I’ve spent the last week paying close attention to the United Flight 3411 debacle as it unfolded. There have been a lot of accusations and assumptions about what happened and why. A lot of false reports and too much jumping the gun.

Now that the dust has settled, here are the facts as we know them:

• United Airlines Flight #UA3411 from Chicago O’Hare airport to Louisville, Kentucky (ORD-SDF) was boarded, completely full, and scheduled to depart the evening of April 9th. It was United’s second-to-last flight to SDF that night.
• Before the flight left the gate, four United Airlines contractors (crew of Republic Airlines, the airline providing United Express regional service) approached the gate agent, saying they were expected to get onto the flight. 
• The flight was not overbooked, despite multiple media outlets, bloggers, even senators and public officials reporting exactly that. This is important, because United Airline’s Contract of Carriage (see Rule 21) has a defined list of reasons a passenger may not be allowed to fly. Airlines do not have unlimited authority to refuse service to anyone, anytime, for any reason. The “fake news” reports made it appear that United was within their rights to eject Dr. David Dao of Elizabethtown, Kentucky, the passenger who was injured in the incident. 
• Because the flight was technically not overbooked, United did not have the right to give away someone’s seat.
• Dr. Dao had been granted boarding, was already properly seated, and had not accepted offers to give up seats.
• After the gate agent offered $800 for volunteers to give up their seats and no one responded, passengers report one person offered to give up their seat for $1600 and was refused and laughed at.
• When Dr. Dao refused flight crew requests to leave his seat and exit the plane, crew called Chicago Department of Aviation Police. (Department of Aviation Police are not a part of the Chicago Police Department.)
• At first, two members of aviation security arrived at the plane and had a conversation with Dr. Dao. He maintained that he was refusing to exit the plane. Shortly after, a third security officer arrived on the scene.
• Officers forcibly removed Dr. Dao, reportedly giving him a concussion, a broken nose, and caused him to lose two teeth.
• Instead of leaving the injured passenger immobilized to protect against additional injuries, he was dragged in what appears on video to be an unconscious or shocked state.
• Dr. Dao later ran back onto the plane, with passengers saying he appeared dazed.
• Officers then removed him from the flight a second time.

What Happened on UA Flight 3411?

Something went very wrong for United Airlines, Chicago Aviation Police, and Dr. David Dao.

Things started going badly for United Airlines on United Flight 3411 when its crew made a decision to involuntarily de-board passengers instead of raising incentives to a level passengers would find acceptable. The crew then called for police to force Dr. Dao out of his seat. What’s clear is that United didn’t have the right to give away his seat. They shouldn’t have called police over what was essentially a financial negotiation that wasn’t going their way.

Things went wrong for the aviation police when officers chose to use excessive and undue force. They also claim the passenger was assaulting them, but so far there is no video supporting the claim. Reports from fellow passengers and video show Dr. Dao was calm given the circumstances.

Video View From Behind Dr. David Dao

Dual Video Views From the Front of Dr. David Dao

Furthering the problems for aviation police, there are reports surfacing that a former interrogator at Guantanamo Bay — and disgraced 30-year veteran of the Chicago Police Department connected to coerced confessions and wrongful convictions — joined Chicago’s Department of Aviation shortly after a 2015 Guardian story that included accusations of torture. He was not involved in the UA3411 incident on Sunday, but it bears note as an example of the kind of officer hired by the Chicago Department of Aviation.

Things also went wrong for the Chicago Police Department. Even though the department isn’t connected directly to the activities of the aviation police, CPD put out an official statement claiming Dr. Dao was injured when he “fell.” Video shows he was yanked from his seat by a security officer with extreme force and slammed into the arm rest of the row across the aisle. There was no “fell” about this. And surely it will embarrass the police department that they are willing to put out a statement that’s contradicted by multiple eye-witness accounts.

The incident has concluded with a Department of Aviation officer being placed on administrative leave last Monday with two more placed on leave on Wednesday after further investigation. Department of Aviation officers have arrest powers, but they do not carry handguns, although there has been a push within the department to begin arming them. After the events on Sunday, you can bet there’ll be a lot of people fighting to keep guns out of the hands of airport police. I shudder just thinking of how much more wrong the Dr. Dao incident could have gone.

 

As a Personal Injury Attorney, What Do I Think About United Flight 3411?

Not taking into account the potential liability of United Airlines and what will probably be a large settlement for Dr. Dao, I consider this a classic case of police brutality. Throughout the week, as I watched the facts of United Flight 3411 emerge, my intention has been to understand the facts and help my current clients and future clients learn from what happened. I want to help people protect themselves from police brutality if ever faced with this situation. Even if it’s not on an airplane.

I’ve spoken with friends, family, and fellow attorneys and we’re all having a hard time accepting that it happened. A peaceful passenger minding his own business on a Sunday flight was forcefully and violently removed from an airplane in front of horrified fellow passengers. In America. 

It’s my life’s work to help the injured get justice, and I spend every day in court, on the phone, and with my clients. I consult people who have serious injuries, or have been wronged by a company, harmed by a product, or discriminated against. Many of my clients have been injured by police. Even though I feel joy when I’m able to win a case and see my clients happy with their justice, my wish is always that they hadn’t been injured or harmed in the first place.

