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Criminalization of Pilots: Are you next?

Rez O. Lewshun

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It is growing.. from the Airlines to GA...

After the Accident

From ultimate freedom to incarceration

By Dave Hirschman

  • Mark Strub fought against panic as his Stearman sank, inverted, into a broad, slow-moving river. His hands groped for the pair of latches that could release him from his seatbelt harness. But the five-point harness pinned him firmly against the metal seat, where he was also bound to a 30-pound parachute.
Even though the cool water was less than six feet deep, Strub (pronounced stroob), an experienced scuba diver, was trapped, descending into darkness, and running out of time.
“I’m going to drown,” he admitted to himself. “If I can’t get loose right now, I’m actually going to drown.”
His thoughts also turned to his passenger, Kimberly Reed, whom he’d met less than an hour before. She was strapped into the biplane’s front seat, an arm’s reach away.
Was she stuck in the waterlogged airplane, too?
Strub finally unbuckled his harness and swam free from the upside-down airplane that remained partially submerged in the river. He lunged forward to the front cockpit to help his passenger. To his horror, he saw that the biplane’s top wing had struck a submerged rock. The wooden structure was smashed downward and aft, blocking access to—or escape from—the airplane’s front cockpit.
A broad-shouldered, 180-pound carpenter, Strub, 45, recalled stories of people in emergencies being imbued with superhuman strength. But his frantic efforts couldn’t budge the saturated, 3,000-pound Stearman. He rushed to the river’s edge and ran to summon help. Then he sprinted back to the scene of the accident—a normally tranquil, idyllic branch of the Wisconsin River near the mill town of Wisconsin Rapids in the rural, central part of the state.
Photo courtesy Wisconsin Rapids Tribune
Rescue workers followed him to the accident site, and they immediately noticed another danger. Strub’s low-flying airplane had clipped a cluster of power lines that supplied electricity to a nearby paper mill—and those wires were submerged in water. Anyone who stepped into the river was at risk of electrocution.
With each passing moment, Strub realized any chance of saving Reed was slipping away.
“That’s when I lost hope,” said Strub, a private pilot with about 500 flying hours. “There was no way she could still be alive.”
Facts not in doubt

