The airlines are at it again! This time it’s Continental Express, Flight 2816, detaining passengers in the aircraft, without food, water or adequate sanitary facilities on the tarmac in Rochester, Minnesota, for an unbelievable six (6) hours before freeing them to enter the terminal (not counting another 2.5 hours wait to board the same plane to complete their trip to Minneapolis, only 85 miles away).

There is no doubt that the airline acted stupidly and irresponsibly by not providing a bus to complete the trip, or allowing the passengers back into the terminal. Ultimately, however, it’s the fault of the passengers who allowed themselves to be treated in that fashion. As Chevalier, Allen & Lichman has stated in prior postings (see, “Trapped Airline Passengers Have Rights,” posted April 7, 2008), the airlines when faced with this situation have three choices:

1. Take off if its safe to do so;
2. If not, allow passengers to leave the aircraft and/or provide alternate transportation or hotel facilities; or,
3. Face legal action brought by passengers for violation of the 4th Amendment of the U.S. Constitution, as well as potential state law causes of action such as false imprisonment.

First, it is true that airlines are not allowed to operate when conditions are unsafe such as during inclement weather or when the safety of the passengers is at stake (for example, during the recent bomb scare at LaGuardia). Therefore, where the existence of such conditions can be established, the airline is justified in waiting on the ground until, but only until, the Federal Aviation Administration’s (“FAA”) Air Traffic Control allows it to join a queue for takeoff. Sometimes this takes over two hours. If you have any doubt, call FAA at 1-866-TELL-FAA (1-866-835-5322). That office will know whether conditions at the origin or destination require the delay. The usual problem at this stage is lack of communication from the flight crew. It is far more commonplace to see them talking among themselves than sharing status updates with their paying customers. A radical change in company policies regarding passenger communication would go far in remedying passenger unrest.

Second, when even the normal communication doesn’t seem to be accurate or timely, and you have run out of patience, you may calmly and politely confront the crew with the choice of taking off, or, alternatively, allowing passengers to exit the aircraft. This is where individual responsibility kicks in. If no one asks, the crew has no reason to act. After all, FAA regulations require that the crew leave the plane when its federally mandated shift is up. They will get out even if you can’t. Most importantly, decline to take “no” for an answer. Poll the other passengers, and if there is a consensus that the time already spent is unreasonable and unjustified, and conditions on the plane are deteriorating to the point of health concern, get off the plane, either through the normal exits or through the emergency exit. After all, it is an emergency, isn’t it?

Finally, and most important, don’t be afraid that, by taking these steps, you will be violating the law. In fact, in our view, it is the airline and, by extension, the governmental entities that finance and operate the airport that are violating the law. Specifically, airlines operate on government funded facilities. Airports are funded 80-90% by the federal government and the remainder partially by state and local governments, with the airlines paying for part of the remainder. The tarmac upon which passengers are detained, as well as the Air Traffic Controllers who may provide the rationale for that detention are government funded. Consequently, substantially all activities on an airport may be subject to federal and state statutes including the U.S. Constitution.

The Fourth Amendment prohibits arrest and/or detention without probable cause or the consent of the detained. It is therefore doubly important to protest the detention so as to prevent acquiescence from being construed as consent. Finally, state statutes such as those prohibiting false imprisonment may also apply. However, there would certainly be an argument that such state statutes are preempted by federal law.  In the absence of comprehensive federal legislation addressing the issue of unlawful detention on aircraft, the preemption argument would likely fail. 

In short, it is not essential to the vindication of passengers’ rights that Congress pass a new statute or a “Passengers’ Bill of Rights,” because we already have a Bill of Rights that applies. However some support from Congress, for example, in legislating a limit on the number of hours passengers can be detained would show the public that their representatives are there for them and not just for campaign contributions from airline lobbyists.

Most important, if you’re “mad as hell” you “don’t have to take it anymore.” The public need not cower from taking all legal steps necessary to defend its own rights and welfare against the airlines who wrongfully cloak themselves in governmental authority without accepting governmental responsibility.