From Bashman’s How Appealing, this  AP report on the reversal of a $400,000 jury award to man baselessly removed from a plane by the 1st Circuit in Boston.  Stories like these, even more than the myriad of criminal case improprieties, make me realize just how sorry and pathetic this country has become.

John Cerqueira, a naturalized U.S. citizen born in Portugal, was taken off an American Airlines flight from Boston to Ft. Lauderdale in December, 2003.  Also removed were two Israelis seated in the same row, though having no connection to Cerqueira.  State police cleared him, but they still refused to let him board. 

Remember, this was 2003, and arab terrorists were going to destroy America every day.  We feared anyone with a swarthy complexion, and as long as it didn’t involve us personally, America was 100% behind getting anyone with darkish skin off our planes as fast as they could.  It was an ugly and foolish way to run a country, and so very typically American.

So, Cerqueira sued and won a judgment for $130,000 in compensatory and $270,000 in punitive damages.  Justice prevailed?  Not today.

According to Judge Lynch writing for a unanimous Circuit,

“No properly instructed jury could return a verdict against the air carrier,” Circuit Judge Sandra Lynch wrote in the decision issued Thursday. 

Under the Air Transportation Security Act, the three-judge panel ruled, carriers are permitted to turn away passengers who might be “inimical to safety.” Because the crew must decide such matters quickly, it said, “even mistaken decisions are protected so long as they are not arbitrary or capricious.”

Was this arbitrary and capricious?  Let’s cut to the facts as set forth in the decision:

Flight Attendant Two told the Captain that she perceived the man in the ponytail [one of the Israeli men who had piqued the Captain’s interest] was traveling with the two other men in the row, one of whom was the plaintiff. Regardless, the Captain said it was not important from his perspective whether or not the three men were traveling together: “[I]f people are trying to harm the aircraft or anyone on board, they might be traveling together, they might not be traveling together.

So being assigned a seat in a row with somebody else who appears suspicious, in airlinethink, means it’s okay to toss the whole row off the plane?  Sounds like brilliant reasoning to me.  But there was more.

Flight Attendant Two also expressed her concerns to the Captain about the plaintiff. She described an incident she had with the plaintiff in the terminal. She told the Captain that this passenger, the plaintiff, had been hostile to her.

Hostile?  Well, he asked to have his seat moved to an exit row, and according to the flight attendant, he was very hostile and insistent.  Worse yet, he stared at her and made her feel uncomfortable.  And if that’s how the flight attendant feels, you must be a threat to national security.  Omitted from the decision were comments by Flight Attendants 4 and 5 that he dressed funny and had bad breath, “breath like a terrorist.”

This issue of the extraordinary power given to flight attendants and airline personnel, who would otherwise be working the lobster shift at McDonalds, is one that should really disturb everyone.  Say you’re not entirely cheerful and smiley to the pregnesone-stressed woman snarling “good morning” at the door, or giving you orders to allow the 357 pound person in the next seat share half of yours, and you happen to have a decent tan, she can make your life shockingly unpleasant.  You see, inside that plane she owns you. 

Sure, she has neither the training, judgment nor temperament to appreciate the consequences to you of her choices, but she doesn’t give a rat’s butt about you.  She’s the protector of the American way of life, and she does that by tossing off the plane anyone she doesn’t like.  Because you are “hostile”.  That’s what it means to be disliked, and hostile means anyone who doesn’t do exactly what she says.  Too bad they don’t give stewardesses tasers.  We could really have a party.

But enough about the flight attendants.  Once again, we have a court and a Constitution.  The only thing standing in the way of rightful compensation is a law by Congress that empowers airlines to be wrong at our expense.  Yet, there’s still a breath of hope, because airlines cannot be arbitrary and capricious.  Arbitrary alone, fine. Same with capricious.  But not both together.

So what did Mr. Cerqueira do exactly to justify his removal from the plane?  Two things:  Skin color and the stewardesses comment that he was “hostile”.   Sounds a little like arbitrary and capricious to me.  I guess it sounded like that to District Court Judge William G. Young, who was criticized by the Circuit for not dismissing the case.  Apparently, it sounded that way to the jury as well.

From a different angle, who exactly do I speak with when I want to complain about the exercise of power by the employees of private corporations who are empowered by government and courts to make decisions and take actions that have a significant negative impact on a person’s life?  Police may not be above the law, but American Airlines flight attendants are?  Pilots are unreproachable?  Since when are the judgments of pilots better than anyone else?

Since when are courts so deferential to private individual decisions that any rhetorical explanation that includes an inkling of potential fear sufficient to trump the rights of individuals?  What country does this?  Ours.

Update:  And like clockwork, Overlawyered chimes in to pray at the corporate alter of how unfair the world is to its patrons, as the “verdict of $400,000 says a lot about how justice seems proportionality unfair and unmeasured.”  I’m sure a $50 voucher and a free lunch would have more than adequately compensated the plaintiff, per the American Enterprise Institute’s guidelines for True Justice For Patriotic Corporations of America.