United Airlines Can Deny Boarding, But Can’t Remove Passenger Once He Has Boarded
United Airlines has finally agreed that it has no right to remove passengers from an aircraft once they have boarded to deal with overbooking or the need for seats, which is exactly what public interest law professor John Banzhaf has been arguing all along, often contrary to reports in the major media that the FAA’s denied boarding rule does authorize the practice.
United Continental Holdings Inc Chief Executive Officer Oscar Munoz told ABC News this morning that “we’re not going to put a law enforcement official… to remove a booked, paid, seated passenger . . . “We can’t do that.”
Although the airline had claimed the right to eject ticketed passengers who have already boarded and been seated under a “denied boarding” federal regulation [14 CFR 250.5] which provides that it “shall pay compensation in interstate air transportation to passengers who are denied boarding involuntarily from an oversold flight,” that provision is not applicable here, says Banzhaf.
“Denied boarding” means exactly that, argues Banzhaf – a passenger may be prevented from boarding an over-booked flight providing the compensation required by law is offered. But this passenger was clearly not “denied boarding,” since he had already been permitted to board, and to take his seat.
Having boarded and been seated, a passenger is generally entitled to keep a seat and remain on the flight, except in rare instances: a legitimate concern about terrorism, unruly or drunken behavior by the passenger, it is suddenly discovered that he is ill, is using a forged or stolen ticket, etc. Here, none of these rare exceptions applied, so the carrier had no right to eject him once he had validly boarded, says Banzhaf.
Moreover, the usual process, and the one contemplated by the rule, is that the airline will offer enough compensation (cash and/or free flights in the future) to induce one or more passengers to volunteer to surrender a seat – even though it may cost the carrier thousands of dollars as a recent article in the Washington Post illustrates. Here, for such a short flight, it is virtually certain that a passenger who did not have an urgent need to be on that flight would have made the seat available for a reasonable compensation.
It also appears that the airline used far more than reasonable force to have him removed from the plane. Even with rare instances – such as those noted above – where an airline has a legal right to remove a passengers who has already boarded and has been seated, it must use no more than reasonable force.
Here, since there clearly was no emergency, the passenger posed no threat and did not fight back, and there would have been room for addition security personnel to restrain him with less violence, and not literally drag him down the floor of the passenger cabin, a jury could easily find that they amount of force used was more than was reasonably necessary under the circumstances, and that the cabin crew should have taken whatever steps were necessary to see that the force used was no more than what was reasonable.
