"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Monday, April 17, 2017

Public opinion: victims of (various) abuse, shut up, or your medical, mental, licensing and criminal history will be dragged through dirt

A discussion flared yesterday on Facebook claiming that the outcome of the United Airlines "incident", or rather, assault by security guards on an elderly passenger, a Vietnamese immigrant, a father of five and a grandfather, causing grievous injuries (a concussion, a broken nose and knocked out two front teeth) that, reportedly required a hospitalization and reconstructive surgery, would have been different, but for the passenger's reported "mental health issues".

The report of mental health problems in the background of the passenger, information usually protected by HIPAA laws, information that the commentator used in the derogatory comment, was made available by LA Times.

The same LA Times provided information that the pummeled passenger was allegedly a convicted felon, that his medical license was allegedly suspended in the past for trading prescriptions for sex, that he had psychological evaluations listing anxiety, anger management problems and post traumatic stress disorder, and that his medical license, though restored, required supervision of Dr. Dao's activities as a physician by another doctor.

The pummeling happened on April 9, 2017.  The spokesperson for the airline made false claims against Dr. Dao that could operate to revoke his medical license and claimed he "stood behind" the actions of the employees.

The airline changed course and issued apologies only on April 13, 2017, promising to take "immediate action", only after an "international outrage", after its stocks took a dive and after people started to boycott its services and post this kind of anti-PR for United:

This video Twitter message shows slapping of a person with the following inscription:

And a video message of an Asian guy who dons a disguise of a white guy not to be dragged off a United flight:

on April 16, 2017 United changed its policy, now prohibiting the crew from forcibly taking passengers off the plane after boarding.

Of course, customers remain outraged at the incompleteness of the policy - since United apparently continues to bump passengers not because of overbooking, but because it wants to save money by using its own planes for last-minute relocation of its own crews.

Yet, here is the comment on Facebook that "had Dr. Dao cooperated with authorities" "and raised his objections later", everything could have been "different".

The author of this post also added this:

It is not clear what "way" "Mr" (the commentator refused to give him his title "Dr") acted that the commentator's friends don't.

It is also not clear why Dr Dao should not have asserted his rights - which was his choice, and only his choice, to do.

But, what is extremely interesting is the airline's curious targeting of an elderly Asian (by race) passenger from the economy class who was flying with his wife to accommodate its crew that was needed to fly a plane from Louisville, KY the following morning (of which the airline somehow was unaware until Dr Dao was allowed to board the flight and take the seat that he paid for).

Why did the airline not choose for "bumping" a passenger who was flying solo, not with his spouse?

Why did the airline choose for "bumping" an Asian passenger - because Asians are known for compliance with authorities?

Why did the airline choose this particular passenger, with the alleged criminal history, a history of suspension of a medical license (which is easily, and instantly, verifiable online), and a current medical license being conditional on supervision - because he would keep his head low and, if he "objects", he can be turned into licensing authorities as a retaliation?

I have a funny feeling that that was exactly the plan of the airline for this passenger - and especially so because the airline waited for 4 days, until

  • until Dr Dao hired a lawyer to contemplate a lawsuit against the airline;
  • until customers started to advertise United's competitors using the incident:

  • until the airline's conduct caused the interest of lawmakers regulators, and

that the airline changed course, apologized to Dr Dao and promised "immediate action".

The first reaction of the airline was:

  • to blame Dr. Dao for his behavior; and
  • to not-so-subtly intimidate him - by checking out his licensing history and claiming that he was "irate and belligerent".

I am sure that, if not for the video and Twitter messages by Dr. Dao's fellow co-passengers, the airline would have turned him in to medical authorities and would have sought to have his medical license yanked as a line of defense and retaliation for the PR disaster.

The only reason it was not done, obviously, is because of the international outrage in the media and social media because the pummeling was documented on cell phones and immediately posted in social networks,

blocking the airline from further pursuing such false claims.

Apparently, the airline offered to Dr Dao a $1000 voucher to get off the plane, leaving his wife behind, which he declined to accept.

And, in this situation, there was a glaring violation of Dr. Dao's ticket contract with the airline, because, by contract, Dr. Dao could only be bumped if the airline was OVERBOOKED.

It wasn't overbooked though, and the United's spokesman acknowledged that - after an uproar about the assault on Dr. Dao.

It simply wanted to fly one of its own crew members instead of Dr. Dao - after declining a FREE offer to fly its crews in such situations on a private jet.

Of course, this is an extraordinary PR blunder.  The airline must have a policy as to how to handle situations when passengers refuse to be "bumped", and the airline must recognize that, once it allowed a passenger to board the plane and take his seat within it, it can no longer bump the passenger, it is just common sense and common fairness.  Such things must be decided before boarding.

