Safe Sex Still Careless and Reckless Operation

Many, if not most, commercial helicopter pilots know and value the adage: “There are old pilots and bold pilots, but there are no old, bold pilots.” Occasionally, however, someone does something truly bold that makes you wonder whether they ever hope to get old. A very recent case decided by the National Transportation Safety Board involved just such an incident, where a pilot was involved in a videotaped sex act while flying over Southern California. While the facts are titillating, the decision by the NTSB to uphold the revocation of his license also underlines an important legal point. You don’t actually have to put yourself or your passengers in imminent danger to be in peril of losing your license.

The FAA probably charges more pilots with violation of Section 91.13(a) of the Federal Aviation Regulations than with any other regulation. The section prohibits operating an aircraft “in a careless or reckless manner so as to endanger the life or property of another.” The FAA includes this charge on almost every action taken against an airman’s certificate. Additionally, according to the FAA’s Sanction Guidance Table, if the conduct is considered “grossly careless or reckless,” the appropriate penalty is license revocation.

In the case involving the cockpit dalliance, it is pretty clear the conduct alleged fit under the definition of “careless and reckless.” The decision only refers to the interaction between the male pilot and his female passenger as a “sex act.” However, according to the decision, the female passenger’s body position prevented access to the collective pitch control, her head occupied a space very near the cyclic, and both pilot and passenger had removed their lap belts and shoulder harnesses. The FAA’s expert testified at the hearing that, from what he viewed on the videotape, the pilot’s access to the controls “was restricted, and control of the aircraft jeopardized, by the location of [the pilot’s] clothing and the position of the passenger’s body.” The decision states the videotape left no doubt pilot and passenger were unrestrained. Additionally, the videotape revealed the flight in question took place over a populated area.

According to the decision, the pilot’s defense consisted of the testimony of several people that he was a skilled pilot, and did not lack care, judgment or responsibility. The pilot also testified in his own defense, and stated that, in effect, he had changed the way he made decisions and had “learned his lesson” from another incident, subsequent to the videotaped flight, where he had flown an unairworthy aircraft and had his license suspended.

The administrative law judge found the alleged incident to be a clear case of grossly careless and reckless operation, and revoked the pilot’s airman certification. On appeal, the pilot argued his access to the controls was not restricted, and pointed out the aircraft remained under control during the entire incident. Thus, one of the main issues on appeal was whether the prospect of disaster is enough to be careless and reckless, even when there was no actual mishap or imminent danger.

The NTSB answered this question with a resounding yes. Although the pilot pointed out his aircraft never was in danger of hitting the ground or going out of control, and the videotape presumably supported his position, the NTSB detailed a parade of horrible consequences that might have occurred, and provided the understated analysis that the pilot’s “attention was not devoted sufficiently to the act of flying the aircraft.” The decision also refers to a long line of precedent in both its own decisions and federal court decisions that recognize the potential for danger is enough to violate the careless and reckless standard. Proof of actual danger is not a requirement.

Sometimes it takes an obvious action to make a subtle point. Here, videotaping a sex act in the cockpit of a helicopter seems an obvious lack of judgment. There is little question the FAA took the appropriate action. What may not have been so obvious, however, is that you can be careless or reckless without causing a mishap. Here, there was no actual mishap. But because of his bold action, this pilot has likely lost his chance at ever becoming an old pilot.

This article originally appeared in the July 2009 edition of Rotorcraft Professional and was reprinted with permission.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2018.

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