POTUS TFR-busted

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AlwaysBlue

Filing Flight Plan
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ImNotHypoxic
My PP friend and her CFII were on an instrument training flight under the hood, under vfr rules, no flight plan was filed and they apparently clipped a Presidential TFR. The inevitable 'call ATC' radio call was received. Neither the student or CFII invoked ASRS. Both are now subject to enforcement actions (suspensions). The flight was performed at the CFII's direction. She gave the navigational tasks to my friend who then executed such. Any ideas on why the PP should get nailed here? Isn't the CFII totally liable for this apparent goof? Although both pilots can log this time, isn't there actually only 1 PIC?
 
AlwaysBlue said:
My PP friend and her CFII were on an instrument training flight under the hood, under vfr rules, no flight plan was filed and they apparently clipped a Presidential TFR. The inevitable 'call ATC' radio call was received. Neither the student or CFII invoked ASRS. Both are now subject to enforcement actions (suspensions). The flight was performed at the CFII's direction. She gave the navigational tasks to my friend who then executed such. Any ideas on why the PP should get nailed here? Isn't the CFII totally liable for this apparent goof? Although both pilots can log this time, isn't there actually only 1 PIC?
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There is only one acting PIC... But both people were quite capable of making the call to FSS prior to the flight, and it sounds like this didn't happen. Generally, there are also numerous other ways to avoid the presidential TFR's: Monitor guard (as you should be doing anyway), talk to ATC (you can get flight following when VFR too), read the emails you get from AOPA announcing the pres TFR's, actually look at the bulletin board at the FBO (many/most flight schools will post signs reminding their renters if there's a TFR in the area).

So, sure, the CFII could have prevented it - But so could the PP. Sorry, this one is just too easy to avoid, IMHO. I would guess that the CFII will probably get a longer suspension owing to the greater standard of care placed on commercial pilots, but I can't really say that the PP isn't at all at fault.

Did I mention monitor guard?!? When Grant, Leslie, and I were flying back from the FlyBQ a couple of years ago with 121.5 being monitored on Com2, and the pres was giving the commencement address at Notre Dame, all we heard over and over and over and over again was the AWACS plane warning planes away on guard. "Aircraft 34 miles north of South Bend, heading 170, speed 105 knots, altitude 3000 feet, you are approaching restricted airspace. Turn around immediately. Contact South Bend Approach on 1xx.xx for further information..." and in all too many cases it was followed by the same call with "You have entered restricted airspace." :frown2:

This is just too easily preventable. Sorry.
 
AlwaysBlue said:
My PP friend and her CFII were on an instrument training flight under the hood, under vfr rules, no flight plan was filed and they apparently clipped a Presidential TFR. The inevitable 'call ATC' radio call was received. Neither the student or CFII invoked ASRS. Both are now subject to enforcement actions (suspensions). The flight was performed at the CFII's direction. She gave the navigational tasks to my friend who then executed such. Any ideas on why the PP should get nailed here? Isn't the CFII totally liable for this apparent goof? Although both pilots can log this time, isn't there actually only 1 PIC?
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Were either of them aware of the TFR? When you say no flight plan was filed, did they do their due diliegence and get a proper briefing before flying?

If they knew of the TFR and "merely" got lost - then perhaps only the CFII gets nailed - that's what's happened on SFRA busts in the past. But if neither bothered to get a briefing (and check that if they didn't the other one did), then they both disregarded their duties.

The days of "blue sky, go fly" have been over for decades - whether it's a TFR for the president, or for a crash, or for firefighting - pilots need to get that briefing from an approved source.
 
I had a similar incident in the old ADIZ. I was receiving a IPC, operating under the hood. Both the CFII and I had called separately for a briefing and neither of us were told that some radials of a VOR had been notamed out of service. Said VOR was a crucial part of a approach as it defined the inbound leg and we headed towards the ADIZ expecting to get the radial. The VOR was transmitting and I had picked it up and identified it. The margin between the approach and the ADIZ was not large, maybe a couple of miles and this was in a non GPS plane. My instuctor realized we had strayed too far to the west and turned us around but we had clipped the edge of the ADIZ. We got the call to call a number afterward. My CFII ended up with a suspension and they had tried to go after me as well but he was able to argue that since he was PIC and because of the lack of information on the briefing I was able to dodge the bullet but they sure wanted to get me as well. My CFII ( and friend ) was fortunate that instructing was a sideline to him and while very annoying it did not hurt him very badly. It just took a long time and a fairly expensive lawyer to sort it all out.
 
