Flying and the law

[airspeed]

After reading some recent news I have a question that maybe someone can help me with. Since we have FARS and the FAA is the agency that handles all the legal matters then why do some states such as Nevada and OHio have their own aviation statues. I think it would be pretty stupid if we not only needed to know the FARs but also the local state statues. Which takes precedence, for example there is a state statue in Nevada that prohibits trick flying so does that mean if some cop thinks your doing aerobatics that when u land he can cite you? I thought that was what the FARs were for.

 

[qmaster3]

The Feds outrank state.... gets gray sometimes. The cop sure can cite you if you're in his jurisdiction. Most drunk pilots get stopped by TSA, but are prosecuted by the locals.

 

[airspeed]

So is that double jeapordy? Can anyone that has some expierience with this chime in? I just find it really interesting how this works.

 

[Metro752]

Fark the states, you better show me some fedr'l credshuls

 

[Mevans]

In general, most states have aviation statutes. The feds will govern over a state statute only when dealing with the same issue. A issue not covered by the feds might be enforceable by a state statute, as an example. Florida had statutes that deal with landing at certain airports after dark, landing on private property without the permission of the owner, etc. These would be enforecable by local law enforcement. Also, the Supreme Court has held that prosecution by a Federal Court, is a different entity than a state court, therefore, double jeapordy does not apply, (Remember the cops that beat up Rodney King, aquitted in state court, then convicted in federal court.)

 

[FN FAL]

After reading some recent news I have a question that maybe someone can help me with. Since we have FARS and the FAA is the agency that handles all the legal matters then why do some states such as Nevada and OHio have their own aviation statues. I think it would be pretty stupid if we not only needed to know the FARs but also the local state statues. Which takes precedence, for example there is a state statue in Nevada that prohibits trick flying so does that mean if some cop thinks your doing aerobatics that when u land he can cite you? I thought that was what the FARs were for.

They wouldn't even need to have a state law specifically prohibiting "trick" flying. The police could charge you with reckless endangerment.

Also, some states are now classifying vehicles as "deadly weapons" and using that as a penalty enhancer in making vehicular crimes, "violent" crimes.

So even though a state doesn't have special laws with the word "airplane" in them, they can still charge you with an act. For example, you throw a mason jar full of pee out of the old piper, because your flying buddy thinks its gross to keep it in the plane untill you land and the mason jar goes through the windshield of a car causing big accident on the highway. Do you think the police are going to look through the FAR's and find that one regarding "dropping objects"? No, they are going to nail you with reckless endangerment or something similar...something that is in the state statutes.

Also, you might want to check your state laws regarding statutes with the word, "terroristic" in them. That doesn't mean you have to wear a turban while you are breaking the law, all you have to do is put people in fear...and airplanes scare the heck out of sheeples.

So if you buzz a neighbor's house a couple times and the other neighbors have a panic attack...you could be charged with something just for scaring the crap out of people. Being in an airplane won't insulate you from being charged...it might make it harder for the cops to prove, but keep in mind that lots of cops have dash cams in their cars and those cameras can be taken out of the car to film incidents and crime scenes...like some pilot coming in for another pass on a buzz job.

Here's another eye opener for you. Police can hold you for 72 hours without charging you, even if you do the crime in an airplane and even if it is in a state with no special statutes regarding aircraft. So you do a fantastic series of buzz jobs at your friends farm on Thursday morning and Clem and Bubba the town cops see you doing it and follow you back to the airport meeting you by the plane when you land. They got a pretty good idea that you violated their state statute on "reckless endangerment" so they approach you on the field and arrest you. You make some culpatory remarks during the initial conversation which were recorded by the cops on their dash cam...keep in mind, where there is a dash cam there is a cop wearing a wireless fm microphone.

So Clem and Bubba arrest you and put you in jail to hold you for possible arraignment on charges pending a review by the prosecutor. It's Thursday right? So you are thinking the worst case scenario is that you'll be out on Saturday, because Monday is a Holiday. Wrongo.

72 hours gets stretched out, because the prosecutor didn't get you in front of the judge on Friday, it's now the weekend and the judge and prosecutor don't work Saturdays, Sundays or Holidays...so you might see the judge on Tue or Wed.

