On Jan. 17 of last year and again on Jan. 11 of this year we ran posts discussing Cerqueira v. American Airlines, a lawsuit arising from the airline’s refusal to transport a passenger following erroneous fears that he was a security risk. John Cerqueira, the plaintiff in the case, has sent and asked us to publish a response, which follows:

My name is John Cerqueira and I am the plaintiff in Cerqueira v. American Airlines. I appreciate the opportunity to share my comments. Please allow me to (1) share the text of §44902 with this blog which was used by the appeal judges to overthrow the jury verdict; (2) tell my story about the original incident and 2007 trial; (3) comment on the results of the 2008 appeal.

First, here is the text of §44902, which the appeal judges used to overthrow the jury decision in my case.

§ 44902. Refusal to transport passengers and property

(a) Mandatory refusal.–The Under Secretary of Transportation for Security shall prescribe regulations requiring an air carrier, intrastate air carrier, or foreign air carrier to refuse to transport–

(1) a passenger who does not consent to a search under section 44901(a) of this title establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance; or

(2) property of a passenger who does not consent to a search of the property establishing whether the property unlawfully contains a dangerous weapon, explosive, or other destructive substance.

(b) Permissive refusal.–Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.

(c) Agreeing to consent to search.–An agreement to carry passengers or property in air transportation or intrastate air transportation by an air carrier, intrastate air carrier, or foreign air carrier is deemed to
include an agreement that the passenger or property will not be carried if consent to search the passenger or property for a purpose referred to in this section is not given.

My lawyers and I believe, and so did the trial judge, that 44902(b) does not protect decisions that are arbitrary or capricious and discrimination is per se arbitrary or capricious.

Next, I appreciate the opportunity to tell my story. On the day of the incident, I went to the airport and went through TSA security. I waited for my flight at the gate. I asked a woman who I thought was a gate agent (but many months later I found out was a flight attendant) for an exit row or bulkhead seat as I would appreciate the extra leg room. She refused to attend to me and when I asked why not she seemed upset with me and she told me to sit down, which I did. Later someone else at the gate listened to my request and assigned me a different seat.

I boarded the flight when it was my turn to board. I stored my carry-on items, used the bathroom, and then returned to my seat. I used my laptop computer but not did talk to anyone including the two guys who ended up sitting next to me. They were foreigners. I noticed at the time they were louder than your typical passengers but did not speak with them. At one point I put away my laptop and fell asleep, only to be awakened by an American Airlines employee asking me and the two guys seated next to me for boarding documents. Almost immediately thereafter the three of us were taken off the plane and detained for two hours.

I was asked repeatedly over the course of the two hours how I knew the two guys who had been sitting next to me on the plane, to which I responded the truth that I had nothing to do with them. The police released us for travel after two hours and took us to the American Airlines ticket counter and told AA we were free to go. At this point the original plane had already left, so obviously there was no security issue (not that there ever was one!). But even after the original plane had left for its flight, after the police had detained us for two hours to investigate, after the police had cleared us for travel and released us to American Airlines so that AA could take care of us from there, AA refused us service. There was is no rational reason for AA to deny me service on the original flight and undeniably no rational reason for AA to deny me service for the rest of the day. Yet, there was written and verbal evidence of discrimination and racial profiling revealed at the trial – comments about three gentleman with “accents” and “dark complexion” being “together” and making comments to the passengers on the plane and making comments to the AA staff on the plane. No one at all from AA gave any reason for the subsequent denial of service. The jury understood clearly that this case was about discrimination and not about safety concerns. The jury felt that American Airlines was reckless in its disregard for my rights.

In closing, I feel it is a travesty of justice that the appeal judges gave this case to AA on a “golden platter” and thereby authorizing discrimination and racial profiling in the airline industry. 44902 does not legalize discrimination and racial profiling in my opinion and that of my lawyers. I can only hope that the US Congress will make clear in the near future that 44902 is not a blank check for airlines to discriminate. Ask yourself, would you want to be treated the way I was, or a loved one treated the way I was, because an American Airlines employee didn’t like the color of your hair or of his/her hair? It’s a shame that AA claims to this day that they would do everything exactly the same way, if it were to happen again. So much for responsibility of American Airlines to transport the passengers who buy tickets from them!

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