Tuesday, April 11, 2017

Welcome to bizarro world

It's official: the world has gone completely insane.

Yesterday, United Airlines forcibly dragged (literally!) a man off of one of their flights because they decided that their employees were more important than their customers.  Then, instead of doing what any decent human being would have done (i.e. apologize for the obvious and egregious mistake and promise a review and overhaul of their policies and procedures) CEO Oscar Muñoz decided to throw fuel on the fire and blame the victim by labeling him "disruptive."

I wasn't going to write about that.  The twitterverse and the blogosphere seem to have that situation well in hand.  But just now Sean Spicer said that Bashar al Assad is worse than Hitler because, "Hitler didn't use gas on his own people" and it struck me that the whole world seems to have gone completely bonkers.  Excuse me, Mr. Spicer, but have you ever heard the expression, "marched off to the gas chambers?"  What exactly do you think that is referring to?  Or do you, like Hitler, not consider the people who died in the gas chambers to be "his own people" because they were Jewish or gay or handicapped or whatever excuse Hitler decided to use to label them as The Other?

So: people who refuse to relinquish an airplane seat which they have paid for and in which they are physically sitting simply because the airline wants to reclaim their product are "disruptive", and the people killed in Hitler's gas chambers weren't "his own people" despite being Germans.  (There is no question but that Hitler would have agreed with Spicer.)

The most disturbing thing about this is that neither Muñoz (oh, the irony!) nor Spicer seems to think they did anything wrong.  If they do, certainly neither one has admitted it yet.  Muñoz issued an Orwellian non-apology for "re-accommodating" the passenger, and Spicer said that he didn't mean "to lessen the horrendous nature of the Holocaust" despite the fact that that is exactly what he did.  ("I didn't mean to hurt her, officer.  But God damn, she had it coming!")

If either Spicer or Muñoz saw the full magnitude of their evil and hypocrisy they would resign and slink away into the shadows with their tails between their legs.  But of course they won't because that's not what alpha assholes do.  Alpha assholes are Always Right About Everything, and if you don't agree, well, then you're being disruptive.  You're one of Them, the enemy, the Other.

And if you think these are isolated incidents, that this attitude is not becoming pervasive in our society, that we really are going down the well marked path that mankind last began to tread in the early 20th century, then you should read this.  And keep in mind that the writer is a U.S. citizen.


Don Geddis said...

Everyone seems to think the United incident is obvious. It's clearly a PR disaster for United. But you're calling the incident an "obvious and egregious mistake", and I don't find it that clear at all.

For sure, it ought to have been handled better. You generally want to be aware of your own overbooking, and not let people board when you don't want them to take the flight. But all that said, a plane ticket is not at all a guarantee of any particular seat. Overbooking has been in airline contracts for decades. And passengers generally take advantage of it too: if they miss a flight, they've "paid for" a flight, an expect to be rebooked on another flight. You could imagine an airline which actually sold you a specific non-refundable seat, and if you miss your flight, well you're just out of pocket and are welcome to purchase an entirely new flight. But nobody wants to buy such a ticket. So instead, what you have bought, is (very clearly!) something less than a specific seat on a specific flight.

Secondly, regardless of the contract itself, the flight crew has absolute authority on the flight (and is responsible for the safety of the other passengers, and now -- after 9/11 -- for nearby ground targets as well). If the flight crew gives you an order, you obey that order. This passenger was ordered to deplane. He refused.

It doesn't matter what the contract was. Even if he really did have a guaranteed seat on that flight, the proper response is to deplane, and then sue the airline for financial compensation. Refusing a direct order of the responsible flight crew, puts you in the category of hijacker or terrorist. Physical confrontation to force compliance is appropriate at that point, and should be expected.

United could have done a better job of not letting it get this far, and of de-escalating the situation. But I see very few people assigning any responsibility to the passenger, whereas it seems to me he deserves the bulk of the blame for the violent outcome. (If you're in the TSA security line, and start joking about bombs, don't come whining when they immediately take you seriously, and you get hurt.)

Many, many passengers are rebooked each year due to overbooking, most voluntarily. More than 40,000 passengers are involuntarily rebooked due to overbooking, most before they board. None of this is unusual at all. What was unusual, was the guy refused to deplane, despite a direct order from the airline crew. I find no surprise at all that refusing air crew orders resulted in a physical confrontation.

Yes, there is a PR nightmare. But you want them to "overhaul their procedures". Can you be more specific? What, exactly, did they do wrong, that they should do differently in the future? (The answer isn't immediately obvious to me.)

