (and everyone else) to board the plane. Having screwed up, they needed to bite the bullet and continue to increase their compensation offer until their found four volunteers, or find some other way to get their crew to Lousiville.

Don Geddis said...

Ron: "David Dao was standing up for the principle that corporations should honor their contractual obligations."

Is this a problem in society that requires violent physical resistance? This seems like a simple civil matter, with existing remedies: you file a lawsuit after the fact, and the court awards financial compensation to correct for your loss. (And there is the possibility of punitive damages, or a class-action lawsuit, if you're worried about the inconvenience of buying off the few people who go to the trouble of filing a lawsuit, so that a corporation might otherwise choose not to change illegal behavior.)

As a society, we offer a non-violent resolution to the conflict over this "principle" that you are advocating for. Why is the choice of violence acceptable? Why celebrate Dao's "standing up", where he consciously chose to turn a non-violent civil disagreement into a physical confrontation?

Ron said...

@Don:

> Is this a problem in society that requires violent physical resistance?

That's a straw man. David Dao was not violent. (One of the reasons this has rightfully turned into such a PR disaster for United is that Munoz initially claimed that Dao was "disruptive and belligerent." Thanks to the video evidence we know this was a lie. Dao did nothing but quietly and calmly refuse to get up from his seat. He was the very model of appropriate behavior in such a situation.)

Let me turn the question around in a way that aligns with the facts in this case: is a 69-year-old man refusing to leave a seat which he is legally entitled to occupy a problem that requires physical violence to resolve?

> Why celebrate Dao's "standing up", where he consciously chose to turn a non-violent civil disagreement into a physical confrontation?

Because he didn't. Have you actually watched the videos? David Dao was calm and rational up to the instant that the CDA thugs grabbed him and started pulling him out of his seat.

Don Geddis said...

"a seat which he is legally entitled to occupy"

I submit that the legal status of the seat is unclear, even today, with the benefit of analysis and hindsight. But it isn't fair to evaluate decisions with hindsight. What is important is that, in the moment, it was certainly unclear what the legal status of the seat was.

What we know is that the owner of the airplane ordered him to leave the seat. And he refused. There's certainly a huge intuitive presumption that he doesn't have a constitutional right to demand service from a business that is choosing, in the moment, not to provide him that service.

"David Dao was calm and rational"

Sure. And he explicitly stated: I understand your orders, I'm choosing to refuse to follow them, I understand your next step is to force me, and I dare you to do so. Go ahead and drag me out and arrest me and put me in jail. I would prefer that outcome, to voluntarily leaving this seat.

A business wants you to leave their property. You say "make me!" So they did.

Dao made the choice to turn a civil disagreement into a physical contest. He obviously lost the physical contest immediately, but his occupation of the seat was the start of the physical resistance.

Ron said...

> Go ahead and drag me out and arrest me and put me in jail.

Arrest me and put me in jail, yes. Drag me out, no.

We will never know what would have happened if United had followed the rules of civilized society and summoned actual law enforcement officers with the power and training to actually arrest people. It is quite possible that the situation would have been defused at that point, because the officers might have explained to him that he is under actual lawful arrest, and that his failure to comply at that point would have been an actual crime (resisting arrest) completely independent of the merits of his civil case. At that point, Dao might have complied. We will never know. But the reason we will never know is not because David Dao did anything wrong. The reason we will never know is that United's hired thugs decided to assault him instead.

(Of course, this is the Chicago PD we're talking about, so they might have dragged him off the plane anyway. This, too, is among the many things we will never know.)

What we do know is that David Dao was under no legal obligation to leave. Whether or not it was evident at the time, he did in fact have a contractual right to occupy that seat. The fact that United employees mistakenly believed otherwise does not change that.

> A business wants you to leave their property. You say "make me!" So they did.

It's *how* they made him that matters here. They did not follow the proper procedures and summon actual police officers. Instead, as I have pointed out repeatedly, they summoned a civilian brute squad who assaulted him. That makes all the difference.

Note by the way that dragging Dao off the plane would have been wrong *even if* it turned out that United was right on the contractual question. The fact that United was wrong on that helps make the situation morally unambiguous, but it's really irrelevant. The only thing that really matters is that Dao was peaceful up until the moment he was assaulted by civilians acting on United's behalf, who knocked him senseless. Those men probably committed a felony. David Dao did absolutely nothing wrong.

BTW, your characterization of Dao's response as "make me" is unfair. I would characterize it as, "Sorry, gentlemen, but I believe I am contractually entitled to occupy this seat. If you want to dispute that, you can arrest me, in which case you will be hearing from my lawyers. But I am confident enough in my position that you are going to have to summon actual police officers to formally arrest me. I want the arrest report on the record. Until then, I am going to sit here quietly and peacefully. Your move."

And their next move was to knock his teeth out.

Don Geddis said...

"Arrest me and put me in jail, yes. Drag me out, no."

I don't think that is true. The pre-dragging video shows the officer calming explaining that if he won't leave voluntarily, they'll "have to drag you". And Dao's response is: "Well, you can then drag me. ... I'm not going."

For the rest of it, you're making a huge distinction between the airport security, vs. police. I don't think Dao knew or cared about the difference. (Nor did United, obviously.) You think it's a critical part of the picture; others don't think that difference matters hardly at all.

"What we do know is that David Dao was under no legal obligation to leave."

Again, no we don't "know" that, even today. And moreover, the important point is that Dao certainly didn't "know" it for sure.

"They did not follow the proper procedures and summon actual police officers."

You are now asserting some critical point, that I'm less sure about. You think it's not permissible for private security to enforce private property rights. I don't share your intense concern for this distinction. (More to the point, I again don't think that United or Dao care as much as you do, either.)

"I would characterize it as, "Sorry, gentlemen, but I believe I am contractually entitled to occupy this seat. If you want to dispute that, you can arrest me ... you are going to have to summon actual police officers to formally arrest me. I want the arrest report on the record."

Now you're just making things up, to support the narrative you prefer, that this was some kind of principled civil disobedience. Dao said nothing at all like what you are suggesting. He was just a selfish man who wanted to get home, and acted like a toddler just whining "no no no, I won't, you can't make me." Dao never ever ever requested "actual police officers" to get involved. You're interpreting these events through your own imagination, not through the facts of the case.

Don Geddis said...

...And for what it's worth, I can see in the video that the jackets the security officers are wearing prominently have the word "POLICE" across the back. You may be concerned that this is yet a different kind of fraud, but the important point for this discussion is that it pretty clearly eliminates your hypothesis that Dao would have behaved differently if only "actual law enforcement officers" had been summoned. There was no reason for him to think they weren't already there.

(Obviously, you can continue to try to make the argument that perhaps maybe "trained" police would have acted differently than the polite security officers that you insist on pre-judging by calling them "thugs". But the idea that Dao would have peacefully obeyed actual police, in a way differently than he ignored the security orders he did in fact receive, is not plausible.)

Ron said...

> You think it's not permissible for private security to enforce private property rights.

Not with force, no. (Some states have stand-your-ground laws that makes this permissible. I think such laws are a travesty.)

> I don't share your intense concern for this distinction.

I find that deeply disturbing. You are essentially saying that you don't believe in the rule of law.

Do you draw any distinction between "private security" and vigilantes? If so, how?

> There was no reason for him to think they [the actual police] weren't already there.

You mean besides the fact that they were not there? That sounds to me like you are arguing that Dao is to blame because he failed to see through the CDA ruse, failed to detect that they were impersonating police officers. How do you know that he failed to detect this? Maybe he knew that not everyone who wears a jacket with "Police" emblazoned on it is actually a police officer. Maybe he didn't know. Maybe he really was prepared to be arrested. I don't see what difference that makes. the point at which the situation deviated from the civilized script was when the CDA guys grabbed him. Not before.