This year, Strub became the first U.S. pilot jailed for a domestic aircraft accident. He pleaded guilty to reduced charges of negligent operation of a motor vehicle and disorderly conduct and was sentenced to 30 days in jail, 150 days home confinement, fines, court costs, and two years probation during which he won’t be allowed to fly.
He wears a pair of electronic monitoring bracelets, isn’t allowed to consume alcohol (even though alcohol played no role in his accident), and can only leave home to attend work. A divorced father of three girls, Strub also awaits a civil trial that could bankrupt him and lay claims to future earnings.
He has been vilified as a criminal, and Reed’s grieving family has called him a murderer.
His case fits an international pattern of criminalizing aviation accidents that dates back at least to 1992 when a French air traffic controller and several Airbus officials were charged in criminal court following an A320 crash in Strasbourg. In 1996, three SabreTech mechanics were charged for improperly loading oxygen canisters on a ValuJet DC-9 that caught fire and crashed in the Everglades. In 2000, two former Aerospatiale officials were charged with criminal counts related to the Concorde crash in Paris. A Swiss court convicted four air traffic managers following a 2002 midair collision between a DHL Boeing 757 and a Tupolev 154M, and two U.S. corporate pilots weren’t allowed to leave Brazil for two months in 2006 after a midair collision between their Embraer Legacy and a Boeing 737 over the Amazon. A Cape Air pilot was sent to jail for hiding a form of diabetes that would have disqualified him from airline flying.
Aviation safety experts fear criminalizing aviation accidents will decrease air safety over the long term by clamping down on the free flow of information that could help avoid future mishaps.
The facts surrounding Strub’s crash aren’t in doubt. Opinions vary, however, about whether his actions amounted to criminal conduct, or whether justice is served by sending him—or other general aviation pilots involved in aircraft accidents—to prison.
Wood County District Attorney Todd Wolf, the Wisconsin official who pressed charges against Strub, declined to comment for this story. But he told a local newspaper he would have pursued the case whether the fatal accident had happened in a car, motor-cycle, or boat.
“I have prosecuted (many) vehicle accidents resulting in death,” he said. “We see these cases in a lot of vehicles.”
As perfect as he could make it Strub inherited his fascination with biplanes from his father, a master craftsman who built two of his own—a Hatz biplane and a SkyBolt.
Strub established a successful carpentry business in the 1990s and earned a private pilot certificate in 2002. His first airplane was a Piper Colt, and then he bought a Luscombe to gain the tailwheel skills needed to fly biplanes, his real love.
He bought a 1941 Super Stearman in 2001 while still in flight training and, in the next year, rejuvenated the fabric and repainted every inch of the 450-horsepower airplane. When he finished, the once-ragged workhorse had been transformed into a gleaming, red jewel.
“I removed and sanded the wings and all the control surfaces,” he said. “I even polished all the stainless steel screws before I put them back on the airplane. I wanted everything to be as perfect as I could make it.”
Strub got dual instruction in his Stearman from a former crop duster, and he learned to fly basic aerobatics in it, too.
“I flew as much as I could—and by the summer of 2004 I had logged about 225 hours in the Stearman,” he said. “I was finally getting to the point where I felt like the airplane was part of me.
I could feel what the airplane was doing, and I could anticipate what it was going to do next. It was a really great feeling.”
Strub had a clean flying record with no accidents, FAR violations, or insurance claims before August 28, 2004, the date his flight ended so tragically a few miles from his home base at Alexander Field-South Wood County Airport.
Strub says he intended to share his passion for flight that day by giving rides in his open-cockpit airplane. The weather was perfect, his Stearman was in top mechanical condition, and he believed his preflight planning and safety precautions were exemplary.
Strub and his passenger both wore parachutes and, during the initial portion of their aerobatic flight, remained at relatively high altitudes—all in accordance with FAA regulations and prudence. Then, on the way back to the airport, Strub descended to treetop height and following the contours of the wide, curving Wisconsin River.
FAR 91.119 places no limit on how low pilots are allowed to fly over sparsely populated areas or open water, as long as they stay at least 500 feet from any persons or vessels and can glide to a landing in case of engine failure without “undue hazard to persons or property on the surface.”
An FAA investigator later cited Strub for “careless and reckless” flying, defining the river as a “congested area,” and said Strub violated minimum safe altitude rules that require pilots to fly at least 1,000 feet above or 2,000 feet horizontal distance from obstacles. Strub said he believed at the time of the accident he was flying over a portion of the river that was free of hazards.
“I thought I was over a section of the river that I knew well,” he said. “But as it turns out, I was a mile and a half upriver from that point—and I was following a different branch. I’d never intentionally fly over any section of river that I didn’t already know.”
 