Ron said...


No, an airplane crew's authority is not unlimited. They cannot, for example, order you to crawl down the aisle and squeal like a pig (unless you were in a situation where that somehow impacted the safety of the flight. What such a situation might be I cannot begin to imagine.)

But the order to deplane was not safety related. It was purely an attempt by the airline to claw back the seat which the passenger was already occupying. They can't do that any more than they can demand you hand over your wallet and other valuables. This was not a safety issue, it was a business negotiation, and the passenger was perfectly within his rights to use the fact that his butt was in the seat as leverage.

Even if that were not the case, the airline is *still* in the wrong. Why? Because the people they called to drag the passenger off the plane were not law enforcement, they were airport security. If the airline's position was that the passenger had broken the law by refusing to obey a crew order, they should have called law enforcement and had the passenger arrested. But they surely knew that law enforcement would refuse to arrest the passenger (because he had not in fact broken the law). So instead they called in airport security -- private citizens with no authority -- who proceeded to physically assault him.

Yes, people get bumped off flights and refused boarding all the time. That is not what happened here, and it's a complete non-sequitur. Being denied boarding is a completely different situation from being physically dragged off a plane that you have already boarded, as United has now finally admitted.

The worst part about this is that it was an incredibly stupid *business* decision. They should have just kept upping the bid for volunteers. By the time they got to five or ten thousand dollars I guarantee you someone would have stepped up. As it stands, this is going to cost them orders of magnitude more than that.

Don Geddis said...

I'm not yet convinced.

Yes, the crew's authority is not "unlimited". But that's a little different from whether it is reasonable to expect physical force when you refuse a direct order. This is similar to receiving a police order out in the street. The police also do not have "unlimited" authority. But the expectation is that the police are allowed to do whatever it takes in order to enforce their authority in the moment. If their orders were unconstitutional, you clean that up afterwards, in court. Not through physical resistance during the event.

You claim the airline "can't do that any more than they can demand you hand over your wallet". The latter case would be theft, and is explicitly against the law. Is deplaning a passenger against the law? You claim an equivalence. Can you support that? Why, *exactly*, is United Airlines legally required to transport a passenger who has already occupied a seat? To be blunt, I don't believe you. Overbooking is part of the contract, and being involuntarily bumped happens frequently. Please educate me on the legal ramifications of "already occupying" a seat.

I don't know about law enforcement vs. airport security. When *do* you call airport security? In any case, I disagree that he had not broken the law. He was seated on UA private property, and they refused to do business with him, in the way he wanted, at that moment. But he wouldn't "leave the store". That, too, is trespassing (at the least), and I bet he could indeed be arrested.

"Being denied boarding is a completely different situation ... a complete non-sequitur". That's quite a strong claim. I don't see it as legally much different (although of course there is a huge difference in soft perception). Can you support how it is so clearly an unrelated situation that you dismiss my objection out of hand?

"has now finally admitted" United has been hammered with a PR nightmare. And they also completely blew their public response in the first couple days. They have no idea what they are doing with their messaging. But I challenge you to find any admission that they made any legal error. They were in the right, and the passenger was in the wrong.

"They should have just kept upping the bid for volunteers." You think this is so easy, but I suspect you miss the repeated nature of this game. Prior to the 1970's, airlines either didn't overbook (and thus charged more), or else they simply involuntarily removed passengers. The great (libertarian) economist Julian Simon invented the "bribe them to leave" idea. In addition the DOT has explicit rules on the practice of overbooking, and the compensation due to involuntary bumping. There is little incentive (in ordinary circumstances, anyway) for an airline to offer voluntary compensation which is in excess of the mandated involuntary compensation rules.

If you ran an airline, and had a regular practice of both overbooking, and also essentially unlimited compensation auction, I would bet that a clever gang would eventually figure out how to game the system, to cause the passengers to collude in not accepting offers, until the price got high enough that everyone could secretly split the pot and profit from the situation. I think you're making the mistake of considering this a one-time game, instead of a repeated strategy. (This is possibly similar to deciding about ransom payments in a kidnapping.)

Again, I agree that this is a PR disaster for United. Everything else about it, though, I seem to disagree with you about.

Ron said...

> But the expectation is that the police are allowed to do whatever it takes in order to enforce their authority in the moment.

No. That is absolutely not true. The police also cannot order you to crawl an your knees and squeal like a pig. A more realistic example: the police cannot order you to stop filming them. (Well, OK, they *can*, but that is not a lawful order, and you are perfectly within your rights to refuse such an order.)

