Pilots detained in Brazil

[AngelKing]

Well the subject of US Citizens traveling outside the country is an interesting topic. And I think a lot of people are naive when it comes to that, (going to Belize is not like going to Florida!) However I'm more interested in the criminalization of accidents aspect. This is a big deal IMO. Are we going to start prosecuting every time there's human error or oversight that causes a crash? Things like "willfull misconduct" and "gross negligence" are in the eye of the beholder. I'm afraid if we let this genie out of the bottle family members will no longer be satisfied just suing the pants off everyone, they're now going to want to see individuals actually thrown in jail. If this is where we're heading I think I'd rather not survive the accident.

You are confusing someone making an honest mistake and someone who for whatever reason just chooses to disregard a clearance(if this was the case).

If it was an honest mistake(can happen to anyone), then I agree with you. If they just chose to fly whatever altitude they wanted(if this was the case) then I think they deserve whatever comes to them.

AK

 

[A Squared]

However I'm more interested in the criminalization of accidents aspect. This is a big deal IMO. Are we going to start prosecuting every time there's human error or oversight that causes a crash?

well, it's coming, like it or not. At least It seems to me that that it is a growing trend. Perhaps it's always been this way and I'm just becoming aware of it. At any rate, pilots are being prosecuted criminally for aircraft accidents. 2 that come immediately to mind are the Twin-otter/skydiver collision in Deland, and the accident that I mentioned in my previous post.

In the Deland accident, thre seems to be some evidence that the pilot intentionally dived on the skydiver under canopy, something he had done before with this guy, an accquantaince. If this is true (and I have no way of knowing if it is) that sounds to me like a willfull reckless act. In the other case, the pilot was flying an Maule with one more adult passenger than there were seats installed, the airplane was out of annual, and it was very probably loaded over the max gross weight. Again, in this case those were willful, illegal acts which factored into the accident.

So, should we as pilots be above the law? Certainly we aren't as drivers of automobiles. I think we can all agree that someone driving 80 through a school zone ought to go to jail whether or not he hits someone. Killing a child while doing so just makes it manslaughter rather than reckless endangerment.

 

[handlesaregay]

Well I'm not a lawyer. And I'm not saying no one should ever be punished if they do something wrong. But used to be the worst thing that could happen to you unless you deliberately caused an accident was a civil action where you lost your career, your finances, and your certificates. Now we're piling criminal charges on top of that. I'm not saying manslaughter charges are never appropriate, I just think it should be reserved for extreme scenarios like the skydive example. As for the second one, there are thousands of accidents every year that would could meet that standard. Taking off over max gross? Airplane overdue for an annual? I'm just not sure where you draw the line... What about knowingly driving through a school zone in the rain with bald tires? Seems pretty "negligent" to me.

 

[A Squared]

Taking off over max gross? Airplane overdue for an annual? I'm just not sure where you draw the line...

I don't know where you draw the line either, and I don't think we disagree significantly ...like you said, it does come down to "where do you draw the line?" From one perspective, overloading an aircraft, having passenger less thn or equal to the number of installed seats, and being within the anuall inspection period are all very clear, well defined lines of legality. That makes it a lot easier to stand up in court and say here's a simple, easily understood, easily complied wit regulatin, and it was ignored, and it lead to a fatal crash. Just for the record, the expired annual doesn't seem to have been directly related to the crash, but the overloading does. The expired annual won't look good to the jury though.

What about knowingly driving through a school zone in the rain with bald tires? Seems pretty "negligent" to me.

Possibly, although "bald" tires isn't nearly as clear a line as overloading an aircraft or flying out of annual. Ceratinly there's an obligation to keep your car in good condition.

 

[NuGuy]

Yeah, isn't it amazing how everyone treats your citizens like ******************** when your government is one of the most unpopular governments in the world?

Sorry, but many places south of the border have been corrupt sh!it holes since far before the current issues.


