When An Accident Is A Crime

In many countries around the world aviation accidents are treated as criminal acts. Police and courts conduct investigations instead of a safety authority such as we have in the National Transportation Safety Board.

I’m sure most of you are aware of the criminal charges brought against the crew of an Embraer business jet that collided with an airline Boeing 737 over Brazil a few years ago. The cause of the collision was the typical chain of small errors by several people in the air and on the ground but the flight crew was convicted of a crime in Brazilian court.

Here in the U.S. aviation leaders and regulators are firmly convinced that open and candid investigations of aircraft accidents without fear of prosecution is the best way to establish the most accurate cause of the crash, and to learn how to prevent similar accidents in the future. That’s why the NTSB was created, why it is independent of the FAA and other government agencies, and why NTSB findings of cause cannot be used in court. Most of us in aviation believe the best way to learn from and prevent future accidents is to treat them as true accidents, not criminal acts where somebody must be blamed and punished.

But prosecutors in Massachusetts determined that the pilot of a Beech Baron 55 did commit a criminal act when he crashed into trees short of the runway after sunset. The only passenger onboard the piston twin, the pilot’s adult daughter, was killed.

FAA rules are broken in many, perhaps even most, accidents. The FARs are so broadly written and so expansive that the very act of crashing probably violates one rule or another. But what brought this Baron accident to the attention of prosecutors was the obvious willfulness of the rules violations.

The pilot of the Baron did not have a multi-engine rating, apparently did not have the required biennial flight review, and had not logged any night flying in more than 10 years before the accident.

Most of us probably unintentionally violate an FAR from time to time because, well, there are so many rules and interpretation of the rules has varied over the years. But it would be impossible for a pilot not to know that he didn’t have the category rating—multi-engine in this case—to legally fly solo or carry passengers. The NTSB determined that the pilot of the Baron had received about 50 hours of multi instruction but there was no instructor endorsement to solo a multi, much less to carry a passenger.

It’s not hard to lose track of night landing currency because most of us fly very little at night during the warm months of the year. Then when fall rolls around we need to look into the log and see if we have made the required three takeoffs and landings in the past 90 days in order to legally carry passengers. The takeoff is the easy part to miss because many of us often land in the dark during the winter, but depart after sunset less frequently.

Missing landing currency by 10 years as the accident pilot did is not the same as forgetting that you didn’t takeoff three times in the dark in the last 90 days. What made this crash manslaughter, instead of an accident, the prosecution determined, was the pilot’s willful, not unintentional, disregard of the regulations.

Under the U.S. legal system it is intent, or reckless disregard for the safety of others that makes an accident a crime. For example, when the little old lady mashes the gas pedal instead of the brake and runs over people and property it is an accident. There was no intent to do harm. But if a drunk driver does the same thing it is a crime under our system. The drunk should know that his actions will put others at risk and is thus responsible for the outcome. The result of each auto accident is the same with people being injured or killed and property damaged, but our legal system treats the two drivers very differently.

Several years ago an airline crew flew a perfectly routine trip with no altitude busts or other FAR violations. But they had a blood alcohol content above the legal limit when they took off. Nobody was hurt in the slightest but the pilots were criminally charged and jailed. It was their disregard of the rules that made their flight a crime, not how successfully they flew.

The Baron pilot ended up pleading guilty to involuntary manslaughter and was sentenced to just over a year of probation and will not be permitted to reapply for a pilot’s license which had been revoked by the FAA after the accident. Knowing that he caused the death of his daughter is a sentence so terrible it’s difficult to imagine that the courts could have added more pain.

Is aviation safety served by the prosecution of this pilot? I’m not sure. The actual NTSB probable cause of the accident is all too familiar. The pilot failed to recognize the visual approach slope guidance of the VASI and flew into the trees. The NTSB says contributing to the cause of the accident was his failure to make a preflight plan to know that it would be dark for his approach and his lack of recent night flying experience.

Perhaps the publicity of this pilot’s prosecution will prevent other pilots from willfully ignoring fundamental rules such as having the proper license to operate an airplane. Deterrence is a primary objective of any prosecution. But is that deterrence more effective than free and open accident investigation without fear of prosecution? I don’t think so. As soon as anyone involved in a crash fears criminal prosecution they will go into defense mode and withhold all information they can. We will not learn as much as possible about the accident.

