Monday, April 17, 2017

David Dao did nothing wrong

I am dumbfounded that this is even in dispute any more.  Maybe an analogy will help.

Consider the following situation: you have rented an apartment.  You have signed a lease.  You have paid your first month's rent.  You have moved in.  You are putting your artwork up on the wall when there is a knock at the door.

It is Jim from the management company.  He explains to you that there has been a mixup, and they actually need your apartment to house some company employees who have just been hired and need temporary housing until they can find places of their own.  He's terribly sorry, but you will have to vacate immediately.  They will find you a new apartment as soon as possible, but for now you are out of luck.  They tried to find someone to volunteer their apartment, but no one stepped up.  So you have been randomly chosen.  Get out.  Now.

Naturally, you refuse.  You have a signed lease.  No, no, Jim explains to you, the terms of the lease allow the management company to reclaim your apartment in situations like this.  You are quite certain he's wrong about this, and it just so happens you are correct, but you are not a lawyer and the lease is long and full of legalese and sorting out whether you would prevail on the merits would take quite a bit of time.  In any case, you say to Jim, "Sorry, but this is my apartment.  I'm not going anywhere."

Jim replies, "No, this is not your apartment.  You're just a renter.  You don't own the place, the management company owns the place.  And the owner says: get out.  If you don't, I will call security to have you removed."

You still refuse to go, so Jim calls security.  Three burly guys from ACME rent-a-cop sporting badges and dark blue jackets with "POLICE" stenciled on the back show up at your door and say, "You are unlawfully trespassing on private property.  If you don't leave voluntarily you will leave us with no choice but to force you to go."  Again, you refuse, at which point they knock you senseless and drag you down the hallway.

This situation is exactly analogous to what happened to David Dao.  The only difference is that instead of an apartment, Dao was occupying an airplane seat, and instead of a lease he had a ticket.  Otherwise there is absolutely no difference.

I can think of a couple of possible objections, though it takes quite a stretch of the imagination.

1.  Such a thing would never happen to someone in their home

Such a thing has happened.  It happened to my grandparents, except that instead of Jim from the management company it was Wolfgang from the Gestapo.  (OK, I don't know if his name was Wolfgang.  But whoever it was, he (and it was a he) really was from the Gestapo.  The actual Gestapo, not some metaphorical Gestapo-like organization.)

In fact, a very similar situation actually happened to me.  It wasn't exactly the same because it was a condo, not an apartment, and we had not closed on it yet.  (In fact, to this day I have never been inside the place.)  But the bank that bought the development decided to appropriate all of the units under contract so they could turn the entire building into a hotel.  Worse, they decided not to return the down payments, instead offering to settle at 70 cents on the dollar.  It would have been a slam-dunk civil suit except for two things: the purchase contract had an arbitration clause, and the civil jurisdiction in question turns out to be thoroughly corrupt.  Unfortunately I can't be any more specific about the situation because the settlement agreement included a non-disparagement clause, so if I say anything more they could sue me, and they would probably win.  But if you really want to know, I did write up the situation in detail before I signed the agreement.  The internet probably has a copy somewhere (ahem).

2.  Airplanes are different from apartments

Really?  How?  Because they have pilots who can order you off the plane?  Apartments also have civil authorities who can order you to vacate under some circumstances (e.g. there's a fire, or the building has been declared unsafe after an earthquake).

Yes, airplane seats are smaller and more uncomfortable than most apartments (except maybe in Manhattan) and the term of the "lease" is shorter.  But I don't see what difference any of that could possibly make.

3.  ???

I'd really like to round out this list with a third example, but I am wracking my brain and I honestly can't think of any other possible objections.

6 comments:

Don Geddis said...

"it just so happens you are correct" You keep saying this, to make your analogy more plausible, but these facts are not established in the Dao case.

"The only difference is that instead of an apartment, Dao was occupying an airplane seat" Which of course makes all the difference in the world.

"Airplanes are different from apartments" Exactly. The presumption in most private property cases, is that the owner gets control over their property. Living in a rental is an explicit exception, and renter's special rights are carved out in laws about eviction. These special laws don't apply to airline seats.