Like I said, we will never know what would have happened if the actual police had been summoned. The CDA forever deprived us of the opportunity to conduct that experiment when they dragged Dao off the plane. But if we're going to indulge in hypotheticals, I think Dao could have had the reasonable expectation that if he were actually being arrested that one of the "officers" would say, "David Dao, you are under arrest" and read him his Miranda rights before actually grabbing him. *I* certainly would have had that expectation if I'd been in his position.

Don Geddis said...

"You are essentially saying that you don't believe in the rule of law."

I reject that equivalence as well. The "rule of law" is about what happens in a courtroom, whether everyone will be judged by what is already written down prior to the event, and whether it doesn't matter what your position is, or who your friends are, only what the facts of the case are.

We're talking about a physical confrontation in "the street", prior to the case being brought into a courtroom. The question is who gets to prevail in the moment, who gets to force their way upon others.

"you are arguing that Dao is to blame" I never said he was to blame because of not noticing that they weren't "real" police. I was merely countering your unlikely claim that he was consciously waiting for "real" police, and only resisting because the security officers were not "real police". Your claim is not plausible. Dao's choices and actions had nothing to do with whether the security officers were real police or not.

Ron said...

> The "rule of law" is about what happens in a courtroom

Oh my, we do have a big disconnect here. In fact, it's such a big disconnect that I think you may have just misinterpreted what I meant by that phrase. I'm not talking about the technical machinations of the legal profession, I'm referring to the fundamental tenet that people ought to conduct themselves in accordance with the law. That "rule of law" applies mainly -- in fact almost exclusively -- outside of the courtroom. (The "rule of law" is to be contrasted with e.g. "might makes right", where strength, not the law, is the ultimate arbiter of correct behavior, or "the ends justify the means" where the outcome of an action rather than the action itself is the ultimate arbiter of correct behavior.)

> your unlikely claim that he was consciously waiting for "real" police, and only resisting because the security officers were not "real police"

I don't believe I ever said that. If I did, I retract it. I have no idea what was in David Dao's head, and I don't think it matters. It was not incumbent on Dao to assess who the real police were. It was incumbent on United to not to have its customers assaulted by private citizens, because that is against the law (c.f. the "rule of law").

Dao's mindset *might* matter if he had actually done something wrong, in which case his mindset might be a mitigating factor. But he didn't, so his mindset is irrelevant. If you do all the right things (which he did) it doesn't matter if you did them for the wrong reasons.

Peter Donis said...

> Not with force, no. (Some states have stand-your-ground laws that makes this permissible. I think such laws are a travesty.)

As you write it, I think this has much broader implications that I don't know whether you intended. For example, you seem to be saying that if a burglar comes into my house, I am not allowed to use force to prevent him from taking my stuff. It's not clear to me whether you would also say I'm not allowed to use force to prevent him from harming me or my family--"stand your ground" laws are generally intended to cover that case. It's also not clear to me whether you would say that a burglar coming into my house is significantly different from an airline trying to evict someone from a seat on its airplane.

IMO all of these cases *are* significantly different and should not be conflated.

Ron said...

> For example, you seem to be saying that if a burglar comes into my house, I am not allowed to use force to prevent him from taking my stuff.

We're not talking about that kind of private property right here. No one was stealing anything. We're talking about (alleged) trespassing. And no, unless you are in a stand-your-ground state, if you try to evict a trespasser with force yourself instead of calling the police you can be charged with a crime.

Note BTW that burglars and trespassers are two different animals. Burglars are a red herring in the context of this discussion. Burglars by definition attempt to steal things. That's what distinguishes a burglar from a trespasser. No one is alleging that anyone was attempting to steal anything. In fact, no one is even alleging that anyone entered private property without permission. At worst, Dao refused to leave private property after permission to be there had been withdrawn.

I could stock a sushi bar with all the red herrings that are being thrown around in this discussion.

> It's also not clear to me whether you would say that a burglar coming into my house is significantly different from an airline trying to evict someone from a seat on its airplane.

Apples and oranges. The analogy is not between a burglar entering your house and the airline evicting Dao, the analogy is between a burglar coming in to your house and Dao entering the aircraft and taking his seat. And of course those are completely different. Dao entered the aircraft with the airline's permission under the terms of a contract. Burglars, by definition, don't have permission to enter.

Peter Donis said...

> We're not talking about that kind of private property right here.

> Apples and oranges.

These are the clarifications I was looking for. The term "private property rights" without qualification does not imply these kinds of distinctions; that's why I asked for clarification.

Ron said...

@Peter: Sorry, I thought the context made that clear.

Peter Donis said...

> I thought the context made that clear.

If it had just been you saying it in the post, it might have been (although even then I would recommend clarifying). But you were responding to a comment of Don's, who does not agree with you about a number of significant questions at issue. That's why I wanted to make sure I correctly understood.

Don Geddis said...

I asked: "You think it's not permissible for private security to enforce private property rights."

Ron replied: "Not with force, no." And also "not to have its customers assaulted by private citizens, because that is against the law"

Hypothetical situation for you, Ron: There's a bar, which employs ("private security") bouncers. A customer is sitting at a table in the back of the bar. Perhaps 2am comes, all the other customers leave. The bouncer says, "Bar closed, please vacate the premises". The remaining customer claims "no, I believe I have a Constitutional right to stay here, and I refuse to leave."

Please tell me your thoughts on the legal & physical & moral rights of the bar owner, attempting to close up and lock the bar and go home for the night. If he orders his bouncer to physically pick the guy up and throw him out on the street, do you believe that he is not legally entitled to do so, and the bouncer has then just committed a felony? Is that your legal opinion?

What is your moral opinion? Do you think the owner is morally obligated to say, well I asked nicely, but the guy refused, so I guess my only alternative now at 2:30am, is to call the police, and wait a couple of more hours until the cops decide to wander by. Under no circumstances do I ever have the moral/legal authority to physically compel a (non-violent) customer to leave my own premises. I just have to wait.

I wonder what you think it is legal for private security (the bar's bouncer) to actually do. Can they intervene in a violent fight that has already started? Should they never physically intervene in any encounter, but merely serve as witnesses and be ready to call the police at any moment? Are they ever, under any circumstances, allowed to initiate physical action against an uncooperative person who does not demonstrate an immediate physical threat? What if the customer starts breaking tables and chairs and bottles and glasses -- but is very careful to only cause property damage, never damage to other humans. Can the bouncer intervene then, or again must he wait patiently for the police to arrive, regardless of the amount of property damage that they observe?

"if you try to evict a trespasser with force yourself instead of calling the police you can be charged with a crime."

Well of course anyone "can" be charged with a crime. But the question is whether it is an open and shut conviction, that any time a trespasser is physically compelled to leave, that the responsible property owner is always easily convicted of a crime ("...unless stand your ground"). I don't share your confidence about the legal situation here.

Ron said...

> If he orders his bouncer to physically pick the guy up and throw him out on the street, do you believe that he is not legally entitled to do so, and the bouncer has then just committed a felony?

Yes. That would be assault and battery. That's why one of the qualifications for being a competent bouncer is that you be able to evict patrons while leaving yourself with plausible deniability that you did so without using actual physical force. That usually means getting them out without injuring them.

> Is that your legal opinion?

IANAL. But there's this spiffy thing called the internet that gives me access to secret knowledge, like this:

http://www.legalmatch.com/law-library/article/what-are-bouncers-legally-allowed-to-do.html

> What is your moral opinion?