There is one salient difference between these two cases: the police *do* have governmental authority, so it might be wise for you to obey their orders even if they are not lawful and then sort things out afterwards. But that, again, was not the case here. No law enforcement was involved. This was not a safety matter. This was a *business* dispute, and a physical assault on a civilian by other civilians.

> When *do* you call airport security?

I have no idea. When do you call any private security? My guess is that when push comes to shove all private security is pretty useless except insofar as they can intimidate people into complying. But they have no more authority than any other civilian.

> He was seated on UA private property,

With their permission.

> and they refused to do business with him

No, that's not true. They had already entered into a contract, which the airline was trying to unilaterally rescind. Go read United's Ts & Cs. You can find them here:


The applicable rule is Rule 21, which lists the reasons the airline can throw you off the plane once you are on board. "Because we want your seat for one of our employees" is not one of them.

> There is little incentive (in ordinary circumstances, anyway) for an airline to offer voluntary compensation which is in excess of the mandated involuntary compensation rules.

Except that the failure to do so in this case is almost certain to cost them hundreds of thousands if not millions in civil damages, to say nothing of the business they will lose due to the bad PR. I'd call that a pretty powerful incentive.

If United had been even remotely competent and bumped these passengers before they boarded that would have been a completely different situation. But they didn't. That bit of incompetence is the reason that this is on them. The airline has the right to refuse to let you board, but they do *not* have the right to throw you off once you have boarded except under specific circumstances, none of which applied here. It's the difference between "denied boarding" (Rule 25) and "refusal of transport" (rule 21).

Don Geddis said...

"The police also cannot order you to crawl an your knees and squeal like a pig. ... cannot order you to stop filming them. (Well, OK, they *can*, but that is not a lawful order" You seem to contradict yourself. Of course the police (or these private security) can issue a non-lawful order. The question is, what do we expect to happen then? I assert that in civil society, we expect the police (or security) to dominate and win the immediate situation, and then to resolve the non-lawfulness afterwards, in court.

"you are perfectly within your rights to refuse such an order" I think you're giving horrible, horrible advice. I would certainly agree that you should know your rights. And you should know that you have a right to film the police. And they may ask you to stop filming. And it's certainly reasonable, in the moment, for you to object and say "I believe I have a legal right to continue filming, and I wish to do so." But if they still say (unlawfully) "stop filming immediately" ... then you should stop filming. (Or else not be surprised at the onset of expected physical violence.) Again, the fix is to sue the agency for unlawful activity later. Not to physically resist in the moment. The whole objective of police (and security) forces, is to win the immediate physical confrontation.

"When do you call any private security?" So you're in a Las Vegas casino, and you start winning a lot, and the casino congratulates you on your winnings and asks you to leave the premises. And you refuse. Wanna bet their own in-house private security is going to come in and physically throw you out of the building? I don't think that's unreasonable. (In fact, a non-cooperating passenger on an airline is a far more serious danger than some loser in a casino building.)

"which the airline was trying to unilaterally rescind" As allowed explicitly under the rules of the ticket contract.

"The applicable rule is Rule 21" I completely disagree. It's obvious to everybody that they are invoking Rule 25, about overbooking. This has nothing to do with Rule 21.

"they will lose due to the bad PR" Yes, obviously this is a huge PR failure. That's a much more complex and squishy subject. And United completely blew the PR crisis. But that's different from the legal situation, and who is actually at fault in the moment. Most people think that United did something "wrong", and I'm not yet convinced.

"That bit of incompetence is the reason that this is on them." I agree. They handled it very poorly. "Before boarding" is the usual way these things happen. But not always, and not this time. But yes, that makes United somewhat more at fault.

"The airline has the right to refuse to let you board, but they do *not* have the right to throw you off once you have boarded" Well, that's a very, very specific legal claim. I don't think you are correct. You (and many others) believe that "being on board in your seat" is a major legal distinction in your passenger rights. United certainly doesn't think so. I bet courts would side with United. I don't think your interpretation is correct.

Ron said...

> I assert that in civil society, we expect the police (or security) to dominate and win the immediate situation, and then to resolve the non-lawfulness afterwards, in court.

As a descendant of holocaust survivors, I respectfully disagree.

> But if they still say (unlawfully) "stop filming immediately" ... then you should stop filming.

That depends on your goals. If your goal is keep yourself free from physical violence in the short term, then yes, this is probably sound advice. (This is true whenever you are dealing with an armed individual giving you unlawful orders, whether on not that person is a police officer.)

