Questions affecting all of us

[FN FAL]

Thank you for the reply, but I think that Florida is going to have a huge burden to prove this and I really hope they are doing this because the pilot really could have avoided this, not just another prosecutor trying to make a name.

I think the poor pilot will be ground as if in a grist mill.

Secondly you mention motor vehicle, thats kinda broad, so if I fly a glider into a skydiver then I cannot be charged?

yea gliders count, I made a mistake when I "accidentally" used the word motor in there. Yes, that's my bad and yes a glider is a vehicle.

Also by skydiving you are already putting your life at risk and it does happen when jumpers and planes collide.

Yes, we all know that we are at great risk when we ride in cars. But that doesn't mean our friend can do a powerstand after he/she lets us out and then run over us.

But my main reason for posting this is lets say your flying a Challenger out of PBI and 10kts prior to V1 a tire burst and you go off the rwy and someone gets killed. Now will someone say hey you didnt do a good enough preflight on those tires, we are going to charge you with manslaughter?

Depends...especially if somone can prove you knew the tire was flat spotted or underinflated. You won't be negligent if the tire blows because of fod. This is why you must adhear to your company manual, the FARS and good operating practices, because if something does happen...

 

[FN FAL]

What about all the paperwork you sign before you jump saying you can't sue anyone if you die?? I guess there isn't anything that says the government can't charge you with a death or injury? I have only gone sky diving once and the paperwork was the scariest part of the whole experience....

It's funny you should mention waivers. You are correct, we skydivers do sign covenents not to sue each other.

 

[FN FAL]

Come on FN, I normally agree with most things you write but those analogies have nothing to do with this. If the pilot flew into the jumper on purpose I could see him being charged, but if he didn't do it on purpose, then this is a very dangerous direction for all of us.

I don't know the history of what happenen, but did the pilot of the otter attempt to allude authorites? Did he land as soon as this accident happenend?

That statute you cite(782.071), does that really apply here? Was he operating recklessly?


Ak

these aren't analogies. Do a search on the google using a term called "over criminalization". You'll be suprisingly shocked at what you read.

 

[FN FAL]

these aren't analogies. Do a search on the google using a term called "overcriminalization". You'll be suprisingly shocked at what you read.

I used this one to do a paper on "overcriminalization" and yes, airplane operation correlates to the story at the end, especially if you do line checks, work as a CFI or are a company check airman...

http://www.heritage.org/Press/NewsReleases/nr042103.cfm

It was not always so, Rosenzweig notes. For hundreds of years, only those who wrongfully injured others and did so intentionally were subject to criminal punishment. Accidents did not qualify as criminal behavior. Neither did negligence. Those responsible for accidents or negligence that harmed others paid for the damage in civil suits. Courts assisted in deciding how much, but they never considered using criminal sanctions to deliver “social justice.”

Today, accidents and negligence are frequently prosecuted as crimes, says Rosenzweig, Senior Legal Research Fellow in the Heritage Foundation’s Center for Legal and Judicial Studies.

More and more actions previously considered mere civil transgressions are being criminalized. People who violate federal regulations are held responsible for “crimes,” even if they didn’t know those regulations existed or, in some cases, even if they had ordered their employees not to violate the regulations.

“There is market of public approval for more criminal laws, and no effective consideration of countervailing costs to society,” Rosenzweig says. “In the absence of any judicial check on this trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public.”

The Founding Fathers established exactly three federal crimes in the Constitution—treason, counterfeiting and piracy on the high seas. Today, the Congressional Research Service says it can’t even count the number of federal crimes. The American Bar Association reported in 1998 that there were at least 3,300 separate federal offenses and nearly 10,000 administrative regulations that also can lead to criminal prosecutions. They are scattered over 50 sections of the United States code and consume more than 27,000 pages. Though the oldest of these regulatory criminal laws date to 1850, more than 40 percent of have been enacted in the last 30 years.

This growth, Rosenzweig says, has consequences. Federal attorneys now spend far more time prosecuting behavior that is criminal only because federal law prohibits it than they do on behavior that is criminal because it is morally wrong. Between March 2001 and March 2002, federal prosecutors initiated more than 62,000 such cases against nearly 90,000 defendants.

Ask Edward Hanousek what happens when the concept of enforcing laws veers so far off course. Hanousek was employed as a road master by the White Pass and Yukon Railroad, which runs from Skagway, Alaska, to Whitehorse, Yukon Territory, Canada. As such, Hanousek was responsible for maintenance and construction of the track and other facilities of the railroad.