A competent bouncer will be able to evict a customer without injuring them, and I think that's perfectly OK. Throwing their head against the bar, knocking them senseless, knocking out teeth is not OK. If the bouncer can't get the guy out without injuring him then the bar owner needs to hire a better bouncer. If the police take two hours to show up then the bar owner needs to pressure his elected representatives to improve the police service.

Think about it: a 67-year-old woman shows up a hospital beaten black and blue with two of her teeth knocked out. There's video of her assailant picking her up, beating her head agains the bar, and dragging her out in to the street. If you were on the jury would you really vote to acquit on the grounds that the assailant was a bouncer and the bar was closing? (Note BTW that I'm actually granting your premise that the patron has no right to be in the bar, which is why I took the liberty of making her a woman. The hypothetical train runs both ways.)

> What if the customer starts breaking tables and chairs and bottles and glasses

That is a completely different situation, and it has nothing to do with what happened with David Dao. And here I really have to stress that IANAL. My guess would be that the bar owner is probably allowed to apply force in this case, but I don't know what the legal limits are. I do know that there are some legal limits because you obviously can't intentionally *kill* someone just because they're breaking your stemware. My guess would be that the law would probably let accidental injuries slide, with quite a bit of the benefit of the doubt accruing to the bar owner. But that's just a guess.

Clearly, if David Dao has started vandalizing the plane the situation would be very different. But he didn't, so it isn't.

> I don't share your confidence about the legal situation here.

I don't know what to tell you. I've provided you with multiple references to support my position, including two essays by people who *are* lawyers -- law professors in fact. (Did you read them?) You've provided one facebook comment and one anonymous essay, both from people without any discernible credentials, and both of whom are demonstrably wrong on the facts. Oh, and a bunch of hypotheticals that have nothing to do with what actually happened.

Are you sure that your account hasn't been hijacked by Publius? You're usually such a reasonable person.

Don Geddis said...

"You're usually such a reasonable person."

I resent the implication, that someone who disagrees with you is the one being unreasonable.

I'm perfectly willing to admit that United made a whole lot of very poor choices, both in the moment, and in their standard procedures. They should have resolved the overbooking situation before seating the passengers on the plane. They possibly could have offered more money. Once they had a resisting passenger, they could have called actual police and had him arrested. They could have emptied the plane, and simply cancelled the flight, because it wasn't safe to take off with a passenger who refuses orders. (They could have told the entire planeful of cooperating passengers, that the whole flight was being cancelled because of this one specific passenger. You think the other passengers would have been so sympathetic in that circumstance? They might have been accused of "inciting a riot"!) The airport security that was called, could have been better trained, to physically remove an uncooperative passenger without damaging them. (Heck, I probably could have done that myself!) And then, after the incident, the initial response by United and their CEO was a comedy of errors in crisis management and public relations. United made so many mistakes, and had many chances to not suffer as great a cost as they are seeing now.

But what galls me, is that you see no blame at all -- zero! -- on the part of David Dao. You wrote another post with the arrogant title "David Dao did nothing wrong". Really? Nothing?!?! Dao was a jerk. He wanted to be a customer of a particular business, the business said "no, we choose not to provide you with this service at this time", and Dao whined like a petulant child, and refused to leave -- because it would be inconvenient and he didn't want to. But in your mind, Dao did "nothing" wrong.

And then you bring up insanely irrelevant analogies with huge emotional content, as though Dao were involved in some kind of thoughtful civil disobedience, and this uncooperative a-hole is a hero at the level of Rosa Parks. Or that obeying security orders to leave a place of business, is at the same moral level as marching Jews off to be gassed in death camps.

I remain astonished that you can find no blame at all in David Dao's actions, of any kind. And that you rate him a hero in some kind of glorious war against evil corporations. He's a screaming child, and one that should be shamed, not celebrated as a role model. And his behavior is certainly not one that we should teach others to emulate.

I'm just looking for you to say a single negative word about Dao's behavior, rather than exhibit the blindness and bias of a brainwashed anti-corporate soldier, where United can do no right, and Dao can do no wrong.

Ron said...

@Don:

> I resent the implication, that someone who disagrees with you is the one being unreasonable.

You're not being unreasonable because you disagree with me. We have disagreed many times. On many -- maybe even most -- occasions that we have disagreed you have ultimately managed to convince me that you were right and I was wrong.

What makes you seem unreasonable in this case is not your position, but the way in which you are trying to defend it.

> But what galls me, is that you see no blame at all -- zero! -- on the part of David Dao.

Why does this gall you? You seem to be emotionally invested in this issue to a greater extent than I have ever seen in the past. Earlier you wrote, "I'm not sure that I wish to continue debating with you this difficult and emotional topic," and yet here we are. You seem to be unwilling to simply agree to disagree. Which is fine, there's nothing wrong with being passionate about an issue. I'm just asking that you consider the possibility that your passion might be clouding your judgement.

Let's be clear about what we're disagreeing about here. (That's the first step in any rational discussion.) You have just conceded a large number of points, so AFAICT there is only one thing in dispute: you believe David Dao was wrong (either legally or morally, maybe both, I'm not sure) in refusing to leave his seat, and the principle on which you base this conclusion is that commands from authority figures should always be obeyed no matter the circumstances. Have I accurately summarized your position? Do you agree that this is a fair framing of the debate?

Here is why I think you're being unreasonable:

> Dao whined like a petulant child

No, he didn't. Did you watch the video? He was calm and rational up to the moment airport security grabbed him. He never raised his voice. He never used profanity. He never made any threats. All he did was sit and say, "I'm not going."

Another example:

> you bring up insanely irrelevant analogies with huge emotional content

Like what? AFAIK I only brought up one analogy, and I don't believe it was "insanely irrelevant." (I concede it had emotional content, but that is unavoidable: this whole issue is fraught with emotion. That is part of the problem.)

Another:

> Once they had a resisting passenger, they could have called actual police and had him arrested. They could have emptied the plane, and simply cancelled the flight, because it wasn't safe to take off with a passenger who refuses orders.

Yes, they could have done all of these things. But what difference does it make what they *could* have done? They didn't do these things, so I don't see how these hypotheticals help to advance the discussion about the appropriateness of David Dao's behavior. (They might help to advance a discussion of how United could prevent situations like this from happening in the future, but that's not the matter at hand.)

[Continued...]

Ron said...


> as though Dao were involved in some kind of thoughtful civil disobedience, and this uncooperative a-hole is a hero at the level of Rosa Parks

Maybe this is really what you're upset about, my comparing Dao to Parks? Because that is a separate issue.

Let me be clear: I do believe there is a valid comparison to be drawn between Dao and Parks, mainly because of the similarity of what they did: both refused an order to vacate a seat on a vehicle. But Dao was fighting for penny-ante stakes compared to Parks. Dao was fighting a corporation, Parks was fighting the government. Dao was fighting to avoid a travel delay, Parks was fighting to end centuries of some of the most barbaric injustice that mankind has ever perpetrated. No one should seriously entertain the notion of erecting a statue to David Dao for what he did. Does that help?

> Or that obeying security orders to leave a place of business, is at the same moral level as marching Jews off to be gassed in death camps.

This is a gross mischaracterization of my position. If I actually said anything that can be reasonably interpreted in this way, I apologize and retract it. (But I don't believe I did, so I think you owe me an apology for mischaracterizing my position in this way.)

What I said (or at least meant to say) was that the principle on which you seem to be basing your conclusion that Dao is blameworthy, namely, that one should always defer to authority no matter what the circumstances, was a significant contributor to the holocaust, and it should be rejected for that reason. I absolutely stand by that.

> I remain astonished that you can find no blame at all in David Dao's actions, of any kind.

What would you have me blame him for? You make it sound like there's a long list of possible things I could potentially fault him for, and that I am blind to all of them, hence your astonishment: "I [Don] can see how someone could miss some of the things Dao did wrong, maybe even most of the things he did wrong. But I don't see how anyone could miss all of the many, many things Dao did wrong." I don't see any other way to account for your astonishment.