Like Kent said- monitor guard. You should, anyway.

Many and many were the times I heard impending breaches of P49 (Crawford), which could have been easily avoided by pilots simply listening. Minutes of warning.

Oh well.
 
Steve Foley said:
That's one phone call I would never make.
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Maybe you're saying that in jest, but if the pilot doesn't make the call then they will be contacted by a ASI either by phone or a certified letter, or both.

The ATC facility has already filed a PD (pilot deviation, Form 8020-17) via ATQA so it's now in the system.
 
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Rotor&Wing said:
Maybe you're saying that in jest, but if the pilot doesn't make the call then they will be contacted by a ASI either by phone or a certified letter, or both.

The ATC facility has already filed a PD (pilot deviation) via ATQA so it's now in the system.
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If the FAA wants to investigate the PD, that's up to them. I have no responsibility to assist them in their investigation, nor to answer any questions.

If I make that call and identify myself, I have admitted to being PIC for the flight that may or may not have busted the TFR.

In my opinion, talking to the FAA about past events is a bad idea. They're great when it comes to asking about the future (can I put this in my plane, etc). When they want to talk about the past, they're looking to bust someone.
 
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JeffDG said:
Because you want to turn a minor incursion, solvable with some remedial training, into a "federal case" that drags out for years leaving the FAA with no choice but to seek the maximum possible punishment against you for their trouble.
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Not even close.

It's because I have a right to remain silent, and no obligation to assist the FAA in an investigation.

the FAA is going to have a pretty tough time proving who the pilot of the plane was, with a preponderance of evidence. Just because I own the plane, or rented the plane is not proof that I was flying the plane on the date and time in question.
 
Steve Foley said:
If the FAA wants to investigate the PD, that's up to them. I have no responsibility to assist them in their investigation, nor to answer any questions.

If I make that call and identify myself, I have admitted to being PIC for the flight that may or may not have busted the TFR.

In my opinion, talking to the FAA about past events is a bad idea. They're great when it comes to asking about the future (can I put this in my plane, etc). When they want to talk about the past, they're looking to bust someone.
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Certainly your choice to make. But by not cooperating will this pass by the wayside.
 
If you bust the DC airspace the FAA will come after you full force, whether or not you cooperate.
 
Steve Foley said:
Not even close.

It's because I have a right to remain silent, and no obligation to assist the FAA in an investigation.

the FAA is going to have a pretty tough time proving who the pilot of the plane was, with a preponderance of evidence. Just because I own the plane, or rented the plane is not proof that I was flying the plane on the date and time in question.
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On a preponderance of evidence, it certainly is. If the plane is rented and you rented it at the time in question, they've met their burden, it's not up to you to disprove.

This is not "beyond a reasonable doubt".

You want to make it tough on them and drag them through every piece of due process, that's your call...just don't whine like Mosselin when they throw the book at you because of all the trouble you put them to.
 
Steve Foley said:
Not even close.

It's because I have a right to remain silent, and no obligation to assist the FAA in an investigation.

the FAA is going to have a pretty tough time proving who the pilot of the plane was, with a preponderance of evidence. Just because I own the plane, or rented the plane is not proof that I was flying the plane on the date and time in question.
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You may want to read Title 49, Subtitle 7, section 44709.
 
JeffDG said:
If the plane is rented and you rented it at the time in question, they've met their burden, it's not up to you to disprove.
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Do you have a source that backs up that statement, or is that just your opinion?
 
Steve Foley said:
Do you have a source that backs up that statement, or is that just your opinion?
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Remember, you're dealing with administrative law, not criminal. All they have to do is prove their case to a very friendly judge, assuming you appeal. It isn't like the criminal law you see on TV.
 
When dealing with the FAA (or the SS) the laws of incrimination as they relate to criminal investigations do not apply.
 
Steve Foley said:
Do you have a source that backs up that statement, or is that just your opinion?
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Preponderance of evidence:
FAA: Your honour, the individual named is shown by the FBO as having rented the aircraft in question at the time of the incursion. Please see exhibit 5, the aircraft sign-out sheet with the individual's signature thereon, and Exhibit 6, the aircraft schedule along with Exhibit 7, a sworn statement from the FBO manager that this individual did indeed sign out the aircraft at the time indicated.

