A SkyWest CRJ-200 bound for Casper, Wyoming begins boarding in Denver. As departure time nears, a man seated in the exit row refuses to switch off his mobile phone. After repeated requests to turn off his phone, all of which are ignored, the police are called in. The passenger does not want to get off the plane and puts up a fight. The man is finally subdued and dragged off the plane, but not before shoving a police officer down the air stairs and berating the flight attendant so harshly that she is unable to continue work. Now the man is in big trouble.
Sounds a clear-cut case. But is there another side to this story?
SkyWest/United policy dictates that mobile phones may be used until the aircraft door is closed. While the jetway had been pulled, the aircraft door was still open when a nasty, power-tripping FA rudely demanded that he turn off his mobile phone and read an exit row card he had read dozens of times before. He had already given verbal confirmation that he would be able to help in an emergency and had an important call to finish before the aircraft door closed. Enraged that her authority had been questioned, the FA calls the police. As the police board the plane, the man reasons with the police that the FA was in the wrong but the two burly officers are not interested in listening–they grab the man and attempt to eject him from the plane. Now the man gets angry over what he perceives to be an arrest without cause and exercises what he believes to be his constitutional right to fight back.
A quick diversion to look at the law:
“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”
“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.
“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.
But the man cannot hold off two burly cops indefinetely and eventually loses the battle. He now will argue that the FA did not have cause to eject him from his flight and that the police resorted to uneccessary brute force to subdue him.
Where do I come down on this? While I do have some sympathy for the passenger, an ounce or two, I cannot defend his action or seek to justify what he did because of what the power-tripping FA may have done or said to him.
The story is fascinating because the bottom line question is how much power does and should a flight crew have?
Federal rules state:
Federal Air Regulations
PART 91—GENERAL OPERATING AND FLIGHT RULES
§ 91.3 Responsibility and authority of the pilot in command.
(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.
But what exactly does that mean? Surely a captain cannot tell a passenger seated in an exit row that he cannot read a book, listen to music, or work on his laptop during a flight because he might be needed to assist in the case of the emergency. What if "operation" in the "operation of that aircraft" clause is construed narrowly to simply cover the mechanical side of the equation: whether the aircraft was literally able to operate?
But then there is this section to contend with:
§ 121.533 Responsibility for operational control: Domestic operations.
(a) Each certificate holder conducting domestic operations is responsible for operational control.
(b) The pilot in command and the aircraft dispatcher are jointly responsible for the preflight planning, delay, and dispatch release of a flight in compliance with this chapter and operations specifications.
(c) The aircraft dispatcher is responsible for—
(1) Monitoring the progress of each flight;
(2) Issuing necessary information for the safety of the flight; and
(3) Cancelling or redispatching a flight if, in his opinion or the opinion of the pilot in command, the flight cannot operate or continue to operate safely as planned or released.
(d) Each pilot in command of an aircraft is, during flight time, in command of the aircraft and crew and is responsible for the safety of the passengers, crewmembers, cargo, and airplane.
(e) Each pilot in command has full control and authority in the operation of the aircraft, without limitation, over other crewmembers and their duties during flight time, whether or not he holds valid certificates authorizing him to perform the duties of those crewmembers.
Still not a clear answer, though §121.533(d)&(e) suggests a pilot has final authority to eject passengers if he deems, for any reason, that they might jeopardize safety.
United’s own Contract of Carriage seems to back this up (SkyWest uses UA’s COC on United Express flights):
REFUSAL TO TRANSPORT UA RULE: 0035
UA WILL REFUSE TO TRANSPORT OR WILL REMOVE AT ANY POINT, ANY PASSENGER:
1) IN THE FOLLOWING CATEGORIES WHERE REFUSAL TO BOARD OR REMOVAL
FROM THE AIRCRAFT MAY BE NECESSARY FOR THE SAFETY OR COMFORT OF
THEMSELVES AND OTHER PASSENGERS:
A) PERSONS WHOSE CONDUCT IS OR HAS KNOWN TO BE DISORDERLY,
ABUSIVE, OR VIOLENT
The passenger’s conduct did become disorderly, abusive, and eventually violent but would a court uphold that very subjective provision of the COC? Or would that be construed as one-sided contract of adhesion? There remains a great of ambiguity.
The bottom line is that this passenger was likely extremely rude and is fully responsible for his own poor choices, most notably attacking a police officer. If he was using his cell phone in accordance with FAA and United/Skywest protocol (i.e. while the aircraft door was still open), the FA should insure that in the future, she knows company policy. But even a horrible FA does not give a passenger license to become verbally and physically abusive.
It is good to wrestle with the question of how much power does a FA or pilot really have onboard a plane. Are constitutional rights set aside, like they (seemingly) are when we go through airport security? The answer is far from clear.