And yet AFAICT there is only one thing David Dao did that is even in dispute, and that is to fail to obey an order from an authority figure. I can see how a reasonable person could disagree with me on this. But you aren't doing it. (Which is mystifying to me because you've always been a model of reasonable disagreement in the past.)

Don Geddis said...

"You seem to be unwilling to simply agree to disagree" No, not unwilling. You haven't suggested that on this topic before. If you want to end with that, I could. (In contrast, usually two reasonable people believe that they must come to some kind of mutual understanding, and if conflict remains, it is almost certainly some kind of miscommunication, which could be resolved with further discussion.)

"commands from authority figures should always be obeyed no matter the circumstances" No, of course not. That's ridiculous. I would never advocate such an absolute position.

"All he did was sit and say, "I'm not going."" Exactly the way a child would say "I refuse to tie my shoes and go to school. I'm just going to sit here. You can't make me!" He acted exactly like a child.

"I think you owe me an apology for mischaracterizing my position in this way." Well, we can look at what you said. I proposed an expectation of police escalation: "we expect the police (or security) to dominate and win the immediate situation, and then to resolve the non-lawfulness afterwards, in court." Your response was: "As a descendant of holocaust survivors, I respectfully disagree." That ends the debate, with emotion and not logic. It shows no understanding that I already suggested disputing the situation in court. And, later, in the legislature. And only then, after careful thought and consideration of the consequences, a deliberate choice for civil disobedience. But you chose to end that discussion without addressing it.

You're curious about the principle, for civil society. It is something like this: we decide, in the calm of the legislature and courtroom, what kinds of actions we wish the police to take. But in the moment, on the street, we want the police to escalate sufficiently to "win" any encounter. If they wind up doing the wrong thing, then we'll fix it later in the courtroom.

The (your?) alternative is that the police fail to escalate, and eventually withdraw. And in that situation, the actual resolution of a dispute returns to the jungle law, Lord of the Flies. Big strong people and gangs will win. Little weak people, old, children, women, will lose. This world, Ron's world, is not justice. Justice is the police ensuring that weakness on the street doesn't make you a loser. And they can only do that, if they are prepared and capable to ensure that their best understanding of the law dominates in a street encounter.

No one is saying the police are perfect. But that is fixed later, in the courtroom. Not by allowing resistance in the street to overwhelm police attempts to control a situation.

Ron said...

> If you want to end with that, I could.

No, that would not be my preference.

> if conflict remains, it is almost certainly some kind of miscommunication

Not necessarily. It could be a difference in their quality metrics.

> He acted exactly like a child.

Did Rosa Parks act like a child? Did the lunch counter occupiers act like children? If not, what exactly distinguished their actions from Dao's? (Note that I'm asking about their *actions*, not their *motives*.)

> we decide, in the calm of the legislature and courtroom, what kinds of actions we wish the police to take

In your original formulation of your thesis you said "police (or security)" and here you just say "police". I don't know if that was a deliberate elision or not, but it matters. There's a big difference between "police" and "security". It is a salient feature of the David Dao case that the police were not involved.

> The (your?) alternative is that the police fail to escalate, and eventually withdraw.

No. The *police* should absolutely prevail. But that's a non-sequitur in the David Dao case because no police were involved.

Ron said...

Correction:

> The *police* should absolutely prevail.

I meant to say "generally", not "absolutely."

Don Geddis said...

[Part 1 of 2]

"Did Rosa Parks act like a child? Did the lunch counter occupiers act like children?" No. Their interests were in changing society. And, like Gandhi, they suspected that the internal moral code of their oppressors allowed immoral actions as long as they weren't too "in your face", but when confronted with the need to actually enforce their laws against resistance, they (correctly) guessed that many of the oppressors would be personally uncomfortable with having the reality of their position shoved in their face.

Dao was not fighting for any larger principle. He was annoyed at being inconvenienced, and selfishly just wanted a better outcome for himself, personally. These are not in any way equivalent.

"There's a big difference between "police" and "security"." I know you've said this many times, and I completely disagree. The security officers had jackets that said "police". United didn't use their own employees for the removal; instead they called the "local authorities". The huge social outcry in the country is about a passenger being injured by being forced off the plane. As far as I can tell, it's pretty much only you who cares so much about whether the (professional, employed, on call) airport security are "really" law enforcement officers or not. For everyone else, if this had been the exact same story (as both United and Dao surely thought it was, in the moment), but the only change is that the officers were "police" instead of "security", then you may be one of the only people I know who might have an entirely different reaction to the episode. For everyone else that I've talked to or read about, that isn't the important part of the story. (And it certainly wouldn't have affected United's or Dao's actions.)

Don Geddis said...

[Part 2 of 2]

I remain curious at your preferred resolution of the whole situation. In the moment, United discovers they have fewer seats available than needed. They follow standard procedures, and attempt to bribe volunteers. They get no takers. They continue to follow standard procedures, and randomly choose 4 involuntary passengers to bump. As they (and all other airlines) have for years, with never a previous lawsuit to contest this particular issue. Every year, for decades, about 400,000 passengers are bumped due to overbooking, and about 40,000 of them are involuntarily bumped. This is all standard procedure.

This particular case is interesting, because Dao was already seated, and because the security officers were not police. If it had come to a later lawsuit, those factors might have mattered for court determination of breach of contract, and some possible financial settlement or payment. That is how mistakes like this ought to be corrected.

But in the moment, 3 passengers leave, but Dao refuses. You think ... United should have said, "hey, the guy we randomly picked won't obey our orders ... so we're going to find some different, weaker victim to kick off the flight instead -- perhaps a child or someone elderly. And then we're going to take off, with this passenger who refuses to cooperate with directions from United employees."

That's a ridiculous resolution in the moment. There is no way that flight is leaving, with Dao on board. There is no way that his lack of cooperation gets rewarded by him staying on the flight, and someone else becoming the victim of inconvenience, simply because they aren't as intransigent as Dao is being. One way or another, Dao needs to be removed from that flight.

Now, he didn't deserve to get bloody and get teeth knocked out. That's certainly true. But he did need to be taken off the flight.

And yet you, Ron, continue to claim that Dao did "nothing wrong". As though the "correct" resolution, in the moment, was to allow Dao to remain in his seat and take the flight. Because that's what Dao wanted, and Dao did nothing wrong, so in an ideal world that's what Dao gets.

That's insane. There is no feasible outcome of the situation where Dao gets to remain in his seat and take that flight. He may well win a later breach of contract lawsuit. But remaining on the flight is not an option that we even want in our society to be an expected outcome of the dispute.

Ron said...

> No. Their interests were in changing society.

So if their interest had been simply in getting some food, that would make them "childish"? And in that case they should have deferred to authority and left when asked to do so?

> The security officers had jackets that said "police".

I am utterly nonplussed that you think this is relevant. Anyone can wear a jacket with the word "POLICE" emblazoned in it. You can buy them on Amazon:

https://www.amazon.com/s/ref=nb_sb_noss_1?url=search-alias%3Daps&field-keywords=police+jacket

Are you seriously claiming that simply donning such a jacket imbues a person with authority?

> United didn't use their own employees for the removal; instead they called the "local authorities".

Again, I don't see why you think this is relevant. There's a reason you had to put "local authorities" in scare quotes: they were not authorities. They had exactly the same legal standing as the United employees who summoned them. The legal situation would have been exactly the same if the United (or Republic) gate agents or flight attendants or Dao's fellow passengers had dragged Dao off the plane. All of those people had exactly the same authority to physically remove Dao: zero.