Pilot: But I wasn't the PIC.

Judge: Do you have any evidence?

Pilot: Only my word

Judge: Well, I have evidence on one side, and nothing on the other, on the preponderance of the evidence, you were the PIC.
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steingar said:
Remember, you're dealing with administrative law, not criminal. All they have to do is prove their case to a very friendly judge, assuming you appeal. It isn't like the criminal law you see on TV.
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Preponderance of evidence is a much lower standard that "beyond a reasonable doubt" that is required in criminal cases.

Once the FAA shows evidence that you were likely (not certain) to be PIC, the burden shifts to the pilot to counter that evidence with some of their own.
 
Rotor&Wing said:
You may want to read Title 49, Subtitle 7, section 44709.
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Beg pardon? A better reference please. Title 49 USC has a Volume 7, and it has a Volume 9, Chapter VII but I couldn't find anything remotely similar to 44709
 
murphey said:
When dealing with the FAA (or the SS) the laws of incrimination as they relate to criminal investigations do not apply.
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How does the FAA get around constitutional protections?
 
JeffDG said:
FAA: Your honour, the individual named is shown by the FBO as having rented the aircraft in question at the time of the incursion. Please see exhibit 5, the aircraft sign-out sheet with the individual's signature thereon, and Exhibit 6, the aircraft schedule along with Exhibit 7, a sworn statement from the FBO manager that this individual did indeed sign out the aircraft at the time indicated.
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Objection. The statement from the FBO manager is hearsay.
Pilot: But I wasn't the PIC.
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As I said earlier, I wouldn't be answering question.

Judge: Do you have any evidence?
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Evidence to prove that something didn't happen? Your asking to prove a negative, and any judge would understand how absurd that question is.

Judge: Well, I have evidence on one side, and nothing on the other, on the preponderance of the evidence, you were the PIC.
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Based on that standard, all you need is the FAA goon to testify that he thinks I was flying the plane. Since I haven't disputed it, I must have done it.
The only case I found (Westlaw - NTSB appeals) where the pilot didn't admit to at least flying, they had an eyewitness who saw him shut down and exit the plane. Seems like a lot of trouble to go through if the burden of proof only required rental records.
 
JeffDG said:
Preponderance of evidence is a much lower standard that "beyond a reasonable doubt" that is required in criminal cases.

Once the FAA shows evidence that you were likely (not certain) to be PIC, the burden shifts to the pilot to counter that evidence with some of their own.
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The burden does not shift.
 
skidoo said:
How does the FAA get around constitutional protections?
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They don't. The appeal process (ALJ - NTSB - US Court of Appeals - Supreme Court) sees to that.

So far, no FAA enforcement action has gone to the Supreme Court, but it's always possible.
 
Steve Foley said:
Objection. The statement from the FBO manager is hearsay.
As I said earlier, I wouldn't be answering question.

Evidence to prove that something didn't happen? Your asking to prove a negative, and any judge would understand how absurd that question is.



Based on that standard, all you need is the FAA goon to testify that he thinks I was flying the plane. Since I haven't disputed it, I must have done it.
The only case I found (Westlaw - NTSB appeals) where the pilot didn't admit to at least flying, they had an eyewitness who saw him shut down and exit the plane. Seems like a lot of trouble to go through if the burden of proof only required rental records.
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OK, if you don't answer the question, all of the evidence is that you were the PIC.

Preponderance of evidence is a laughably easy standard for the FAA to meet. Even easier, in fact, than "balance of probabilities". Once the FAA shows some evidence that you are the PIC, the burden automatically shifts. You need to counter whatever evidence, otherwise the "preponderance of evidence" is on the side that has presented evidence.

Oh, and it's not heresay if the FBO manager saw you sign the aircraft out.
 
Call a very good aviation attorney first and consider his advice, then decide whether or not to call ATC and what to tell them if/when you do call, or perhaps you'll be advised to write. This is not the time to worry about a couple of hundred bucks for a consultation. Just like the Miranda warning says, the FAA will use everything you write or say against you, and out of context. One does not have to become belligerent or confrontory to communicate with the FAA and still preserve one's rights. But, one does need to know the best actions to take and a good aviation attorney is the first person to call in this case, not ATC.

