Virginia Sherriff charges pilot with reckless flying for low pass over lake
- Thread starter azpilot
- Start date
Ed Haywood
En-Route
Most states have FUI and reckless flying laws, and they get enforced successfully: https://www.latimes.com/archives/la-xpm-2010-jun-18-la-me-flyby-20100618-story.html
If those laws were unconstitutional, they would have gotten tossed on appeal by now. The guy convicted of buzzing Santa Monica Pier appealed, lost, and went to jail. Maybe he should have added PoA to his legal team.
As to the definition of reckless, all laws are subjective. Guess who decides? 9 to 12 of your non-flying peers. BTDT as a jury foreman. "Your Honor, what does 'resisting arrest with violence' mean?" Judge: "use your best judgement."
If those laws were unconstitutional, they would have gotten tossed on appeal by now. The guy convicted of buzzing Santa Monica Pier appealed, lost, and went to jail. Maybe he should have added PoA to his legal team.
As to the definition of reckless, all laws are subjective. Guess who decides? 9 to 12 of your non-flying peers. BTDT as a jury foreman. "Your Honor, what does 'resisting arrest with violence' mean?" Judge: "use your best judgement."
Not true. The local authorities were trying to enforce their own laws that adopted FAA requirements, and further wanted to enforce FAA regulations because they were not satisfied with the FAA's enforcement. From the opinion:
Here, where the ordinance is coextensive with FAA regulations, conflict preemption is not at issue, leaving only the question whether “federal law so thoroughly occupies a legislative field ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’ ”
Int'l Aerobatics Club Chapter 1 v. City of Morris, 76 F. Supp. 3d 767, 781 (N.D. Ill. 2014)
Go back to my prior post. Conflict preemption is not the only type of preemption. The case I cited did not base its ruling on conflict preemption. In fact, as noted in the portion I quoted above, the District Court expressly held that conflict preemption was not at issue. Instead, it based its decision on field preemption, finding that regulation of in-flight activity was so pervasive and exclusive as to leave no room for any state regulation of that activity.
That may be true, but that doesn't mean that that is permissible in every field. You have to look at the federal regulation within any particular field to determine whether there would be field preemption. Trucking simply isn't a field that there is federal regulation that is so pervasive that it leaves no room for state regulation.
There is a federal statute which makes that a crime, and the US Attorney in your district could prosecute you for it.
wanttaja
En-Route
"Fractional owner?" How did they determine that the arrestee was flying at the time, then?
Ron Wanttaja
Fearless Tower
Touchdown! Greaser!
Probably outed by the other owners
Not if the issue wasn't raised by the defense.
Maybe they should have.
Sifossifoco
Pre-takeoff checklist
- Joined
- Oct 12, 2021
- Messages
- 183
- Display Name
Display name:
Sifossifoco
I don't know about those measurements, but I am pretty sure that the moon (equatorial diameter 3476.28 km) in this picture is only 7,000 km from earth, more or less ...
Zeldman
Touchdown! Greaser!
O2 Birddog
Pre-takeoff checklist
- Joined
- Jul 10, 2022
- Messages
- 226
- Display Name
Display name:
O2 Birddog
Having sole regulatory jurisdiction doesn't necessarily mean sole legal jurisdiction. Keep in mind too we have literally thousands of regulatory crimes that weren't even passed by the congress or state legislatures only created by agency rules.
ElPaso Pilot
En-Route
- Joined
- May 26, 2006
- Messages
- 2,510
- Display Name
Display name:
ElPaso Pilot
Estimating the height of an object directly above or below a known sized object is as old as dirt, and very different then telescopic perspective. Just saying.
bflynn
Final Approach
Unless you get the perspective wrong. If that person is standing half way between you and the tree, you're guess the tree to be about 25' tall when it's actually 50. Having a photograph of a grainy, pixelated security camera helps too.
ElPaso Pilot
En-Route
- Joined
- May 26, 2006
- Messages
- 2,510
- Display Name
Display name:
ElPaso Pilot
Completely and absolutely agree. Drop 20' bars down until you feel you hit the right spot in the lake directly under the plane.
