Secret ‘no-fly zone’?- Via AOPA

Pilots returned, one by one, to Bermuda High Soaring in Jefferson, S.C. By about 5 p.m. on July 26, 2012, the lift had died and everyone had returned to the gliderport—everyone except Robin Fleming. No one remembered hearing from Fleming since 1:30 or 2 p.m., and Jayne Ewing Reid, co-owner and chief tow pilot of the glider club and commercial operation, was worried.

She called pilots who lived in the region and asked them to try to contact Fleming on their handheld radios. She flew the club’s Piper Pawnee in the direction of Fleming’s last known radio call, but found no evidence of the missing glider or its pilot.

“This is when you get that feeling that something’s not right,” she said. Fleming always called if he landed out. Worried that something had happened to Fleming, an avid glider pilot and instructor at Bermuda High, Jayne Ewing Reid and business partner Frank Reid decided to file a missing airplane report. Neither suspected that Fleming was in trouble with the law.

Fleming, 70, had been arrested for breach of peace after flying his Rolladen-Schneider LS8-18 sailplane noiselessly over the H.B. Robinson Nuclear Generating Station at an altitude of 1,518 feet msl—by his estimates, about 1,000 feet over the power plant’s dome—on his way to search for lift at nearby Lake Robinson.

No airspace restrictions were printed on sectional charts; no notam marked the area off-limits. When a woman at Hartsville Regional Airport relayed over the Unicom that law enforcement wanted him to land, he had flown to that airport and landed, greeted by a swarm of law enforcement vehicles.

Nonetheless, Fleming spent the night awake in a cell with 11 other inmates. The next afternoon, still in custody, he discovered the details of the charges: “flying very close to the nuclear plant dome in a ‘no fly zone,’” “escalated a multi-jurisdictional call out to a homeland security situation,” “ordered several times to land,” “causing the disturbance throughout the community.”

He finally left the detention center 24 hours after his arrest, exhausted and eager to clear his name. The charges were dropped the next month, but now Fleming wants to make sure no other pilots are subjected to a similar ordeal.

via Secret ‘no-fly zone’?.

The local police didn’t exactly cover themselves in glory here.

9 thoughts on “Secret ‘no-fly zone’?- Via AOPA”

  1. Due Process.

    No notice, no crime, no infraction, no guilt. Ignorance of the law, when the law is not made “reasonably public”, is not only an excuse, but lack of promulgation of applicable regulations by a government entity is justification for legal action by the affected citizenry.

    At least it used to be. Before we assassinated Americans without charge. And declared all gun owners to be murderers of children. You know, got rid of that troublesome “Due Process” stuff.

  2. In these things the local Police rarely cover themselves with Glory. It’s especially bad given the general ignorance of the Police. There are exceptions, like our Badger, but I’ve learned the hard way that Police are not to be trusted at anytime.

    In this case, if no TFR was posted in the NOTAMS, or a restriction on the charts, then he should sue the whole lot of them for exceeding their authority. I’d be especially nasty with the locals for allowing themselves to be used in that fashion.

    1. There’s entirely too much case law on the books that says that, while your ignorance of the law is NEVER an excuse, there’s no reasonable way that the police can be expected to know everything, so as long as they’re trying *really* hard, you can’t hold their ignorance of the law against them.

  3. Not the same issue. Civil authority has an obligation to ensure public dissemination of all laws and special restrictions.

    The suit would not be that the pilot was talked to. But that he was detained, and charged, when the law was not, apparently, public knowledge. No NOTAMS, no TFR published. I’d love to be counsel for the plaintiff.

  4. There was no law that was violated, nor were any Federal Aviation Regulations violated, as stated by both the FAA and the sherrif’s department pilots. The problem existed only in the imaginations of the power plant security personnel and the local police. The only mistake Mr. Fleming made was cooperating with police who don’t have jurisdiction over Federal airspace and in not suing the police department for putting him in danger.

  5. It would appear that the local piggy-wigs messed up on this one. I wonder why they did not have written policy at the power plant for the Security Dept. to reference.

    You would think that a nuclear power plant would have some sort of restriction, though. I realize that a power plant is not very vulnerable, we have all seen the film clip of a Phantom being phlown into a containment building mockup, and the plane just collapsing into itself, sans damage to the building. But you don’t want people doing recce on the plant either, you could damage the electrical grid by attacking, if nothing else.

    I hope he gets at least an apology.

  6. I was most troubled by the detail:
    “When his attorney returned and said the case would be dismissed if he agreed not to take any legal action against Darlington County law enforcement, he said, he reluctantly agreed.”

    I wasn’t aware you could have your civil rights (legally) held hostage. If they violated his civil rights (they did) they cannot then threaten to prosecute him unless he waves his right to petition for redress. Now, it’s easy for me to say “he should have laughed at their offer,” as I’m not the one looking at paying the legal fees or risking having an idiot judge who doesn’t understand aviation siding with the prosecution. But clearly they realized they’d screwed the pooch and didn’t want to suffer the consequences of their actions (thus the offer to drop the charges if he didn’t sue).

    My question is, if he changes his mind and decides to sue them, do they have a legal right to reinstate the charges? I’d be interested to know.

    1. Interesting question.

      The terms of the bargain in the present instance would seem at first glance to form a contract. There is consideration from parties – Darlington County has promised not to press charges, and the pilot has promised not to sue them. Darlington County made the offer and the pilot accepted. Thus, a valid contract.

      BUT there’s a little more to it. When forbearance from performing an act is used as consideration, it needs to be something that you already didn’t have a legal duty to do. In this case, Darlington County has a legal duty not to maliciously prosecute the pilot. Therefore, arguably, Darlington has *not* in fact offered consideration for the pilot’s forbearance from asserting a legal claim. (Further support from this comes from Fiege v. Boehm (App Ct. Maryland 1956), which held in pertinent part that the surrender of, or forbearance to assert, a valid claim by a person with an honest and reasonable belief in its possible validity is sufficient consideration for a contract. Note the requirement that “an honest and reasonable believe in [the] possible validity” of the claim is required. Darlington’s offer, in this case, points to the idea that they knew their position was incredibly bad, and they were trying to cut their losses.)

      There’s an additional idea that might make the idea of a contract invalid here as well: unequal bargaining positions. For a contract to be validly formed between two parties, they must enter into the negotiations from a roughly equal bargaining position, which the pilot and the County arguably did not. The County’s bargaining position at the start of the negotiations was such that they could very easily have caused the destruction of the pilot’s entire life with no trouble whatsoever, simply by dragging things out as long as possible with a malicious prosecution. This would force him to have legal representation, and the bills from this would likely be high enough to cause the loss of his home and business. It’s likely that a court would find that the contract was, on its face, unconscionable, simply because of the unequal bargaining positions.

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