Virginia Sherriff charges pilot with reckless flying for low pass over lake

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."
 
squincher said:
In that case, the municipality was trying to prohibit behavior that was allowed by the FAA. Making up their own rules contradictory to FAA regulations. That isn't the case here.
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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.

squincher said:
States codifying and enforcing federal regulations is common in many areas, the trucking industry probably being the largest example.
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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.

squincher said:
Let me ask this, and I'm really asking because I don't know the answer, not trying to make an oblique point. If I was to buy an airplane and just go fly around without a PPL, who could take any action against me if the state couldn't prosecute? I wouldn't have any certificate the FAA could suspend or revoke, but my state has a statute requiring pilots to be licensed and could put me in jail. Would I even fall under "regulated entities and persons" without an FAA certificate of some sort?
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There is a federal statute which makes that a crime, and the US Attorney in your district could prosecute you for it.
 
ElPaso Pilot said:
“Low-flying aircraft. Photo credit: Orange County Sheriff’s Office”

“XXXX faces an Aug. 26 court date. According to Federal Aviation Administration records, he received a private pilot certificate in 2014 and is fractional owner of a 1993 RV-6 two-seater, single-engine aircraft.”
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"Fractional owner?" How did they determine that the arrestee was flying at the time, then?

Ron Wanttaja
 
Ed Haywood said:
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.
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Not if the issue wasn't raised by the defense.

Ed Haywood said:
Maybe he should have added PoA to his legal team.
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Maybe they should have.
 
ElPaso Pilot said:
I don’t think the sheriff should have a dog in this fight, but even accounting for some perspective from the elevated deck he is taking the video from…

View attachment 109856
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upload_2022-8-23_13-33-4.png

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 ...
 
Half Fast said:
Hey, @PPC1052 ,

“The Orange County Sheriff’s Office is asking if anyone who has any information that may contribute to the case to contact Deputy Ron Kesner or Major Michael LaCasse at 540-672-1200.”

Go for it!
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I called.

Got some girl named Jenny.

Apparently she changed her number...
 
squincher said:
I am under the impression the FAA is a regulatory agency. If they had sole jurisdiction that would make it impossible for any crime committed in an airborne aircraft to be prosecuted, no?
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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.
 
Sifossifoco said:
View attachment 109861

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 ...
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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.

pencil-stick.jpg
 
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.
 
bflynn said:
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.
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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. :rolleyes:
 
ElPaso Pilot said:
is that I'm sure glad video cameras in every pocket, street corner, and doorbell weren't common in my younger days.
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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....
 
Zeldman said:
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....
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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.
 
PPC1052 said:
Not if the issue wasn't raised by the defense.

Maybe they should have.
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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.
 
Zeldman said:
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....
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Is this contest performed from the front or the back seat?
 
Ed Haywood said:
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.
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Meh. Different courts reach different conclusions on the same issue all the time.
 
squincher said:
I am under the impression the FAA is a regulatory agency. If they had sole jurisdiction that would make it impossible for any crime committed in an airborne aircraft to be prosecuted, no?
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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.
 
PPC1052 said:
Meh. Different courts reach different conclusions on the same issue all the time.
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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.
 
PPC1052 said:
Meh. Different courts reach different conclusions on the same issue all the time.
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Ok. So how many courts have reached the conclusion that state laws against reckless operation of aircraft are preempted?
 
Ed Haywood said:
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.
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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.
 
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bflynn said:
1978, Ward says the state can prosecute flying under the influence.
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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.
 
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?
 
bflynn said:
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?
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azpilot said:
https://www.wric.com/news/virginia-...es-pilot-with-reckless-operation-of-aircraft/

"According to the Orange Sheriff’s Office 65-year-old James W. Jelinek, Jr. was identified as the driver of an aircraft that flew at a height of less than 100 feet over Lake of the Woods, a private, planned residential community of single-family homes in northeastern Orange County, on Sunday, July 10.

The Sheriff’s Office has charged Jelinek with the reckless operation of an aircraft. He is scheduled to appear in Orange General District Court at 8:30 a.m. on Friday, August 26."

How fast is this getting thrown out of court???
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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
 
Palmpilot said:
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
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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.
 
SoonerAviator said:
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.
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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.
 
Salty said:
Good Lord man, you're almost as cynical as me!
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Ouch!! :confused:

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. ​

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)
 
squincher said:
In that case, the municipality was trying to prohibit behavior that was allowed by the FAA. Making up their own rules contradictory to FAA regulations. That isn't the case here. States codifying and enforcing federal regulations is common in many areas, the trucking industry probably being the largest example.

Let me ask this, and I'm really asking because I don't know the answer, not trying to make an oblique point. If I was to buy an airplane and just go fly around without a PPL, who could take any action against me if the state couldn't prosecute? I wouldn't have any certificate the FAA could suspend or revoke, but my state has a statute requiring pilots to be licensed and could put me in jail. Would I even fall under "regulated entities and persons" without an FAA certificate of some sort?
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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
 
Randomskylane said:
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
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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?
 
EdFred said:
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?
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It's for aircraft based in the jurisdiction.
 
bflynn said:
There's no apparent FAR violation in this case.
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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.
 
Dana said:
It's for aircraft based in the jurisdiction.
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Michigan tried stuff with pilot cert stuff and it got shot down on the basis that certificates are federal jurisdiction.
 
Why?
Jeff767 said:
If you do the turns over a residential lake at 100 feet I suspect you might get arrested. Why defend the pilot. It’s idiots like the guy in the pic that cause ever increasing regulations on ALL pilots.
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Ed Haywood said:
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.
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Not wrong. But not the real question I'm asking - can a state criminalize an activity that is explicitly legal under FAA regulation?
 
bflynn said:
Not wrong. But not the real question I'm asking - can a state criminalize an activity that is explicitly legal under FAA regulation?
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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.
 
Ed Haywood said:
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.
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The Great Lakes are also inland. So the middle of Lake Michigan isn't open water?
 
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