Nope. Not applicable at all, the aircraft was not in operation. I am a pilot (former CFII) and and there is no possible application of this FAR to this situation. It's not even a stretch.
I am not convinced that 91.3 and 91.11 CFR 14 are suspended once the airplane is stationary on the ground, could you elaborate?
ICAO defines an accident to be "An occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked" and fulfilling various further criteria.
So, according to that definition the airplane was "in operation", insofar as people had boarded it to fly.
Neither FAR applies when you're fully in compliance with safety instructions and regulations, but not complying with non-safety requests ostensibly based strictly on the contract of carriage. FAR 91.3(a) does not give the pilot the power to command you to drop trou and kiss your own ass, or else he'll throw you off the plane. That's not the intent behind that regulation, at all. It's a safety regulation, to give the PIC wide latitude for safety related operation of the plane, and not be countermanded by his company, or the airplane owner, or any passenger, or in particular air traffic control. The primary purpose of 91.3(a) is to permit the pilot to disregard/refuse an ATC clearance the pilot thinks is unsafe.
Both FAR can certainly apply to stationary "operation" i.e. immediately prior to pushback, requiring you to be seated with a seatbelt on; or stopped on a taxiway, if you do not comply with a crew member to sit down you can correctly be seen to be interfering with a crewmember as you're an obstruction. And if you are interfering, that is a violation of United's rule 21 of the contract of carriage, and in that case they can have you removed from the plane.
Anyway, there is no FAR applicable to this passenger's behavior. He's also not in breach of the contract of carriage. The airline f'd up. And the cops did too.
> That's not the intent behind that regulation, at all. It's a safety regulation
Granted, of course. But it does give the captain the authority, I'd claim - you follow the orders, and then later (outside the airplane) might discuss, question, and take legal recourse.
What if you refuse to switch off your electronic device during take-off, pointing out (correctly, most likely) that it's not actually safety relevant? Or you refuse to move your luggage, sitting in a window seat, arguing that it won't hamper anyone's evacuation? Or what if someone is standing up during taxi arguing that most likely there won't be any sudden acceleration, if so only they themselves are likely to be injured, and they'll hold on to something anyways?
Or, to take a case I've thought about a lot, Saudia Flight 163. The plane took off, caught fire, landed, and taxied. Apparently there was some delay before evacuation, and all people on board perished in the fire. Maybe they would've been better off if some pax had initiated the evacuation before the order was given. Does that now justify that we make our own judgement as passengers as to when to evacuate? And talking of evacuation, you are not supposed to bring your cabin luggage with you as it might obstruct others. But hey, I'll be really fast taking it out, and it's really important to me (maybe I'm a doctor, and my stethoscope is in there), and it's really small, so I'll just take my luggage anyway, I'm so special and it's not safety relevant in my judgement. Do you really want to open the door to everyone making their own judgements in these matters?
See, my instinct in all these cases is - no, you follow the instructions of the crew. Part of it is historical, of course - aviation used to be a dangerous business. In the army and on a ship and in an airplane, you follow orders by the commander - because the stakes are so high (death, and not only for yourself, but also for others), and the asymmetry in information is so high.
Now, yes, there are exceptions (in another comment board someone, in true Godwin's law, did bring up the holocaust and slavery when I argued for following the law), see the Radbruch formula, developed by German law professors after WW II stating that you have to follow the law, unless "it is unbearably injust".
So my point in this whole discussion (as a pilot myself with a smidgen of familiarity with the airline business) is: you follow the instructions of the captain (and by extension, crew), except in extreme cases, or suffer the consequences.
Now, you could make the argument that these broad historical circumstances have shifted. Aviation has been a victim of its own success, in a sense - it is so incredibly safe today (thanks to adherence to well thought-out procedures), that people perceive it more like a bus trip than a dangerous journey. And who wants to listen to a bus driver? What expertise does he have? We all know how to drive.
That argument can be made, and maybe it is right. But I'd argue that if we let everyone make their own judgements as to what is safe or legal on board, we jeopardise the very safety that's been achieved. So far, the jurisdiction of captain and crew on a plane or vessel are pretty absolute (remember that they can or could perform marriages, for example), I'd say, and deliberately so.
Is this a case where that authority has been abused? Maybe (though if the deadheading crew didn't reach their destination, planeloads of pax would have been denied a flight). But is it a reason to throw the whole edifice out of the window? I don't think so, yet.
I think your scope creep of FAR 91.3 and 91.11 into non-operational and non-safety airline business decisions is uncompelling, and in fact I see it as a risk to flight safety.
The scope creep of these powers increases the risk of abusing that power, and when people are caught in the act of abusing power, it reduces trust. And that loss of trust can risk lives in situations where a very high degree of trust is needed. So I take the position that FAR 91.3 and 91.11 do not make the crew god emperors in all things. I apply those regulations contextually.
And the context of the story of the week, that passenger was not in any way shape or form a safety risk to himself or anyone else, including the crew and therefore FARs simply do not apply at all. This was an airline business decision, it was strictly about money. I'm not going to deny a person who has the capacity to distinguish contexts from peacefully resisting a bullshit business request that relates to the airline's profits. You can't or don't want to distinguish contexts - fine for you.
As for flight 163, is an interesting choice given your position. Basically that airline had not learned the lessons of the 1977 Tenerife accident, which is basically that the absolute authority of the PIC is bullshit. That whole archaic culture of what the captain says goes, he's always right, do not question, just do what you're told, is a dead end concept from a bygone era. Now, we have crew resource management which merges the idea of all crew having a say when it comes to bringing up concerns related to safety, and once they've had their say the PIC is the final authority rather than an absolute authority. There's a difference.
Anyway, when everyone dies in an accident, it's hard to argue after the fact that the PIC was right, and everyone was right to just follow the orders.
Thanks for the considered answer, I might have to rethink my position.
Not denying in the least BTW the lessons of Tenerife/CRM (and I brought up the Saudi 163 example precisely because it challenges PIC authority), just arguing that the devolution of authority should go as far as the crew, but not extend to pax.
As for distinguishing contexts, my argument is that an airplane is not the right place to have that discussion. Say I use my mobile phone, arguing that it is not actually safety relevant, and only a business decision by the airline because they want me to use their expensive credit card sat phone. Then when crew asks me to switch it off, I refuse, and when they ask me to disembark, I refuse, as it's a commercial issue, not safety or ops. It seems like a slippery slope.
ICAO defines an accident to be "An occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked" and fulfilling various further criteria.
So, according to that definition the airplane was "in operation", insofar as people had boarded it to fly.