Moreover, other special laws, giving additional rights to the crew (pilots are similar to sea captains, security concerns are vastly higher on an airplane than in a residence), do apply to airlines, in a way they don't in your lease analogy.

"Apartments also have civil authorities who can order you to vacate under some circumstances" Ah. Interesting. So what happens to your example when a "civil authority" orders you out of your house, and you refuse anyway? I'd be interested in seeing you write exactly the same hypothetical story, except the "authority" is correct, and the "renter" is wrong. What is your moral lesson from your own analogy, when the law is on the side of the authority?

Ron said...

> The presumption in most private property cases, is that the owner gets control over their property.

Unless the owner has relinquished that control under the terms of a contract.

> these facts are not established in the Dao case.

Two law professors have published detailed analyses concluding that United was wrong. United Airlines has admitted that they were wrong. That seems about as established as it can possibly be under the circumstances. When all of the parties to a dispute agree on something, and their conclusion agrees with all of the expert opinions, I think it's pretty safe to call that "established."

The only argument I've seen you muster against the claim that United was wrong was the piece written by an anonymous "pilot's wife." That person was, as I've pointed out before, demonstrably wrong on her factual claims. Do you have anything else?

> security concerns are vastly higher on an airplane than in a residence

That would be relevant only if anyone were claiming that security was a concern in this case. But no one is. So this is another straw man.

> So what happens to your example when a "civil authority" orders you out of your house, and you refuse anyway?

I don't know. I'll think about that when someone gets beaten up for it.

Don Geddis said...

"United Airlines has admitted that they were wrong." United has admitted that they made a poor business choice, and are going to change policies in order to make different choices in the future. That is not at all what we are discussing.

The question you intended to ask, is: if Dao had left the plane as ordered, and then sued in court for civil damages, would a judge or jury have then ruled that United was in violation of a signed contract? Yes, you have "two law professors" who have argued that the answer is yes. That's a long, long way from a clear court ruling. And United has in no way admitted legal guilt (only poor judgment).

I offered you two analyses also, on the other side: the "pilot's wife" blog post, and the Daniel Strange facebook comment, both of which make plausible points. (And the Strange comment is a direct response and counter to one of the "law professor" analyses.)

I'm obviously not a lawyer. But I think it is abundantly obvious that this case has not been settled with a clear judgment in a court of law. And I think you're radically overconfident to just assume the law is clear here.

"That would be relevant only if anyone were claiming that security was a concern" No. It is relevant, as an explanation for why the rights of a landlord during eviction, vs. the rights of a pilot on an aircraft, might be different. All that matters is that the rights are in fact different, which is why your rental analogy is so misleading. The cases differ in precisely the critical way, which is the authority of those giving you orders.

Ron said...

> the Daniel Strange facebook comment

You didn't actually link to the comment, you linked to Strange's profile, so all I have is the quote you posted.

I have no idea who Daniel Strange is, so I have no idea how much credence to grant him a priori. But based solely on the excerpt you posted (which is all I have to go on) I see nothing that moves the needle. The key excerpt is here:

"Third the definition of boarding includes the entire boarding process right up to closing the aircraft door. There is not special legal distinction between the gate area, the jetbridge, and the aircraft when it comes to boarding so rule 250.2a still applies."

Strange is wrong about this. Neither the contract of carriage nor the FARs actually define "boarding", so the common-sense definition applies: once you have presented your boarding pass, and it has been accepted, and you have been allowed to, well, board the aircraft, then you have boarded.

See http://www.newsweek.com/why-united-were-legally-wrong-deplane-dr-dao-583535

"Dao was not denied boarding. Dao was granted boarding, and then subsequently involuntarily deplaned, which is not the same thing... When a flight is oversold, UA can deny boarding to some passengers, who then receive compensation under specific guidelines. However, Dao was not denied boarding. He was granted boarding and then involuntarily removed from the airplane....

One might argue that Dao had not completed “boarding” until the cabin door was closed. This argument would be wrong. The term “boarding” is not defined in the definition section of the contract, and absent an explicit definition in the contract, terms are to be afforded their plain meaning.

