quote: Banach made an initial appearance in court Tuesday and was released on $100,000 bond. He was charged with interfering with a flight crew under the USA Patriot Act. He also was charged with lying to federal officers. The charges carry a maximum jail sentence of 25 years.
quote: Banach's attorney blasted federal officials for what she called an overreaction. "One would think they would want to devote their time and resources to prosecuting real terrorists, not people like my client," Gina Mendola-Longarzo told the Associated Press.
She said her client was playing with his young daughter, using the laser's narrow green beam to point at stars and illuminating trees and neighbor's houses. FBI agents and police swarmed Banach's Parsnippany, N.J., home Friday night after a green laser was pointed at a police helicopter overhead. The helicopter was carrying a charter jet pilot who was attempting to locate the source of a green laser beam that hit his flight on Dec. 29 as it prepared to land at nearby Teterboro Airport.
Is this really an appropriate use of the Patriot Act, considering the fact that we were told it would only be used against 'terrorists'?
Posts: 13123 | Registered: Feb 2002
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posted
I read this today and we talked about it in the office. The offense wasn't really hitting the copter with the laser, it was hitting the approaching jet and temporarily blinding the two pilots.
I was wondering what the heck kind og laser they had. I don't think my little penlight laser would do it. I was envisioning FBI agents going door to door and stopping at the one with the big honking evil-genius laser beam in the back yard. "Hmm..."
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posted
When I heard the story about the laser beam, I wondered if they meant those beams that amateur astronomers use. eek.
Posts: 10890 | Registered: May 2003
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posted
The Discover store sells those things with the stated purpose of pointing out stars to your kids. It's in the catalog I got yesterday.
You would think a little reconnaissance woulda shown them that swarmming maybe wasn't the right way to go.
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posted
Chris, even if he did shine a laser into the airplaine, is it really appropriate to invoke the Patriot Act?
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posted
He bought a product that is advertised for use pointing out stars at night, that the discription states is completely safe. Obviously, the store didn't consider the possibility of it blinding a pilot... does that mean he should have? Does the article say he intentionally hit the plane with it?
Certainly he could have accidentally caused great harm. I don't think that makes him a terrorist.
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posted
And by the way, if this guy intentionally shined his laser pointer at the eyes of a pilot...in a moving jet...at night...and hit the pilot's eyes, he has to be one of the most amazingest specimens of humanity *ever*.
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posted
Okay, read it... apparently he did shine it on purpose. So I can see criminal mischief, maybe. But terrorism?
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posted
I think it is more a case of product recall than terrorism. Many military planes fly with no lights, and any amateur astrnomer could accidently point at one.
[ January 06, 2005, 12:27 AM: Message edited by: Elizabeth ]
Posts: 10890 | Registered: May 2003
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posted
MPH: Doesn't intent play into that, just a little?
There's a very good chance that he never knew he was shining into a plane at all. If I know the kind of laser in this incident, it's easy to see the beam, but hard to see the actual endpoint of the ray. He may have just been pointing out a plane to his daughter.
Fault should be determined by whether or not the device or its packaging says, "Do not point this at aircraft for any reason." If so, the guy is negligent. If not, the company is negligent for inadequate packaging.
In any case, nothing bad actually happened. Who need be punished? Just put the warning label on the package, and give pilots... laser-proof glasses or something. I mean, everyone is wearing them.
posted
This...I don't get it. I understand...visible beam laser, getting it in a pilot's eyes is bad. But how did it get that far? I mean, the plane is flying pretty far overhead, oriented horizontally, the man is in a yard, pointing the thing vertically--how does it blind anyone?
Posts: 3658 | Registered: Jan 2002
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posted
You've all seen videos at least of what its like in a plane's cockpit, right? Well, you know the people in the cockpit can see the ground, then. And if the people in the cockpit can see the ground, the people on the ground can shine a laser on the people in the cockpit.
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posted
If you come into the bank and jokingly say you're here to rob the place, you've committed a felony. If bank tellers get used to hearing that phrase, they won't respond properly in a real robbery, and someone could get killed.