A high-pressure pipeline carrying fuel oil ran alongside the track. One evening, after Hanousek had left work for the day, Shane Thoe, a backhoe operator who worked for a contractor hired to load rock onto railroad cars, loaded a train with rock. After the train departed, Thoe noticed some rock remained on the track. He drove the backhoe down and removed the rock. In the process, he ruptured the pipeline, spilling fuel oil into the adjacent Skagway River.

Hanousek, not Thoe, paid the price in criminal sanctions because, according to the courts, he had failed to supervise Thoe sufficiently. Hanousek and his superior—Paul Taylor—were charged with negligently discharging pollutants into a U.S. waterway and making false statements to Coast Guardsmen investigating the incident. Taylor was acquitted of both charges, and Hanousek was acquitted of making the false statements. But Hanousek was convicted and sentenced to six months in prison because he failed to appropriately supervise the project.

He did nothing morally wrong. He had gone home for the day and had no knowledge of Thoe’s actions. Thoe was charged with nothing. Yet, Hanousek spent six months in prison. This, says Rosenzweig, is the type of use of criminal law that must be reformed.

 

[FN FAL]

Come on FN, I normally agree with most things you write but those analogies have nothing to do with this...Ak

Here is something I found over at a Georgia Defense Attorney website:

Involuntary Manslaughter –According to Georgia law, there are two types of involuntary manslaughter. Neither type requires that the defendant actually intend to kill the victim.
"Unlawful Act" Involuntary Manslaughter - O.C.G.A. 16-5-3(a)

The first type of involuntary manslaughter is considered a felony. It occurs when the defendant commits a non-felonious crime, (a misdemeanor) which results in someone’s death. This is also sometimes referred to as "misdemeanor manslaughter".

Punishment: felony – 1 to 10 years in prison.

"Criminal Negligence" Involuntary Manslaughter - O.C.G.A. 16-5-3(b)

The second kind of involuntary manslaughter is a misdemeanor. It happens when the defendant commits a lawful act in an unlawful manner which is likely to cause another person great bodily harm or death (in other words, another person’s death results from the defendant’s criminally negligent conduct). It is difficult to determine exactly what conduct is required in order to be considered criminally negligent. If it appears that a reasonable person under similar circumstances would have known that the act would endanger others, and the defendant committed the act anyway, then the defendant’s behavior is probably criminally negligent.
Punishment: Misdemeanor

 

[FN FAL]

And I know this is getting repetitive, but just one more:

http://accident-law.freeadvice.com/auto/negligence.htm

What is negligence?
A person is negligent when he/she fails to act like the standard Ordinary, Reasonable Person. Just how an "ordinary, reasonable person" is expected to act in a particular situation can be a gray area of the law. For example, an ordinary, reasonable person can travel down the highway at 60 miles per hour but if dense fog is present, the same ordinary, reasonable person may be expected to reduce his/her speed of travel to 40 miles per hour. The determination of whether a person has met his/her standard is often resolved by a jury after presentation of evidence and argument at trial.

 

[AngelKing]

I think any of us could find examples all day long of overzealous prosecutors trying to stretch the law. But I think the post was about a trend developing in the U.S. of trying pilots for criminal acts in accidents. This has not happened very much in this country, unlike in other countries.

But I applaud you for all the research you did.

AK

 

[avbug]

No, I dont think its that simple at all. Rape is not under any FARs that I know of!! #2 How can a state regulate what is careless flying when the airspace is controlled by the feds??

Weather rape or any other crime is considered under the administrative regulations (United States Code of Fedeal Regulations) or not isn't relevant to a criminal case. If the crime took place, it falls under criminal law...not just administrative law.

The regulations you think of as the "FARs" are administrative law. Regulations, really, prescribed by the same body that interprets and enforces them. Not so with criminal law. This is "real" law, and it always has hold over you. Don't think that because your wheels don't touch the ground, you're exempt from criminal law.

You've completely neglected to consider civil law. This is the law regarding weather the estate of the deceased may sue or bring a lawsuit. Yes, they may. They can do whatever they like. The "FARs" have no bearing on their ability to sue or win. The FAA may take it's recourse in certicate action and sanctions within the scope of their administrative authority. They may also seek civil sanctions in the form of fines, and have the ability to press for criminal prosecution, also.

However, the FAA doesn't have the corner on the market with respect to prosecution. Commit a criminal act with an airplane, rest assured that you stand a very high probability of being caught, and being tried by an authority that makes its business of doing so in the criminal court. In this case, the State of Florida is pressing criminal charges. This isn't new, it isn't a new trend, and it's always been possible.

In this case, a pilot disregarded safety and made a low pass, striking and killing someone in the air. Had he distracted a motorist who lost control and died or killed someone, chances are he would be facing the same prosecution.