Nu

 

[handlesaregay]

I don't know where you draw the line either, and I don't think we disagree significantly ...like you said, it does come down to "where do you draw the line?" From one perspective, overloading an aircraft, having passenger less thn or equal to the number of installed seats, and being within the anuall inspection period are all very clear, well defined lines of legality. That makes it a lot easier to stand up in court and say here's a simple, easily understood, easily complied wit regulatin, and it was ignored, and it lead to a fatal crash. Just for the record, the expired annual doesn't seem to have been directly related to the crash, but the overloading does. The expired annual won't look good to the jury though.

But typically aren't these considered civil matters?

Ceratinly there's an obligation to keep your car in good condition

I would hate to wind up in jail because I didn't take care of my car. Just because there are human factors doesn't make very accident a crime. Am I criminally liable if I didn't get enough sleep the night before an accident where fatigue is found to be a factor? Once you open that door I don't see where there's any end to it.

 

[handlesaregay]

You are confusing someone making an honest mistake and someone who for whatever reason just chooses to disregard a clearance(if this was the case).

If it was an honest mistake(can happen to anyone), then I agree with you. If they just chose to fly whatever altitude they wanted(if this was the case) then I think they deserve whatever comes to them.

I think we're all pretty much on the same page. Deliberately ignoring an altitude assignment on an IFR flight would probably reach the threshold of criminal. But we have to be careful to distinguish deliberate acts and mere mistakes, bad judgement, etc. Deliberately doing something so reckless it causes you to crash in to a school full of children = criminal. Doing shoddy pre-flight planning that causes you to run out of gas and crash in to a school full of children = not criminal. However it will probably result in your license being revoked, your estate being sued, and your immortal sole burning in Hell for all eternity. Okay I made that last one up.

 

[windshearwill]

Then I might suggest being more careful in a "3rd world".


AK

Angel King,

I agree with you 100%, if anyone breaks the law they should get punished. Regardless of what country he or she is at. If you are afraid if foreign laws don’t fly over seas. After all not everyone in the world agrees with American capital punishment.

 

[FN FAL]

I think we're all pretty much on the same page. Deliberately ignoring an altitude assignment on an IFR flight would probably reach the threshold of criminal. But we have to be careful to distinguish deliberate acts and mere mistakes, bad judgement, etc. Deliberately doing something so reckless it causes you to crash in to a school full of children = criminal. Doing shoddy pre-flight planning that causes you to run out of gas and crash in to a school full of children = not criminal. However it will probably result in your license being revoked, your estate being sued, and your immortal sole burning in Hell for all eternity. Okay I made that last one up.

Wrong...you just described the difference between a "reckless homicide" and a "negligent homicide".

Homicide is not murder, it is the unlawful or unnatural death of a human by action or inaction of another human.

The Reduction And Elimination Of The Mens Rea Requirement

The Historical Meaning of Mens Rea

The second fundamental precept of criminal law is the concept of mens rea (mens rea is Latin for "guilty mind"; lawyers use it as a shorthand for the concept of intent), which must be joined with the illegal act. Historically, the law has required that before an individual is deemed a criminal he must have acted with an intent to do wrong. Accidents and mistakes are not considered crimes: "It is a fundamental principle of Anglo-Saxon jurisprudence that guilt . . . is not lightly to be imputed to a citizen who . . . has no evil intention or consciousness of wrongdoing."46 In this area also, recent developments of the law have diverged far from that model.


Courts attempting to define the degree of intent (also sometimes called "scienter") that the government must prove for various criminal statutes have often written of the difficulty in determining what intent requirement the legislature adopted and in defining the terms that the legislature used. There is "variety, disparity and confusion" in the many judicial definitions of the "requisite but elusive mental element" of many criminal offenses.47

In a clarifying effort, the Model Penal Code has recognized four different states of mind from which a legislature might chose in defining a crime's scienter requirement: purpose, knowledge, recklessness, and negligence.48 To these four, one may add a fifth possibility: strict liability (or the proof of a crime without proof of any intent).