But if your goal is to try to move the political needle away from a police state and towards freedom and the rule of law, then it might make more sense to resist.

All this is a non-sequitur because the police were not involved in the United incident.

> It's obvious to everybody that they are invoking Rule 25, about overbooking. This has nothing to do with Rule 21.

That's what United wants you to think, and it may be what the employees who caused the incident in the first place thought, but it's wrong.

First, note that the title of Rule 25 is not "overbooking", it is "Denied boarding compensation." The passenger was not denied boarding. He was permitted to board. Hence Rule 25 does not apply.

But let us for the sake of argument imagine that Rule 25 did apply, and let's look at what it actually says:

"Denied Boarding (U.S.A./Canadian Flight Origin) - When there is an Oversold UA flight that originates in the U.S.A. or Canada, the following provisions apply:..."

The term "oversold flight" is defined in Rule 1 (definitions):

"Oversold Flight means a flight where there are more Passengers holding valid confirmed Tickets that check-in for the flight within the prescribed check-in time than there are available seats."

Likewise, "passenger" is defined:

"Passenger means any person, except members of the crew, carried [sic] or holding a confirmed reservation to be carried in an aircraft with the consent of the carrier."

Unfortunately, neither "member of the crew" nor "confirmed reservation" is defined, so the trail ends here. (Some lawyer's head will probably roll for this.) Were the United employees "Passengers holding valid confirmed Tickets"? I wouldn't want to be the lawyer trying to make that argument to a jury.

> I bet courts would side with United.

I'll take that bet. Name your stakes.

Don Geddis said...

I disapprove of your invocation of Godwin's law. Separately, I disagree with your analogy, and with your recommendation to resist police orders. (That's heading towards civil war; perhaps appropriate in some circumstances, but you better be sure you know what decision you are making, and you ought to realize the likely consequences.) But it's hard to have an objective discussion around Hitler, so I'll stop.

"I'll take that bet. Name your stakes." I actually continue to disagree with you, and would indeed be willing to make a public bet. (Say, for something like $100.) But unfortunately I doubt this could be resolved to our satisfaction in a timely way. This is such a huge PR disaster for United, that the last thing they're going to do at this point, is fight for the resolution of some obscure legal point in court. We aren't going to get a court decision on the points of our disagreement.

(I might also point out that you think a paying passenger shouldn't be bumped for a United employee. This is not an area where I have much expertise, but I did recently come across this blog post, which claims that it is a federal DOT regulation that paying customers must be bumped, to get a crew to their scheduled flight. Just a quick example to reinforce my intuition that you are completely wrong in this case.)

If we were to bet, it would probably go something like this:
1. Did United break a signed contract by bumping a seated passenger for its own employees? (I think no, you think yes.)
2. Once the man refused to leave, was it legal for the summoned security team to physically force him to depart? (I say yes, you say no.)

These are pretty clear questions, and I'm convinced enough of my position to bet you on them. But I doubt we'll see a clear resolution of the questions, in order to resolve any bet we might make.

Ron said...

> I disapprove of your invocation of Godwin's law.

Sorry, Don, but sometimes the shoe fits. The holocaust was caused in no small measure because of the unquestioning deference to authority of the sort that you seem to be advocating.

> I doubt we'll see a clear resolution of the questions.

United has issued an apology and offered compensation to *all* of the passengers on that flight. Dr. Dao's lawsuit is just starting to wind up, and it's fixin' to be a doozy. I predict that United will settle for no less than $500,000. A seven-figure settlement would not surprise me. I'd call that a pretty clear resolution.

Also, you should read this:


Ron said...

BTW, if you don't like my choice of Nazi Germany as a cautionary tale against unquestioning deference to authority, there are a host of other examples to choose from: North Korea is the current poster child, but I could also point to the former USSR (and contemporary Russia), Saudi Arabia, Iran... Turkey seems to be heading in that direction too. I wouldn't consider any of those as having good outcomes.

Don Geddis said...

OK, so we have two separate topics now. I'll attempt to split them.

On the topic of the legal status of United de-boarding a passenger, I still strongly disagree with you. I would still be willing to bet that United was completely within their rights. But I also reject your proposal: "I'd call that a pretty clear resolution." On the contrary, this PR disaster is already worth 100's of millions of dollars, so a "settlement" of six or seven figures is nothing like a court ruling about the legality of contract law.

As to your link, I almost feel like you didn't read my link. The post you linked to seems to take out of context a possible report that maybe the flight "wasn't overbooked", and then it wildly speculates the layman opinion that "there is a legal difference ... versus bumping a passenger to give priority to another passenger".