So eventually, you wind up in front of the judge on Tuesday and the judge knows that Clem and Bubba are good cops, but the judge for some reason doesn't want to pursue the matter. So he convinces the prosecutor to drop the charges. Yahoo, you are out of jail...after 5 nights of sharing a jail with winos and deadbeats.

Meanwhile, the feds have shown up and the police give them the tape that Clem and Bubba got while they were doing their "investigative" work at the airport during your arrest.

The feds hear and see all they need to and start their little administrative law tap dance on your pilot lifestyle.

I'm not certified or licensed to practice law, so there's your disclaimer...but I have a good feeling that your week could go a lot like that.

 

[midlifeflyer]

So is that double jeopardy?

It's not. Think of the police in the Rodney King case beating the state charges and then getting convicted in federal court. Or Terry Nichols being convicted by the feds and then being tried in OK for the bombings. The basic rule is that going after someone for the same conduct in two different jurisdictions does not violate double jeopardy.

On the more general question about whether a state is allowed to regulate aviation, it gets a bit grey. Federal law is supreme, but that leaves some wiggle room. The question usually turns on whether the Feds intended to stop the states from regulating some specific aviation conduct. On the one hand, "Federal preemption" over airspace has stopped cities from enforcing overflight restrictions, while, on the other, most Federal courts that have looked at the issue have said that states =can= regulate things like drunk or dangerous flying.

 

[dalegribble]

Abd it would be typical for an overzealous prosecutor and less than honorable judge and cops to focus a great deal of time and resources on you instead of crackdealers and murderers because you are easier to make a notch in their belt out of. Bottom line is cops and prosecutors and judges are given too much power at their discresion. These powers were designed for violent criminals, but guess what, you apply because we are an easy target. Rule number 1.

NEVER under any circumstance except for personal danger or emergency NEVER talk to a cop about anything!!!!!!! They will use it against you.

As far as lawyers go remember the guys arrested in Long Island NY for disorderly conduct for telling lawyer jokes at a courthouse, one of them had the charges dropped and one can face 15 days in the slammer if convicted, and it is a judge(lawyer) who decides his fate.

Great previous post by the way. You sure sound like a lawyer to me, no offense I enjoy your posts.

 

[midlifeflyer]

You sure sound like a lawyer to me, no offense

I think I've been insulted. I =am= a lawyer, but I try real hard not to =sound= like one.

 

[NEDude]

In general, most states have aviation statutes. The feds will govern over a state statute only when dealing with the same issue. A issue not covered by the feds might be enforceable by a state statute, as an example. Florida had statutes that deal with landing at certain airports after dark, landing on private property without the permission of the owner, etc. These would be enforecable by local law enforcement. Also, the Supreme Court has held that prosecution by a Federal Court, is a different entity than a state court, therefore, double jeapordy does not apply, (Remember the cops that beat up Rodney King, aquitted in state court, then convicted in federal court.)

Correct me if I am wrong, but weren't the cops in the Rodney King case prosecuted for a different crime in Federal Court than they were aquitted for in state court? If I remeber it correctly they were charged with, and aquitted of, criminal excessive use of force. The feds, unable to charge them with the same crime due to double jeopardy, charged them with a federal civil rights violation.

I think the same sort of thing is true with the Terry Nicol (sp?) case in the Oklahoma City bombing. In federal court he was charged with the murders of the federal agents killed in building, but in state court, he was charged with the murders of everyone else, again to get around the double jeopardy of being charged twice for the same crime.

Not an attorney or law enforcement. Just repeating what I remember. Feel free to correct if I am wrong.

 

[FN FAL]

If I remeber it correctly they were charged with, and aquitted of, criminal excessive use of force. The feds, unable to charge them with the same crime due to double jeopardy, charged them with a federal civil rights violation.

It's a good question, so I'm going to go research a correct answer for you. Since I'm going to school for this thing and my current class is POLICING, it would be relevant material for me to research.

For now, keep in mind that the Feds can't charge a person with "beating a guy up" unless they are crossing state lines in a spree of beating people up or unless the "beating up of people" interferes with interstate commerce.

The way this government is supposed to work, is that the Feds can only regulate things of an "interstate commerce" nature. Since slavery was abolished a long time ago, Rodney King's beating could not be viewed as a matter of "interstate commerce".

However, the issue of wheter or not police denied Rodney King his civil rights by beating him, IS a Federal matter.

So off the top of my head, I'm going to say that double jeopardy was not the issue. But I'm going to go look it up, I could be wrong.