“Boarding” means that the passenger presents a boarding pass to the gate agent who accepts or scans the pass and permits entry through the gate to the airplane, allowing the passenger to enter the aircraft and take a seat.

It is possible in this regard to distinguish between the collective completion of the plane’s boarding process, which is not complete until all passengers have boarded and the cabin door is closed. But that is different from each passenger’s boarding, which is complete for each individual once he or she has been accepted for transportation by the gate agent and proceeded to the aircraft and taken his or her assigned seat.

Bottom line is that if the airline wants to bump you from the aircraft, it must deny you boarding. After the crew grant you boarding, the number of conditions under which they may deplane you substantially decreases."

Jonathan said...

What seems a key point, which I wouldn't have even guessed before your posts and comments section discussion (so thanks for that, I find your view here fascinating actually), is how much legitimacy is assigned to the arbiter in the situation. Or more specifically, what we think David Dao thought.

If we assumed the arbiter to be United rent-a-cops, I'm on your side. Dao could (and should) politely refuse to leave his seat. The closest vaguely similar situation I've faced in life are the Walmart and Fry's receipt-checkers. I say "no thanks", walk past, and have never had a problem.

But I think the safer assumption is that the arbiters were more like police. And in that case, I'd go the extreme of saying that even in your apartment example if the police show up saying I have to leave, then it's wrong to physically resist. Police have a difficult job, don't make it more difficult. Sort it out in court. Even Rosa Parks got up from her seat once the police arrived, and eventually brought about change with a boycott. It's somewhat interesting to note what happens if we intentionally carry the analogy too far: Dao hasn't called for a United boycott but rather hired personal lawyers suggesting maybe a less noble cause than Parks'.

I'm curious the advice you would have given to your grandparents about the correct course of action, where resisting might mean death.

Again, I'd add that clearly both CDA and United deserve a lot of blame. Way more than David Dao. It seems in a couple of places you seem to make the assumption that if United/CDA are to blame then Dao isn't. Rather, it seems entirely possible that all parties share (vastly unequally) some blame.

Ron said...

@Jonathan:

> The closest vaguely similar situation I've faced in life are the Walmart and Fry's receipt-checkers. I say "no thanks", walk past, and have never had a problem.

An excellent analogy. The receipt checkers have no authority, just as the CDA has no authority. The difference is that the receipt checkers *know* they have no authority and act accordingly.

Personally, I comply with the receipt checkers because the cost to me is low (literally just a few seconds of my time), and I sympathize with their goal of reducing theft, the cost of which ultimately gets passed on to me. But I don't condemn someone who chooses to pass them by.

> even in your apartment example if the police show up saying I have to leave, then it's wrong to physically resist

Yes, and I would agree. Resisting the actual police is much more risky and costlier than resisting rent-a-cops. I think there are situations where even the actual police should be resisted, but they are rare. But again, this is a straw man. If the actual police had shown up we'd be having a completely different conversation.

> Dao hasn't called for a United boycott but rather hired personal lawyers suggesting maybe a less noble cause than Parks'.

Maybe. Or maybe Dao just doesn't want to be an activist. Or maybe he thinks that United's apology and change in policy is enough, so no boycott is needed. What difference does it make? Sure, David Dao is not Rosa Parks. That doesn't make him wrong.

> I'm curious the advice you would have given to your grandparents about the correct course of action, where resisting might mean death.

That's a hard question for me to answer because I have the ultimate conflict of interest: if they had resisted I wouldn't be here to answer the question.

I think that the decision to resist has to be an individual's call. I don't think anyone has an obligation to resist. I also don't think that someone who chooses to resist should be condemned for that choice. Resisting authority should never be done lightly, but I think it is an important part of the checks and balances of a free society.

> it seems entirely possible that all parties share (vastly unequally) some blame.

Of course it's possible. Most of the time it takes two to tango. But in this case I honestly see no rational basis for assigning any blame whatsoever to David Dao. Again I must stress: if the real police had come, it would be different. If there were any hint that safety was at issue, it would be different. But they didn't, and it wasn't, so it isn't.