Statement of Michael Kirkpatrick, Attorney, Public Citizen
In a decision released Thursday, the U.S. Court of Appeals for the First Circuit in Boston has given air carriers a license to discriminate against passengers based upon their race or ethnicity.
In writing that safety takes precedence over civil rights, the court put its stamp of approval on racial profiling. We believe this decision opens the door for airlines to arbitrarily violate the rights of passengers.
The case, Cerqueira v. American Airlines, was brought by a passenger who was removed from an American Airlines flight, detained and questioned by the police, and refused service even after the police cleared him for travel.
In January 2007, a jury found that the airline had discriminated against John D. Cerqueira because of his “Middle Eastern” appearance and awarded him $400,000 in compensatory and punitive damages. The appellate court set aside the jury’s verdict, holding that a federal statute granting airlines the discretion to refuse passengers for safety reasons immunizes airlines from liability under the nation’s civil rights laws, even if the airline’s safety concerns are the product of racial profiling.
As Cerqueira’s counsel, we argued that there is no conflict between safety and civil rights because decisions based on racial profiling are irrational and cannot provide a legitimate basis for concluding that a passenger might be a security threat. The court of appeals disagreed, holding that “[r]ace or ethnic origin of a passenger may, depending on the context, be relevant information in the total mix of information raising concerns that transport of a passenger ‘might be’ inimical to safety.”
During the trial, a jury was asked to determine the motivation for the airline’s decision. The airline argued that had it acted out of a legitimate concern for safety; Cerqueira, a South Florida resident of Portuguese descent, argued that none of this would have happened had he not looked Middle Eastern. The jury sided with Cerqueira. We believe the court of appeals, in setting aside the jury verdict, essentially legalizes racial profiling in commercial air travel.
About Public Citizen:
"We fight for openness and democratic accountability in government, for the right of consumers to seek redress in the courts; for clean, safe and sustainable energy sources; for social and economic justice in trade policies; for strong health, safety and environmental protections; and for safe, effective and affordable prescription drugs and health care."
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Read the Opinion of the U.S. Court of Appeals for the First Circuit in Boston ! here
From the Opinion:
Congress mandated air carriers to refuse to transport passengers and property where a passenger does not consent to a search of his person or property for dangerous weapons, explosives, or destructive substances. In addition to mandating that some passengers be refused transport, Congress also authorized, at subsection (b), air carriers to engage in "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.
In turn, the Under Secretary has not promulgated regulations limiting the airline's discretion directly under 49 U.S.C. § 44902(b). However, one other regulation is directly pertinent, as it states that:
The pilot in command of an aircraft is directly responsible for, and is the final authority as to the operation of that aircraft.
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