Rez O. Lewshun

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We were underwater

Strub arrived at Alexander Field early on the day of his accident. The Children’s Miracle Network was hosting a balloon rally at the airport that day, and a large group of hot-air balloons lifted off shortly after dawn to take advantage of the clear skies, cool air, and light winds.
Strub skipped breakfast and got off the ground alone in his Stearman in time to watch the balloon spectacle from above. When he landed, airport visitors started asking for airplane rides—and Strub was glad to oblige. As a private pilot, Strub said he knew he couldn’t charge for the rides. But one rider insisted that Strub take a token payment of $8—a fact that would come back to haunt him. He said he thought he could accept the money as pro rata cost sharing. The FAA later disagreed, however, and faulted Strub for failing to have a commercial pilot certificate, 100-hour aircraft mechanical inspections, a drug screening program, and other requirements for professional scenic flying operations.
Kimberly Reed, 39, of Eau Claire, Michigan, came to the airport that morning with her husband, Kevin. The Reeds were on a family vacation with their children, and the couple inquired about a biplane ride for Kimberly.
Strub had planned on parking his airplane for the day. But after giving several flights, he didn’t want to disappoint an eager passenger.
“Aerobatic or straight and level?” he asked.
Aerobatic.
They strapped on parachutes, climbed to about 3,000 feet over the verdant countryside, and Strub performed a series of maneuvers: loop, roll, half-Cuban, and two hammerheads. That was enough for Reed who said she was beginning to feel queasy.
Strub let Reed handle the controls for a few moments as they began a long descending left turn toward the water. Following the meandering Wisconsin River would be a thrilling substitute for aerobatics, Strub thought, and the river’s course would point them back toward Alexander Field.
In his carpentry business, and charity work taking disabled kids for rides in horse-drawn sleighs, Strub said he strives always to “do a little extra” to exceed expectations. On this flight, a low-level river tour was the bonus.
“We were chatting on the intercom as we descended,” Strub said. “Everything was going just fine.”
A Stearman, even a big-engine model like Strub’s, typically travels at a relatively sedate 110 miles an hour in level flight. But the sensation of speed is magnified at lower altitudes—especially with ridges of towering pine trees nearby.
Strub followed the clear, boulder-strewn river, and he was about to start a climb when he saw the wires. A cluster of them stretched across the water at exactly his height suspended from 70-foot-tall poles on both banks. He pulled back sharply on the stick—but too late.
The sagging wires wrapped around the Stearman’s main landing gear, and Strub felt the powerful airplane decelerate as the wires stretched taut.
The Stearman pulled so hard that it snapped some of the wooden poles, but the thick cords didn’t break. They clung to the airplane with a deadly grip.
Strub kept pulling on the stick in a futile attempt to climb. Then the Stearman’s nose suddenly pitched downward. Looking ahead, he saw only the rushing river.
“I remember looking straight down,” he said. “And then we were underwater.”
Was she happy?

Strub doesn’t have nightmares about the accident. The images haunt him in daylight.
“I call them daymares,” he said, “and I don’t know what triggers them. I’ll be driving down a road or thinking about something else, and suddenly the entire scene pops into my head. I remember every detail. I relive it all the time. For the first four months afterward, I cried every day.”
The FAA revoked Strub’s private pilot certificate five months after the accident and barred him from flying for one year. Months later, he was told he was the target of a criminal investigation. He hired a lawyer, and the lawyer said not to do anything until he was charged with a crime. Soon, Strub was charged with vehicular homicide, a felony that carries a maximum sentence of 10 years in prison.
Strub returned to flying as a student pilot a little over a year after his certificate was revoked. He took the FAA knowledge test again and passed a second private pilot checkride. But flying had lost some of its magic.
“I always thought of flying as the ultimate freedom,” he said. “When the wheels left the ground, I felt like I was leaving my troubles behind. But after the accident, every flight reminded me, in some way, of the accident.”
Strub had been working on a commercial pilot certificate and planned to fly agricultural aircraft seasonally in North Dakota. But he dropped those plans. He also called Kevin Reed, Kimberly’s husband, on the phone weeks after the crash.
“I just wanted to express my sadness and regret for everything that had happened,” Strub said. “It was hard, very hard. But I wanted to apologize, even though I knew my words were inadequate. Nothing I could say would bring Kimberly back. I also told him that I would answer any of his questions.
“The one thing he wanted to know was whether Kimberly had been having fun in the moments before she died. Was she happy?”
There’s a reason

