Laser legal issues: prosecuting perpetrators.

Laser incidents are a current and emerging concern to the aviation and law enforcement communities. When directed against aircraft cockpits, lasers, under certain conditions, can distract or impair the pilot and flight crew, posing a significant safety hazard.

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The continuance of acts targeting civil airliners and public safety helicopters highlights the importance of deterring laser incidents and demonstrates the need for statutory provisions to enable prosecution for these acts under both federal and state statutes. Potential means of deterrence and threat mitigation include restricting the sales of certain laser devices; amending or enacting criminal statutes regarding the use of lasers as weapons, as well as their use against flight operations; providing pilots with laser eye protection; training pilots in laser countermeasures; expanding and enforcing laser-free zones proximate to airports; and educating law enforcement officials and the public regarding the risks improper laser use poses to aviation. (1)

Federal Regulations and Criminal Statutes

Over a decade ago, the aviation and law enforcement communities initiated the tracking and documenting of lasing incidents against aircraft and helicopters in flight. Lasings have continued, yet progress in enacting statutes for the prosecution of individuals who point lasers at aircraft has been uneven.

After informally tracking laser incidents for a decade, the Federal Aviation Administration (FAA) established a mechanism to record laser incidents through its operations center in Washington, D.C. When pilots report a lasing incident to the center, it contacts the FBI and local law enforcement agencies. (2)

Despite these regulatory efforts, a specific federal laser strike statute still is pending. (3) This legislation would amend the federal criminal code to impose a fine or prison term of up to 5 years for any person who knowingly aims the beam of a laser pointer at an aircraft or its flight path. If enacted, this would create Title 18, U.S. Code, Section 39A, Aiming a Laser Pointer at an Aircraft. Currently, malicious use of lasers to interfere with aircraft can be prosecuted under the provisions of Title 18, U.S. Code, Section 32, Interfering with Flight Crews, or under the Patriot Act (P.L. 107-56) section pertaining to acts of violence directed against mass transportation systems.

State Criminal Statutes

Several states, notably California, have specific statutes available to address laser strikes. The California Penal Code, for example, creates a felony for aircraft laser incidents and misdemeanor provisions for those interfering with aircraft.

* California Penal Code Section 247.5: Any person who willfully and maliciously discharges a laser at an aircraft, whether in motion or in flight, while occupied is guilty of a violation of this section, which shall be punishable as either a misdemeanor by imprisonment in the county jail for not more than 1 year or by a fine of $1,000 or a felony by imprisonment in the state prison for 16 months, 2 years, or 3 years or by a fine of $2,000.

* California Penal Code Section 248: Any person who, with the intent to interfere with the operation of an aircraft, willfully shines a light or other bright device, of an intensity capable of impairing the operation of an aircraft, at an aircraft shall be punished by a fine not exceeding $1,000 or by imprisonment in a county jail not exceeding 1 year or by both that fine and imprisonment.

Other California sections address pointing lasers at persons (CPC Section 417.25) and at peace officers (CPC Section 417.26) and prohibit sales of laser pointers to minors (CPC Section 417.27 [a]). Florida has similar provisions in Section 784.062: Assault; Battery; Culpable Negligence-Misuse of laser lighting devices, wherein subsection (3)(a) states that "Any person who knowingly and willfully shines, points, or focuses the beam of a laser lighting device on an individual operating a motor vehicle, vessel, or aircraft commits a felony of the third degree" and subsection (3)(b) holds that when "such act results in bodily injury commits a felony of the second degree." Most recently, Ohio created a second-degree felony in Section 2909.081 where "No person shall knowingly discharge a laser or other device that creates visible light into the cockpit of an aircraft that is in the process of taking off or landing or is in flight."

The Banach Incident

The U.S. Attorney's Office, District of New Jersey, successfully prosecuted a Parsippany, New Jersey, man for pointing a laser into the cockpit of an aircraft on final approach to Teterboro Airport. (4) On December 29, 2004, a green laser (significantly more powerful than a red one and readily available for less than $120) was pointed into the cockpit of a charter aircraft with six passengers. The windscreen and cockpit were illuminated three times during final approach with the aircraft traveling at a speed of approximately 250 knots and an altitude of about 3,000 feet. Both pilots were disoriented and temporarily lost their night vision.

