When Stupid is Criminal

February 1, 2012 / 6 Comments

Photo courtesy Greenfield District Court
This afternoon, 57-year old Steven Fay will appear in court in Massachusetts to face criminal charges for being supremely stupid, recklessly stupid, deadly stupid. In what some aviation attorneys say is extremely unusual, a private pilot has been indicted for involuntary manslaughter for unintentionally crashing his airplane and killing his daughter.

Charging a grief-stricken man who has lost his child seems on the surface to be a step-too-far.  Further, criminalization of error – including suspicion of bad decision making – is highly controversial and rarely practiced here in the United States though it is a different story in other countries. In Brazil the most well-known recent case was the arrest of two American business jet pilots on a ferry flight over the Amazon jungle, whose wing clipped a Gol Airlines 737 causing it to crash and killing everyone on board. But pilots, mechanics and air traffic controllers have faced jail time in Croatia, France and other countries.

Fay’s airplane the night of the crash Photo by Massachusetts State Police

Fay’s indictment is notable because it is uncommon for the law to swoop in on general aviation accidents when no intent to cause injury is apparent. In that case, it is usually left up to the regulators to act.

The Federal Aviation Administration did indeed revoke Fay’s private pilot’s license two months after the accident charging him with “a blatant disregard for the regulations airmen operate under” because he was flying an airplane for which he was not qualified. Fay had only a license to fly single-engine aircraft. The FAA also called him “an immediate threat to aviation safety.” (On the second charge, I’d quibble with the wording, the immediacy of the threat has already passed.)
But the actions of Steve Fay seem so out there in terms of imprudence, if someone is going to make a test case of criminalizing stupidity, this seems the guy to go after.

Here’s what happened. On New Year’s Day one year ago, the New Hampshire native flew his 51-year-old, twin-engine Cessna 310 from Keene to Orange Municipal Airport in Massachusetts. With only 50 hours of experience in the airplane and with his adult daughter on board, Fay decided to practice touch-and-go landings at night. The NTSB report says approaching the airport, the plane hit trees before crashing inverted into a creek.  Fay was not seriously injured, but his daughter who did not have her seat belt on because she was looking for a map during the approach, was ejected from the airplane and killed.

According to the Associated Press, Fay’s flight instructor reportedly told authorities he’d repeatedly warned Fay that he was not ready to solo in the 310, which Fay had purchased the previous year. Flight instructor Michael Truman said he felt Fay’s “airplane was still too much for him.” That Fay ignored not just the FAA regulations but the advice of the person who knew his flying best, was part of what led the district attorney Steve Gagne to seek criminal charges.

“His conduct unfortunately resulted in the tragic death of his own daughter, but it also endangered anyone who happened to be in his flight path,” he told me in an email. “Particularly those who live in the residential neighborhoods adjacent to the Orange Airport,” Gagne said.

I confess, when I first heard of this case, the fact that the pilot was related to his passenger seemed to argue against a criminal complaint. But Gagne’s point, that Fay just as easily could have killed someone else bears consideration.

Yesterday, as I was riding right seat while my 17-year old son practiced driving stick shift, an SUV in the oncoming lane barreled past and we saw the driver holding her smartphone up at eye level to read as she drove. We did not notice if she had a child in her car, but she could easily have killed mine.

At what point does law enforcement step in in cases of stupidity?  A court will soon take up that question and it’s not a moment to soon.

Categories: Flying Lessons, Uncategorized
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6 responses to “When Stupid is Criminal”

  1. I had taken an Aviation Law class, and one of the things I think I remember learning was how, if being prosecuted for an aviation accident, you can either be fined or have your pilot certificate revoked (to which most people would rather see you not get behind a yoke again), but not both at the same time. Is this different, or was I just misreading regulations?

  2. DaveReid says:

    It's hard to argue with the DA – if you're going to kill someone as a direct result of your own negligence, your relationship with the victim is completely irrelevant.

  3. Christine

    You've done it again. You have brought focus to and initiated a discussion of one the most enigmatic subjects in aviation, decision making. What is the difference between a good decision and a bad one? From there we get to the question; Is bad decision making criminal?