If you remember a few years back, a racist was charged Federally in the deaths of some hitchickers. It was two black males and two white chicks, I believe. Shot 'em cold blooded. Anyway, the Feds were able to indict the racist in these murders because he denied them of their civil rights by murdering them because they were black. Had he just shot them dead in an armed robbery, the Feds would have never been able to charge in this case.

And I'm sure in this hitchicker/racist case, the State filed murder charges as well. It's not double jeopardy to do that.

 

[FN FAL]

...weren't the cops in the Rodney King case prosecuted for a different crime in Federal Court than they were aquitted for in state court? If I remeber it correctly they were charged with, and aquitted of, criminal excessive use of force. The feds, unable to charge them with the same crime due to double jeopardy, charged them with a federal civil rights violation.

Once again, great question NEDude...I found a really great site that addresses double jeopardy and both the cases you mentioned. Interesting to note, up until recent times only the Federal courts granted protections against double jeopardy. It wasn't until "incorporation" that state courts had to follow the US Constitution in this matter. "Incorporation" was viewed as interference by the several states, but I don't know how the heck we could have had a true and just justice system, if state courts did not have to follow the Constitution or Constitutional law...so in view of the benefit granted to the people, I view "Incorporation" as a good thing.

Here goes the Rodney King case:

From: http://www.csp.state.co.us/academy/ar797.htm

RODNEY KING AND DUAL SOVEREIGNTY

If a person (or persons) commits the crime of a serious assault, he can be prosecuted in a state criminal court, and regardless of whether he is acquitted or convicted of that charge, he can be prosecuted again in a federal court. That is what happened in the Rodney King case: a state prosecution followed by a federal prosecution. Sergeant Koon and Officers Powell, Briseno and Wind were tried and acquitted by a jury in a California state court. They were then prosecuted in a federal court for a violation of Mr. King's constitutional rights (by beating King very severely in violation of Title 18, United States Code, section 242). Sergeant Koon and Officer Powell were convicted by a jury and sentenced to 30 months in a federal prison. Briseno and Wind were acquitted and were later subjected to administrative action.

How could this be? How could there be two trials, expecially after one jury found them all to be not guilty of the offense?

The answer is found in the concept of "dual sovereignty". A person cannot be tried twice by the "same sovereign". In this case, the state of California and the United States are separate sovereigns. The acts of the defendants offended both sovereigns, so both sovereigns can prosecute.

If the four defendants had been convicted in the first trial in California, would that have had an effect on the decision to prosecute them in federal court? In all likelihood, yes. The United States Justice Department follows a policy of not prosecuting cases when the defendant(s) have already been prosecuted by the state, unless the Department believes that federal prosecution is necessary to advance a compelling interest of federal law enforcement. This policy was expressed in the case of Petite v. United States (316 U.S. 529 (1960)).

But O. J. Simpson was subjected to two trials in a state court, wasn't he? Wasn't he first prosecuted in a state criminal court and found not guilty... and then sued for the tort of wrongful death in a civil court? This is true, but double jeopardy does not protect anyone from a civil trial following a criminal trial--even though both trials are in the same state.

These principles are applied countless times every day in our courts. In a great many situations, we have a single wrongful act which gives rise to a criminal action followed by a civil suit. This occurs because our system requires two actions to vindicate different claims: the claim of the people of the state and the claim of the victim or injured party.

As an example, suppose a drunken driver causes death or serious bodily injury. The state prosecutes him for vehicular homicide or vehicular assault. But the prosecutor represents only the people of the state in their collective interest in seeing that crime is punished. The prosecutor does not represent the individual victim in his claim for money damages for pain and suffering, medical expenses, loss of wages, property damage and other elements of loss. That claim is pursued in a separate civil action.

In the Rodney King case, even though the officers' were acquitted in state court and convicted in federal court, Mr. King sued in a separate civil suit for money damages, and was awarded a large sum of money.

 

[satpak77]

just remember

all laws were created in a response to control society's behavior, and in an attempt to keep that behaviour "in line with" the overall general consensus of what is accepted as "good" and "bad"

laws get created via legislative process, "for the people" and/or to protect the society of said jurisdiction

So, basically, X law (FAR, federal criminal law, state law, city dog leash law, etc) was created when somebody FxxKED up and subsequently a law was created.

