Breach of peace

Glider pilot soars into trouble

February 1, 2013

robin fleming

Robin Fleming inspects his Rolladen-Schneider LS8-18 sailplane at his base in South Carolina.

Photography by Chris Rose

Glider pilot Robin Fleming had been in custody for about 22 hours when an official at the detention center entered the cell with his arrest warrant. Fleming struggled to read the charges against him, as his prescription glasses had been taken during processing. The officer read the charges for him.

“That the defendant did, on or about July 26, 2012, commit the offense of breach of peace,” the officer read. The accusations sounded serious: “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.” These words contrasted sharply with the account Fleming and others later gave—of a routine flight cut short without cause by an agency operating outside of its jurisdiction.

Fleming, 70, had flown his Rolladen-Schneider LS8-18 sailplane over the H.B. Robinson Nuclear Generating Station near Hartsville, South Carolina, at an altitude of 1,518 feet msl—by his estimates, about 1,000 feet above the power plant’s dome and then circled in the vicinity of nearby Lake Robinson for about 40 minutes looking for lift. 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. He spent the night awake in a cell with 11 other inmates, and finally left the detention center 24 hours after his arrest, exhausted and eager to clear his name. A month later, the charges were dropped. h.b. robinson nuclear generating station

Fleming took off from Bermuda High Soaring in Jefferson, South Carolina, at 12:41 p.m., towed to 2,000 feet agl by a Piper Pawnee. He had intended to fly to Asheboro, North Carolina; Dillon, South Carolina; and Winnsboro, South Carolina, to complete a 500-kilometer course, but in soaring, one goes where there’s lift. A flight recorder in the aircraft shows Fleming’s circling course as he searched for thermals to the east. He had looped down to Bennettsville, South Carolina, then decided to head home. The path back to Lancaster, traveling from one small airport to the next in case the lift died, took him near Hartsville Regional Airport—and the H.B. Robinson Nuclear Generating Station, two nautical miles away.

Fleming approached Hartsville from the north at 3,100 feet msl, flying southwest toward Lake Robinson. He had been up to 5,000 feet earlier in the flight, and knew that the thermals went up that high if he could find one. He only had to get high enough to glide back to Lancaster.

On the Charlotte sectional chart, the nuclear power plant is marked only with a group obstruction symbol. Fleming, a former flight test engineer who began flying gliders at Bermuda High 10 years ago, was familiar with the post-9/11 notam that advises pilots to avoid flying near facilities such as power plants “to the extent practicable,” but he thought nothing of a single pass over the Robinson facility on the west side of the lake as he headed toward where he thought there would be lift at the lake.

At Hartsville Regional Airport, Wendy Griffin was monitoring the unicom. Griffin said the people at the power plant sometimes call her if they see an aircraft flying nearby to ask her who’s flying and why the aircraft is there. (One time, she said, she got a call about a helicopter lingering in the area and found out from the pilots that they were working for the power plant.) Sometimes she calls the pilots on the frequency to find out their intentions, but when the plant called her, she saw that it was a glider and didn’t think much of it. “I said, I really don’t think it’s a threat. I wouldn’t worry about it.”

robin flemingSomeone did worry about it. A little before 5 p.m., Griffin said, a couple of police cars rolled up. When the officers came in, she said she’d try to reach the aircraft on the radio.

Fleming was switching between the Bermuda High frequency and Hartsville unicom to monitor local traffic. He later recalled that during one switch to Hartsville, he heard the end of a transmission mentioning a glider over the nuclear plant. He responded that he was circling and moving away from the plant. He found a thermal, he said, and began climbing.

Fleming recalls that at some point someone requested he land at Hartsville, but then he was told he could continue. He climbed to 3,100 feet msl, circling to the northeast away from the lake, and planned to head back to Bermuda High Soaring—but he lost lift and descended to 1,900 feet. He turned back toward Hartsville again, found a thermal, and climbed to 2,740 feet. But he received another radio transmission from Hartsville, telling him to land.

At the airport, Griffin said the officers on the scene told her to demand the glider land at Hartsville, although an FAA official on the phone said the FAA was not demanding he land. So, she said, she gave Fleming a choice: “Police officers here are asking you to land, but the FAA says you do not have to land. I’m leaving this up to you.” Fleming said to tell the officers he’d be there in a minute.

