Over at CrimLaw, Mike argues that the case of a man indicted recently for directing a laser at a Cessna plane should be considered an abuse of the Patriot Act. I think he may be right, although it depends on a factual question about which I don’t think we quite know the answer.
The man, David Banach, was indicted under a Patriot Act provision codified at 18 U.S.C. 1993(a)(5) that imposes liability against
whoever willfully . . . interferes with, disables, or incapacitates any dispatcher, driver, captain, or person while they are employed in dispatching, operating, or maintaining a mass transportation vehicle or ferry, with intent to endanger the safety of any passenger or employee of the mass transportation provider, or with a reckless disregard for the safety of human life.
Banach allegedly pointed a handheld laser at a chartered Cessna jet with six people aboard when the plane was flying at about 3,000 feet near Teterboro Airport in Parsipanny, New Jersey. He did this three times. According to news reports, the pilot and co-pilot were temporarily blinded by the laser, but were able to land the plane safely.
According to CrimLaw, the indictment filed in the case charges that
Banach did knowingly and willfully interfere with, disable, and incapacitate a driver, captain, and person, namely aircraft pilots, while those aircraft pilots were employed in operating and maintaining a mass transportation vehicle, namely the Aircraft, with reckless disregard for the safety of human life.
Mike argues that this is an abuse of the Patriot Act on the theory that what Banach did was clearly an accident:
Does anyone with any common sense or common decency really think Mr. Banach was trying to disable an airplane? . . . The guy is more like Bozo the Clown than Osama bin Laden. And the law should be able to charge Bozo and Osama appropriately. Charging Mr. Banach under the PATRIOT Act is abusive.
Whether that’s right depends on a factual question, I think. Did Banach intend to interfere with, disable, or incapacitate the pilot of the plane? Mike sees the answer as obvious, but I think it’s a bit too early to tell. It seems to me that if the government has solid evidence that he did, then the charge seems appropriate; if the government lacks such evidence, however, then the charge is unwarranted and inappropriate.
So which is it? Banach’s lawyer says that his client was acting innocently; according to the lawyer, Banach was just stargazing with his daughter when the laser pointer just happened to hit the plane. If that is true and the government knows it, then yes, I think this is a case of Patriot Act abuse: the evidence simply does not satisfy the elements of the crime, and the charge should be dismissed.
At the same time, we don’t yet know all the evidence that the government has, so it seems a bit early to condemn the prosecution for abusing the law. We’ll have to wait and see what evidence the government offers to support the charge.
UDPATE: Reader (and pilot) Jeff Moersch asks whether the jet in the case counts as a “mass transportation vehicle” under the law. The statute defines “vehicle” very broadly, and the definition of “mass transportation” states that
“mass transportation” has the meaning given to that term in section 5302(a)(7) of title 49, United States Code, except that the term shall include schoolbus, charter, and sightseeing transportation.
49 U.S.C. 5302(a)(7) in turn defines “mass transportation” as
transportation by a conveyance that provides regular and continuing general or special transportation to the public, but does not include school bus, charter, or sightseeing transportation.
I don’t know if there are judicial opinions construing the term, but that’s the statutory language.
ANOTHER UPDATE: The criminal complaint filed in the case is available here.
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