As Strub prepared for trial, he gained new confidence. To convict, a jury would have to find Strub had acted “with intent to cause damage,” or that injury or death “would probably result” from his actions. Strub believed he could show that the crash was purely accidental, and that he never would have flown low over the river if he thought he was putting his passenger, his airplane, or himself, in jeopardy.
Then, at the last minute, the district attorney offered an alternative.
Strub could plead guilty to two misdemeanors, negligent operation of a motor vehicle and disorderly conduct. He still faced the possibility of jail time—but the chance of a felony conviction and 10 years imprisonment would disappear.
Strub’s lawyer was driving to the courthouse for the start of the trial and negotiating the terms of the plea on his cell phone at the same time. With mixed emotions, Strub took the deal.
A judge sentenced him to 30 days in the nearby Wood County Jail. And being in jail, surprisingly, wasn’t as terrible as Strub had imagined. He maintained his business on work release, and he even made friends with fellow inmates, most of whom were serving drunk-driving sentences.
Strub still faces a civil trial that could impose lifelong financial penalties. But he said he’s looking forward to the future despite the uncertainty.
“All they can take is everything I own,” he said stoically. “I’ll always have sadness and remorse. I was the pilot in command, and the accident was my fault. If I had flown the entire flight above 1,000 feet, none of this would have happened.”
Strub said he’s endured some dark thoughts and brief periods in which he wished that his life had ended that day, too. But he’s received hundreds of cards and letters from fellow pilots and others, mostly strangers, who sympathize.
One of the writers was a person Strub knew well—his third-grade teacher. She was a World War II-era air traffic controller, and she wrote to tell him of the burdens she and her colleagues carry from fatal mishaps that took place on their watch more than a half-century ago.
Strub said he is bitter that the civil suit against him also names dozens of other people and organizations with little or no apparent connection to the accident. The Children’s Miracle Network is named in the suit as well as balloon rally organizers he says are blameless.
Strub also thinks of Kimberly Reed, his passenger, and he wonders what she thinks of him. (He says it in the present tense.) According to a coroner’s report, Reed probably died immediately when the Stearman struck the wires. Strub clings to the hope that she didn’t suffer.
“She seemed like a really kind person,” Strub said. “At some level, she must know that her death was an accident.”
The fact that he survived a crash that could so easily have ended his life also leads Strub to believe that he is alive for an as-yet unfulfilled purpose.
“There’s a reason I’m still here,” he says. “I don’t know what it is. But I’m absolutely sure there’s a reason.”
E-mail the author at dave.hirschman@aopa.org.
 

JimNtexas

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Strub followed the clear, boulder-strewn river, and he was about to start a climb when he saw the wires. A cluster of them stretched across the water at exactly his height suspended from 70-foot-tall poles on both banks. He pulled back sharply on the stick—but too late.
This individual takes a trusting person along on a highly dangerous stunt in clear violations of both the FARs and common sense.

I tend to think that 30 days in jail was getting off pretty light.
 

sqwkvfr

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This individual takes a trusting person along on a highly dangerous stunt in clear violations of both the FARs and common sense.

I tend to think that 30 days in jail was getting off pretty light.

I agree....had he done this with a car, he'd be a felon and would have been sentenced to at least a year.
 

sqwkvfr

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“All they can take is everything I own,” he said stoically. “I’ll always have sadness and remorse. I was the pilot in command, and the accident was my fault. If I had flown the entire flight above 1,000 feet, none of this would have happened.”

Ladies and gentleman, I give you exhibit "a" in the upcoming civil trial.
 

NYCPilot

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wow. didnt hear about this one. how is it that he wasnt electrucuted as well?
 

Princedietrich

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Enough

Rez O. Lewshun

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He lost SA. He thought he was over an area of the river he knew... His actions weren't criminal.... poor judgement maybe... but not criminal.....
 

sqwkvfr

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He lost SA. He thought he was over an area of the river he knew... His actions weren't criminal.... poor judgement maybe... but not criminal.....

"I thought she was 18"
"I thought that I had hit a deer instead of a kid"
"I thought that I wasn't drunk"
"I didn't think that I hit him that hard"
"I was just trying to scare him"
"I thought that it didn't belong to anyone"
"I thought that I could get away"
"I thought the road was straight"
"I thought that this car was safe at that speed"
"I thought I was going 55"
"I thought that sign didn't apply to me"
"I didn't know that this was a school zone"

Get it?

I'd say that MOST criminal actions are the result of poor judgment.
 

Rez O. Lewshun

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"I thought she was 18"
"I thought that I had hit a deer instead of a kid"
"I thought that I wasn't drunk"
"I didn't think that I hit him that hard"
"I was just trying to scare him"
"I thought that it didn't belong to anyone"
"I thought that I could get away"
"I thought the road was straight"
"I thought that this car was safe at that speed"
"I thought I was going 55"
"I thought that sign didn't apply to me"
"I didn't know that this was a school zone"

Get it?

I'd say that MOST criminal actions are the result of poor judgment.

No I don't get it... do you? Nothing you described is applicable...

If I rent a car in a town I've never been in... and I make a wrong turn and kill somone...an unfortunatel accident.... is that criminal....?

