Delta Passenger Was Cuffed, Denied The Bathroom, And Exposed Naked—Court Grants Immunity After $7.2 Million Verdict

A Delta Air Lines passenger says flight attendants turned his desperate plea to use the lavatory during a diarrhea attack into a security incident. They handcuffed him, he was injured, and exposed naked to other passengers. He was denied access to the lavatory and soiled himself. A jury awarded him $7.225 million. Now a federal appeals court says Delta is immune from liability for the injuries. I covered Atef Bandary’s case in April, when he was trying to get another trial after a judge threw out his verdict. On September 23, the U.S. Court of Appeals for the Ninth Circuit ruled 2–1 against him. The majority held that protection for reporting suspicious activity also covers conduct flowing from law enforcement’s decisions after the report. On May 29, 2015, Bandary was traveling home from Buenos Aires to Palm Springs with his partner and on Delta flight 1105 from Atlanta to Salt Lake City. He asked for food and water so he could take his prescription medication. The original lawsuit says flight attendants refused, he took the medication on an empty stomach, and that caused diarrhea. (Subsequent filings say one flight attendant initially refused, but another apologized and gave him crackers, water, and wine.) He got up several times to use the lavatory and visited his partner, who was seated several rows ahead. During one of his trips he took a photo of two flight attendants in the rear galley. He planned to complain to Delta about the service. An off-duty JetBlue pilot reported concerns to the flight attendants. Witnesses described him pacing, staring at passengers, looking through the curtain into first class, and visiting different lavatories. The captain checked his background with Delta personnel on the ground and found nothing concerning. About 45 minutes before landing, the lead flight attendant approached him near the rear lavatory and told him to return to his seat. His complaint says the seatbelt sign wasn’t on. He says he explained that he had diarrhea and HIV and couldn’t sit down until he’d used the bathroom. She said he screamed, lunged at her, and backed her against a wall. Bandary said flight attendants crowded him into the back of the plane, causing him to fall. They called the cockpit to report the disturbance and enlisted an armed law enforcement passenger who was a special agent with the Treasury Inspector General for Tax Administration. Flight attendants restrained him with plastic cuffs. Bandary says they were too tight, injuring his arms, hands, and wrists and causing a temporarily dislocated shoulder. The first set of cuffs had to be cut off and replaced. Then his pants fell to the floor. He wasn’t wearing underwear. Unable to pull them up himself, he pleaded for help. He says flight attendants initially refused because he had HIV. His pants were eventually pulled up, but he still wasn’t allowed to use the lavatory and soiled himself. Police removed him when the flight arrived in Salt Lake City. He was taken to a hospital for a psychological evaluation and released. Returning to the airport, he says he was told he was banned from Delta, couldn’t get a refund for the unused tickets, and found his luggage marked with large black Xs. They rented a car and drove roughly ten hours home. He was later indicted for interfering with flight attendants and faced up to 20 years in prison. A federal jury acquitted him in March 2017. This KSL report, uploaded by Bandary, includes footage of police removing him and an interview after his acquittal. It doesn’t show the initial confrontation or establish who started it. Bandary sued in May 2017, alleging negligent hiring, training and supervision, intentional infliction of emotional distress, assault, and battery. He said he was targeted because he was gay, HIV-positive, and dark-skinned, and that flight attendants escalated a medical need and customer service complaint into a law enforcement issue. He sought compensation under the Montreal Convention, which governs injuries during international air travel. Even though this happened between Atlanta and Salt Lake City, his international ticket brought the flight under the treaty. He argued that Delta’s handling of him was an unusual onboard event causing physical injury and lasting emotional harm. In October 2021, the civil jury found Delta wasn’t entitled to reporting immunity, that Delta caused bodily injury, and that Bandary suffered emotional distress from that injury. It awarded $2.5 million for bodily injury and $6 million for emotional harm, reduced by 15% for his own partial responsibility. That produced the $7.225 million judgment. Delta got the judgment thrown out in 2022. The judge found the damages excessive given the evidence of wrist cuts and neck and shoulder pain, and the limited medical evidence supporting the amounts. She ordered a new trial on liability as well as damages. Then, before that trial happened, she ruled Delta was immune and dismissed the case. Delta’s defense rested on the Aviation and Transportation Security Act. An airline or employee who reports suspicious activity potentially involving aircraft or passenger safety, air piracy, or terrorism receives protection from civil liability for the disclosure. Knowingly or recklessly false disclosures aren’t protected, but that exception wasn’t the issue in this appeal. Bandary’s argument was that the law protects disclosures. It doesn’t say flight attendants can injure a passenger without consequences once they’ve contacted an officer. And even if it protects some conduct afterward, Delta’s employees made the decisions that hurt him. The court accepted Delta’s argument that exposing airlines to liability for the consequences of reporting would discourage employees from seeking help. They followed decisions from the Second and Fifth Circuits extending immunity to consequences flowing from law enforcement’s decisions. This has the consequence, though, of immunizing virtually any harm caused once a report is made. The evidence established suspicious behavior sufficient to justify the report. The officer took control of the situation, directed assistance with the restraint, and kept Bandary in custody. The flight attendants’ participation in applying the cuffs was protected. The dissent pointed out that a jury had already rejected Delta’s claim that it reported qualifying suspicious activity: “a jury did not only find that Bandary’s suspicion was debatable; the jury found that Bandary had not behaved suspiciously.” Flight attendants had given testimony that he didn’t seem suspicious, the background check was clear, and the accounts of screaming and physical aggression conflicted. The dissenting judge thought those were questions for a jury to resolve. The majority answered that the previous verdict had been vacated, so its findings no longer mattered. Back in April, I thought Delta had a good argument for getting the size of the verdict thrown out, but that the passenger would probably get another trial. I still think he should have gotten that trial. The conflicting testimony remained even after the judge vacated the award. I don’t love immunity for consequences just by claiming security. The flight attendants physically helped restrain the passenger and Delta was protected because the court treated them as assisting the officer. Whether they were following his decisions or carrying out their own was part of what another jury should decide. Topics on this page