The Alaska Court of Appeals recently rejected an airman’s appeal from a conviction for committing multiple assaults using an aircraft. In Lamb v. State, a jury convicted the airman of assaulting multiple individuals on separate occasions by performing what I would characterize as “dive-bombing” or “strafing” runs on the individuals with his aircraft. The judge then sentenced the airman to seven years, with four years stayed, and a fine of $40,000.00. The airman appealed the conviction arguing, among other things, that the state’s prosecution of him was precluded because the Federal Aviation Administration (FAA) had previously penalized him for this same conduct by revoking his airman certificate and therefore his prosecution was barred by state statute.
In its Memorandum Opinion, the Court of Appeals rejected the airman’s argument. Initially, the Court reviewed the FAA’s enforcement action against the airman. It noted the FAA had determined that the airman’s conduct was reckless and/or careless, endangered the life and/or property of another, and exhibited that the airman lacked the qualifications necessary to hold any airman certificate. The Court also observed that the FAA deemed revocation of the airman’s certificate to be a necessary remedial measure to ensure the airman did not present a continued threat to potential passengers and others who may be endangered by his operation of aircraft. The Court then concluded that “the FAA’s decision to revoke Lamb’s pilot certificate was ‘based on conduct that bears a direct relation to the government’s regulatory goals or to the proper administration and enforcement of the regulatory scheme'” and, as such, was not a “conviction or acquittal” under Alaska’s double jeopardy statute that might otherwise have barred the state’s prosecution of the airman for assault.
This case highlights the risks of criminal prosecution an airman could face as a result of a regulatory violation, above and beyond any enforcement action the FAA may take. Granted, the airman’s conduct in this case was intentional and, some may say, deserving of criminal prosecution. Unfortunately, it isn’t always easy to draw the line between intentional conduct and conduct that is simply careless or negligent. Consider also the reliance by prosecutors on the FAA, whose enforcement agenda is often overly aggressive, to say the least, and you end up in a situation where criminal prosecution of airman for regulatory violations, flight and otherwise, appears to me to be more likely in the future. Add one more threat to the list of threats that general aviation is already facing.