If pilots get used to lasers being pointed at their craft, they may not respond properly when it is the laser guidance for a rocket or something. Also,
quote: He also was charged with lying to federal officers.
That's probably the part that got him charged. If he'd said, "Oops. I had no idea, I'm really sorry," I can almost guarantee he'd have gotten off with a warning. At least down here in the South, cops don't take attitude well.
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quote:Chris, even if he did shine a laser into the airplaine, is it really appropriate to invoke the Patriot Act?
You keep saying that like the Patriot Act is somehow different from other criminal codes.
These aren't the surveillance portions of the Patriot Act - apparantly there is a crime defined in there called "interfering with a flight crew." Since such a crime has existed for at least a decade, I'm assuming the Patriot Act added some new scenarios as to what can consititute the crime.
Since the act was partly a response to the deliberate downing of 4 aircraft, it makes sense that it includes provisions to make it less easy to crash airplanes. Actions that interfere with pilot vision certainly seem to qualify.
The initiation of prosecution is not enough to call this overzealousness. Let's see what they do with it.
As to the horror over the "swarming" officers, they were trying to investigate repeated incidents that could have originated in a large area. Mobilization of lots of officers makes sense given even the remote possibility that it might have been terrorists.
Was anyone hurt? No. Swarming saves lives, because it establishes control over the situation quickly and, in cases where resistance is possible, minimizes the capacity and desire to resist.
posted
I'm a little confused by the use of the lie detector test. Aren't those basically inadmissable?
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posted
It can often convince a prosecutor to drop a prosecution when the question of intent is involved.
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posted
"You keep saying that like the Patriot Act is somehow different from other criminal codes."
Erm, it IS different, in that it was promised by our law enforcement agencies that the Patriot Act would be ONLY used to prosecute terrorists. Any prosecution of a non-terrorist means that our law enforcement branch of government, IE our current administration, has lied, and is using a peice of legislation for purposes which it was specifically created not to be used.
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posted
Okay. The dude knew the laser could blind someone. He purposely pointed it at aircraft at least twice. Something needed to happen to stop him, although I'm not sure what.
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posted
Dagonee, it is my understanding that people are not charged under the PA unless they are considered 'terrorists'.
It's clear that this guy may have committed a crime. My question is, why should the Patriot Act have been invoked for this *after* he was arrested and it was clear he wasn't a terrorist? Are you saying that, legally, the state had no choice?
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quote:Erm, it IS different, in that it was promised by our law enforcement agencies that the Patriot Act would be ONLY used to prosecute terrorists. Any prosecution of a non-terrorist means that our law enforcement branch of government, IE our current administration, has lied, and is using a peice of legislation for purposes which it was specifically created not to be used.
I've only ever seen that promise with respect to the surveillance aspects of the law.
quote:It's clear that this guy may have committed a crime. My question is, why should the Patriot Act have been invoked for this *after* he was arrested and it was clear he wasn't a terrorist? Are you saying that, legally, the state had no choice?
Until we know exactly what he's being charged with, which won't happen until he's indicted, it's very possible that the Patriot Act amended the old law, that he's being charged under the old law, and that the press called it the "Patriot Act" because, technically, that was the Act under which the current law (i.e., the amended old law) was passed.
quote:If you come into the bank and jokingly say you're here to rob the place, you've committed a felony.
That's hardly a good analogy. Announcing your intent to rob a bank--whether serious or not--within earshot of a bank teller or law enforcement officer is a knowing interchange of information, despite its truthfulness. It's understandable that the interchange could be interpreted as a threat. There are few who havn't heard the anecdote about yelling 'fire' in a crowded theater, it's a short conceptual leap from that to saying 'bank robbery' in a bank.
Shining a laser at an aircraft without the knowledge that the laser could be interpreted as a threat is something different. It's hardly common knowledge that a laser has blinding power at distances such as that, or even that the laser ray was capable of penetrating the aircraft at any distance. Unless a warning label exists somewhere on the packaging stating that pointing the device at aircraft can be interpreted as a danger, there's little way the individual could know that the laser could be a danger.
