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John T. Floyd

Laser Pointing Not a Game, It’s a Crime

Laser is an acronym for Light Amplification by Stimulated Emission Radiation, according to  NASASpacePlace. Lasers produce a very narrow beam of light whose beam is larger at long distances. The beam projected from the laser is a small, millimeter-size dot that can expand to inches as the distance is increased, according to Laser Pointer Safety.


Some people believe it is a “fun” game to point laser beams at aircraft.


Pointing Laser at Aircraft is a Federal Crime


In reality, it is a dangerous, criminal act to engage in this behavior because when the beam strikes the windscreen of an airplane or the bubble of a helicopter, it spreads the light and can even cause temporary blindness, putting the occupants of the aircraft in serious danger.


Laser Pointer Safety recently reported that there were 6,753 known “laser illumination” incidents reported to the U.S. Federal Aviation Administration in 2017. This is a small decrease from the 7,442 incidents reported to the FAA in 2016 and 7,703 incidents reported to the agency in 2015.


Some argue the decrease in criminal laser pointing may be attributed to the harsh sentencing stances being taken by federal judges across the country against those indicted in these kinds of cases.


Laser Caused Temporary Blindness


For example, in October 2013, Jordan Clarence Rogers pointed a laser beam at a Kansas City, Missouri Police Department three times, causing the pilot to suffer from blindness for several hours.


Rogers was indicted by the federal government in August 2014 under 18 U.S.C. § 39A. He eventually reached a plea deal with the government, pleading guilty to one count under § 39A in September 2016.


Federal Indictment Leads to Harsh Sentence


At Rogers’s sentencing hearing, U.S. District Court Judge Gary A. Fenner heard testimony from an FBI agent who said that Rogers initially denied knowing the laser had hit the police helicopter, but after she conducted additional investigation, Rogers admitted that he had intentionally aimed the laser at the aircraft.


Judge Fenner also heard additional evidence from Roger’s neighbors about his extensive use of lasers, including one who said Rogers shined the laser at him but quickly turned away when the neighbors’ headlights illuminated Rogers.


Rogers’s attorney, Assistant Federal Public Defender Carie Allen, sought leniency, telling the court that her client was unaware of the dangers involved by pointing a laser at the police helicopter and thought he was just having “fun” when he did so.


In her sentencing memo, Ms. Allen told the court that “the average person would believe that a laser beam hitting an aircraft would cause a small spot to appear on the aircraft or in the cockpit, much like shining a laser beam at all. “It is not common knowledge that the laser actually increases with size as it extends, and that the glass of the cockpit can expand light further, causing it to light up the entire cockpit.”


Assistant U.S. Attorney Brian Casey responded to this argument, telling the court that Rogers was “generally aware” that pointing a laser at any “moving vehicle” could be dangerous and that he “recklessly disregarded those dangers when he intentionally and repeatedly pointed a laser at a police helicopter.”


Considering this evidence, Judge Fenner concluded that Rogers “showed that he was aware of the reckless endangerment that his actions caused by shining the laser at the aircraft.”


The judge added: “He knew it was illegal. He did it on purpose. He followed the aircraft. He had exhibited his knowledge of the dangerousness by pointing the laser at a car earlier and then interrupting that activity when his presence was discovered or the car was turning toward him. He lied to the police. He did try to conceal himself immediately after the conduct of pointing the laser at the helicopter …”


Nine Level Enhancement for Recklessly Endangering Public Safety


Judge Fenner wanted to make sure Rogers understood that pointing a laser at an occupied vehicle or aircraft was not a “fun” game. He applied a nine-level enhancement for recklessly endangering the public safety of an aircraft, permissible under U.S. Sentencing Guideline § 2A5.2(a)(2). The judge, however, departed from the recommended guideline range sentence of 41 to 51 months by imposing a three-year term of imprisonment.


Rogers appealed the application of § 2A5.2(a)(2) to the Seventh Circuit Court of Appeals. The appeals court pointed out that while the enhancement guideline does not define “reckless,” the application notes for Sentencing Guideline § 2A1.4 cmt. (n.1) (involuntary manslaughter) defines reckless as “a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.”


Court of Appeals Agrees with Finding


In a February 6, 2018 decision, the Seventh Circuit upheld Judge Fenner’s sentence, concluding:


“Although it is a close call question, we conclude that the district court did not clearly err in finding that Rogers recklessly endangered the safety of an aircraft. As Rogers’s attorney admitted at oral argument, his earlier behavior in turning away the laser from the automobile established that he was aware of the danger of shining a laser at someone operating a vehicle. In addition, Special Agent Jarman testified that Rogers admitted he knew shining the laser at an aircraft was wrong. In sum, Rogers knew his conduct was wrong and knew it posed a risk to the driver of an automobile. Thus, it was reasonable for the district court to infer he was aware of the danger of pointing his laser at an aircraft. As a result, the district court’s finding was ‘plausible in light of the record as a whole.’”


Government Must Show Defendant was Aware of Risk


The appeals court, however, stopped short of finding that the § 2A5.2(a)(2) enhancement is applicable in every case. Following the lead of the Ninth Circuit in United States v. Gardenhire, the Seventh Circuit held that the government must show that a defendant “was aware of the risk” of pointing a laser at an aircraft and that he or she “grossly deviated from the standard of care in disregarding it.”


The old adage “your freedom ends where my nose begins” applies to lasers. A person may enjoy the legal right to purchase one, and use it for any legal purpose, but she does not have a right to point it in a manner that endangers the public, especially people in aircraft and moving vehicles.