We have all seen what the civil courts through product liability suits have done to general aviation. If the criminal court system gets involved too, where will it all end?

 

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12 Responses to When An Accident Is A Crime

  1. Kayak Jack says:

    A legacy of misguidance started in the ’60′s and 70′s, when liberal judges began to gain momentum in our courts. When property owners are charged as criminals for injuring or killing those who break and enter, that thought pattern portends an upset of values that had protected innocent people, and begins to punish them.

    Obviously, this father was careless beyond reason. He and his family suffered. Should he be punished? Yes, and he was. Did a court need to add to that? Probably not, but they did anyway.

    • Jeff Boatright says:

      How often do you have to replace the head of your ax after all that grinding? ;)

      A prosecutor makes the decision about whether to bring charges, not a judge. You know a lot of liberal prosecutors? Me neither.

      As to whether charges should have been brought, that’s a judgement call, as well it should be. I don’t know all the particulars of the case – just what Mac states in his commentary. But as you state, the pilot appears to have been “careless beyond reason” and his actions resulted in a death. That’s close to a definition of manslaughter in many jurisdictions. I’m not sure why a prosecutor shouldn’t bring charges. I’m not saying that I would , but am saying that there doesn’t appear to be a sound legal reason for a prosecutor to not do it.

  2. Cary Alburn says:

    There are several legitimate purposes of sentencing as a consequence of criminal prosecution: protection of society and punishment are the fundamental purposes, but despite that it’s often included in the list, deterrent effect is simply not legitimate—it doesn’t work. The only person deterred from committing the same criminal act is the one found guilty and sentenced, and even that is doubtful with habitual scofflaws beyond the term of the sentence.

    So will this man’s prosecution and sentencing and the other consequences he’s faced deter anyone else from similarly ignoring regulations and endangering themselves and others? Not likely. Keeping him permanently out of the air (legally) is probably a good thing, but even that is questionable—as much as he ignored the FARs before, the likelihood is significant that he’ll get in an airplane and fly again, without a certificate, without a medical, and without any form of currency (other than the financial kind).

    But are those reasons not to prosecute? I don’t think so, as that falls into the argument that there’s no point in most prosecutions, because they don’t accomplish anything. With that mindset, we’d have anarchy with no real civilization.

    Should all accidents result in criminal prosecution? Of course not—but those involving clear intent to consciously know and violate applicable regulations, or knowingly doing things which clearly and unmistakably endanger others, the option to prosecute should be there.

  3. Brent says:

    The problem is it’s too subjective. I’m not saying this guy didn’t deserve consequences, certainly he got them naturally through the terrible loss of his daughter. Maybe this was ‘criminal’, but I’m not comfortable with letting our justice system decide that in all cases. The Brazilian or Concorde accidents used are great examples of how it can be taken to extremes.

    In over 100 years of powered flight, it seems like this is a recent trend, which is also unsettling. Why?
    Brent

    • Jeff Boatright says:

      Mac states that criminal prosecution of air accidents is not a recent trend in other countries, but rather the norm, so I assume you are asking why a trend is occurring in the US. However, it hasn’t been established that a trend is occurring in the US. An 2012 article in Aviation International News (URL below) states that since 1955, 55 aviation accidents have resulted in criminal trials, but that nearly all of these trials have been outside the US (supporting Mac’s commentary). Do you have other information suggesting that there is a trend in the US? Not trying to be confrontational here – just trying to determine the reality of the situation.

      http://www.ainonline.com/aviation-news/ainsafety/2012-05-21/accident-prosecutions-rise

      • Brent says:

        Jeff,
        I guess my point was, we are hearing about this more frequently. Your correct that my perception comes from more int’l incidents than domestic.
        Thanks for clarifying. Maybe we are ok here in the US of A.
        Brent

  4. Kayak Jack says:

    Brent asks: “In over 100 years of powered flight, it seems like this is a recent trend, which is also unsettling. Why?”

    Maybe, we have been putting people into power whom we should not have? People are better off when their leaders lead forward in positive directions, rather than when leaders turn around from the future to punish the past. When leaders turn around to focus on the past, they have the wrong parts of their anatomy aimed at the future.