Lying to a federal officers is something else entirely. Knowingly lying to any law enforcement officer is just plain stupid. You're allowed to not say anything at all, just don't say anything that's not true. Although this could be dependent on how questions were phrased. I'll have to re-read the article (or find other articles).
Posts: 903 | Registered: May 2003
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posted
WheatPuppet, you've touched on a subject called "mens rea" by lawyers, and mens rea in federal law is one of the most inconsistent areas of law around.
Mens rea can be thought of as the level of mental culpability necessary to impose criminal liability. These elements apply to the conduct, the result, and the circumstances surrounding the act. The Model Penal Code breaks it into 5 levels:
1. Purpose: The actor has a conscious object to engage in conduct or cause result and knows, believes, or hopes that the necessary circumstances exist.
2. Knowledge: The actor is aware that the conduct is of the nature described in the statute or that circumstances as described in statute exist, or that the actor is aware that it is practically certain that the conduct will cause a result specififed in a statute.
3. Recklessness: The actor consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of actor’s conduct and circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
4. Negligence: The same as recklessness, but "is aware" is replaced with "should be aware." It is roughly equivalent to gross negligence - normal negligence will not give rise to culpability.
5. Strict Liability: No mental component is required - performing the act in the desrcibed circumstances with the described result will trigger criminal liability. Under the MPC, no jail time is possible for a strict liability violation. This is NOT true under federal law.
This nice, neat structure replaced hundreds of years of common law confusion on the subject, and was adopted by several states.
The federal government has not adopted it, so we are left with a complex array of case holdings and statutes where the same word means different things at different times.
For example, the word "wilfully" is used often in federal criminal statutes. Sometimes it means that the person must know that failure to follow the regulation being broken is a crime (in which case, ignorance of the law IS an excuse). In other statutes, it can mean that the defendant knew the regulation, not necessarily that not following it was a crime. In other statutes, the defendant must know that he was doing something illegal. In others, it must merely mean he intended to commit the act, and no knowledge of the criminal law is required. This is vitally important, because mens rea elements must be proven beyond a reasonable doubt. The defendant doesn't have to prove he didn't know the regulation; the prosecution has to prove he did. This means such elements must be alleged in the indictment and charged to the jury.
As another example, there was a SCOTUS case about whether the prosecution must prove that a person charged with posessing a machine gun knew the gun could fire multiple bullets with one trigger pull, knew the gun could be modified to do so but not know if it had been modified, or merely know he possessed a firearm of any type. Ultimately the first was chosen.
In the laser case, I don't know what the mens rea word used is. Even knowing the word, we would have to look up cases to know how it is interpeted.
The upshot is, the guy might be criminally liable if the prosecution can prove he knew he had a laser and pointed it at the sky, or the prosecution might have to prove he intended to blind a pilot, or merely that he knew it might blind a pilot.
We have no way of knowing right now without a bit of research.
quote: Shining a laser at an aircraft without the knowledge that the laser could be interpreted as a threat is something different. It's hardly common knowledge that a laser has blinding power at distances such as that...
I'll grant you the part about not knowing it would blind them. Personally, I'd never heard of a laser that could point that far.
But not knowing it could be seen as a threat I have a hard time believing. Anyone who's watched any tv, movies, or played Starcraft knows you can paint a target to blow it up.
Posts: 2283 | Registered: Dec 2003
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quote: So, mph, to your mind, he did what he did to create terror and is a terrorist?
No, he's not a terrorist, but intentionally engangering the lives of hundreds of people is right up on the same level as terrorism.
While the Patriot Act was passed to combat terrorism, its application is not limited to terrorists. It's just another piece of law now.
quote: I think it is more a case of product recall than terrorism. Many military planes fly with no lights, and any amateur astrnomer could accidently point at one.
He was intentionally shining it at the pilots. They only caught him because they flew a helicopter around looking for who it might be, and he purposely shined it in at those pilots as well.
quote: MPH: Doesn't intent play into that, just a little?