> As far as I can tell, it's pretty much only you who cares so much about whether the (professional, employed, on call) airport security are "really" law enforcement officers or not.

That's because it's pretty much only me who is engaged in a debate with someone who has advanced the thesis that the mere appearance of authority should be unconditionally deferred to, and hence Dao should have deferred *even if* he was contractually entitled to remain in his seat (which he was) and *even if* the "authority" wasn't really an authority at all but merely civilians wearing the trappings of authority (which they were). But the person going out on that limb is you, not me.

The overwhelming consensus among legal scholars is that David Dao was contractually entitled to occupy his seat, and therefore he was wronged when he was removed from it. That's pretty much the end of the analysis for most people. The fact that he was injured multiplies that wrong, and the fact that he was removed by people with neither the training nor the authority to remove him further multiplies that wrong, but that's a detail that most people never even bother to attend to. The matter is completely dominated by the fact that United had no right to even *ask* Dao to leave the plane, let alone forcibly remove him.

Ron said...


> I remain curious at your preferred resolution of the whole situation.

Obviously the best outcome would have been if United had continued to up the offer until they got takers.

> They continue to follow standard procedures, and randomly choose 4 involuntary passengers to bump.

I take issue with the implication that this was OK simply because it was "standard procedure." Having boarded the passengers, United was SOL. They gave up their ability to bump passengers involuntarily for economic reasons as soon as they allowed them to board.

> As they (and all other airlines) have for years, with never a previous lawsuit to contest this particular issue.

That's because the vast majority of the time involuntary bumping is done before boarding begins, while the airline is still unambiguously entitled to do it, and hence there are no grounds for a suit.

> That's a ridiculous resolution in the moment. There is no way that flight is leaving, with Dao on board.

Yes, that's probably true. United had pretty much painted itself into a corner at that point.

> One way or another, Dao needs to be removed from that flight.

*Needs* to be? No. Letting Dao stay would in no way jeopardize the safety of the flight or violate the laws of physics. It's true that it would be very difficult for United to save face and avoid suits from the other three passengers, but that is not at all the same as Dao "needs to be removed" with no further qualification.

But OK, let's grant the premise for the sake of argument. The right thing would have been for United to call the real police. At that point, I see three possibilities:

1. The police would realize that there are no legal grounds for Dao to be removed from the plane and refuse to remove him. This seems unlikely. I list it only for completeness, and because it would have actually been the legally correct outcome.

2. The police would arrest Dao according to the proper procedures. First they would warn him that if he didn't leave that they would arrest him. Then they would formally arrest him, i.e. say, "David Dao, you are under arrest" and read him his Miranda rights. Then, and only then, if Dao still didn't leave they could forcibly remove him and charge him with resisting arrest. And then I would have been 100% on their side. When a real police officer formally arrests you, you go.

(If Dao had gone peacefully at that point then I would have rooted for him in his subsequent lawsuit against United and the Chicago PD.)

3. The police would arrest Dao but not follow the proper procedures. This response it already getting way too long so I'll skip the detailed analysis of this case. Besides, I'm sure the Chicago PD never fails to follow the proper procedures.

> And yet you, Ron, continue to claim that Dao did "nothing wrong".

That's right.

> As though the "correct" resolution, in the moment, was to allow Dao to remain in his seat and take the flight.

That's right, along with the other three passengers who were removed in violation of the Contract of Carriage.

> That's insane.

I respectfully disagree.

> But remaining on the flight is not an option that we even want in our society to be an expected outcome of the dispute.

That may be, but we also don't want vigilantes, not even if they wear jackets with the word "POLICE" printed on them. (Well, maybe *you* do, but I don't. See my point in an earlier comment about people disagreeing because they have different quality metrics.)

Don Geddis said...

[1 of 2]

"I am utterly nonplussed that you think this is relevant." The relevance is that we already know Dao's reaction to be told by police to leave, which is to say "no". Since Dao had no way of knowing that these were not police. So Dao's actions, that you celebrate, are to ignore (what he thought were) police orders. But you still think Dao "did nothing wrong".

"All of those people had exactly the same authority to physically remove Dao: zero." That's far from clear. If a business chooses not to serve you -- even if you have a valid contract -- that merely exposes them to financial liability for breach of contract. That's far, far different from what you are advocating, that you can physically force them to serve you when you want, even as they explicitly refuse to do so.

"a debate with someone who has advanced the thesis that the mere appearance of authority should be unconditionally deferred to" Now you're just lying. Or at best being rudely careless. You asked this explicit question above, and I already explicitly answered ("That's ridiculous. I would never advocate such an absolute position.") You repeating this lie despite my denial and explanation, continues to make me doubt that you're up to having a rational discussion on this topic.

"Dao should have deferred *even if* he was contractually entitled to remain in his seat" Yes. You walk into a bar, and they say "We choose not to serve you at this time. Please leave." You should leave. (If you think a law or contract was violated, then you sue them later.) You don't insist, in the moment, that they must obey your conception of how you want the transaction to go.

Don Geddis said...

[2 of 2]


"overwhelming consensus among legal scholars" You found two guys who wrote blog posts. For sure, good evidence. But that isn't a court judgment, and it hasn't stood up to a strong legal defense on the part of United. "That's pretty much the end of the analysis for most people." Of course. Because most people are idiots who follow their emotions and don't care about the truth.

"he was removed by people with neither the training" You have not established that the airport security did not have the training to enforce physical compliance. In fact, if your view of the world comes to pass in the future, what will surely happen is simply that there will no longer be private "airport security", because in Ron's world these people serve no function. When an airline needs to get an uncooperative passenger off the plane, they should do as United employees did, and call the proper authorities at the airport to deal with it. Except that Ron says that airport security are not "proper authorities". So, instead, it will need to be arranged that there are no longer airport security (since they serve no purpose), but instead airports are staffed with on-call law enforcement police. And then United would have taken all the exact same actions, only the people available at the airport would have been "actual" police, so Ron would have been happy. (But Dao would still have been dragged off, and still be bloody, and the rest of the world would still be upset.)

"Having boarded the passengers, United was SOL." This has already happened for decades, without previous challenge. At the very least, even if possibly true in hindsight, it was not at all clear in the moment.

"That's because the vast majority of the time..." Yes, of course. Vast majority. But not never. That's the important thing. This was far from the first time a seated passenger has been deboarded. It's (surely) a regular occurrence, multiple times annually, across multiple airlines. (At least, until this latest event.) And yet now seems to be the first time that people are wondering whether "denied boarding" is the same or different than "leaving a seat you already occupy". The long-term resolution may simply be to update the Contract of Carriage to clarify that "boarding" is (perhaps) defined as completed when the aircraft pulls away from the gate. Whatever the true legal status today, it seems clear that nobody realized before that this distinction might be important.

"Letting Dao stay would in no way jeopardize the safety of the flight" That's not at all clear, and you're being unreasonable to say this is an obvious conclusion. You have a passenger who refuses to comply with United employee orders. What gives you the confidence that this is not a flight safety risk? Moreover, you didn't answer my question of letting the bully get his way, and finding a more vulnerable victim to kick off instead. I want you to really follow this through. In your mind, United "should" let Dao stay, in the moment, once he complains, and ... pick on a non-random unaccompanied minor to evict instead? Please, answer the difficult question that had to be solved by the gate agents in the moment. It's only fair.

"United to save face and avoid suits from the other three passengers" No. That's not the problem. The problem is that they need four seats on that very flight. Solve that problem. Don't avoid it.

" When a real police officer formally arrests you, you go." It's clear from Dao's actions and verbal comments that his behavior would not have changed. What matters so much to you, mattered not at all to Dao.

Peter Donis said...

