by Bruce Dunlavy
(My blog home page and index of other posts may be found here.)

Two things happened in the last week that appear unrelated, but in fact have a real commonality.  On April 6, 2017, the United States marked the one hundredth anniversary of its entry into World War One.  Four days later, a passenger was forcibly removed from a United Airlines aircraft.

At first blush, the two may seem tenuously connected at best, but closer analysis reveals that the latter is the former writ small.  The war America entered was a horrific shock to Western culture that has never been erased.  The United Airlines incident, although not generating the same degree of shock, generated the same kind of shock. After seeing the results of what should not have occurred, observers are in both cases asking the question, “How could this have been allowed to happen?”  After World War I, a European leader is said to have answered it this way: “If only we knew.”

The causes of World War I are manifold, complex, murky, and widely misunderstood. So it is with the United Airlines incident.  In both cases, though, three things are certain. Some people knew some of the information, but nobody knew it all. Assumptions were wrongly made about what others were going to do. Lack of clarity, communication, and understanding set in motion a series of incremental steps, none extraordinary in itself, that led to a point from which conflict was inevitable.

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I will leave it to you to research the false expectations, miscommunications, and drawing of “lines in the sand” that led to the Great War while I analyze the cause of the lesser war.  Let us start with facts:

United Airlines flight 3411 (operated by Republic Airlines as United Express) was scheduled to leave Chicago for Louisville at 5:40 p.m., Sunday, April 9.  The passengers boarded and every seat was filled. Contrary to initial reports by outlets including the New York Times and CNN, the flight was not overbooked. This is important.

Overbooking is a common airline practice in which more tickets are sold for flights than there are available seats. The reasoning is that there are usually passengers who do not show up, and overbooking allows the airline to fill their empty seats and thus not lose the revenue, since it costs the same to fly a full plane as it does a partly-empty one.

Of course, this often leads to situations where there are more passengers than there are seats.  Thus, some passenger(s) will get “bumped,” or kept off the plane. Legally, there is a procedure for such occasions, backed up by Federal law specifying both the circumstances and compensation which may be due the bumped passengers.  Typically, the fact that there are too many passengers is discovered in the departure lounge, and the airline agents ask for volunteers to take another flight and receive monetary or other compensation.

To repeat, UA 3411 was not overbooked. Passengers boarded the plane.  United at some point discovered that they had a plane scheduled to leave Louisville, and they had no flight crew there for it. United had a crew of four in Chicago ready to go, so they made the belated decision to bump four passengers on 3411. They asked for volunteers, but no one accepted, possibly because the next flight to Louisville on UA was not until the next day.  The airline offered compensation, an overnight hotel stay and money (or a ticket voucher) – first $400, then $800.  Still no takers.  With no volunteers, UA moved to the next step, involuntary bumping, in which passengers are told they must leave the aircraft.  This forced bumping carries required financial compensation of 400 percent of the one-way fare with a cap at $1350 for a domestic flight if the passenger is thus delayed for over two hours.  Airlines may offer more, but the maximum they are required by Federal rules to offer is $1350. Thus the maximum is also a minimum, which adds to the confusion.  Additionally, there is no set protocol for choosing passengers to be involuntarily bumped; the airline decides the method. UA said it used a random selection.

A couple was selected and left the plane.  The next selection, of 69-year-old David Dao, was met with his refusal.  Dao said he was a physician and had to get to Louisville to see a patient the next day. After Dao firmly refused to leave his seat, United called O’Hare airport security police to escort Dao from the aircraft.  He refused to go with them, and they ultimately grabbed him, pulled him out of his seat, and dragged him out on his back. He later returned to the plane, bloodied and disoriented, muttering, “Just kill me, just kill me,” before being taken off again.  All the other passengers were also taken off and returned to the departure lounge.  Eventually they were reboarded and the flight departed.

Other passengers recorded video of the incident, and it quickly exploded on the internet and television news.  Dao was hospitalized, and later reports said he had suffered a concussion and broken nose, and lost some teeth.  Public reaction was an immediate clamor of outrage and disgust.  How could something this terrible have been allowed to happen?

There’s that question again.  Just as with World War One, we can trace the incremental steps to determine how, if not why.

One might say that the first of the incremental steps was the Airline Deregulation Act of 1978, which fundamentally changed passenger air service. Before that, the Civil Aeronautics Board determined the routes, schedules, and fares for all flights, leaving the airlines little independence other than in the provision of amenities to passengers. After the Act, it was all about competition, keeping down fares and eliminating services to make up for the reduced revenue. An industry built on service turned into one built on cut-throat cost cutting.

Then there is the lack of clarity in the rules and regulations about involuntary bumping.  Considerable decision-making authority is left to the airlines, and United’s self-generated “contract of carriage” does not spell out a procedure beyond giving preference to persons with disabilities and minors traveling alone. This can lead to an inchoate ad hoc response to complications.

Nor does the Code of Federal Regulations (CFR) directly address this particularly unusual situation.  The rules – hazy as they may be – apply to overbooked flights, and 3411 was not overbooked. UA wanted to remove passengers on a full – but not overbooked – plane and replace them with its own employees. In other words, they wanted to replace some passengers with other passengers that they preferred.  The regulations do not say whether airlines are even allowed to do that, let alone how it would be accomplished.

