Is A Crash A Crime?

In many countries accidents are considered to be criminal acts. Italy and Brazil come to mind as nations that have treated high profile aviation accidents as criminal acts by the pilots involved.

 In Italy several years ago a U.S. military pilot flew into a ski lift cable system and a number of people on the lift were killed. The Italian government sought to prosecute the pilot. In Brazil an Embraer business jet on a delivery flight back to theU.S. collided with a Boeing 737 airliner causing the Boeing to crash killing all aboard while the Embraer crew was miraculously able to get the badly damaged business jet safely to a runway. The Brazilian courts prosecuted the Embraer pilots for a criminal act.

 In theU.S. we have created a system that treats accidents as accidents, at least in the criminal sense. There is financial liability involved after most crashes, but the actions of those involved are treated by the government as mistakes, not willful actions that could be a crime.

This attitude toward accident investigation has helped make the U.S. aviation system the safest in the world. Everyone involved in the post-crash investigation knows that they can cooperate without fear of jeopardizing their freedom. It takes cooperation from all to uncover the chain of events that lead to crashes, and by knowing what caused an accident we can help prevent the same occurrence in the future. That’s one of the essential reasons that NTSB findings are not admissible in courts. The NTSB must remain independent so all involved in an accident are encouraged to cooperate fully in the investigation.

 But now a prosecutor and grand jury in Massachusetts are charging the pilot of a Cessna 310 with involuntary manslaughter. The pilot crashed the piston twin short of the runway in darkness killing his daughter, the only passenger.

 The NTSB has not completed its investigation and issued a probable cause of the accident that happened in January of 2011, but it is the facts in the case that have driven the prosecutors and grand jury to bring charges.

 The pilot/owner of the Cessna 310 did not have a multiengine rating. The NTSB reports the pilot had about 500 hours of total experience, and he had gone through a period of six or seven years of no flying before he purchased the 310. The NTSB believes he received approximately 50 hours of multiengine instruction but never attempted the check ride necessary to earn the multiengine rating.

 Commanding an airplane that you are not rated to fly violates the most fundamental FAR. It is not possible the 310 pilot could not have known that he was not FAA approved to command the piston twin flying solo, and certainly not with a passenger.

 The other basic rule that was broken is lack of night currency. The pilot had not logged the required three takeoffs and landings at night within the previous 90 days that are necessary to legally carry a passenger when flying in darkness.

 The reality is that almost every accident involves at least some violation of the rules. After all, it is essentially illegal to crash. But is this accident different? Are the rules violations involved so willful and premeditated as to rise to the level of a criminal act?

 We all deplore the actions of the 310 pilot and nobody can condone flying—much less carrying passengers—without being approved to do so. But I hate to see any aviation accident enter the nether world of the criminal court system.

 To my thinking criminal sanctions are intended to deter others from committing the same illegal act and to punish the criminal to help prevent the convicted from breaking the law again. The criminal just system is designed to protect the rest of society from harm. And I am sure that the grand jury and prosecutors in this case believe they are issuing both a deterrence message and punishing the pilot.

 But I think this is a bad trade. It’s true the pilot’s willful disregard of the rules helped put his passenger’s safety at risk, and also increased the risk of people on the ground near the flight path. On the other hand, the cooperation of pilots and all others involved in accident investigations is so fundamental to improving safety that punishing one bad actor can have a chilling effect on all pilots and thus cause greater harm to overall flying safety.

 This pilot killed his own daughter and I can’t imagine a punishment more severe. As for prosecution acting as a deterrence I think it will only deter all of us from working to promote safety by uncovering all of the details of the chain of events that lead to most accidents.

 Bottom line this was a terrible piece of flying, and that’s true of many accidents. We must work to improve all of our flying abilities and procedures, not threaten to jail those who screw up. Safety will suffer.

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32 Responses to Is A Crash A Crime?

  1. Sorry Mac, I’m going to disagree with on this one. This guy showed a fundemental disregard for human life in this case. That the person killed was his own daughter is irrelevant to the criminality of the act. The FAA has no power to punish this man beyond revoking his airman certificate, and that just isn’t enough.

  2. John Waters says:

    Forgetting to extend the gear is an accident. A few years ago a 747 attempted to take off on the wrong runway. Despite the huge loss of life that was also an accident. Flying an aircraft in the full knowlege that you are not licenced or qualified to do so is not an accident. It would most likely cost you your licence for several years. Doing so with a passenger? More time. And that’s without a crash.

    Probably 99.9% of aircraft accidents are just that-accidents. Sadly,this one seems to have crossed the line.