  5. Low Wings says:

    C’mon Mac, you give this guy way too much credit for being an ignorant, arrogant fool ! He could have just as easily crashed into someone’s house or business or on a freeway and taken out several innocent motorists. People like this are a menace to society in general and to themselves (and their families) in particular as was the case here. Anyone with 50 hours of mullti-engine dual without a certificate to show for his efforts should not be in the left seat of anything — his instructors should have advised him to give it up long ago. And, how did he get his sorry derriere in the left seat of a Baron anyway with such a checkered past???

    With respect to the rules violations, you’re right about the FAA labryinth — take any NTSB accident report and count the violations. However, the FAR arena is not where resolution is found. The flight environment and the boundaries of good practice are patrolled, defended and policed 24/7 by the Forces of Nature. Those who violate those boundaries for whatever reason are typically and simply extinguished and their aircraft destroyed, never to fly again — without apology, remorse or appeal! To avoid these rather harsh and costly sanctions, one must be aware of the risks inherent in flight and ways to mitigate/manage said risks, develop and practice piloting skills, and develop habits to keep one’s flying machine out of harms way (and out of the trees). For ambiguous situations exceeding one’s knowledge, understanding and skill levels, the counsel of wise tribal elders should be sought and a self-directed dispatch function developed and put into practice. Otherwise, the Forces of Nature will quickly and with finality impose the maximum penalties for transgressions long before the FAA finds out about it.

  6. Josh Johnson says:

    I think it was actually a 310 that he crashed, but flight characteristics are close enough to a baron that I don’t think it would have affected the outcome. Or is this another case – the one I’m referring to is Orange, Mass.

  7. Blaine Banks says:

    Back in 1992 to 1993, I taught in the ab initio program for Korean Airlines. All of the foreign pilots kept a first class ticket in their wallet to return home the minute anything happened that might be a violation or an aircraft incident. The law even back then in Korea, was for “accidents” to be considered criminal acts. A 727 on a training mission had a miscommunication at some point and landed gear up, the pilot’s, who were locals, were sent to jail for this accident. Having flown in the Russian aviation environment as well, the local pilots would never return to the point of departure if it could be avoided (RTB-return to base) since this event would lead to a full blown investigation and “witch hunt” of the pilots, this then, led to pilots continuing with flights in sometimes totally compromised and unsafe aircraft. This type of environment obviously does not serve safety and in most cases, actually compromises safety as it’s only real result. It is totally misguided and primitive in it’s approach. As we allow more and more “third world thinking” into the USA, we are going to step into the third world “dark ages” of making pilots criminals, and safety will simply become a “lip service” term to be used by politicians and lawyers.

  8. Kayak Jack says:

    Blaine opines: ” As we allow more and more “third world thinking” into the USA, we are going to step into the third world “dark ages” ”

    Include Europe within “third world”, and you have the package. They invented the Dark Ages, and continue as a loose gaggle of fiefdoms. IE: not a good model to emulate.

  9. Andrew S. says:

    I think I’m dissenting from many of the opinions here. The outrage is that the guy is not in jail. This wasn’t a mere oversight of the regulations (which, by the way, are the LAW, and, Mac you should refer to them as such in this case) If he was driving drunk and killed his daughter he would be in jail, not on probation. The individual here recklessly put other people’s life in danger by willfully engaging in numerous law-breaking acts. I’m not sure how old his daughter was, but I’d toss in child endangerment. Think of it this way: if you follow the rules and have an accident, you WONT be prosecuted in this country. If you drive and hit someone, you’re off the hook unless you were speeding, went through a red light, or threw too many back. That’s the grand bargain we make and it’s a good one. But if you don’t follow the rules, you might.

    For those who argue, sometimes correctly, that the FAA wanders all over the place in enforcement, that’s not the case here. Guess what? The FAA can’t put you in jail. There is no FAA jail. It’s handed over the Justice Department, or in this case state prosecutors, who are required to actually prove things in front of the jury. In this case, they should have demanded jail time or gone to trial.

    There are a lot of bad pilots out there. We accept that for the freedom to fly. But we need not tolerate criminals.

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