By "purpose" one means the intent to purposefully do an act, knowing that it is an unlawful act. By "knowledge" one means the intent to do an act, deliberately and not by mistake or accident, but without the additional requirement that the actor know his act was unlawful. "Recklessness" means a callous and gross disregard for a risk created by an actor's conduct (what one might colloquially call "criminal negligence"). By contrast, "negligence" is intended to denote simply a failure to take the care that a reasonable person in a similar situation would.


Each of these intent requirements thus connotes a progressively less directed and intentional form of conduct. And the trend in criminal law has been to follow that progression; history tells the tale of diminished intent requirements for criminal laws.
The requirement that a crime involve culpable purposeful intent has a solid historical grounding. As Justice Robert Jackson wrote:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."49
​

Thus, the very earliest English common law recognized that one who intended to commit an act (say injuring a horse) and who mistakenly committed a different crime (killing the horse) could not be said to have intended the graver crime of intentional killing of the animal.50

To Act "Knowingly"

But this conception of intent (or what the Model Penal Code would call "purpose")--that is, a conception necessitating proof that a defendant intended both to do the act which constituted the offense and to accomplish the particular harm prohibited--did not long survive even in the common law. The English and American courts quickly came to the view that in most legal contexts a criminal actor who intends to engage in an act is liable for whatever harm eventuates, even if it is different from that which was within his original contemplation.51 In the words of the Model Penal Code one can act "knowingly" or with the general intent to do the acts which constitute the offense without regard to any specific intent to do a wrongful act or violate a law.52

In the context of regulatory offenses this concept of "knowing" intent has also taken hold. Building on the time-honored maxim that "ignorance of the law is no excuse" courts now routinely conclude that one can be convicted of a crime for having acted knowingly (that is purposefully doing an act) without the additional requirement that the government prove that the defendant had a conscious desire to achieve a particular end or to violate a known legal duty (typically one found in the form of a statutory or regulatory prohibition). Thus, for example, violations of the Sherman Antitrust Act require only proof of deliberate business conduct without proof of intent to monopolize or intent to violate the law.53

To Act "Recklessly" or "Negligently"

The law also recognizes yet another culpable mental state with a further diminished aspect of purposefulness: One may be deemed guilty of a crime if one has acted with "criminal negligence." One common law definition of "criminal negligence" (that is, negligence of such a substantial kind and degree as to warrant punishment) suggests the nature of the historical definition: "aggravated, culpable, gross or reckless [conduct], that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life."54 Under this standard, for example, chiropractic doctors who have recommended fasting as a treatment for tuberculosis have been convicted of culpably negligent manslaughter.55 Today, this type of "negligence" is more commonly called "recklessness"--that is, the awareness of a risk and disregard of the risk in circumstances that the law would consider unreasonable.


But this definition, limiting "criminal negligence" to, in effect, wanton recklessness, is no longer the rule. In many instances, the courts have allowed criminal convictions upon a showing of simple negligence--that is, a mere failure to exercise "reasonable care" that might normally give rise to civil tort liability. These cases, in contrast to those involving reckless conduct, concern situations where the actor was actually unaware of the risk involved, though perhaps he ought to have been.


http://www.heritage.org/Research/LegalIssues/lm7.cfm

 

[FN FAL]

in case that was too much reading for ya, from the Commonwealth's Attorney office in Lou-a-ville, definitions of varying levels of negligence:

http://www.louisvilleprosecutor.com/definitions.htm#N



[FONT=Arial, Helvetica, sans-serif]NEGLIGENCE [/FONT][FONT=Arial, Helvetica, sans-serif]... the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.[/FONT]

[FONT=Arial, Helvetica, sans-serif]Slight Negligence: A failure to exercise great care. It is an absence of that degree of care which persons of extraordinary prudence and foresight are accustomed to use. [/FONT]​

Ordinary Negligence: The omission of that care which a person of common prudence usually takes of his own concerns. It is a lack of the care that the great majority of mankind exercise under the same and similar circumstances.​

[FONT=Arial, Helvetica, sans-serif]Gross Negligence: [/FONT][FONT=Arial, Helvetica, sans-serif]The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It amounts to an indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected.[/FONT]​