What is Reasonable? Airport Law Enforcement Response to Airline Business Disputes
Who can forget the graphic video of Dr. David Dao being forcibly removed from a United Airlines flight in Chicago because he was chosen to be “bumped” from the flight after taking his seat to make room for United’s own crew members. He suffered a concussion, broken nose, and other serious injuries. Or, Professor Anila Daulatzai of Baltimore who was taken into custody and charged with disorderly conduct, failure to obey a reasonable and lawful order, disturbing the peace, obstructing and hindering a police officer, and resisting arrest after she was physically removed from a Southwest flight for complaining about a life-threatening allergy to dogs and allegedly wanted two dogs removed. Both of these incidents were caught on cellphones and both began with non-criminal business disputes in which law enforcement was called upon to intervene.
After the Dao incident which included a United Airlines mea culpa, a purported six-million-dollar settlement, and employee terminations and suspensions, airlines changed their customer service policies and when they would call in law enforcement for a business dispute. (Airlines Are Taking Action to Improve Customer Service) Similarly, a number of airport law enforcement officers and agencies expressed that they were contemplating no longer responding to business disputes onboard aircraft. However, we know that this is not realistic as some business disputes do escalate quickly into criminal acts or violations of civil aviation regulations. And, Transportation Security Regulation §1542.215 (b) (1) requires that, “Law enforcement personnel are available and committed to respond to an incident in support of a civil aviation security program when requested by an aircraft operator or foreign air carrier…” We also know that the presence of law enforcement can in most incidents deescalate the situation, especially when law enforcement has a plan prior to going on the aircraft.
So, what is reasonable?
Responding to calls for service from air carriers and airport tenants are extremely varied. These calls for service are where officers may have the least amount of authority, but the greatest amount of discretion because generally officers are dealing with private property and non-criminal business disputes. When the call for service is non-criminal, officer(s) or security personnel are there to: (1) keep the peace; (2) reduce the likelihood that the dispute or situation will escalate into a criminal matter; or (3) reduce the liability of their airport.
In these situations, the decision to use force requires careful attention to the facts and circumstances of each particular case, including the severity of the situation at issue such as, (1) has it now become a crime; or, (2) whether the person poses an immediate threat to the safety of the officer or others. In addition, “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The question at hand is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,” as outlined in Graham v. Connor, 490 U.S. 386 (1989).
The determination of reasonableness must be based on the totality of the circumstances and must include a consideration that officers are often forced to make split second decisions in circumstances which are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation. The test of reasonableness is not capable of precise definition or mechanical application. Officers may use objectively reasonable force to: (1) defend themselves; (2) defend others; (3) effect an arrest or detention; (4) overcome resistance; or, (5) prevent escape.
In all cases, the responding officer(s) must ensure they have carefully spoken to the airline representative(s), especially the Ground Security Coordinator who is ultimately responsible for resolution of all security incidents for the airline, and have ALL the correct information to base their decisions on. It is recommended that whenever possible, a supervisor be present during these types of calls for service or be notified of the situation prior to any action being taken. Officers should simply standby during the dispute to ensure the peace is kept, but, should not intervene unless the dispute escalates. At that point, the officer should separate the parties and take that action necessary based on the situation.
By taking the time to ensure they understand the situation, officers can then devise alternatives and utilize de-escalation techniques (when safe to do so) in lieu of forcibly removing someone from the aircraft or gate area. If the situation has not risen to the level of a criminal act, the officer is only there to seek voluntary compliance (if removal from an aircraft or gate area is necessary) and to facilitate a peaceful resolution to the matter. They should not enter the aircraft to remove the passenger in a non-criminal matter. Remember, officers do not work for the airlines and they must consider both parties when weighing their options. If the passenger continues to refuse to exit the aircraft, it is recommended that the officer request the airline deplane all passengers. This way the public scrutiny now turns to the uncooperative passenger and not law enforcement.
When to take action?
When all else fails and the passenger must be removed from the aircraft or immediate gate area under the control of the airline because a crime has now been committed or the passenger's passage has been revoked for the flight and/or all subsequent flights, it is highly recommended that prior to officers removing a passenger from the aircraft or gate area, the aircraft operator representative should do the following (if it is safe to do so or another crime for which the officer can make an arrest independent of the airline representative has been committed): (1) notify the passenger that his/her ticket is no longer valid for the particular flight; (2) ask the passenger to leave the aircraft and/or gate area; (3) if the passenger refuses to leave, notify the passenger that they are trespassing and if they fail to leave the aircraft and/or gate area, they will be arrested; and, (4) if the passenger still refuses to leave, request that the passenger be arrested for trespassing. The officer can then use objectively reasonable force necessary to effect the arrest.
Remember, just as important as these recommendations, officers must frequently train on removal techniques and tactics of people from small spaces and practice the utilization of the least amount of force possible in the event that all other options fail. If an aircraft is not available for practice, an airfield bus, or even a transportation van can be used during defensive tactics training to simulate an aircraft cabin and it's tight quarters.
When force is necessary, bringing the situation to a swift conclusion is key in these heightened situations and will save the reputation of the airline, the airport, and the law enforcement or security agency!
Learn more at the Airport Law Enforcement Officers (LEO) Training School to be held June 13-15, 2018 in Alexandria, VA at the AAAE Conference Center.