There's a reason you had to put "local authorities" in scare quotes: they were not authorities. They had exactly the same legal standing as the United employees who summoned them.

I'm actually not sure this is true. As far as I can tell, the people that United summoned were Chicago Department of Aviation employees, and the CDA is part of the Chicago city government:

https://www.cityofchicago.org/city/en/depts/doa.html

So the CDA employees might legally have had police powers in this case.

Ron said...

@Peter:

> So the CDA employees might legally have had police powers in this case.

Might have, but they didn't. See this link, which I posted earlier:

http://www.chicagotribune.com/news/ct-united-chicago-aviation-police-met-20170413-story.html

Quote:

Q: Were the officers in this case authorized to remove the passenger from the plane in the way they did?

A: Investigations are ongoing. Aviation Department spokeswoman Karen Pride said in the statement: "While they do have limited authority to make an arrest, Sunday's incident was not within standard operating procedures nor will we tolerate that kind of action."

@Don:

> Dao had no way of knowing that these were not police

That's absolutely not true. Airport police are easily distinguished from real police. Airport police are not armed. They don't wear uniforms. Their badges are different. For crying out loud, they were wearing blue jeans and baseball caps! Anyone with half a brain could see immediately that they weren't real cops.

> > "All of those people had exactly the same authority to physically remove Dao: zero."

> That's far from clear.

I've got a Chicago Aviation Police spokesperson on my side (see above). It doesn't get much clearer than that.

> > "a debate with someone who has advanced the thesis that the mere appearance of authority should be unconditionally deferred to"

> Now you're just lying.

Am I? The CDP's own spokesperson has said that the CDP had no authority to remove Dao. The officers who did it have been disciplined. The CPD officers don't look even remotely like real police officers. In fact, AFAICT the *only* reason to even *suspect* that they *might* be real police officers is that they were wearing clothing that said "POLICE", which anyone can buy on Amazon. Or have I missed something?

> "That's ridiculous. I would never advocate such an absolute position."

Then what *is* your position? Why should Dao have left the plane?

> You walk into a bar

Non sequitur. The bar has no contractual obligation to you. United did.

> You found two guys who wrote blog posts.

No, I found two law professors who wrote opinion pieces, one of which was published in Newsweek, and the other of which was published in Law Newz, i.e. publications with independent editorial control. (Law News is a site run by Dan Abrams, an attorney who, among other things, is the chief legal affairs anchor for ABC News.) That is not "two guys who wrote blog posts." This is as authoritative and unambiguous as it gets in the absence of an actual ruling by a judge.

> The problem is that they need four seats on that very flight. Solve that problem.

Simple: offer enough money to convince volunteers to step up.

Peter Donis said...

Might have, but they didn't.

That's not what the article you linked to says. It says they had limited powers to make an arrest, which means they had police powers. The fact that they failed to follow standard operating procedures in exercising their powers of arrest does not mean they didn't have legal powers of arrest. And having or not having legal powers of arrest, as far as I can tell, is the distinguishing factor you are using to determine whether they were "police" or not and therefore whether Dao was within his rights in refusing their orders.

Don Geddis said...

"I've got a Chicago Aviation Police spokesperson on my side" No. You're reading in what you want to see. She said that their action was "not within standard operating procedures". That is a different claim than your claim, which is "they do not have the legal authority to physically remove Dao". Those are not the same claims.

"Or have I missed something?" Yes, you have missed that your entire paragraph is irrelevant. I was objecting that you have accused me of "advancing the thesis that...", where in reality I have advanced no such thesis. And when explicitly asked about it earlier, I explicitly denied that kind of phrasing was my actual thesis. Yet you repeated this slur (about me) anyway.

"Why should Dao have left the plane?" Because the crew that operates the plane, who are the representatives of the owner of the plane, asked him to leave. That's why. He made a mistake, long, long before security ever got called. The fact that he doubled down after security arrived ("We'll have to drag you out." "Go ahead. Drag me out. I'm not leaving.") Is just icing on the cake. He should have left, when told by the service provider to leave.

"The bar has no contractual obligation to you. United did." That's not important. If they broke a contract, then sue them for breach of contract. Don't create a physical confrontation and battle of willpower. And require security to be called to force you to be removed. You don't turn a contract dispute into a physical altercation. You resolve it in the courts, not in the street.

"This is as authoritative and unambiguous as it gets in the absence of an actual ruling by a judge." And that remaining gulf, you can drive a truck through.

"Simple: offer enough money to convince volunteers to step up." You continue to fail to solve the actual problem. You are proposing a change in United procedures. There are lots of changes we can propose, including the current one they've now adopted (which is to resolve overbooking prior to boarding the aircraft, and no longer after seating).

Changing United procedures is not your option, as a gate agenda in the actual event. You do not have authority to offer arbitrary amounts of United money, in order to bribe people to leave. You have clear procedures (stable for decades) and clear compensation authority. You can offer money up to the involuntary bumping limit (or perhaps even less), and after that, you are to move to involuntary bumping. You have already done all this. Now, for the first time anyone has heard of, one of the (four!) passengers involuntarily bumped refuses to leave.

This is the problem you need to solve. What do you do now? What the United gate agent did, seems completely reasonable. They did not apply physical force themselves; instead, they called on the designated airport authorities to resolve the situation and remove the uncooperative passenger (that United was no longer willing to serve on that flight). It appears that Chicago airport has staffed itself with security that doesn't meet Ron's threshold of acceptable authority, but that's hardly a legal distinction that anyone should expect a United gate agent to make.

I'm asking you for the "Ron solution" to the gate agent's problem. They're following standard United (and probably all other airline) procedures. They need 4 seats. They randomly chose 4 involuntary passengers. 3 have left, one is refusing. Ron says that calling the standard airport security is "wrong". Tell me, Ron, what the "correct" Ron advice is, for the gate agent. What action should he/she have taken, instead of calling airport security?

Ron said...

@Peter:

> It says they had limited powers to make an arrest,

That's right.

> which means they had police powers.

No, that's not right. Ordinary citizens have limited powers to make arrests.

https://en.wikipedia.org/wiki/Citizen%27s_arrest_in_the_United_States

Whether the CDA's "limited powers" extends beyond this, the article doesn't say. I strongly suspect that "limited powers" and "failed to follow procedures" are the CDA's weasel-words for admitting that the CDA "police" had no particular legal authority at all. I take this recent development as tacit admission that I'm right:

http://abc7chicago.com/news/chicago-aviation-police-quietly-being-rebranded/1916798/

But the truth is I don't really know, and neither do you, and neither does Don. If one of you wants to do the legwork to really figure this out be my guest. I think it's a moot point because even if it turns out that the CDA had some authority beyond what ordinary citizens have, it doesn't really matter. Even if had been the Chicago PD (with all other circumstances unchanged), Dao still would have been blameless IMO because they didn't follow the proper procedures. The only circumstance under which Dao would have been obligated to comply is if he had been placed formally under arrest [1]. That didn't happen.

[1] To avoid some anticipated nit-picking, the actual circumstances under which Dao would have been obligated to comply is if he had been given a lawful order. But since he had a contractual right to occupy his seat the only way for him to receive a lawful order to vacate (AFAICT, IANAL) is to be placed formally under arrest.

@Don:

> This is the problem you need to solve.

Why do I need to solve this problem? AFAICT the gate agent was put in an untenable position through no fault of his/her own. (I'm not 100% sure about this because I don't when the gate agent actually became aware that they needed the extra seats, but I'll give them the benefit of the doubt and assume it was after the plane was boarded.) That sucks, but there are a lot of things in this world that suck. I don't see what that has to do with the question of whether or not David Dao did something wrong.