I was asked to call the FSDO once and called an attorney first. I'm glad I did. I knew what to say and certainly what not to volunteer when talking to the FSDO. It was a non-event and stayed that way, but it was easy to see from the probing kinds of questions the FSDO asked that a person could admit to or tell the FSDO things that he needn't say but which the FSDO would use to hang him. For example, "how much ice was on the airplane?" "enough to see". The FSDO was all nicey-nicey on the phone, kind of an "old boy chat - tell me about it, son" kind of delivery. I was equally pleasant, but didn't volunteer anything.

I'm personally aware of another situation where the pilot believed the FAA line of "cooperate and we'll work this out" only to have his words taken out of context and used in a punitive way that made a mockery of the FAA message to "'fess up and we can minimize this". That person gave the FAA rope to hang him with that they didn't have before he elected to tell them more than needed in an effort to demonstrate his good will and cooperation. He thought he was providing context and background to explain a situation - they used it to pile on more punishment that it was obvious they had already decided to impose regardless of whether the pilot cooperated.
 
jnmeade said:
I was asked to call the FSDO once and called an attorney first. I'm glad I did. I knew what to say and certainly what not to volunteer when talking to the FSDO. It was a non-event and stayed that way, but it was easy to see from the probing kinds of questions the FSDO asked that a person could admit to or tell the FSDO things that he needn't say but which the FSDO would use to hang him. For example, "how much ice was on the airplane?" "enough to see". The FSDO was all nicey-nicey on the phone, kind of an "old boy chat - tell me about it, son" kind of delivery. I was equally pleasant, but didn't volunteer anything.
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Yep -- can happen. Best to get advice from counsel first.
 
JeffDG said:
OK, if you don't answer the question, all of the evidence is that you were the PIC.

Preponderance of evidence is a laughably easy standard for the FAA to meet. Even easier, in fact, than "balance of probabilities". Once the FAA shows some evidence that you are the PIC, the burden automatically shifts. You need to counter whatever evidence, otherwise the "preponderance of evidence" is on the side that has presented evidence.
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Again, based on your standard, if the only evidence submitted is a hunch that the FAA goon thinks I did it, that is enough if I don't submit any evidence. That's not how it works. Preponderance of evidence requires that it is proven to be more likely than not.

Oh, and it's not heresay if the FBO manager saw you sign the aircraft out.
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Sure it is. It's an out of court statement, and cannot be cross examined. You would need to FBO manager to testify in court that he saw you sign the aircraft out.
 
skidoo said:
How does the FAA get around constitutional protections?
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Which ones?

The FARs carry administrative sanctions and civil fines as penalties.

Most of the Fifth only applies to criminal cases, and the Sixth has been held to only apply to serious crimes.

The Seventh has been held to not apply to administrative law.
 
Steve Foley said:
Again, based on your standard, if the only evidence submitted is a hunch that the FAA goon thinks I did it, that is enough if I don't submit any evidence. That's not how it works. Preponderance of evidence requires that it is proven to be more likely than not.
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No, that's "balance of probabilities".

Preponderance of evidence means which side presented more evidence (quality not quantity). If side A presents a small amount of evidence, and side B presents nothing, Side A wins.
 
People here are actually suggesting that you deny you were piloting the airplane when you were?

Do whatever you want but I think there is a lot of paranoia going around and the "don't make the call" advise is just as silly as the advice not to hand your certificate to an inspector to look at. I have done both, more than once with no bad results.
 
I think the advice of "make the call, but don't say anything" is a really good. The one constitutional protection that absolutely applies is not incriminating oneself. The one problem is it is really hard to just shut up and listen. I for one am really bad at it, as you all likely know.
 
JeffDG said:
No, that's "balance of probabilities".

Preponderance of evidence means which side presented more evidence (quality not quantity). If side A presents a small amount of evidence, and side B presents nothing, Side A wins.
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I've never seen it defined this way. Where did you find that definition?

Black's Law Dictionary (9th ed. 2009)
​

preponderance of the evidence. (18c) The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. • This is the burden of proof in most civil trials, in which the jury is instructed to find for the party that, on the whole, has the stronger evidence, however slight the edge may be. — Also termed preponderance of proof; balance of probability.
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Update: FAA wants 60 days suspension for my friend the PP and 90 days for CFII. It appears a lawyer has been retained and the informal hearing is next. We have found some NTSB cases that say essentially anytime a CFI is in the airplane as a CFI, he is the PIC, regardless of the 'student's ratings'.

Has anyone been to an informal hearing? What happens there?
 
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