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Monday, April 10, 2017

Did United Airlines act under color?

It strikes me as a question worth considering. Ordinarily, one private actor calling law enforcement to enforce private rights as against another private actor is insufficient. And properly so, otherwise everyone would act under color any time she called the police to remove trespassers or to protect her rights and things went sideways.

But does this situation go beyond that, since UA brought in the police specifically for purposes of physically removing this passenger from the plane? The use of force, perhaps excessive, was both UA's purpose in calling the police and a likely result. Is this the sort of "brutal joint adventure," in which police action is necessary to enable private actors to carry-out questionable or unlawful actions? Is dragging this guy off the plane in this manner equivalent to arresting Mrs. Adickes and her students?

UA is going to settle--and do so very quickly. So no court will reach this. Worth thinking about, though.

Posted by Howard Wasserman on April 10, 2017 at 05:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


May I humbly suggest that you forward your extremely insightful comment to Oscar Munoz at United-Continental Holding and suggest (oh so subtly) that perhaps the firm's general counsel provide some urgently-needed guidance to the customer service agents assigned to the gates?
Whatever expenses UCH thought it could avoid by flying the 4 non-revenue employees to Louisville, it just lost in so many ways.
As they say"...you can't fix stupid".

Posted by: Paul | Apr 11, 2017 1:23:24 AM

But, removing the passenger from the plane was not unlawful, was it? If the police used excessive force in removing the passenger, that was obviously unlawful. But, unless United knew that they would use excessive force, then how can they be deemed a state actor? It is surely a far cry from the case that Howard linked to, in which "three Mississippi law enforcement officials and 15 private individuals who are alleged to have conspired to deprive three individuals of their rights under the Fourteenth Amendment. The alleged conspiracy involved releasing the victims from jail at night; intercepting, assaulting and killing them, and disposing of their bodies." (Yes, it is the Cheney/Schwermer/Goodman case).

Posted by: gdanning | Apr 11, 2017 11:12:51 AM

Was his removal consistent with UAL's contract of carriage? Does it fall under Rule 21.C? (Is necessity to transport crew members beyond UAL's control?) Can Rule 25 still apply even after he has been boarded?

Posted by: HokieEngineer | Apr 11, 2017 2:06:17 PM

Does it matter? If you and I have a valid contract that permits you to be in my house at a particular time, I think I can still revoke your permission to remain. If I do so and you refuse to depart you'd be tresspassing. I might be in breach of the prior contract, but your remedy would be to sue for damages.

Posted by: brad | Apr 11, 2017 2:32:28 PM

I'm more interested in the Airline Deregulation Act, Northwest v. Ginsberg, and how this is like Radin's worst nightmare in terms of one-sided contracts. In what other industry can they sell you something, then arbitrarily take it away from you when you've already taken possession, and by force?

Posted by: Paul Gowder | Apr 12, 2017 6:21:34 PM

United Airlines seems to have violated its contract and FAA regulations, though that is not clear. If so, they may have (anotehr question) recklessly called the police and misled them into dragging Dr. Dao off the plane. I am told by a law professor that this makes United liable for the torts of Malicious Prosecution and False Arrest, though those are archaic torts. It seems the police would *not* be liable, and, indeed, it seems to me the police acted perfectly correctly, given that they trusted United Airlines not to lie to them.
I've written up a lot of this at

--Professor Eric Rasmusen, Indiana University

Posted by: Eric Rasmusen | Apr 13, 2017 5:10:01 PM

The case gets murkier. Were the three people who boarded the aircraft to remove the passenger actually police? Apparently those persons had been instructed earlier in the year not to wear police markings, and told to wear security markings instead. Why were police markings visible in the video? Was the law enforcement role (if any) of the person who did most of the "removing" identifiable by Dr Dao?

Posted by: UnreliableSource | Apr 14, 2017 5:13:34 AM

Could the role/training/authority/competence of the three have been misrepresented to the airline?

Posted by: UnreliableSource | Apr 14, 2017 5:30:39 AM

Dear Professor

Let me say, with the greatest respect, that what you wrote was wrong.

You should have read United's Contract of Carriage,
particularly Rules 21 and 25

In spite of what you may believe, Rule 25 "Compensation for Denial of Boarding" doesn't apply to Dr Dao's case. Dr. Dao was not denied boarding, he had already boarded.

You say it is "well established" that boarding is not complete until the doors have closed. However, the CEO of United disagrees with you. He has stated in one of his apologies that the plane was "fully boarded", even though the doors were still open.

As you may still dispute my definition of boarding, you might read about how disputes over definitions of terms are resolved in "contracts of adhesion". (The Contract of Carriage is such a contract.) In such contracts, unless the term is specifically defined in the contract, (and "boarding' was not so defined) the definition selected will be the one that favors the party who had no control over the contract terms, in this case, Dr Dao.