  3. Jon C. says:

    For better and worse, we have made certain types of negligence and lack of due care into crimes. If a drunk driver kills someone in an auto accident, they didn’t get into the car with the intent to kill someone – it was an accident. But that driver is criminally prosecuted because their actions were so negligent as to significantly change the odds of an accident.

    Seems like this one skirts that border between accident and negligence. My only concern would be for charges sticking on the night currency – that is minor and nitpicky enough that it should not rise to the level of criminal negligence in my mind.

  4. Manny says:

    Mac you are badly mistaken in this case. His actions were willful and reckless and were so far from “accidental” that he deserves to be prosecuted. In accidents like this the FAA and NTSB do not need the pilot’s cooperation to figure out what happened. Tragically, his child was killed but many others on the ground were at risk. Throw the book at the guy.

  5. David G says:

    You are way off base in a number of areas on this one, Mac. You write: “In the U.S. we have created a system that treats accidents as accidents, at least in the criminal sense.” But this is not true at all. The easiest place to look is motor vehicle incidents and accidents. The mere act of driving while impaired (from alcohol, illicit or legal drugs or even sleep deprivation) can be a criminal act even if no accident occurs. And even if you are not impaired and following all the legal rules you can face criminal charges from a motor vehicle accident.

    In your example the pilot did not have a twin rating and was not night current yet he decided to fly with a passenger anyway. The law should disregard the nature of the pilot’s relationship to the passenger. It is no more legal for the pilot to fly with his own daughter as a passenger than it would be for him to fly with your daughter, Mac. And would you feel the pilot had been punished enough if it had been someone else’s daughter killed in this incident? How would you feel about the criminality of this incident if someone on the ground had been killed by a pilot who lacked proper the rating to operate the equipment he was flying and also failed to meet the currency requirements for the time of day of the flight?

    The standards for criminality should be the same for cars and planes. Driving and flying are both activities that can put the vehicle operator and passengers as well as others in the area at risk. If the operator’s behavior is negligent or irresponsible and damage, injuries or death occur, then there likely will be (and should be) criminal charges brought. I am a pilot and I love to fly. But sometimes the pilot community can be too defensive, as if we have a right to fly. We do not. Flying is a privilege and we must protect this privilege by exercising all possible care when we fly and punishing those who do not.

  6. Roger N. says:

    I agree with Crystal, and I would like to add. NTSB has not determined the cause, so I think some of the commenters have jumped to a verdict without having all the facts. Mac, you say ” ……the facts in the case have driven the prosecutors and grand jury to bring charges.” But we don’t have all the facts. Suppose that NTSB determines that mechanical failure caused a power loss on short final? Or a flap failure? Or some other factor? That changes everything. Further, it appears the pilot flew with an instructor for 50 hours preceding the accident, so can we say that a lack of proficiency was a factor? Having a particular rating is no guarantee of proficiency; (how many of us fly barely enough hours to stay legal?). We don’t know why he hadn’t gotten the multi-engine rating; that matters, too. Suppose he did not have a passenger aboard, but was simply getting night current and had the accident. The passenger’s presence had nothing to do with it. The Court involved should wait until NTSB issues its report. Then let the wheels of justice turn.

    • No, no, and no. This crash should never have happened because this guy should never have been flying, period. The fact that he does not hold a ME ticket is not in dispute. He knew it when he got into the airplane.

      That the NTSB has not reached a final determination may also be irrelevant. I am not sure about criminal trials, but NTSB reports are not admissable in civil actions so the jurors may never hear what the NTSB determines.

      This incident shows a complete disregard not only for the rules but also a disregard for the value of human life, perhaps even made worse because the passenger was his daughter.

  7. Matt S says:

    I believe the action and the result need to be separated. The result, a crash and death is certainly not premeditated. Flying without a licence, like driving without a licence carries administrative penalties which apply. Irresponsible action is a question of actual competence. The logic here is had the pilot had a European ATPL with 1000 hrs. C310 time (a licence not legal in the US) the same arguments would apply. Let’s not let justice be coloured by the tragic loss of life. The penalty for incompetence in flying is unfortunately often death. Threatening with jail as a penalty won’t improve competence or safety, education will. That is why penalty free analysis of occurrences is so important.

    • bc says:

      “Let’s not justice be coloured by the tragic loss of life”. Cannot agree with this at all. If I get drunk and get pulled over in my car, I will likely face serious fines, loss of license, etc. If I get drunk and kill someone in my car, I likely go to prison. Same error in judgement with radically different consequences and outcomes. I see this accident the same way.