Legal victories due to personal injury at the hands of police officers only come after a long road of pain, stress, and sometimes even helplessness. Clients who are victims of police brutality suffer a lot. Whenever I can, I encourage people to do what they can to avoid injury when at all possible. Sometimes it’s not possible, but sometimes there are things you can do to improve the odds. There are ways you can make it through a dangerous interaction without getting hurt by police officers or airport security.

 

What Should Dr. David Dao Have Done on United Flight 3411?

There are several ways Dr. Dao could have responded when being asked to give up his seat on United Flight 3411:

1. He could have spoken with the head flight attendant and communicated the urgency of his trip. He is a doctor and said he had patients scheduled in the morning. When speaking with the flight attendant, he could have encouraged them to keep looking for volunteers due to his issue. That may not have worked, but it lets the flight team know you’re reasonable and they may be more willing to work with you instead of calling for airport police.
2. He could have offered to disembark for the maximum possible payout of 4X the value of his ticket up to $1350 (plus the hotel that had been offered), plus his next-day flight. 
3. He could have asked a seat mate or someone close within earshot to take his place. If he had an urgent surgery or critical patient, it’s possible someone would have been sympathetic and given up their seat. 
4. If no one would agree to take his place, he could have walked off the plane peacefully, and communicated his frustration and outrage verbally to the crew at the gate for potentially more cash, flight vouchers, or upgrades. He could have then contacted customer service by phone and depending on the circumstances he may have gotten additional restitution. Because the flight wasn’t overbooked, Dr. Dao may have had a case against the airline even before the police got involved.
5. He could have taken to social media and tweeted with United customer service or tweeted to popular travel bloggers and airline status bloggers who have a lot of influence with frequent flyers. Twitter has become highly effective in helping wronged passengers bring attention to their plights and get quick service.

What Dr. Dao should not have done was touch the officers who came to speak with him. It’s not clear if he initiated any physical contact with the officers, but but he has been accused of assaulting the officers with his arms and feet. It remains to be seen if this is true or false. If he was moving his arms and feet it’s likely he was flailing, and not striking officers. Victims of police brutality sometimes use their arms to create a personal protection wall. If you’re ever in a similar situation you must always assume that if you use any part of your body to create distance between you and a police officer, they will consider it an assault. Even though they may be the ones doing the assaulting.

 

What’s Going to Happen Now?

What is working in Dr. Dao’s favor is the number of phone videos taken during the incident that clearly show he was forcibly removed from his seat, with his face slammed into an armrest. Regardless of whether the officers intended to injure him or not, his attorney in Chicago says he suffered a severe concussion, has a broken nose and lost several teeth, among other injuries.

The incident was considered so severe that Senator Chris Van Hollen of Maryland introduced on Friday new legislation titled the “Customers Not Cargo Act.” In a letter he wrote to Senate, he captured the sentiment we’ve all been feeling: “It is outrageous that airlines can bodily remove passengers after boarding rather than providing appropriate incentives to encourage volunteers.” Van Hollen says the goal of the law would be to prevent airlines from removing seated passengers to make room for other passengers or crew. It would also update the compensation rules so that incentives for volunteering to give up a seat could improve.

In the meantime, United Airlines announced that they have created a new policy requiring “must ride” crew members to check in an hour before a flight. This is well before customers will have boarded. The new rule virtually guarantees a customer will never again be kicked off a plane to make way for an airline crew member.

Dr. Dao will have his day in court unless United Airlines chooses to settle the case. He could receive a large payout, but it will have come at the cost of his body and his dignity. After the incident went public, reporters dug up decades of history on him and publicized unrelated crimes — including personal and professional problems from his past. United’s PR department has been accused of quickly fanning out to media contacts and influencers to publicize Dr. Dao’s history and sway public opinion in favor of United Airlines. It’s suspicious that even bloggers almost immediately had access to decades of information from Dr. Dao’s past and many were presenting it in a highly-damning way. Talk about victim shaming.

Yes, Dr. Dao has had a bad week. He stands to gain millions, but he has lost his privacy, had his personal life and previous decisions publicized around the world. It may appear this is just a simple assault on an innocent passenger, but Dr. Dao may never be able to recover personally or professionally. Not to mention his family has been dragged into a harsh spotlight.

Let Dr. Dao’s hard lesson also be yours. When engaging with police or other security officers, people can lose careers, lose loved ones, and sometimes they lose support of their own families. The stress of hearing derogatory and conflicting stories from media or police can take a toll. Law enforcement agencies make compelling cases even when you may be in the right. It’s not worth it.

 

What Can We Learn From United Flight 3411?

When police officers or security officers approach you — whether on an airplane, in a mall, or on the street — your best course of action is to take a deep breath, keep your hands still, and give eye contact so that they know you are listening. Do exactly what they say and do it as quickly as you can. Don’t communicate reasons why you think you shouldn’t have to leave. Don’t act unpredictably. Don’t become a victim of police brutality. See more tips in a post I wrote about whether you should resist a police officer’s commands.

Even though the police officer may be in the wrong, it’s not the right time to protest, argue, or resist. As a personal injury and criminal defense attorney who handles a lot of police brutality cases, I know it’s not always possible. But if you’ve been wronged, let’s handle it in court where you’ll have the law and a prepared attorney on your side.

 

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