Thus Rule 21 "Refusal of Transport" is the portion of the contract that applies. This Rule defines when a person may be removed from a plane. Removal can only be for one of the reasons specified in the Rule. They include reasons like safety, offensive behavior, medical necessity, demand of public authorities etc. Making room for other passengers is not one of the reasons.

Thus United Airlines was in breech of contract, and is liable for all direct, indirect, and consequential damages.

I hope, for their sake, that United's employees were ignorant of their very Contract of Carriage. If not, it appears that they would be guilty of a first degree felony and could face 15 years in prison.

Illinois Statute Chapter 38, Article 18 says that "a person commits robbery when he or she 1) knowingly 2) takes property..............3) by the use of force or by threatening the imminent use of force.
(Note -- Contract rights are intangible property.)
The statute later says that robbery is a first degree felony when "the victim is 60 years of age or over"

Posted by: Tammie Lee Haynes | Apr 14, 2017 3:49:12 PM

This is an amazingly stimulating case. Anyone needing exam questions should use it. It's like a capstone case for getting a J.D.--- contract, tort, trespass, admiralty, criminal, false arrest, unlawful bailment, airline law, FAA regulations, statutory interpretation, libel, how to advise a client when publicity is important, and the practical lawyering of how much it would cost for various actions and whether the judge and jury would abandon law because one litigant was so much more sympathetic than the other.

My current view is that there is a strong case that Dr. Dao is guilty of "theft" under Illinois law, though I think the case that he is the victim of the tort of malicious prosecution and false arrest is even stronger. The "theft" charge would be that United may have breached its contract, but it remained owner of the plane seat, which Dr. Dao controlled against United's instruction. It seems under Illinois law that does not count as Trespassing (for which there is no statute), Trespassing on Real Estate (for which there is), or Trespassing in a Vehicle (which applies to airplanes, but only if you *enter* illegally or operate the vehicle, not if you enter lawfully but refuse to exit). It does count as Theft, though, by this statute:

720 ILCS 5/16-1 (a) A person commits theft when he or she know-
(1) Obtains or exerts unauthorized control over property of the owner;

For more, see my notes, cited in a comment above and now swollen to 20 pages. Comments welcomed.

Eric Rasmusen, @erasmuse

Posted by: Eric Rasmusen | Apr 14, 2017 10:50:04 PM

Mrs Haynes: There is also a case to be made for Robbery, per the statute you cited. I think I agree with you, actually, though I don't think it could be proved beyond a reasonable doubt because probably that requires the United employees to know that the property taken was not theirs (a general crim law point I am ignorant on-- mens rea?)

The Robbery case would be that United breached the contract and Dr. Dao was in this special case entitled to specific performance because money damages were not a good substitute and performance of the contract would have been easy. Moreover, we would have to say that since specific performance was the correct remedy, he had a property right to a seat on that flight, and United could not take that property away from him by force.

The crucial difference between the Theft theory I laid out in an earlier comment and the Robbery theory is in whether Dr. Dao had a Liability Rule right to his seat on the flight or a Property Rule right (See Calabresi and Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral; Harvard Law Review 1972)

Posted by: Eric Rasmusen | Apr 14, 2017 10:56:29 PM

Oops, the comment I thought I made immediately before my one above on Robbery didn't go through, so I'll write it over as best I can.

This case is like an question case for a capstone exam to get a J.D. It has contract, tort, criminal law, bailment, trespass, airline law, FAA regulations, administrative law, admiralty, statutory interpretation, corporate law (I think the airline was a wholly owned subsidiary of United), agency law, bailment, malicious prosecution, unlawful arrest, how a counsellor should deal with a client for whom publicity matters more than winning a lawsuit, and practical lawyering matters such as whether enforcing one's right would cost too much and whether the law controls the outcome when one litigant is so evil and the other so sympathetic. I guess this last brings in Jurisprudence, since Holmes’s Bad Man would instead say in that case that the evil litigant loses under “the law”.

I think a strong case can be made that Dr Dao is guilty of Theft under Illinois law, though, perhaps because of the evil-sympathetic point, I think the case for United to be guilty of Robbery is even stronger. Here’s the theory. United breached its contract with Dr Dao. It then told him to get off the airplane. He refused, remaining in a seat owned by United. Under Illinois law, that is not Trespassing (no general statute exists) or Trespassing on Property (which only applies to real property) or Trespassing on a Vehicle (which includes airplanes but only if you illegally enter or operate, not if you enter legally and then refuse to leave). But in Illinois, here is the Theft statute:

720 ILCS 5/16-1 (a) A person commits theft when he or she know-
(1) Obtains or exerts unauthorized control over property of the owner;

Posted by: Eric Rasmusen | Apr 14, 2017 11:07:24 PM

Sorry-- due to the way this software operates, my first comment did not show up immediately, but it did eventually, after I posted a second version of it. You may find amusement in seeing the differences in how I wrote it in the two versions.

Posted by: Eric Rasmusen | Apr 14, 2017 11:08:45 PM

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