  8. Rae Willis says:

    I believe that there are some pilots who think they are above the law, just as there are drivers with the same attitude. Innocent persons should be protected from these types of individuals. In this case perhaps the law can prevent this pilot from taking another life. There was after all a well publicized case last year of a pilot who crashed and killed family members, then did the same thing again a few years later, this time taking his own life. Perhaps in this case the pilot can be saved and no one else will be harmed as a direct result of his reckless and unlawful actions. In addition, GA suffers when pilots act with wanton disregard for rules and regulations and it casts suspicion on those unfortunate enough to be involved in aircraft incidents and accidents that are truly accidental whether they be mechanical failures or judgmental falures.

  9. Frank R. Sandoval says:

    I am disappointed in most of the posts on this article because I am certain most are comments by pilots. If the truth were known, the District Attorney merely sees an opportunity to get a collar at the expense of General Aviation. Does the FAA not impose enough penalities to it’s own. What most don’t know is that when the District Attorney presents his cases to the Grand Jury, no one is allowed to dispute his weak arguments and usually presents arguments without any basis or evidence. Sure, he gets a true bill in this case but, he will just waste the county funds to get his name before the media. He will not make himself available or release any coverage when he loses this one. History reflects that you can obtain more favorable results with education and awareness as opposed to more laws, regulations, or enforcement. I agree totally with you Mr. McClellan.

  10. Pete says:

    So am I reading that an ME sign off in his log book would have changed the end result? Come on Folks, an accident is an accident.

    • Borneo Pilot says:

      First of all, a ME rating is not just an endorsement in your logbook from a CFI, it’s a license.

      Secondly, according to the facts presented here, this crosses the line of being an accident. This is flat out willful negligence, at least from what it looks like. Now in court I’m guessing the pilot’s lawyers will try to say that he thought he was rated or he misunderstood or something. If they can prove that, then fine. It’s all about the intent of the person. For example, if I drive my car into a crowd of people because the accelerator got stuck – that’s an accident. If I did it because I wanted to kill a bunch of people – that’s a crime. Same results, different intentions. And if I did it being negligent doing something I knew was wrong – like talking on the phone, texting, or even being intoxicated – that’s going to fall in the involuntary manslaughter realm, and that’s where this pilot is.

  11. rdt7 says:

    Somewhere I saw an interview with the mechanic who maintained the airplane. He said it had become unairworthy and he told the pilot not to fly it. He and the instructor both said they could see the accident coming.

    To me, the question is much larger than whether Mr. Fay should be criminally prosecuted. General Aviation is hanging on by a thread in the U.S. One of the things that tilts public opinion against us is our safety record. Over the past 30 years, for better or worse, people have gotten more risk averse. While the safety record of most forms of transportation has improved dramatically, the perception remains (and is mostly true) that GA flying is dangerous. Many non-pilots feel that flying in small airplanes borders on insanity. I don’t doubt that some would be happy to see it banned.

    Read the accident reports. They are full of pilots who fly without ratings, in unairworthy airplanes, without medicals and under the influence of every sort of drug.

    If we ever lose our right to fly, it will not be because we criminally prosecute the most negligent among us. It will be because one of these “the-rules-don’t-apply-to-me” types crashes and kills a large # of people on the ground. If we don’t weed these people out somehow, I’m afraid this will be our fate.

    Enjoy flying while you can. People like this guy are taking it away from us.

  12. Hugh Tapper says:

    Lets get the full facts before getting involved in public vengeance/justice issues.
    I agree with Mac that NTSB investigation is the best forum for this and should have precedence before any legal proceedings take place, and testamony be unimpeded. In adversarial proceedings you want to obscure findings not helpful to your case. What we as pilots want to know, also the public”Is there something in this accident that we can learn from, human factor wise or from a mechanical or engineering perspective”. Sadly we do not learn quickly enough from the mistakes of others! Another comment for officials. It is impossible and foolish to try and legislate common sense.
    To those writers of a punitive streak the admonition “let him without sin cast the first stone” might apply. I can think of no greater punishment than knowing you caused the death of your child!

  13. JimC says:

    Consider me in the “Wait until _all_ of the facts are in” camp.

    Regarding flying being a privilege or a right, I believe that flying is a right–BUT–just as freedom of expression is a right “so long as you don’t yell, ‘fire!’ in a crowded theater,” flying is a right so long as you don’t infringe on the rights of others. Regardless of whether each of us agrees with every single regulation, the FARs are the rules which govern whether we are within our rights every time we get in our airplanes and go flying.