Yes it does. While he probably didn't intend to kill all of those people, he did intend to mess with those pilots.
quote: There's a very good chance that he never knew he was shining into a plane at all
That's now how it looks at all.
quote: Fault should be determined by whether or not the device or its packaging says, "Do not point this at aircraft for any reason." If so, the guy is negligent. If not, the company is negligent for inadequate packaging.
I couldn't disagree more. Axes don't come with packaging that says that you shouldn't swing it at your children. People should be responsible for their own actions, and not try to blame faulty packaging for not telling them to not be idiots.
quote: It's a one in a million occurence and should be treated as an accident.
No it's not. He purposely did it and then repeated it.
Posts: 16551 | Registered: Feb 2003
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posted
We don’t know that he purposely pointed it at the pilots. He admitted that he pointed it at the plane. He used a laser pointer, marketed as an educational device to point at things in the sky, to point at a plane. And he knew that shining it directly into your eyes, at arms distance could blind you.
I know not to point a laser pointer at my eyes, but it never would have occurred to me that shining the thing at an airplane could be noticed by the pilots.
posted
My Federal Criminal Law professor hammered into us to keep "what you have to prove separate from how you will prove it."
The issues I raised in my big long post on mens rea describe what goes into deciding what must be proved.
The issues raised by MPH and dkw will be the ones raised by the attorneys if this goes to trial.
Ultimately, the jury will decide, based on instructions about the mens rea from the judge. Of course, even if the judge says the prosecution doesn't have to prove anything about what he knew, the jury could still acquit for reasons outlined by dkw.
posted
So no more bad sitcom episodes about the star having to land the plane because she accidentally knocked both pilots out? Reason enough to implement the rule right there.
quote: Until we know exactly what he's being charged with, which won't happen until he's indicted, it's very possible that the Patriot Act amended the old law, that he's being charged under the old law, and that the press called it the "Patriot Act" because, technically, that was the Act under which the current law (i.e., the amended old law) was passed.
You don't know enough about the situation yet.
From the article
quote: Banach made an initial appearance in court Tuesday and was released on $100,000 bond. He was charged with interfering with a flight crew under the USA Patriot Act. He also was charged with lying to federal officers. The charges carry a maximum jail sentence of 25 years.
posted
And you can tell from that snippet that the situation isn't "that the Patriot Act amended the old law, that he's being charged under the old law, and that the press called it the 'Patriot Act' because, technically, that was the Act under which the current law (i.e., the amended old law) was passed"?
posted
By exactly what he was charged with, I meant something like "18 U.S.C. 1962(d)," which happens to be RICO conspiracy. The description in the article is not enough to go on.
posted
And by the way, you seem to be implying that the state's hands are tied in this, insofar as to how they charge this guy. That is, your argument seems to be that the PA must be invoked, that there are no other crimes that this gentleman can be charged with such that the PA doesn't come into play. Am I understanding you correctly?
Posts: 13123 | Registered: Feb 2002
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posted
No. I'm saying you don't know if the PA section being invoked is some new law or merely a revision of an old one which was contained within the act, because we do not know precisely what he was charged with.
posted
I guess what a lot of people are confused on is *why* this guy is being charged under the PA. True, we don't know the specific charges, but we do know that he is being charged under the PA. So, it's not the specific charges, per se, that people have a beef with, it's the fact that, to most people, he is not a 'terrorist', wasn't engaging in anything that could, to many, dare I say most, people be classified as terrorist activity.
Unless the state had no other way to charge this guy--which seems ludicrous since it seems like any number of other charges could have been brought against him, why is the state using the PA in this case?
posted
Because if the old interfereing with a flight crew charge was coopted by the PA, that's what he should be charged with. The reporters are the one who classified this as being under the PA, and we don't know what that classification is based on.
If my supposition is accurate, then I contend that the characterization of this charge being under the PA is inaccurate.
If I had a citation, I'd go look it up and give you definite info. And possibly join you in being annoyed. But I KNOW the press is bad at this particular aspect of legal reporting, so I'm reserving judgment and trying to point out other possibilities.
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