Damned if you do files: $400k for “profiling”

by Ted Frank on January 17, 2007

John Cerqueira was sitting next to two Israelis boisterously talking in English and Hebrew on a 2003 Boston-Fort Lauderdale American Airlines flight, when the flight crew decided that all three raised a concern. “Police determined that none of the men was a threat after questioning them, evacuating the plane, and rescreening all baggage.” Cerqueira complained that AA wouldn’t give him another flight, and sued for discrimination. A jury awarded $130k in compensatory damages and another $270k in punitives.

This is the first case of its kind to come before a jury since 9/11 (other plaintiffs with similar cases have settled out of court). The verdict has some flight crews fearful it will set a precedent and discourage concerned crews from taking action in the future.

Spokesman for the Allied Pilots Association (APA) Captain Denny Breslin told the Boston Herald, “[Ehlers] did what any one of us would have done, especially back in ’03. We’re human beings, not mind-readers. What would [the plaintiff] have us do? Ignore our concerns?”

Air Line Pilots Association spokesman Pete Janhunen said the verdict could impinge on a pilot’s authority granted by the FAA. “The pilot in command is responsible for everything that happens involving that flight. We need to ensure that the authority of the captain is protected so that they’re never intimidated or afraid to make the right call.”

(Shelley Murphy, “Jury awards airline passenger $400,000″, Boston Globe, Jan. 16; “Ejected Passenger Awarded $400K By Federal Jury”, Aero-News Net, Jan. 16; Laurel J. Sweet, “Pilots blast court’s ‘outrageous’ verdict: Defend ejection of suspicious passenger”, Boston Herald, Jan. 16). (NB: this John Cerqueira was not the much younger WTC hero who carried a wheelchair-bound woman 68 stories down and out of the North Tower.)

Update: It’s unclear from press coverage whether the lawsuit was over the initial questioning (which inconvenienced everyone) or the refusal to allow Cerqueira to board a second flight, which does seem less defensible. His lawyer’s comment implies both, however.

Second update: Matt Heller of Courthouse News has links to the American Airlines motion for judgment and joint pretrial statement. AA’s version of the story:

[Cerqueira] acted hostilely toward a flight attendant before boarding the flight, … boarded the flight out of turn, that plaintiff spent an inordinate amount of time in the lavatory facilities on board the flight before it departed, … appeared to be feigning sleep during the hectic boarding process, and … reacted inappropriately to flight crew instructions during an exit row safety briefing. AA further expects the evidence to show that the two passengers seated next to the plaintiff in the exit row approached the captain of the flight before boarding and made strange comments to him, that those passengers made odd comments to passengers aboard the flight, and that those passengers acted inappropriately during an exit row safety briefing.

…State Police and TSA believed it necessary to rescreen all of the passengers and to have bomb-sniffing dogs come aboard the aircraft after another passenger reported that one of the removed passengers had a box-cutter taken away from him at the security check point.

Update, January 2008: reversed by First Circuit. Further update Mar. 2, 2008: Cerqueira responds.

{ 5 comments }

1 nevins 01.17.07 at 5:58 pm

As a middle aged white guy I realize it’s now my duty to bend over and get wanded so that the statistics balance out and the right passengers can get the wand. But, as I bend over and take one for the team, I expect that my losses and inconveniences will be made whole. If I am caused to miss a flight, then the Airline had better get me on the next (not next available open seat, but absolutely the next flight) to my destination. Then without hesitation they will pick up any incurred costs without argument. Indirect costs (lost business) will be handled quickly and fairly with non-binding arbitration preserving my right to a jury trial.
It’s OK for some passengers to be inconvenienced, but since society is gaining some safety (in name only, many would argue there is no safety advantage in current TSA activities) it should compensate freely those who paid with their time and inconvenience for that safety.
Once cleared for takeoff that passenger should have been treated with kid gloves, sincerest thanks, and a first class seat. As it was he was told to take a hike and he was rightfully pissed off.

2 KipEsquire 01.17.07 at 6:18 pm

Without knowing precisely what the three passengers said, the issue seems to reduce to whether a pilot’s discretion in such matters is plenary or subject to at least some sort of reasonable expert standard.

I’m always fearful of plenary power, so I’ll opt for a reasonableness standard.

(That’s solely as to liability; I have no opinion on the damages.)

3 OBQuiet 01.17.07 at 7:24 pm

Nevins’ comment seems economically unsound. How are airlines to price tickets that carry a risk of loss of business liability? I guess they could require Business class bookings for this and charge a premium that would allow them to insure against the risk. Airlines also have little control over TSA. Are you suggesting a major increase in the fees added to tickets to cover an insurance policy from airport security delays?

But it is the traveler that best knows the value of a timely arrival and is in the best position to judge whether some sort of insurance is in order. And this insurance is easily obtained with minimal cost by arriving early for our flight.

4 gitarcarver 01.18.07 at 12:31 am

I think that the “offense” may have been “profiling” which appears to be the reason he was denied services to any American Airlines flight after the incident.

“John Cerqueira, a south Florida computer consultant, claimed he was denied service because the airline mistakenly believed he was of Arab, Middle Eastern or South Asian decent. American Airlines passenger awarded $400K A picture of Mr. Cerqueira can be found here.

5 wendy74 01.21.07 at 11:27 pm

Wow 400k seems like alot of money, for someone who’s feelings got bruised. My husband is a pilot for a major airline company and I worry everyday about his safety. I saw this man give an interview today and stated that he was gonna try a set an example for people who judge by looks or race. But in my opinion arabs have brought this on themselves. We are in the United States and have every reason to feel threatened by them. In my opinion the crew was doing there job. So where does it state that because someone does there job and someone gets offended we pay them 400k? Does 400k send a point to pilots not to question someone who looks suspicious? What message does it send? How often are they wronge or how often to they pull people aside cause of there race? I fly often and despite i’m married to a pilot I still have to empty my bottles and if I were questioned I fully understand they are doing there job better safe than sorry and hundreds of people killed by an oversight. I am livid that the goverment is sending a message that 400k is needed to fix this man’s broken ego. He got a freakin refund, what damages did he recieve over this incident. A missed flight? OMG when are they going to realize we are in the states and we have rules we are civil people. Would he rather they don’t profile or do there job or use there best judgement. What if the passengers next to him were terrorist? What then, would he still be pissed that he got embarressed or that his butt was saved? The whole thing in my opinion is stupid my husband risks his life everyday he flys not knowing if yes a terrorist is on board why would we want to let our guard down? If anything the goverment could of used that money for other important issues such as more security than to support this man’s bruised ego.

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