    So- let the NTSB investigation wrap up and determine how much of this was an accident and how much of this was a guy who made an egregiously bad decision to go flying.

    Let’s also hope the outcome of the parallel legal case is determined by technically knowledgable people of good moral character.

    • OK, let’s say this one more time: the pilot did not have an ME rating! He was not even signed off for solo flight in ME aircraft. He had absolutely no business flying that airplane as PIC. There is no contention about that fact. As a result of flying an aircraft he knew he was not qualified for he ended up crashing the aircraft he was flying and killed a passenger, somebody who had placed her faith and trust in his ability. The DA and the grand jury were 100% within their rights to indicte him. It is now up to the jury to decide. What the NTSB says or doesn’t say about this incident has no bearing, and as I pointed out may not even be admissible.

      • JimC says:

        Right- and I already got that part that he wasn’t signed off to take the airplane in the first place. Frank Giger’s post (below) better sums up one of my points–”a matter between simple and gross negligence”–and my other point was to wait and see what the rest of the facts are. I think of it like an unlicensed driver who gets in a wreck that kills someone. A whole lot of blame falls on the illegal driver and he is in deep trouble no matter what, but there should still be a close look at the rest of the circumstances. Those circumstances might make his case better or worse (the pilot’s case or my example of an unlicensed driver’s case).

        The NTSB findings may not have any legal bearing, but they matter a lot to my opinion. And no, I can’t imagine any circumstances that would justify his taking the airplane.

        I’m right there with you that the loss of his daughter, though tragic, doesn’t change right vs wrong in his case. A judge and jury may disagree, but that is still my opinion.

        Last, my comment regarding flying being a right (not a privilege, but only so long as you don’t endanger others) was in response to other posts about competence vs having one’s paperwork in order- except for ultralights, the law of the land is to have one’s paperwork in order before you go flying. And except for bicycles and some scooters, it works the same way on public highways in this country.


  14. Frank Giger says:

    In my way of thinking, it’s a matter between simple and gross negligence.

    Mac is dead on the money in 99.95% of accidents, as they’re a matter of simple negligence, where there isn’t a willful disregard of safety. When a pilot crunches it because he didn’t lower gear or switch to the correct fuel tank it’s pilot error, but not willful.

    Even some really boneheaded stuff like the guy in the J3 that lost it over the lake at Oshkosh because he was stunting for a friend was a matter of lack of judgement and not intent. That it was a fatal lack of judgement makes it infuriatingly sad, but not criminal.

    Gross negligence – a decided, purposeful, willful disregard of safe operaton is another animal, though. The gloves come off. Proving it, of course, is a much higher hurdle to make.

    If I were the DA in this case I’d give it a pass, as there isn’t any punishment that will top the death of his daughter by his hands.

  15. Frank R. Sandoval says:

    It has been recently said that our society is losing it’s civility. A large percentage of the posts on this article certainly support that. We don’t explain occurrences by “what ifs” in the justice system of our country. This particular case involving Mr. Fay is difficult to explain just as we cannot see all that is happening in the complex affairs of this planet. Such cases are beyond our exact ability to understand or explain with absolute certainty. So we, as intelligent humans, invent terms such as “what if” or “chances are” to explain them. “What ifs” or “chances are” explain nothing. Both are terms we use to express our ignorance. Using such terms in an occurrence such as this case or
    the analogies of alcohol use while driving a car, or a Mac truck by a 15 year old with a learners permit for that matter, places our intellect in question by those who are not involved in aviation. Making such analogies is like trying to explain a square circle. Accidents or occurrences are not controlled by “chances” or “what ifs.” The real question is what can we do to avoid accidents such as the one that prompted Mr. Fay to fly that day under his circumstances. I sincerely believe in my heart that the FAA, the EAA, the AOPA, and a number of other organizations that have taken the
    initiative to study human factors and make those studies available to us is definitely a step the right direction. So, why don’t we stop cutting our noses in spite of our general aviation faces and stop pointing our fingers and condemning. It’s my sentiment that Mr. McCellan was right on point from the beginning of his article to its conclusion.

  16. Lou Gregoire says:

    Obviously, Mr. Sandoval is a defense attorney. Education hasn’t worked very well in the area of, say DUI violations. The pilot in question, according to earlier articles, had been pointedly warned not to fly without an instructor, but chose to anyway. He had the education, but chose to ignore it and made a willful choice to violate a regulation, and killed someone in the process.
    Some people just need an a** whooping, some need to be locked up for awhile to drive home the fact that they are not above the law. I say chop off his throttle hand, and none of us will have to worry about him killing another innocent person in an airplane.