Several years ago I was on a skydive at DeLand which was commemorating the Drop Zone Owners (DZO) birthday. At the conclusion of that skydive, as I was approaching the landing area outside the drop zone buildings, the jump aircraft made a low pass just beneath me. I was setting up to land and didn't see him coming. I only saw him pass directly beneath me. We were close enough that upon landing his wake interfered with my canopy and I had a hard landing. I was not happy with his decision to make that pass, or that act. It goes on all the time, but that doesn't justify the act. Had he struck me or anybody else, I'd be very much for criminal charges.

The airspace is regulated in operation by the FAA. However, the FAA by no means has the corner on the authority to prosecute for criminal acts. Merely because something isn't mentioned in the "FAR's" doesn't mean there isn't a law against it. The FAA has 91.13 and a host of other regulations available to take certificate action against the pilot, but the pilot has also vioalted state and federal laws, and an injury and death has occured as the result.

The pilot is going to find himself dealing with civil, criminal, and administrative law, and that's all there is to it. This isn't a new, disturbing trend. It isn't the first time, and it won't be the last. He decided to have some fun, and killed a jumper. That's a criminal act, and should be treated like one.

If the pilot flew into the jumper on purpose I could see him being charged, but if he didn't do it on purpose, then this is a very dangerous direction for all of us.

Ah, so it's okay to kill someone by mistake. So long as we don't intend for someone to die, we should just chalk it up to experience? Someone commits a dangerous, stupid act and kills someone, and you think prosecuting them for the death is dangerous to the rest of us?

Hello! This is reality...welcome. Don't let it shock your system.

Also by skydiving you are already putting your life at risk and it does happen when jumpers and planes collide.

I'm not putting my life at risk when I skydive. I'm engaging in a sport that's recognized worldwide, and from which I have every reasonable expectation of walking away. I have a legitimate privilege and right to engage in and accept responsibility for my actions, my pack job, in freefall, and as a canopy pilot when landing.

You cannot compare a skydive, with being struck by a careless pilot making a reckless act, in a place he shouldn't be, below an altitude where he should be, while violating numerous regulations. You might as well compare bull horns to chicken eggs...there is no comparison between the two.

By your logic, then, it's okay to put a .308 bullet through the skull of a NASCAR driver during a race. After all, he could crash and get hurt or killed anyway, so why not just do what nature might otherwise do? Or how about this...everybody is going to die anyway, so what's the harm in killing anyone, outright? Kill them all, right?

Your logic defies reason, even childish reason.

But my main reason for posting this is lets say your flying a Challenger out of PBI and 10kts prior to V1 a tire burst and you go off the rwy and someone gets killed. Now will someone say hey you didnt do a good enough preflight on those tires, we are going to charge you with manslaughter?

Again, your logic is severely fouled. An equipment failure that causes an accident or incident is not the same as flying an airplane directly at someone and striking them, severing their legs, and killing them. Not at all. You might have a better chance at comparison if you put someone on the runway directly in front of the challenger and then began the takeoff roll, and struck the person standing on the runway. Except that even then, the person on the runway would still be out of place. But not the skydiver, on a legitimate skydive, setting up to land (who incidentally has the legal right of way). It was the airplane committing a dangerous act, which resulted in a criminal act...in this case pick your poison. Negligent homicide, manslaughter, or so on.

What about all the paperwork you sign before you jump saying you can't sue anyone if you die?? I guess there isn't anything that says the government can't charge you with a death or injury?

A fundamental rule is that you can't sign away the rights of your estate. Your estate doesn't exist until you are dead. Once you die, your estate comes into being, and the rights and privileges of your estate are not bound by your covenant not to sue. The waiver may say you promise your estate won't sue, but it's meaningless, because your estate does not exist, and you cannot sign for the estate where it does not exist. This isn't a living will and testament.

If you violate a law, you can be charged, period. Why is that so hard for every one to understand??

 

[FN FAL]

I think any of us could find examples all day long of overzealous prosecutors trying to stretch the law. But I think the post was about a trend developing in the U.S. of trying pilots for criminal acts in accidents. This has not happened very much in this country, unlike in other countries.

But I applaud you for all the research you did.

AK

There isn't a trend, most of these laws are new, that's why you're just starting to see them being used. And there isn't any stretching being done by prosecutors...kill or injure somone negligently, whether it's with your boat, car or airplane and you will find yourself prosecuted.

 

[AngelKing]

Avbug, take a rest. I didn't say it was ok to kill someone by accident. But there is a big difference in just flying along minding your business and a skydiver winds up in front of you, to aiming at someone and hitting them.

And as I stated earlier, I wasn't very familiar with the accident. What "dangerous, stupid act" was the pilot performing?

Can't you make an intelligent post without belittling the original poster or is that the only way you can make an argument?

AK