    Let's take the example of a driver who comes upon an intersection with no stop signs. What is that drivers obligation? Their responsibility, as the operator of a motor vehicle, is to navigate the intersection without threat or cause of harm or injury to person or property. If the driver decides to zoom through the intersection and hits someone is he guilty of a crime? Some would say that since there was not a stop sign, he did nothing wrong. It was just an unfortunate accident. There should have been a stop sign. Does the decision to stop (drive safely) or not rest completely with a law or a placard?

    Lately commercial aviation, and to some extent all aviation has become more and more inclined to look to procedural and regulatory compliance when it comes to responsibility for an accident. Managers and regulators have conspired to set up a system where everything is covered by policy, procedure or regulation. Then by definition, if there is a bad outcome it is the fault of non compliance, not ineffective decision making. As a response, pilots, specifically less experienced ones, have come to see flying an airplane as an exercise in adhering to procedure and regulation, not maintaining a safe operation. As an aviation community we have drifted from the philosophy that policy and procedure are tools to achieve safety not a guarantor or of it.

    Parents of new drivers are especially sensitive to this this paradigm. They are only concerned about their children's' compliance with the driving laws to the extent it keeps them safe. Here's the message parents want their kids to get. You never get a "do over" if you get in an accident. There are no insurance policies or apologies that can erase injury or death. Drivers (and pilots) need the training and experience to learn what is safe, not just what is legal.

    The bottom line in decision making when operating a moving vehicle is whether on not the decision increases or decreases safety. When an operators license is issued it represents that the holder has demonstrated that they have the knowledge and skill to operate the vehicle safely. It does not ensure that the operator will always use that knowledge and skill to make effective decisions.

    To quote the great philosopher, Forrest Gump, "Stupid is as stupid does."

  4. Anonymous says:

    In this case, it is the 'stupidity' which is the criminal intent. When you are aware that an act of yours has every likelihood of endangering others and you continue with the act (which according to you is stupidity), that continuation of the act acts as the criminal intent.

  5. Frank Caron says:

    Well, it is a matter of decision making.
    But stating this does not really explain what may have happened. We do so many automatic decision in our daily life, and how many times are we aware about this complex (mental) process.
    It does no seem like a real professional assessing the different options he has for a specific coming task.
    It is difficult to imagine this pilot did reached such a level of assessment..
    But, I was not reading in his mind before he made the decision to fly his aircraft.
    From my perception, it is more a matter of personality than a real problem of decision making…
    From cognitive psychology point of view, there is definitely here a lack of meta-knowledge (ie. what do I know and what I do not know for this coming task…).

    Frank Caron (Ph.D).

  6. hi there,

    this is a very interesting discussion. The first thing I wonder is what is the exact charge? The second is, did this individual hold a twin engine rating for the aircraft and did he meet any type of currency requirements, including night take off and landing?

    The issue of criminality seems pretty straight forward to me. As PIC the individual has a legal duty to ensure that he is legally entitled to conduct the flight under the FARs. He also has a legal duty to ensure that his passengers are appropriately restrained during take off and landing. From the synopsis it would appear that he failed on both counts. This is not a decision making issue, (other than he decided to ignore the regulations) it is a regulatory issue. The rules are there for a reason. Pretty straight forward in this case. Can you fly the aircraft? Are you current and thus proficient? Make sure passengers have seat belts on when taking off and landing.

    He appears to have failed to comply and as a result his child died. The humanitarian side of us would perhaps argue punishment enough.

    The issue of endangering others is past. The point of the regulations is prevention? Tear up his licence. Dragging him though a court for involuntary manslaughter charge will achieve exactly what? I think that this is a poor case to try.

    I think that anyone with any sense would recognize that it will not likely act as a deterrent for the idiots who don't follow simplest rules. Seems like a potential waste of the public funds taking him to court. Money better spent on trying some real criminals perhaps.

    Sam Slattery (MB BS. MAS. ATP),

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