    • Frank R. Sandoval says:

      Interesting comments Mr. Gregoire. It doesn’t take much to smoke out the prosecutors in our system. Anytime someone makes a workable humane suggestion or solution, they want to mutilate or incarcerate everybody to resolve the problem. Tonight, you have restored my faith in humanity with your following comments:

      -education does not work ”in the area of, say DUI.”
      -“some people just need an ** whooping”
      -“some need to be locked up”
      -“chop of his throttle hand”

      Other than to fulfill some psychological need for authority, I do not comprehend your response.
      I hope you are not a pilot. Your comments reduce General Aviation to pre-barbaric status. I take it by your comments that you feel the same way about the tragic accident involving Mr. Jimmy Leeward on September 17, 2011 in Reno, and his throttle hand. And perhaps you feel the same way about Mr. Delray Madewell who we lost over the weekend along with his passenger in Utah while during an angel flight mission for Pilots for Christ.

      For the record Mr. Gregoire, it would be a privilege to be involved in Mr. Fays defense in an effort to restore the any professionalism that General Aviation might lose by this accident.

      • Frank R. Sandoval says:

        As an afterthought, if I owe any apologies to anyone posting on this article, they are extended herewith.

        However, for the most part, it has been my experience that we point our fingers to indulge in our own egos and self-esteem. As pilots, we need to defend any integrity that might be at risk for
        General Aviation. General Aviation is a close knit family. Whether we like it or not, Mr. Fay is part of our family.

        So how do we deal with it? The answer to the issues that challenge us today were given to us yesterday. We learn by the past. Our errors of the past have always pointed us to the future. It has been my observation that General Aviation has done a pretty good job working on the honor system as opposed to other foreign systems on this planet. As pilots, we have always trusted in those that help us within the system (ATC & PAMA), and trusted in each other to stay within our limitations and our boundaries.

        It is the misinformed that jeopardize our freedom to fly, not the accidents. The ambitions of some prosecutors are to get their names in the law journals without regards to the end result. If Mr. Fay is convicted in this accident, his case will be cited as authority against every pilot that has an accident in the future. It becomes law. The credentials or qualifications of a pilot become mute. That is the point we need to take from the cite in this article involving the Brazilian courts that prosecuted the crew of the Embraer accident. That’s the way legal systems work. It is such “change” that will jeopardize the freedom to fly for future generations, not human mistakes that produce accidents. Think! It is still legal to do so.

        • Rae Willis says:

          Perhaps Mac’s citation of the Embraer accident is not such a good example. By all accounts this was an accident. The pilots were qualified. There appears to be no gross negligence.

          • Frank R. Sandoval says:

            That is precisely my point Mr. Willis. Their credentials and qualifications were not considered and by all accounts the accident was not considered an accident. It was considered a criminal act.

        • Sorry, I will not agree with you. This was not an accident, it was a crime. How in the world can you side with a pilot who showed such total disregard for both the rules and human life, who risked his own child in aircraft he was not qualified to fly?

          Pilots sometimes stick together too much and your post is a prime example of that. To bring up the example of the American pilots in Brazil is completely disingenuous. They were completely qualified to fly the aircraft and were follow ATC instructions. Such a comparison is useless.

          Whether this man is guilty or not will probably be in the hands of a jury. Evidently I have more faith in the justice than you do.

          • Lou Gregoire says:

            Geez, Mr Sandoval, how you can draw any parallel between Leeward and Faye shows how far in the sand your head is jammed. Leeward was a professional pilot who was highly trained to fly his aircraft. His accident was truly an accident. Faye was unqualified and unlicensed for the aircraft he flew and chose to fly it anyway. That is wilfull misconduct.
            And yes, I am a pilot. I have worked long and hard, and spent years of my time to develop my career from a hobby to a paying job. Within the confines of the rules and reglations set forth by the agency governing my vocation.
            Maybe your next apology should be to the Leeward family.

          • Frank R. Sandoval says:

            Thank you for our comments Mr. Reinhart. You really make a lot of sense.

  17. Frank R. Sandoval says:

    Common sense is sometimes not so common.

    You may be correct about the placement of my head Mr. Gregorie. Nevertheless, if you are really a pilot, and for the sake of your long and hard earned years of work developing your hobby into an income producing endevor, but more importantly, for the sake of aviation as we know it today, it is my hope that the indictment against the defendant by the Commonwealth is quashed before a trial is initiated. Otherwise, many of us are going to be spending our time at Barnett Welansky’s night club instead of flying.

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