> If they broke a contract, then sue them for breach of contract. Don't create a physical confrontation and battle of willpower. And require security to be called to force you to be removed. You don't turn a contract dispute into a physical altercation. You resolve it in the courts, not in the street.

Why not turn it around: if Dao breached the contract by refusing to vacate, then charter a private jet to get your people to Louisville and sue Dao for the cost afterwards. You don't turn a contract dispute into a physical altercation by getting airport security involved. You resolve it in the courts, not in the airplane aisle.

See? That train runs both ways.

> > "The bar has no contractual obligation to you. United did."

> That's not important.

I think this is the nub of the matter. You want to ignore United's contractual obligation to Dao and focus exclusively on their rights as the owner of the plane. I think contractual obligations are salient in the moment, and lawsuits after the fact are often inadequate to make things right, especially when it's an individual against a corporation. I've told you why (Las Vegas). If you don't accept that, we'll just have to agree to disagree.

Peter Donis said...

I think it's a moot point because even if it turns out that the CDA had some authority beyond what ordinary citizens have, it doesn't really matter. Even if had been the Chicago PD (with all other circumstances unchanged), Dao still would have been blameless IMO because they didn't follow the proper procedures. The only circumstance under which Dao would have been obligated to comply is if he had been placed formally under arrest.

Ok, this is a different position than I thought you were taking. I'm not sure I agree with it, but I do agree that such a disagreement can't be resolved just on the basis of what exactly the CDA employees' legal powers were.

Peter Donis said...

That train runs both ways.

But your ingenious argument for this doesn't mean Dao should prevail at the time of the altercation; it just means that the contractual issue cancels out and we need some other basis on which to decide who should prevail at the time of the altercation.

You want to ignore United's contractual obligation to Dao and focus exclusively on their rights as the owner of the plane.

And I think this matters because it provides a tiebreaker: a way to decide whose position should prevail at the time of the altercation, when the contractual issue can't determine that (as above).

I think contractual obligations are salient in the moment, and lawsuits after the fact are often inadequate to make things right, especially when it's an individual against a corporation.

But this means that any individual who disagrees with a corporation can hold an arbitrary number of that corporation's other customers hostage to a contractual disagreement. I don't think that's a workable solution.

Don Geddis said...

"The only circumstance under which Dao would have been obligated to comply is if he had been placed formally under arrest" Tell me: what should Dao have been arrested for, if he "did nothing wrong" (as you keep claiming)? Police don't just "arrest" people. They arrest them for some specific violation. In your scenario, where "real" police then place Dao "formally under arrest", what are the charges?

"if Dao breached the contract by refusing to vacate" That had nothing to do with breach of any contract. Instead, you are now talking about refusing an order from the property owner, interference with the operation of a business, and possibly a federal threat to flight safety. This dominates, and is unrelated to, any civil contract between Dao and United.

"You want to ignore United's contractual obligation to Dao and focus exclusively on their rights as the owner of the plane." Yes, of course. This seems like common sense.

"lawsuits after the fact are often inadequate to make things right, especially when it's an individual against a corporation" Your alternative proposal of physical resistance in the moment, including against professional security, is a poor choice for a society, and a foolish and dangerous choice for an individual.

(I suspect your reaction to the United case is heavily biased by your personal frustration at your own experience about not getting what you see as justice in your case. But it's quite a stretch to abandon the whole edifice of courts and law, and return to a law of the jungle, just because you're unhappy with a single legal outcome.)

Ron said...

@Peter:

> Ok, this is a different position than I thought you were taking.

Really? What position did you think I was taking? I thought I'd been pretty consistent throughout this whole thing.

> And I think this matters because it provides a tiebreaker:

So you agree with Don on this?

In my view, the "tiebreaker" changes depending on the situation. Before boarding, the tiebreaker is that the airline can deny you boarding pretty much at will. After boarding the tie breaker is the fact that your butt is in your seat and they need physical force to remove you without your cooperation. We as a society have developed a protocol on how and when the use of force is appropriate (e.g. in self defense, by the police, by civilians in stand-your-ground states, etc.) United made two mistakes: they tried to get Dao off the plane in violation of their own contract, and their representatives used force in violation of protocol.

> But this means that any individual who disagrees with a corporation can hold an arbitrary number of that corporation's other customers hostage to a contractual disagreement.

No. United had no obligation to appropriate Dao's seat. That was purely an economic decision. They tried to kick Dao off not because they had to but simply because they thought they could. At any time they could have decided to make alternative travel arrangements for their people. They chose not to because of the cost. But the delay is on them, not Dao. It was United holding the passengers hostage to apply pressure on Dao to leave when he didn't have to.

But even in cases where the passenger asserting themselves is in the wrong, their ability to hold anyone "hostage" lasts only until the police (the real police, not civilians impersonating the police) are summoned. The company's ability to hold the passengers hostage, by way of contrast, is not subject to similar time constraints. In fact, I think Don even suggested this earlier in the conversation as a possible course of action for United: simply announce that the flight is not departing until Dao deplanes and let the other passengers deal with him. Things might have turned out better for United if they had done this. But that still wouldn't have made it right.

@Don:

> Police don't just "arrest" people. They arrest them for some specific violation.

Yes, that's right. That's an important part of the protocol. They also need probable cause that the he actually did commit the crime they're charging him with.

> In your scenario, where "real" police then place Dao "formally under arrest", what are the charges?

You're asking me??? You're the one who thinks Dao did something wrong; you should be answering that question rather than asking it. I believe that Dao did nothing wrong, so I would hope that the police would realize this and refuse to arrest him.

> return to a law of the jungle

I think that is an unfair characterization of my position. It's a long way from sitting quietly in your seat and refusing to get up to "law of the jungle".

Peter Donis said...

What position did you think I was taking?

I thought you were saying that it made a difference what the legal rights of the CDA security people were--that the important point is that it has to be "police", i.e., people with the legal right to forcibly remove someone, that forcibly remove the person (Dao in this case), not private individuals. Now you're saying it doesn't, the important point is that a particular set of formal arrest procedures are followed.

So you agree with Don on this?

I don't know if Don would agree with the general rule I am proposing--that in a case where two private parties can't agree at the scene of a contractual dispute, if the scene is taking place on the property of one of the parties, that party gets to prevail at the scene, and the other party is the one that has to resort to a court proceeding if they feel they were in the right on the merits of the dispute.

This rule would agree with Don's position in this particular case: the airplane was United's property, so when it became apparent that United and Dao weren't able to agree on the substance of the dispute, United would prevail at the scene.

the delay is on [United], not Dao

But that requires judging the merits of the dispute, and the whole point is that at the scene, the parties were unable to agree on the merits of the dispute. United did not agree that the delay was on them; their position at the scene was that it was on Dao. Dao disagreed. It is obviously impossible for both parties to get their way at the scene, so the question is, which party should prevail at the scene? And whatever rule you propose cannot depend on knowing which party is in the right, because that would require judging the dispute at the scene--not after the fact in a blog post--and the whole point is that there was no convincing judgment of the dispute available at the scene.

By the way, this also brings up another point: Dao's dispute with United, over whether he had the contractual right to occupy his seat once he was in it, is a separate dispute from his dispute with CDA, over whether the force they used to remove him, once they were summoned by United, was justified. So arguing that CDA used unjustified force once they were summoned, does not show that United was unjustified in summoning them. And the latter question is the one I am trying to address with my proposed rule.

even in cases where the passenger asserting themselves is in the wrong, their ability to hold anyone "hostage" lasts only until the police (the real police, not civilians impersonating the police) are summoned. The company's ability to hold the passengers hostage, by way of contrast, is not subject to similar time constraints

Sure it is. The company wants to get its plane moving. But let's suppose for the sake of argument that there is a significant disparity here. Are you suggesting that that should be the basis for an alternate rule from the one I'm proposing? Something like, whichever party has more power to draw the situation out indefinitely, should be the one to yield, and the other party should prevail?