This isn't just preferring one paying passenger to some other paying passenger. Your linked post shows no awareness of the critical point made in my linked post: "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."

I still think both that you are wrong about the law in this case, and also that there will be no clear legal outcome acceptable to both of us.

Don Geddis said...

OK, Hitler. I don't think this is a productive avenue for further discussion, but you do, so I'm willing to give it a try.

So an event occurs, and a police (or security) authority gives you an order, which you suspect is illegal (or maybe immoral?). Should you resist? As a society, what are we asking from our police, and from our citizens?

My recommendation is: in the moment, obey police orders. Their job is to maintain physical dominance of a situation. If they're making a mistake, the fix is to calmly analyze the situation, with the full facts, later. Not to object (beyond clearly stating your lack of consent) in the moment. Meanwhile, the job of the police is to understand their legal restrictions, but then impose their will and "win" a physical confrontation against resisting opposition.

So I would ask: (1) Are you really so sure that the police order is unlawful? This is the first five minutes of a new confrontation that has taken you by surprise. Do you have access to the contract details that you signed? Do you know the resolution of previous relevant court cases? Are you an expert in Constitutional law? No? Maybe you ought to be a little less confident that you actually know what is legal in this case, and what is not.

(2) If the police order is legal, but you still think it is immoral, have you tried convincing society or the legislature to change the law? Perhaps it was a mistake, or a holdover, or we can design a better structure. Before resisting police (who are just doing their job), perhaps you should expend some effort in using the process of society to slowly improve the law. Have you put forth any effort in this direction?

(3) If society refuses to change the law, and you still think the law is immoral, then you have the option of civil disobedience and/or civil war. Is the topic important enough for that level of resistance? Is the violence and horror that you are about to embark on, sufficiently critical that it is worth the clear suffering that it about to come from the imminent clashes between trained and armed police, and helpless resisting citizens?

The gap in these cases, between the United passenger (who almost certainly refused a legal order, in the moment, without much prior thought on the issue), vs. the Holocaust (which is as clear a case of state violence overreach as we have in history), is such a wide gulf that I can only think you were trying to bridge an unfair equivalence in order to "win" your argument, just because Godwin's Law makes it essentially impossible to continue a debate once you force such a connection.

No, the 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.

Don Geddis said...

Back to the legal analysis. Again, I'm not a legal expert, and this would need to be argued in a court of law. But I just saw a comment on a Facebook post from Daniel Strange that I think indicates the kind of legal reasoning that (I believe) would be likely to prevail, if this case were ever to come to trial (which it won't):

"OK, first the definition of "overbooking" and "oversale" are one and the same thing. Seats which are given to must-ride crew are blocked by the airline for operational reasons and are not available for passengers, so at that point the flight is "oversold" or "overbooked" regardless of how many seats they *planned* to have available. The airline can block seats for crew use, for mechanical, weight and balance, FAA inspectors, etc etc right up to the last minute. Second, where the "lawyer" refers to employees having a lower priority they are referencing employees travelling on their own time for personal reasons. Crew deadheading to operate another flight are considered operating crewmembers and not passengers at all. This is well established legal precedent, for example passengers are not allowed onboard without flight attendants present but deadheading crew is. 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."

Ron said...

OK, you've given me a lot to think about. Right now it's looking like my response is going to turn into a whole nuther post, and it may be a few days before I can get to it. But I wanted to post this so you'd know I'm not ignoring you.

Ron said...

I'm still deep in this rabbit hole. But in the meantime here's a detailed analysis written by a law professor:


Publius said...

>It doesn't matter what the contract was. Even if he really did have a guaranteed seat on that flight, the proper response is to deplane, and then sue the airline for financial compensation. Refusing a direct order of the responsible flight crew, puts you in the category of hijacker or terrorist. Physical confrontation to force compliance is appropriate at that point, and should be expected.

At best, it seems like a civil offense. Violence is not justified for such an offense.

Here are some better ways United could have handled it:
1) Let him travel to Louisville.
A) If he committed a crime, have him arrested as he deplanes.
B) If he simply violated the contract (civil), blacklist him as a customer.

2) If it was necessary to remove him from the plane by force, then all of the other passengers should have been deplaned before force was used against him and he was removed. Those other passengers weren't paying United to be exposed to the specticle of a man being assaulted and beaten.

@Ron @Don

A couple of articles worth reading on this incident:

When Does a Company Decide You Are Human?
The Elements of Bureaucratic Style