United Airlines incident: Law and order inside a jam-packed metal tube

I've flown more frequently to California than anywhere else. The route takes me over the Sierra Nevada. In 1846, the Donner Party, on a similar journey from midcontinent, traveled six months by wagon train and had to spend the winter on a mountain pass. Their food dwindled, so some of them ate their dead. In contrast, I've just needed to lower my usual standards of space and dignity for four hours. So there's that.

Nonetheless, I was riveted by the widespread revulsion last week over the incident involving United Express Flight 3411 from Chicago to Louisville, in which the United Airlines sought to "bump" four passengers from a full flight in order to accommodate crew members who needed to be somewhere else pronto. United failed to make the case to passengers financially, then decided to get tough and just name names, then called security, which got rough on the one guy who resisted. It was bloody; other passengers recorded it on video; it went viral, and people were pissed.

I felt it. I totally did. Just as when I was a hot-tempered teenager rankled by some authority or another. You know that feeling you get when it's not fair, and they know it's not fair, and they're gonna do it anyway because them's the rules? I felt that old anger welling up inside me for the first time in a long, cynical while. The only difference was that these days I'm able to stand outside myself (sometimes) and ponder whence it comes.

Although I've never been bumped from a flight, I've been torqued over the concept for 30 years. When you pay for a service, you should get the service, whether it's a flight or a plumbing repair or, ahem, newspaper delivery. No excuses — simple as that.

Of course, the experienced version of me knows that despite good intentions, things go wrong, especially in a larger operation, and that these days a lot of operations have been embiggened to the extent that they are unwieldly.

So then it's about the response. Here our society fails miserably. We've got phone trees whose branches terminate in the ether. Customer service scripts that truly are fiction. Apologies that truly aren't sincere.

The standard reply to all this is that if you don't like the result, take your business elsewhere. OK, but that's easier said than done. Usually, such reckonings are felt more keenly by the offended than by the offender.

The incident April 9 involving the "re-accommodation" of Dr. David Dao from his airplane seat to the hospital brought out all these issues and more. On one hand, if any inconvenience of modern American life is ripe for a communal "mad as hell, not going to take it anymore" moment, it's air travel. And, indeed, the revulsion was near-universal for the first 36 hours as United inexplicably let the story roil before eventually acquainting itself with regret. I found myself marveling at this unorthodox display of unity while thinking "but wait, there's more … "

And so there was.

Dao had a troubled history in Kentucky, reported the Courier-Journal of Louisville, in a bit of incumbent reporting of the local public record (That Dao? Yes, that Dao.) that nonetheless played poorly in the broader context as blaming the victim.

Race questions arose, because, you know, America.

Everyone expected Dao to sue, and by the end of the week, he had a lawyer who says he probably will. (Maybe for that $13 million United CEO Oscar Munoz is reportedly receiving in bonuses.)

And, as always, the contrarians. "No sympathy here for that airline passenger," read a headline published on these pages Thursday, and, lest there be any doubt, the article's author belittled Dao as acting like "many six-year-olds who don't want to go to bed or eat their vegetables" and as engaging in "histrionics." Our headline tossed in the words "spoiled," "brat" and "tantrum" for good measure. Shut up and eat your injustice, kid, if you know what's good for you. Cold.

But while all that was unsympathetic, it wasn't all wrong. Nor was the author alone. Social media and comment sections have been replete with assertions that United was within its contractual rights to evict passengers of its choosing to accommodate its needs. Whether that's true of the precise circumstances seems up for discussion, but, hey, law and order. If you're on an airplane — especially an airplane — and those in charge say leave, leave.

Still, I found myself wondering how those law-and-order types might respond to another type of taking: eminent domain — the reclamation of property, with compensation, in order to achieve a greater common purpose. While I don't think anyone loves the practice unless they're benefiting directly from it, and while the common purpose can be debatable, it seemed to me that those who are most opposed to eminent domain in concept are those who'll be filing amicus briefs in support of the defendant in Dao et world vs. United.

"You're projecting that onto them," said a wise editor with whom I work. He's right, I am. Alleging inconsistencies is a time-honored rhetorical technique. (The alleger, of course, has none.) Still, the United incident is about a corporation vs. an individual. Eminent domain is ultimately about individuals vs. government, since government is the arbiter. This would seem to fall along familiar divides.

Here's where we need to visit the weeds. (That's "weeds" plural, mon potpourri.)

The idea of "condemning" a property for a public use arrived in the American colonies as part of common law. It is addressed in the Fifth Amendment, which requires compensation. Over the years, through various interpretations, it became possible for private property to be transferred, via a body of government, to a different private owner, ostensibly to remove blight but also to increase a tax base. The use cases and applicable rules are complex, but know this: People lose their homes and business locations.

They're paid for this, of course — even tenants in some cases. But like the passengers on Flight 3411, they sometimes don't find the compensation sufficient. And some of them, like Dao, resist.

Although the ultimate outcome of involuntary decampment is usually the same (I mean, without the bloodshed), I see a key difference. Eminent-domain cases take months or years. Those targeted do have recourse. A process plays out through the courts. They may at least get more money even if their assailant doesn't want to give it.

The "bumping" of an airplane passenger plays out in the heat of a moment — generally before boarding, as many have pointed out. (As Noah Feldman writes at Bloomberg View, United may have breached its contract with Dao by removing him from the plane after he was seated, and because the plane wasn't technically oversold. He had to comply, but he can seek damages.) Yet travelers often are tense, dislocated, eager to get home. They may have responsibilities to attend to. The incentives offered are usually enough to resolve the logjam. But if not? Passengers have no recourse in the moment.

There's a use, obviously, for eminent domain, and there's a use, clearly, for maintaining order inside a metal tube into which hundreds of anxious travelers have been packed. But the devil is in the details, is it not? So I can't see the defense for the airline's leaning on law and order in this case. But that's me, moral relativist.

Your witness.

David Banks is at David.Banks@startribune.com.