If such situations arise after boarding, they must be treated by the airline as extraordinary, and extraordinary apologies, as well as extraordinary amounts of money, should be offered the inconvenienced passenger, and never the use of force.  That is also common sense.

But, what floored me is the continued claims - and the commentator I quoted at the beginning is not the only one - that "had he complied and voiced his objections later", "nothing would have happened", and that his alleged "mental health issues" "contributed" to the "situation".

It has been common to blame the victims of misconduct of powerful people, private or public.

  • She wouldn't have been raped if she did not wear provocative clothing.
  • He wouldn't have been charged if he opened the door and allowed a warrantless search of his house.
  • He wouldn't have been arrested, roughed up, searched, killed by the police if he "complied with the authorities and objected later" - if he did not act the way he did and "ran while black", "'causing" the police to chase and shoot him.
  • She would not have lost her professional license had she shut up, looked the other way and not dared to criticize her own regulator.
  • A 69-year-old Vietnamese immigrant physician would not have been pummeled to the point of having a concussion, broken nose and knocked out teeth, in front of his wife, had he "complied" and walked out of the plane after having been allowed to board it and take his seat.

The tendency to blame the victim is still strong in this country.
Yet, the overall outrage in the world that forced the airline to change course and at least apologize (I did not find any news that any compensation for injuries was so far offered to Dr. Dao and his wife for pain and emotional suffering) shows that the world is moving away from this tendency.

I hope that the airline should suffer such severe repercussions from its own regulator so that it would train its employees to not dare do to any other passenger what it did to Dr. Dao.

I also hope that those who gave Dr. Dao a head concussion, broke his nose and knocked out his teeth, would be charged, as they should, with felonies, as well as those who directed them to remove Dr. Dao by use of force.  That would be the rule of law.

And let's remember - our "mental issues", real or insinuated, are not relevant when we are asserting our rights.

Because, if the law will somehow operate differently if the person asserting his rights is:

  • white, black, Asian, or Native American;
  • does or does not have a criminal history;
  • is or is not a good professional;
  • does or does not have a history of professional license suspensions;
  • does or does not have a history of engaging in behavior involving moral turpitude;
that is IRRELEVANT to what happened to him as a victim of abuse or a crime (of assault, as here).

Because, to deem otherwise means to deem that this nation is not based on the rule of law, but on the rule of men - and that law should apply differently based on the background of people it is supposed to protect.

And, the airline should also better settle with Dr. Dao, for a lot of money, and quick.

The verdict of a jury to Dr. Dao and his wife by the jury in punitive damages - and it is as cut-and-dry case for Dr. Dao and his wife as it can be - can bankrupt United.

And, while CEO Munoz apologized and changed policy, the airline's pilots (and they control what happens when the plane is boarded) "are not buying it" and stand by the actions of the pummeling crew as correct.

Pilots said that:

1) it is the airport's security personnel that handled it wrong and not the airline that ordered the removal of a passenger; and

2) that what mattered is that one person held "safe transportation" of 70 other people to Kentucky - again, let's blame the victim for "non-compliance"

I would once again note that - same as the Facebook commentator who blamed Dr Dao for the way he acted when being taken off airline not because it was overbooked, but because the airline, at the time the flight was fully boarded and waiting for a take-off permission, suddenly expressed a desire to separate him from his wife to give his already boarded seat to their crew member - pilots and the Forbes commentator obviously siding with them, drop the appropriate way of address for the victim, Dr Dao, and describe him either as "David Dao" or as simply "Dao".

And, of course, Dr Dao is blamed for hiring a personal injury lawyer - who wouldn't under the circumstances?

And, of course, Dr Dao is blamed for his lawyer's televised interview.

And of course, pilots are, according to the Forbes' commentator, rightfully infuriated because the United will now "likely have to compensate a belligerent passenger whose attorney will make a case against every weather-caused delay that ever happened".

So, we are now back to double-falsification of facts:

  • that the Dr Dao was injured because he was belligerent; and
  • that he is suing for a frivolous cause - like "a weather-caused delay".
That's, of course, a situation when with such commentators as Ted Reed of Forbes, United does not need enemies.

Blaming the victim continues, but disrespect to the victim will add more millions to the jury verdict against the airline - if the airline will be brain-dead enough to not settle.

And - we the potential customers of airlines are waiting for the news that those who assaulted Dr Dao and who ordered that assault are charged with felonies.

That will be the rule of law.

And, by the way - I haven't heard anything from ACLU on the subject.  It was an immigrant whose rights were affected, wasn't it?

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