If grandma hits the gas insted of the brake and kills a boy... is that criminal?

Are you a lawyer?
 

Dizel8

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Huh?
Had he operated according to the rules and regulations, this would not have happened. The powerlines were suspended on poles 70 feet tall, he was at or below 70 feet. Either which way you slice it, that was too low.

He broke several FAR's, including the worst offense a pilot can do, careless and reckless. Yes, that one is often misused, but in this case, it is spot on.

Sorry Rez, ignorance and poor airmanship is not an excuse. The FAR's are written in blood, I guess he decided to add more.

Like someone esle said, I think he got away easy.
 
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Rez O. Lewshun

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Sorry Rez, ignorance and poor airmanship is not an excuse. The FAR's are written in blood, I guess he decided to add more.

But it is not criminal!

He did not intend to harm anyone.

The issue is the trend is switching over to pilots who may have violated the FAR's but did so without malice or in difference... are being convicted criminally...

If anyone of us cause a runway incursion and kill people should we go to jail? Be convicted of murder? Manslaughter?

Be careful who you wish to prison... it might be yourself one day...
 

Dizel8

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Huh?
Did he intentionally fly over the river at 70 feet, yep, he admits it. Did he intentionally violate FARs, yep, he admits it.

RWY incursion are not willful and intentional, certainly none I have heard of.

Sorry, let's just agree to disagree, I think he got of easy.
 

Rez O. Lewshun

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Did he intentionally fly over the river at 70 feet, yep, he admits it. Did he intentionally violate FARs, yep, he admits it.

Again... he did, but he thought he was at a different location of the river...

RWY incursion are not willful and intentional, certainly none I have heard of.

Yet a Japanese pilot was tried for murder for the death of a FA. He was the PIC ... they went through extreme turbulence.

Sorry, let's just agree to disagree, I think he got of easy.

No we all got a bad precedence set against us...
 

sqwkvfr

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No I don't get it...

I'm not surprised.

Every statement I listed would be something that someone who committed a criminal act might say, and they certainly DO apply.....as examples of other types on "unintended" criminal actions.

Of course someone sitting in jail might not have "intended" to do the crime, but they're still sitting because their actions were criminally careless or negligent. Intent has nothing to do with it in this case.

It would seem that based on the responses on this thread so far, you're the one whose just not getting it.
 
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Rez O. Lewshun

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I guess so.....

Maybe I am the only one who doesn't think piloting should be criminal. The FARs are administrative law not criminal....


The measurement on this thread is populist... not legal....
 

sqwkvfr

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I guess so.....

Maybe I am the only one who doesn't think piloting should be criminal. The FARs are administrative law not criminal....


The measurement on this thread is populist... not legal....

You're not really dong much to change my already low opinion of you and your posted beliefs.

Piloting, is NOT criminal. Acting in a reckless or careless fashion IS.

Do you understand that? I've broken it down into simple terms so you can understand.

By your reasoning, I could "accidentally" fly into a house and kill a family of five, but since I state after the fact that I "didn't intend" to do it, it wouldn't be a criminal act under any circumstances, and I'd be somehow protected by irrevocable immunity.

That's not the sort of justice each citizen of this country is guaranteed by the US Constitution.

Your understanding of criminal law is extremely weak. You should really be careful when you state things like "populist, not legal," because you really have absolutely no idea what you're talking about.
 
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Rez O. Lewshun

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Can you provide references?


Opinions vary, however, about whether his actions amounted to criminal conduct, or whether justice is served by sending him—or other general aviation pilots involved in aircraft accidents—to prison.

Obviously I am not the only one....

In addition, he was convicted by a county prosecutor.... not the Feds....
 
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sqwkvfr

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If I rent a car in a town I've never been in... and I make a wrong turn and kill somone...an unfortunatel accident.... is that criminal....?

Oh, and YES, IT DOES....in any town in the country........unless, of course, the pedestrian was somewhere he/she wasn't supposed to be, like out of a crosswalk or crossing against a red light.

Only a person seriously removed from reality would think that killing someone as the result of a careless or reckless act wouldn't be a criminal offense.

How ridiculous.
 
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