Two days after the incident, the pilots accompanied investigators in a Port Authority helicopter aerial surveillance flight to ascertain the laser location based on where the charter aircraft was at the time of illumination. During the helicopter's flight, it also was illuminated by a green laser, which led authorities to the home of David W. Banach. Mr. Banach denied intentionally aiming a laser at the aircraft, claiming first that his 7-year-old daughter was responsible and then later that he was using the laser to point out stars to the child on the night of the initial charter aircraft illumination.

During subsequent interviews, Mr. Banach recanted his explanation implicating his daughter and admitted to shining the beam at the helicopter and at the charter aircraft. No charges were filed for the helicopter incident because it was not considered a mass transit vehicle.

Mr. Banach was charged with three counts under the Patriot Act, Title 18, Sections 1993, 1001, and 1002. Under count 1, Interference with Pilots of an Aircraft, he faced a potential sentence of 20 years in prison. The Advisory U.S. Sentencing Guidelines allowed for a range of 18 to 24 months. As the guidelines were nonbinding, the judge imposed a sentence of 2 years' probation. U.S. Attorney Christopher J. Christie stated, "We accept the sentence imposed on Mr. Banach,... the needs of justice and deterrence had to be balanced. At no time did we believe Mr. Banach was involved in terrorism or that he should face 20 years in prison. Nonetheless, his conduct posed an immediate threat to innocent lives ... and Mr. Banach now stands as a convicted felon. Everyone is now on notice: anyone considering such purposeful conduct can expect the full weight of federal prosecution and a potentially lengthy prison sentence." (5)

Conclusion

Deterring and prosecuting criminal laser strikes against aircraft requires a unified effort among local, state, and federal law enforcement; cooperation with the Federal Aviation Administration; and awareness and collaboration with the aviation community. Such efforts are essential to ensure safety in the national airspace, to protect airborne law enforcement activities, and, ultimately, to help prevent air crashes and disasters resulting from criminal and potential future terrorist employment of laser weapons--improvised or otherwise.

Indeed, the most successful way of denying terrorists the possibility of adopting this "science fiction" weapons system is effective enforcement, prosecution, and prevention of laser crimes by routine criminals. In all of these cases, feasible deterrence and enforcement will benefit from the skillful and appropriate use of effective state and federal statutes specifically crafted to address laser threats, coupled with an awareness by law enforcement and prosecutorial authorities of the content of the statutes and the nature of the threat.

Endnotes

(1) Adapted from Bart Elias, Lasers Aimed at Aircraft Cockpits: Background and Possible Options to Address the Threat to Aviation Safety and Security, Congressional Research Service, CRS Report for Congress, January 26, 2005.

(2) Commercial laser devices are regulated by the Food and Drug Administration, and enhanced provisions to restrict sales of more powerful lasers and more pronounced warning labels on all products may be warranted.

(3) A House resolution (H.R. 1615), the "Securing Aircraft Cockpits Against Lasers Act of 2007," was passed by the House and referred to the Senate on May 23, 2007.

(4) Indictment in U.S. District Court, District of New Jersey-CJG/20050003; http://www.usdoj.gov/usao/nj/press/files/pdffiles/Indbanach.pdf.

(5) Press release, February 17, 2006, U.S. Attorney's Office, District of New Jersey; http://www.usdoj.gov/usao/nj/press/files/bana0217_r.htm.

(6) For additional information, see Dan Lindsay and Robert J. Bunker, "The Laser Threat to California Airborne Law Enforcement," The Journal of California Law Enforcement 34, no. 2 (March-April 2000): 16.

By MADELYN I. SAWYER, M.A., and JOHN P. SULLIVAN

Special Agent Sawyer, a former air traffic controller with the U.S. Navy, serves with the Federal Aviation Administration based in Los Angeles, California.

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Lieutenant Sullivan serves with the Los Angeles County, California, Sheriff's Department.

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RELATED ARTICLE: Mitigating the Threat

Several measures are available to deter, detect, and mitigate the impact of laser threats. (6)

* Restrict the sales of certain laser devices

* Amend or enact criminal statutes regarding the use of lasers as weapons, as well as their use against flight operations

* Provide pilots with laser eye protection, potentially problematic for helicopters but worthy of research

* Train pilots, especially airborne law enforcement officers, in laser countermeasures

* Expand and enforce laser-free zones proximate to airports

* Educate law enforcement officials and the public regarding the risks improper laser use poses to aviation