Don Geddis said...

Ron: "You're asking me???" I was trying to be Socratic. I thought the answer was obvious. Surely the police would arrest Dao for trespassing.

Peter: "I don't know if Don would agree" I find myself in great sympathy with Peter's comments, most especially this last one. He also seems to have the knack of writing in a more neutral tone than the confrontation I've been involved in during this thread. Obviously, Peter doesn't speak for me (nor, I assume, would he want to), but I see him being more effective at getting my point across than I am. So (for now) I'll defer to Peter.

Peter Donis said...

I believe that Dao did nothing wrong, so I would hope that the police would realize this and refuse to arrest him.

I would have to agree with Don on this one. The police can't judge the merits of the dispute; they're not judges and they're not lawyers. What the police would see at the scene is that the property owner, United, is saying that Dao is occupying a seat without their permission. So as far as the police can tell at the scene, he's trespassing.

Ron said...

@Peter:

> I thought you were saying that it made a difference what the legal rights of the CDA security people were--that the important point is that it has to be "police", i.e., people with the legal right to forcibly remove someone, that forcibly remove the person (Dao in this case), not private individuals. Now you're saying it doesn't, the important point is that a particular set of formal arrest procedures are followed.

Ah. It's both. It has to be someone with actual authority *and* they have to follow the proper procedures.

> the general rule I am proposing--that in a case where two private parties can't agree at the scene of a contractual dispute, if the scene is taking place on the property of one of the parties, that party gets to prevail at the scene, and the other party is the one that has to resort to a court proceeding if they feel they were in the right on the merits of the dispute.

> I would have to agree with Don on this one. The police can't judge the merits of the dispute.

Then I ask you to recall my scenario where you are evicted from your apartment. Would you say that the police should not judge on the merits and the landlord should prevail?

> which party should prevail at the scene?

Well, Dao *should* have prevailed, but United almost certainly *would* have prevailed if they'd followed protocol.

That does not change the fact that under the circumstances that actually existed at the scene, Dao did nothing wrong.

> By the way, this also brings up another point: Dao's dispute with United, over whether he had the contractual right to occupy his seat once he was in it, is a separate dispute from his dispute with CDA, over whether the force they used to remove him, once they were summoned by United, was justified.

That's right.

> So arguing that CDA used unjustified force once they were summoned, does not show that United was unjustified in summoning them.

This gets sticky. United was unjustified in summoning them because they did not have a contractual right to remove Dao.

However: the actual people who summoned the CDA probably believed in good faith (though mistakenly) that the did have the contractual right to remove Dao. So in that regard they were justified (as individuals, not as representatives of the corporation). But when it became clear that the CDA was not going to succeed in convincing Dao to depart voluntarily, then the police should have been called.

> > The company's ability to hold the passengers hostage, by way of contrast, is not subject to similar time constraints

> Sure it is. The company wants to get its plane moving.

My point is that they have *control* over that. They can weigh the relative benefits of getting the flight going versus the relative benefits of getting their people on it and decide to delay or not as they wish. Once a passenger is arrested, that's it, they are out of viable options. That's the source of the power imbalance.

> Are you suggesting that that should be the basis for an alternate rule from the one I'm proposing?

This gets complicated. I think I'm going to have to write yet another post on this. But I really want to get your answer (and Don's) to the apartment question first.

@Don:

> the police would arrest Dao for trespassing

If you say so. We'll never actually know. (I wonder, on those occasions when people do get themselves arrested on airplanes, do they ever actually get charged with trespassing? I suspect that "interfering with the crew" or something like that would be more likely. I still don't see why it matters. I concede that he could plausibly be charged with trespassing. Is that good enough?)

> I see him being more effective at getting my point across than I am

Then I will join you in thanking him for restoring civility to the discussion.

Don Geddis said...

Ron: "recall my scenario where you are evicted from your apartment ... I really want to get your answer (and Don's) to the apartment question" You already asked this before, and I already answered it. Rental evictions are a well-known special case in the law, and both police and renters are (usually) well aware that renters have special rights which don't generally apply to private property disputes. So your apartment analogy is specifically irrelevant to the airplane case, because the law is so different (and has been for a very long time, and that is commonly known).

"believed in good faith (though mistakenly) that they did have the contractual right to remove Dao" This may well be the core of our disagreement. I wouldn't assert their belief in a contractual right of removal. The right to not do business with a customer is far more fundamental than that. You can sign all the contracts you want. And you can breach contracts, in the moment, and choose not to proceed with what you had previously agreed to. (Many contracts, in fact, specifically include pre-agreed damages in the case of specific kinds of breaches.) The parties to the contract don't have the "right" to force the contract to occur. If one party decides to abandon the contract, even at the last second, the remedy is through the courts, to decide on civil damages for contract breach. In no case are you allowed to physically force the other party to adhere to a contract, in the moment.

I think this is the key point. You looked at United's Contract of Carriage, and Rule 21 ("Refusal of Transport") as well as Rule 25 ("Denied Boarding Compensation"), and you believe in the legal opinion that Dao's case wasn't covered. I disagree, but actually I think that isn't the important point. The contract language only states what kind of denial would not count as a breach of contact. Even if Dao's case doesn't fall under the contract exceptions, I would still maintain that, in the moment, in the street, United has the "right" to decide to breach the contract. And I think the police would (and, more importantly, should) agree. The remedy for breach of contract is legal damages. Not physical force in the moment.

"when it became clear that the CDA was not going to succeed in convincing Dao to depart voluntarily" I have to admit that I find your view of the CDA almost amusing. What's the point of United calling them, at all? Surely the United employees can just as well have a conversation and attempt Dao to leave voluntarily. When that fails, why ever call (Ron's version of) CDA, only to have them attempt the exact same process? There's no point. Surely it's obvious, even to you, that the only reason CDA was called, is because voluntary conversation failed, and United was attempting to escalate to forced physical removal. If you think CDA is the wrong organization to do that, then probably CDA doesn't have any purpose in the airport at all. They are never useful. (I think the alternative explanation is far more likely: that CDA is indeed the proper legal authority for physical control of uncooperative passengers. I don't believe your claim that CDA applying force, necessarily constitutes assault.)

Peter Donis said...

It's both. It has to be someone with actual authority *and* they have to follow the proper procedures.

Ok, that clarifies it.

I ask you to recall my scenario where you are evicted from your apartment. Would you say that the police should not judge on the merits and the landlord should prevail?

This might not be the best example because AFAIK practically every jurisdiction has explicit rules for this case. So the police would expect to have more than just the landlord's word--they would expect to see a court order or something like that, showing that the landlord had gone through the proper procedure to evict someone and had shown good cause for the eviction.

Another point that this comparison brings up is that an eviction is not supposed to be a spur of the moment thing; the landlord can't just wake up one morning and decide to evict someone. There is a lot more time for the situation to develop and for the parties to think over their positions, seek legal advice, etc. The airplane scenario is not like that: time in which to decide is very limited and there are no easily available resources to consult. So that is another reason why this example is not a good one for comparison, particularly since the general rule I described is meant to be applied in a time critical situation. If it were feasible for the airplane to sit there for a week while United and Dao both had a chance to consult lawyers and prepare detailed arguments, it would be a very different situation.

They can weigh the relative benefits of getting the flight going versus the relative benefits of getting their people on it and decide to delay or not as they wish. Once a passenger is arrested, that's it, they are out of viable options. That's the source of the power imbalance.

This is a fair point. But I think its implications need more discussion, which you have said you want to defer to a separate post (which I agree is probably a good idea).

Publius said...

United's report and corrective actions