I sure can't fit enough to make 500'.
I can see where a bit of a lower number may have been guestimated from. Plus or minus to compensate for the crappy picture.
My greatest takeaway, though, is that I'm sure glad video cameras in every pocket, street corner, and doorbell weren't common in my younger days.
Or my life might have been very different today. Or so my kids remind me.
Zeldman
Touchdown! Greaser!
Don't forget the police didn't have cameras back then either.!!
I had a very eager approach to a specific activity that included cars on the street in some sort of contest, usually late at night....
DaleB
Final Approach
I've got a fun story about getting pulled over for drag racing one night, absolutely dead to rights guilty as hell, and walking away without a ticket.
Of course my youngest son recently hit a cop car while changing lanes, and didn't get a ticket. I had an occasional stroke of dumb luck; he leads a charmed life.
Zeldman
Touchdown! Greaser!
Ed Haywood
En-Route
Or, maybe they read Ward v State and People v Valenti, both of which deny federal preemption of state laws prohibiting reckless operation of aircraft.
- Joined
- Jul 21, 2014
- Messages
- 9,770
- Location
- Broken Arrow, OK
- Display Name
Display name:
SoonerAviator
Is this contest performed from the front or the back seat?
Zeldman
Touchdown! Greaser!
Seems like the back seat activity was determined on how well the other activity went...
Meh. Different courts reach different conclusions on the same issue all the time.
If a federal statute is violated, my understanding is that the FAA can refer the matter to the U.S. Department of Justice for prosecution.
O2 Birddog
Pre-takeoff checklist
- Joined
- Jul 10, 2022
- Messages
- 226
- Display Name
Display name:
O2 Birddog
At the district court level precedents are rarely ignored. Especially in a case where the rulings are well supported by prior precedent and The Constitution.
Ed Haywood
En-Route
Ok. So how many courts have reached the conclusion that state laws against reckless operation of aircraft are preempted?
bflynn
Final Approach
1978, Ward says the state can prosecute flying under the influence.
1984, Valenti buzzes a crowd at heights 10-20’ over their heads.
these things aren’t very defensible. They are against FAA rules too
2014, the state of Maryland attempts to regulate an acrobatics club, are told they cannot.
2022, a pilot flies over a lake in a manner that is consistent with FAA policy, but which local law deems reckless.
The last one seems to me the State attempting to criminalize behavior that is acceptable under federal regulations. It has more in common with Intl Aeronautics than either of the first two.
Last edited:
Ed Haywood
En-Route
Actually, no, it does not. Ward says that the state can prosecute reckless operation of an aircraft.
The pilot buzzed houses while buzzed. The initial charge sheet included flying while intoxicated, but was later amended to delete that charge. He was convicted only of reckless operation of an aircraft, and appealed that conviction. FUI was not addressed on appeal.
Ward motioned to strike the Maryland reckless operation statute because it was preempted by Federal law. The appellate court denied the motion and upheld the right of the state to prosecute reckless flying. The decision explicitly rejected the preemption argument. Money quote:
"We have no difficulty whatever in deciding that Congress has not occupied the entire field of aeronautics by the Federal Aviation Act of 1958."
https://casetext.com/case/ward-v-state-568#:~:text=Robert David Ward was convicted,novo, again found Ward guilty.
Sorry guys, but your pet legal theory is nonsense. 30 states have long standing laws against reckless flying, and they have held up in court. The sheriff in VA can absolutely bring these charges.
bflynn
Final Approach
Wasn't the Ward case about a pilot flying out to dinner, drinking and getting caught flying? The second case was about buzzing a crowd multiple times at 10-20 ft. Both of these things are clearly FAR violations.
There's no apparent FAR violation in this case. There's no boats or people in the picture, you can fly right down to 0 ft above the water in that case. If you want to waterski, you can go a few inches lower.
Can the state criminalize FAA regulated behavior that isn't a crime and where does their authority end? If they can call flying over a private lake at 100' reckless, then how about at 200? 500? 10,000?
There's no apparent FAR violation in this case. There's no boats or people in the picture, you can fly right down to 0 ft above the water in that case. If you want to waterski, you can go a few inches lower.