Additionally, Dao was already on the plane, which, according to United’s “contract of carriage,” can be interpreted to take his situation out of the category of “denial of boarding” and into “refusal to transport.” That is a different situation and calls for different criteria to justify enforcement, such as an intoxicated or unruly passenger. CFR does not specify how to distinguish between the two categories.

The next step toward disaster was UA’s decision to place the Louisville flight crew on 3411. It is unclear when the airline realized there was no flight crew for the Louisville aircraft, but when they did they no doubt determined it would be better to inconvenience four people on this plane than to inconvenience an entire planeload in Louisville along with others on subsequent flights who would catch the ripple effect from the Louisville plane’s not making its run. They would have to ask passengers to leave a plane they had already boarded.

At this point, there was still opportunity to avoid what happened.  The airline could have tried to find another way to get the crew to Louisville.  Their compensation offer to passengers could have been increased until four people accepted.  United did not do either of those, however, and it was then that they crossed the Rubicon by announcing an involuntary bump. Once the announcement was made, there would be no going back. About 40,000 passengers a year are involuntary bumped, making up about eight percent of all bumps (the rest are voluntary).  One supposes that refusals are rare.  In this case it happened on the third selection of four.

With Dao’s unanticipated refusal, UA was in a bad situation.  If they backed down and chose someone else instead of Dao, it would have been clear to all that if any chosen passengers refused, they would be allowed to stay.  This makes the involuntary bump meaningless, in fact nonexistent. Federal law makes it a felony to “assault or intimidate” a flight crew, but it is uncertain whether refusing to follow their orders is ipso facto criminal. But with Dao refusing orders, UA called on law enforcement.

Once the airport security police boarded the aircraft, another no-return juncture was reached.  Those officers were not going to get off that plane empty-handed. One way or another, Dao would not remain on board. One thing that is certain about police forces. When they tell you to comply, you will comply or they will make you comply. A response of “No, I won’t” does nothing for you, because they will not allow people to flout their directives or their authority is gone for good.  The mindset of law enforcement officers is exemplified in this video clip from the 1990s television series Homicide: Life on the Street, in which a character played by Clark Johnson explains it in no uncertain terms.

It was not United Airlines who beat Dao up; it was the airport security police.  Right or wrong, justified or unjustified, it’s what police do in these situations and we all know that.  If you’re standing in a police action zone and they tell you to clear the area, you’d better clear the area or face consequences. It doesn’t matter if you are in a restaurant waiting for a carry-out order you have already paid for, if the police tell you to leave, noncompliance will mean the use of force.  You must expect that to happen.  In most places, there is enough room for officers to simply surround an individual and frog-march him away or pick him up and carry him, but the confined space of an aircraft cabin requires other measures.  Although initially polite, Dao became increasingly agitated, flailing his arms at the officers, who then roughly dragged him out of his seat, his head striking an armrest, and pulled him across the floor by his arms.

Was Dao himself in the wrong? In ignoring instructions from a flight crew, he may have left himself open to prosecution.  It is  certainly an offense in most jurisdictions to fail to comply with a police order or otherwise “obstruct official business.” The usual directive is, “comply, then complain.” Follow the instructions, and if you think they were improper, seek a remedy later. But that’s not what Dao did.

Did United commit a crime?  I’m not a lawyer, but from my layman’s understanding, their arrangement with Dao was a contract.  That might make them guilty of breach of contract, but that is a civil matter, not a criminal one.  It puts them at risk of being sued, but not of being prosecuted.

Could United have gotten the flight crew to Louisville some other way?  Probably not. As air industry commentator Gary Leff points out, they would have needed yet another crew and another plane to transport them. There are also union contract stipulations to consider.  Again, there is no cut-and-dried procedure.

Thus, from a series of misalignments, miscommunications, misunderstandings, long-simmering animosities, and a lack of clear requirements, what should not have occurred did occur – a microcosm of World War One. No one was to blame, and everyone was to blame.

Assessing blame is not my favorite thing to do.  Figuring out how to prevent such a thing in the future – that I like. What possible alternatives could have been implemented before the point of no return was reached? Certainly Dao could have simply complied and left the plane. But he didn’t, and since nobody expected Dao to stand his ground, no plan existed to deal with that contingency.

United could have continued to raise the amount of their offer beyond $800; perhaps four people would eventually have accepted. However, United stopped at $800 and went directly to involuntary bumping, which carries the highest Federally-required compensation – $1350 – without trying $1000, $1200, or more with the warning that if they didn’t get four takers there would be involuntary bumping.

Perhaps a direct plea from the captain would have been persuasive. Maybe crowd pressure could have been used, with the captain or another airline official simply announcing, “This plane won’t leave the ground until this guy or somebody else gets off.” Possibly some of the other passengers, shocked as they were by the police action, might have jumped up and said, “Hey, if you’re going to brutalize the guy, I’ll get off in his place,” but none of them did.

Perhaps nothing could have prevented this fiasco.  Perhaps it was all an inevitable expression of the bottled-up rage of airline passengers who, ever since deregulation and in the aftermath of 9/11, have been treated to a flying experience that it would be charitable to call miserable and humiliating. But if we want to reduce the likelihood of seeing something like this again, a good place to start would be to clarify the rules so that everybody knows the dance right from the start.