Many times, "double jeopardy" may occur but remember, the state law makers are "doing their job, showing the people we will not accept this", so many excessive laws get created.

It is incumbent upon the prosecutors who in-take the cases to determine who gets or who should get prosecutorial authority.

An example is the America West case in Miami. The pilots did NOT meet the federal "DUI" flying law, but they did meet the state law. This of course means that the federal case will STOP and the state case will proceed. This does not "fulfill" the double jeopardy criteria.

Had they MET the federal minimum (and that means the state min also), the fed case would likely have proceeded and the state case stopped. If BOTH proceeeded, then the double jeopardy red flag would go up.

Will the State of Florida win the America West case? Time will tell

 

[U-I pilot]

I heard there was or is a law on the books in New York that said you had to pay taxes for all flight time you flew OVER the state, even if you were just transitioning over it....
any one ever heard of this or know more about it?
Any other funny laws?

 

[midlifeflyer]

Correct me if I am wrong, but weren't the cops in the Rodney King case prosecuted for a different crime in Federal Court than they were aquitted for in state court?

That's correct. There's a broader, more technical rule involved. I'll try to explain it.

All crimes have what courts and lawyers call elements. They are the checklist of things that have to be proven beyond a reasonable doubt in order to convict someone of a crime. So for example, a DUI might be defined as "operating a motor vehicle on a public road under the influence of alcohol." "Operating," "motor vehicle", "public road", and "under the influence" are all separate elements of the offense.

Double jeopardy doesn't prevent a second prosecution if the second crime has an element that did not exist in the first crime. Pretty obvious when we look at the two King prosecutions, but it also applies to situations that aren't so obvious. For example, because of the US constitution, most federal crimes have "interstate commerce" as a element; state crimes do not. Pretty insignificant difference in the real world, but a big difference in court.

So, let's take a drug dealer who crosses a state line with a load. Potentially, three different prosecutions for the same act. Possession with intent to distribute in state A =and= in state B (that the crime took place in that state is an "element" of each state's offense) and a federal charge as well.

 

[FN FAL]

For example, because of the US constitution, most federal crimes have "interstate commerce" as a element; state crimes do not. Pretty insignificant difference in the real world, but a big difference in court.

Actually there is a boat load of significance in the real world when you're talking "interstate commerce".

In Michigan and Illinois, those states have passed laws prohibiting private possession of machine guns and supressors. In my home state and the state I live in, the state law says it's o.k. as long as the possession is in compliance with federal law.

What this means is, I don't have to drive/fly/boat/bicycle around Michigan and Illinois on a road trip from Wisconsin to Virginia and back, if I want to take NFA firearms with me on vacation. I can drive through those two states and there isn't a freaking thing they can do about it...because states can pass laws against their own subjects, but states can't enact laws that interfere with "interstate commerce."

This isn't guess work, this is done all the time...ask the question over on www.subguns.com You can even stay overnight in a hotel in that state...or all week with relatives, just as long as you don't use the NFA firearm and so long as you can prove you are just passing through.

For more on how much interstate commerce is a serious matter, go take a look at United States v. Stewart.

A guy made his own homebrew machinegun, with no intent of marketing it in interstate commerce. The feds wanted him on possession of unregistered machinegun. IE: he didn't pay the TAX. His argument is, there is not an illegal possession, if there wasn't an illegal transfer...so his claim is the feds are not owed an NFA tax.

Get it? The feds can tax you for transfering possession of a machinegun, but they cannot prohibit machineguns themselves...but they can regulate them through taxation. US v. Stewart is an interesting case, because many believe it's going to blow a hole in the 1986 Firearms Owner Protection Act.

But anyway...in correlation, the Feds are limited in what they can prosecute on. Beat up a guy because you don't like him...that's one thing. Call him a slur when you do it, that's a federal crime because you deny that person their civil rights.

"Interstate Commerce" regulation holds a significant "real world" application to me...and I'm going to enjoy every minute I have more rights than the citizens of Illinois and Michigan when I drive through those states on vacation. The only compliance issue is filling out one of these before you go...

ATF form 5320

 

[qmaster3]

Fark the states, you better show me some fedr'l credshuls

Sir Just Calm. We need to ask you a few questions. As of right now you are not under arrest, and this is merely an interview.



Sir CALM DOWN



Sir put your hands behind your back, palms facing out!