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This could be interesting and set a dangerous precedent


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#21 Spike

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Posted 11 December 2009 - 13:05

The reason why I brought up these cases was to point out what I had said earlier about non-aviators getting involved. With both of these cases you had attorneys arguing about things they had no clue about. Some states have now disallowed FLIR searches of residences because of the courts misunderstandings of the capabilities of the thermal imaging systems. That’s just dumb…… And why is flying at 390 feet considered violating someone’s expectation of privacy while flying at 410 feet is not? That’s just way dumb! All because of non-aviators……

All airspace falls within the authority of the Fed’s. As a pilot, I am free to fly where I wish as long as I fly within the FAR’s. NO city, county, state ordinance or law can prevent me from doing this (just ask the cities of Berkeley and San Francisco). While you may believe we’re talking about two different animals here, these animals are inherently connected. Thus, how can you charge a pilot with 148 if he’s flying within the FAR’s? Who’s in whose way here?

Edited by Spike, 11 December 2009 - 20:52.


#22 EC120AV8R

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Posted 12 December 2009 - 00:03

It's a federal requirement that you must have a search warrant to use thermal imaging if you are searching for indoor marijuana grows, and extends to ALL states. Kyllo came out of the 9th Circus and went to the Supreme court in Kyllo V. United States. That IS absolutely bad case law. Again the previously cited cases have nothing to do with aviation, other than the aircraft/flight was an instrument in the alleged violation of the defendant's 4th amendment protection. The attorney's never argued that the flight was conducted illegally, but that the observation of the defendant's property/curtilage from the air, where it would not otherwise be observable violated his rights.

In this case a 148 charge (or identical RCW charge) would have nothing to do with the legal operation of the aircraft under the FAR, but whether the pilot's actions obstructed the investigation. A state can legislate just about anything they want within its jurisdictional boundaries. The FARS are administrative codes, and thus have no provision for criminal penalties. They authorize the FAA to sanction you via license revocation, suspension or other administrative action.

If two guys were flying along in the state of Washington and one kills the other while in flight, would he then be able to say "olly olly oxen free, you can't catch me", because he conducted the flight in accordance with the FAR and in federal airspace? As long as the act occurred within the jurisdictional boundaries of the state (even the airspace over the state), the state could have purview over the criminal filing.

Even if a pilot was sanctioned by the FAA for negligent operation, it would only be an administrative action. If someone was injured or killed as a result of that negligent action, either the state or the U.S. Attorney would have to review the case and file any criminal charges in conjunction with the FAA's administrative action. The state could file under it's appropriate section, or the U.S. Atty could file criminally under Title 18.

Again, I'm not in favor of the state charging the ENG pilot or news director in this case, but the state certainly has the authority and the right to do so.

#23 Spike

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Posted 13 December 2009 - 13:33

Obviously I don’t articulate very well (good thing I’m a much better pilot). To simplify, people (cops, pilots, criminals, civilians, politicians, non-animals) doing things (FLIR searching, looking, flying, broadcasting, minding one’s own business), which result in court actions (civil, criminal, administrative, the Judge Judy show) that are argued by lawyers (what is 5000 lawyers at the bottom of the ocean signify), that effect what I do for a living (LE, Fire, EMS, ENG), in a negative fashion (not good for me or you). This is why I say, these issues (especially aviation related issues) are best left out of the courts. Furthermore, the true irony with this specific incident is that Gov Huckabee ARTICILATED his opinion which released this scumbag back into society.

IMHO, as long as a pilot does not fly in a careless and reckless manner with the intent to delay or obstruct an ALE mission, he is not committing said crime. BTW this is an ongoing issue with aerial firefighting. Again, IMHO my airborne LE mission does not trump anyone else’s mission just because I have a patch on my sleeve and wear a badge.

Lastly, as long as this pilot was flying within his rights and not in a careless or reckless manner and charges are in-fact filed, it will be an embarrassment to me as a professional aviator.

#24 EC120AV8R

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Posted 13 December 2009 - 15:20

Fortunately, we have a good working relationship with our southland ENG crews. Everyone is a professional, and they let us do what we need to do, and we often help them by giving them info about the call etc. It's a mutually beneficial relationship. I agree that if they do file in this case, it's an embarassment to us all.

I guess my argument has been way wordy, just to say: It's the state's right to file what they feel is warranted, but it doesn't mean it's the prudent action.

I do love a good debate though. :D




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