Can the state criminalize FAA regulated behavior that isn't a crime and where does their authority end? If they can call flying over a private lake at 100' reckless, then how about at 200? 500? 10,000?
LesGawlik
Line Up and Wait
- Joined
- May 6, 2006
- Messages
- 975
- Display Name
Display name:
Good Guy
Unless you're a DPE joking about somebody else's airplane.
I don't see how the picture posted previously supports the idea that no FAR was violated. Based on the satellite view and its apparent height in the photo, there was no way for the plane to fly less than 1000 feet above the congested area surrounding the lake in the process of getting to its location in the photo.
https://www.google.com/maps/place/L...8d989146864295!8m2!3d38.3401712!4d-77.7607522
- Joined
- Jul 21, 2014
- Messages
- 9,770
- Location
- Broken Arrow, OK
- Display Name
Display name:
SoonerAviator
Wouldn't that depend on what the FAA considered to be a "congested area" as well as whether the aircraft descended down over the lake and pulled back up before crossing congested areas? Dunno, just saying the photo doesn't tell us one way or the other.
ElPaso Pilot
En-Route
- Joined
- May 26, 2006
- Messages
- 2,510
- Display Name
Display name:
ElPaso Pilot
I think the vague definition, combined with prior action from the FAA has demonstrated that if anyone submits a complaint about a low pass, then by default the FAA determines the area is congested.
Good Lord man, you're almost as cynical as me!
ElPaso Pilot
En-Route
- Joined
- May 26, 2006
- Messages
- 2,510
- Display Name
Display name:
ElPaso Pilot
Ouch!!
The problem is “congested area.” Rather than publish a definition so pilots can know how to shape their aeronautical behavior, the FAA purposefully doesn’t—it comes up with its definition on a case-by-case basis. The FAA says it does that so it can balance the pilot’s interests with the need to protect persons and property.
In enforcement actions, the FAA has successfully declared that a congested area includes a group of people on an airport ramp, sunbathers on a beach, a small subdivision covering less than a quarter mile, and traffic on an Interstate highway.
In enforcement actions, the FAA has successfully declared that a congested area includes a group of people on an airport ramp, sunbathers on a beach, a small subdivision covering less than a quarter mile, and traffic on an Interstate highway.
https://pilot-protection-services.aopa.org/news/2016/january/15/congested-area#:~:text=In enforcement actions, the FAA,traffic on an Interstate highway.
(and yes, I know this is an AOPA sales pitch, but it's the first search grab I had)
Randomskylane
Line Up and Wait
- Joined
- Jun 2, 2021
- Messages
- 723
- Display Name
Display name:
Randomskylane
Some states require registration/insurance on the plane. I think it’s a one year in jail misdemeanor in Maryland or Virginia.
pretty sure I saw a few articles on people flying without pilot certificate and the fine was 250k plus a fun stay with the govt
EdFred
Taxi to Parking
So how's that work if I am from out of state that doesn't require insurance? What happens if some even smaller jurisdiction has even more stringent rules? How far does it go?
It's for aircraft based in the jurisdiction.
Ed Haywood
En-Route
He is not being charged with violating a FAR. He is being charged with violating a state law against reckless flying.
Who decides if he was reckless? A Jury.
EdFred
Taxi to Parking
Michigan tried stuff with pilot cert stuff and it got shot down on the basis that certificates are federal jurisdiction.
Morgan3820
Ejection Handle Pulled
Why?
bflynn
Final Approach
Not wrong. But not the real question I'm asking - can a state criminalize an activity that is explicitly legal under FAA regulation?
Ed Haywood
En-Route
The state criminalized reckless flying. Under which FAA regulation is that explicitly legal?
I get your point though. If the pilot complies with FAR 91.119 on minimum safe altitudes, can the state say he was reckless for flying too low?
But that is not the case here, because he was not over open water. He was over inland water, as charted on the sectional. Therefore the minimum safe altitude was 500 feet, which he is clearly below.
EdFred
Taxi to Parking
The Great Lakes are also inland. So the middle of Lake Michigan isn't open water?