Aiming a laser pointer at an aircraft should never be considered just an innocent prank. It is a serious federal crime punishable by up to 5 years in federal prison.
According to the FBI, between 2004 and 2013, there were 141 arrests, 107 prosecutions and 84 convictions for this kind of behavior. There were only 300 laser pointing incidents in 2005, according to the Associated Press, and 4,000 attacks in 2013, an increase of more than 1000 percent. Most of these irresponsible laser users have no idea just how serious their conduct is.
The Government is now showing little tolerance for any kind of laser pointing at aircraft.
The FBI is serious about investigating all incidents of “lasing,” and is offering a reward of $10,000.00 for information that leads to a conviction of an individual engaging in this sort of conduct. Why? Because when seen by a pilot from hundreds or thousands of feet in the air, a laser’s beam expands and can temporarily blind a pilot or cause serious distraction they cannot see past.
There are two statutes that deal with this unlawful conduct: 18 U.S.C., Sec. 32(a)(5) and (8), Attempting to Interfere with the Safe Operation of an Aircraft With Reckless Disregard for Human Life; and 18 U.S.C., Sec. 39A, Aiming a Laser Pointer at an Aircraft. Section 32 was established by Congress to deal with terrorists or hijackers who try to bring down an aircraft with an intent to harm others while Section 39 was established to deal with irresponsible individuals who think it is cute or prankish to aim a laser at an aircraft.
Because of the dramatic rise in dangerous laser pointing, the Government has elected to blur the clear distinction between the two statutes by indiscriminately charging individuals under both sections. In effect, the Government is now treating terrorists and knucklehead pranksters alike. Fortunately, at least one federal circuit has elected to reign in this prosecutorial overreach.
On June 24, 2015, the Ninth Circuit Court of Appeals in United States v. Rodriquez reversed a Section 32 conviction while upholding a Section 39A conviction in the case of Sergio Patrick Rodriquez. There is no doubt that Rodriquez is a knucklehead but it is also clear he is not a terrorist.
On the evening of August 12, 2015, at around 9:00 p.m., a medical transport helicopter for the Valley Children’s Hospital in Fresno, California took off to pick up a patient in nearby Porterville. The Ninth Circuit said the aircraft was flying at about 1,100 feet at a speed of around 130 miles per hour. The pilot said that about five minutes into the flight he noticed a “bright green flash inside the cabin” that caused “everything in the cabin [to] light up.” A few moments later a second flash hit the cabin of the aircraft, causing such a glare in the cabin that made it “difficult to see outside.” The pilot reported the laser incident to air traffic control.
A Fresno Police Department helicopter responded to the call by air traffic control about the laser incident. Two officers in the police helicopter began orbiting the area of the incident until the pilot saw the laser. Their aircraft was at about 500 feet, flying approximately 60 miles per hour. During one of their orbits, the green laser beam hit their aircraft creating a “big flare” that lit up “the entire cockpit. While the officers tried to locate the location of the laser, their aircraft was struck “approximately five or six more times for around three to ten seconds each by a laser moving in a circular motion.” While one of the officers experienced some disorientation and “after imaging,” neither experienced any physical injury as a result of the laser strikes.
The two officers eventually located the laser and directed ground units to that location.
When the two ground unit officers arrived at the location given to them by the air unit, they saw “Rodriquez and his girlfriend Jennifer Coleman standing with several children and adults outside their apartment.” Rodriquez was holding a laser, and when he saw the police, he ran towards his apartment. The officers caught him and removed the laser from his pocket. Since both Rodriquez and Coleman said they had pointed the laser, the officers arrested them both.
The FBI then took over the case. Several weeks later the couple received a letter from the Federal Aviation Authority that said the agency’s inquiry “had determined the couple had not broken any rules and that the matter was closed.”
But the FBI didn’t consider the matter a “closed.” The agency informed the couple that its investigation was ongoing. The couple told the agents they had probably inadvertently struck the aircraft while playing around with the laser to determine its strength. That did not impress the FBI. The agency turned its investigation over the U.S. Attorney’s Office which secured indictments charging the couple with two counts under Section 32 and two counts under Section 39A.
Evidence at the trial revealed that Coleman purchased the laser on Amazon for $7.00 as a gift for her children. On the evening of August 12, the couple’s two young daughters were “playing with the laser, shining it into the grass, the parking lot, and into other people’s apartment.” Neighbors asked the couple not to shine the laser into their homes. Coleman then put the girls to bed only to find a few minutes later that a police helicopter had their apartment under a spotlight. She and Rodriquez were then arrested by the ground unit.
The couple’s criminal defense lawyers argued at trial that the defendants did not know it was a crime to point a laser at a helicopter; that they didn’t know a laser beam could reach a mile or even a quarter of a mile away; or that a laser beam could cause unsafe flying conditions for an aircraft’s pilots. The jury found the couple guilty of violating Section 39A, and Rodriquez pleaded guilty to a one count violation under Section 32. The jury acquitted the two on all other charges.
On March 10, 2014, the trial court grouped both of Rodriquez’s Section 39A and 32 convictions together, and then found an “intentional endangerment enhancement” under the federal sentencing guidelines. The court sentenced Rodriquez’s to a maximum of 60 months for the Section 39A conviction and to 14 years for his Section 32 conviction. The sentences were ordered to be served concurrently.
In reversing Rodriquez’s Section 32 conviction, the Ninth Circuit found that the statute “requires proof of a willful attempt to interfere with the operator of an aircraft, with either the intent to endanger others or reckless disregard for human life.”
Rodriquez was charged with and found guilty of the reckless variety of the offense; and while the appeals court found Rodriquez had been “rightfully convicted” of the Section 39A violation (a judgment he did not contest), there was “no evidence that he was trying to interfere with the pilot” under Section 32. The Ninth Circuit forcefully pointed out that there is a clear distinction between a knucklehead and a terrorist, and that “the failure to recognize this distinction is to fail to appreciate that Congress saw fit to create two different crimes, one more serious than the other, for different types of offenders.”
The Government should have recognized this distinction before it had Rodriquez and Coleman indicted under Section 32. The couple were knuckleheads teaching their children to be knuckleheads. That may be bad parenting but it is not terrorism. They now have serious convictions on their records. Their case should serve as a reminder that no one should ever point a laser, for any reason, at the sky. Expert testimony at their trial revealed that 90 percent of green lasers purchased in the U.S. do not comply with federal regulations “because they emit a stronger beam than allowed.”
Most lasers sold in this country are made in China. They are marketed as a “fun toy” but in reality they can be a potentially dangerous weapon that can get an irresponsible user a stiff prison sentence and a life-haunting criminal conviction.