Fleming’s and Griffin’s accounts are consistent with the Darlington County Sheriff Department’s incident report. Capt. Joyce C. Everett wrote that the suspect was “advised” to land at Hartsville, and that he had advised he was going to land elsewhere because he didn’t want to have his airplane towed. When he was again instructed to land in Hartsville, Everett wrote, he did. In a supplementary report, Sgt. Christopher J. Pittman wrote, “It is unclear as to exactly how that radio conversation went, but the pilot initially stated that he intended to land at Bermuda High landing strip.... After it was made clear that law enforcement expected him to land in Hartsville the pilot stated that he would comply.” chart

The arrest report, however, painted a different picture: “The defendant had to be ordered several times to land the aircraft by law enforcement before he complied,” it said. Griffin strongly contests this version of events: “I was the only one on the unicom with him,” she said. “I never demanded him to land.”

Officers approached the glider when it rolled to a stop at 5:11 p.m. and requested Fleming’s identification and pilot certificate; searched his pockets; subjected him to a pat-down; and took his wallet, cellphone, glasses, and sunglasses, according to Fleming. He said his request to call Bermuda High was denied. He was told he should consider himself under arrest.

“Haven’t you heard about 9/11?—that’s what they said to me,” Fleming said.

Soaring, by its nature, is a social sport: Unless you’re flying a motorglider, you’ll need someone to tow you and someone you know you can call if you have to land out—at another airport, or off-airport. So people were looking out for Fleming at Bermuda High Soaring, a glider club and commercial operation where Fleming instructs on the weekends.

As the other pilots returned, Jayne Ewing Reid, co-owner and chief tow pilot, was worried. No one had heard radio calls from Fleming. She called pilots who lived in all directions from the field, asking them to try to reach Fleming on their handheld radios. No response. She even took the Pawnee and headed in the direction of Fleming’s last known radio call—Anson County, North Carolina—searching without success. “This is when you get that feeling that something’s not right,” she said. Ewing Reid and business partner Frank Reid filed a missing airplane report around 6:30 p.m.

gliderThat evening, Ewing Reid sent an email to the pilots she had asked to call Fleming on their handhelds: “9:02 p.m.—Robin’s plane is reported to be at Hartsville Airport.” She said the FAA had called to say the glider was there, but still no word from Fleming.

Finally Reid called Hartsville Regional Airport and got the surprising news. “Robin is OK!!” Ewing Reid updated the pilots at 9:17 p.m. “He is in jail. No, I’m not kidding.”

Fleming watched the commotion from the back of a police car. At one point, he said, he counted 12 law enforcement vehicles at the airport. Griffin said she counted 17.

Two men, whom Fleming judged by their uniforms were security personnel at the nuclear plant, questioned him: Did he know he was flying over a nuclear plant?

Fleming flies competitions in South Carolina that take pilots near the Savannah River Site, a 310-square-mile Department of Energy industrial complex that handles nuclear materials in support of national defense. This large site is marked on sectionals with a notice: “For reasons of national security pilots are requested to avoid flight at and below 2,000 feet msl.” Overflight is not prohibited.

Smaller nuclear facilities such as the Robinson plant are addressed in a flight data center (FDC) notam issued following the September 11, 2001, terrorist attacks: “To the extent practicable, pilots are strongly advised to avoid the airspace above, or in proximity to such sites as power plants…. Pilots should not circle…over these types of facilities.” Because gliders routinely circle to gain altitude in thermals, the Soaring Society of America sought a clarification from the FAA: “That is, circling is a mode of flight for us and is acceptable at or near these facilities. The key is to spend only as much time as needed to gain lift and move on beyond the facility,” it told members.

Fleming’s circling had been mostly on the side of the lake opposite the nuclear plant. The FAA looked into the overflight and confirmed that it found no violation of the federal aviation regulations. robin fleming

“As I understand it, there is no ‘no-fly zone’ around the plant,” said Charles Ellison, site communications specialist at the nuclear plant. He said security staff had estimated that the glider flew about 400 feet above the plant, and so they contacted local law enforcement. “Any time an aircraft is flying that close, we consider it a perceived threat to security,” he said. Ellison said it’s the plant’s policy to turn the matter over to local law enforcement. A spokesman for the Darlington County Sheriff’s Office did not return phone messages requesting comment on how the concept of a no-fly zone was introduced, but differing reports of the aircraft’s altitude give an indication of how the perception of a threat escalated. Fleming’s flight recorder gave the glider’s altitude when it passed over the site as 1,518 feet msl; the highest charted obstruction there is 577 feet msl. The incident report cites security supervisor Tim Robertson as reporting that “his security guards had seen a small aircraft noiselessly circling the power plant within only a few hundred yards of critical structures.”

Griffin said she heard security people saying Fleming had flown 100 feet over the dome. “That just wasn’t true,” she said.

About 5:30 p.m. the next day, Fleming was released after 24 hours in custody. Frank Reid and two other pilots took him back to the airport, where Ewing Reid met them with Fleming’s trailer to retrieve his glider.

Fleming had called Ewing Reid from a pay phone near his jail cell about 10 o’clock the evening before—five hours after his arrest. She told him his friends would work on his release the next day; Frank Reid spent half the night finding a lawyer to represent Fleming. In the morning that lawyer told Fleming that his hearing should take place at 4 p.m. In the meantime, Fleming would be questioned by DHS and the FBI.

glider being towedFleming estimated he had been awake for almost 30 hours when he entered the room where a special agent from the FBI, an aviation security inspector from DHS, and a woman whose affiliation he can’t remember waited to question him. He recalled that someone told him there was no intention of charging him with any federal offenses related to the incident, and that he was asked to explain the intent of his flight. He explained how he navigated by VFR charts and that no restrictions were charted in the area of the plant. A British-born American citizen, Fleming also answered questions about his background and how long he had been a citizen of the United States.

To the attorney representing Fleming at the bail hearing and subsequent court appearance, the case was not aviation related—it was about the breach of peace charge. But to Fleming, it was bigger. He had been flying legally in that airspace, and local law enforcement had no authority to order him out of the sky. A member of AOPA’s Pilot Protection Services, he sought additional assistance from John Hodge, a lawyer and 17,000-hour pilot. From the FAA’s perspective, Fleming’s flight was legal and legitimate: No restricted or prohibited areas were charted. Local law enforcement does not have the authority to order an aircraft to land, Hodge said. Any argument that Fleming delayed in complying with the request to land must take into account the nature of a sailplane: With no engine, it can’t simply go directly from Point A to Point B.

Hodge noted that a sheriff’s department with an aircraft can consult with the pilot on aviation matters, but departments like the Darlington County Sheriff’s Office don’t have access to that knowledge. In fact, a helicopter from a nearby county came to the Hartsville airport during the incident. Griffin said the Chesterfield County Sheriff helicopter flew in, and the pilots left when they found out what was going on. “They pulled out a chart and they said, Look here, nothing in this chart says you cannot fly over the nuclear plant,” she said. “Nothing.”

Griffin said she told the officers on the scene to clear the runway, and one officer talked about commandeering the airport: “He was running around saying, We were going to shoot him down,” she said.

Fleming waited outside the courtroom as his case went before the judge. 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 reluctantly agreed. Fleming had cleared his name, but he wouldn’t be satisfied until he could be sure a pilot can rely on the sectional for direction and not go through a similar ordeal. Fleming hopes no other pilots will be subjected to the same nightmarish ordeal he experienced, or the breach of peace charge that shocked him and those who know him. “It was the police that breached the peace,” Fleming said.

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Taking action

Flying near power plants

“This incident raises several disturbing issues that demand the immediate attention of the Department of Homeland Security to prevent unnecessarily detaining United States citizens, or even worse, needlessly causing injuries or fatalities that would have resulted from a ‘shoot down’ of the aircraft,” said AOPA Senior Vice President Melissa Rudinger. She urged the DHS to “immediately conduct a thorough review of all security programs for similar types of facilities to ensure that it is clear on what constitutes a violation and what is the appropriate action to be taken.” She also requested that DHS make it clear that no one may shoot down an aircraft outside of the existing command structure.

The TSA responded that it takes these matters seriously, “both in context of aircraft loitering in airspace around critical infrastructure as well as appropriateness of responses by various organizations at the federal, state, and local levels.” The agency said it would continue to work with organizations “by providing them with education on airspace matters…. This will allow them to make informed and effective decisions on when and how best to execute a response based on their specific statutory and/or legal authorities.”

In its communication to members about the rules for flying near power plants and other infrastructure, the Soaring Society of America has called on glider pilots to reach out to on-site security at local power plants and laboratories: “Open a dialogue and tell them who you are and when you may be in their area.” In addition, airports often encourage pilots to “fly friendly” in sensitive areas; the Hartsville airport has a right traffic pattern for Runway 3, keeping pilots as far from the plant as possible.

AOPA continues to press the TSA, along with the National Protection and Programs Directorate—which deals with infrastructure protection—to explain its education efforts; AOPA also has offered to assist in developing guidance and resources on general aviation-related issues. –SB