Issue Brief

Aircraft Force Downs

November 1998

Status Update:

Before Congress passed the Coast Guard Authorization bill, S. 1259, in the waning days of the 105th Congress, a House-Senate conference committee removed the "order to land" language from the bill.

Summary:

The Senate Coast Guard Reauthorization bill (S.1259, sec. 409) includes provisions intended to provide additional authority to U.S. law enforcement officers to curtail maritime and aviation drug smuggling near the border. The provisions would permit officers to order aircraft to land without requiring officers to have a reasonable suspicion of criminal activity before exercising this new power. It also could make pilots responsible for paying thousands of dollars to reclaim their aircraft, even if they are totally innocent of any wrongdoing. This bill would make it a federal crime to fail to obey an order to land, subjecting pilots to a fine or up to three years in prison. AOPA has serious concerns that could be addressed by adding two relatively minor amendments to the bill. We believe carefully crafted legislation can achieve the goal of fighting drug smuggling without jeopardizing safety or undermining the rights of pilots.

Overview:

Aircraft Interceptions Raise Safety Concerns

AOPA Legislative Action strongly supports efforts of the Coast Guard and other law enforcement officers to fight drug smuggling. However, ordering an aircraft to land is not comparable to a highway patrol officer ordering a car to pull onto the shoulder. An order to land can be difficult to communicate, even more difficult to accommodate, and in many cases dangerous. There is no easily recognized signal for one aircraft to communicate this message to another. Radio communications are not always effective because an aircraft pilot is usually moving between several frequencies.

If an aircraft attempting to enforce an order to land began to fly near another aircraft, the normal response would be to take evasive action to avoid a collision. An aircraft interception by law enforcement officers could result in a tragic accident involving an innocent pilot. The International Standards, Rules of the Air, published by the International Civil Aviation Organization (ICAO) state that an aircraft interception should be undertaken "only as a last resort" and that "interceptions of civil aircraft are, in all cases, potentially hazardous."

Unfortunately, the danger of civil aircraft interceptions has already been demonstrated. In one tragic example, two U.S. Air Force F-4 jets were sent to intercept and identify a suspicious aircraft near Cherry Point, NC. Soon after intercepting the general aviation aircraft, one of the jets accidentally collided with it, slicing the off the upper portion of the fuselage. All seven passengers, who were returning from a trip to the Bahamas, were killed.

Reasonable Suspicion Should Be Required

The provisions, as written, do not require reasonable suspicion that the aircraft is being used unlawfully before a law enforcement officer would be permitted to issue an order to land. Therefore, it would allow officers to select random aircraft flying near the U.S. border for forced landings. Before subjecting pilots to the significant burden and potential safety ramifications inherent in complying with an order to land, there should first be a requirement for reasonable suspicion of wrongdoing explicitly written into law.

Carefully crafted legislative language could take into account the safety and individual rights of general aviation pilots without weakening crime prevention. S. 1259 should be amended so that a Federal law enforcement officer must have observed conduct establishing reasonable suspicion that the aircraft is being used unlawfully, or be in possession of information establishing reasonable suspicion that the aircraft is being used unlawfully. This could include:

• An aircraft flying at unusually low altitudes;
• An aircraft flying at night without running lights;
• Objects being dropped out of the aircraft while in flight;
• Altered or obliterated aircraft registration numbers;
• Activities which occur before flight, such as loading suspicious cargo into the aircraft;
• Information from informants;
• Failure to comply with FAA or Customs reporting requirements for international flight.

The proposed legislation only suggests that the FAA, when implementing regulations on this proposal, should establish guidelines based on observed conduct and prior information. AOPA Legislative Action does not want to rely on government bureaucrats to draft guidelines that may or may not address our concerns. We also fear that any guidelines would be viewed only as suggestions, and would not prevent random aircraft from being subjected to an order to land. We believe reasonable suspicion should be required by law before a law enforcement officer can order an aircraft to land.

"Innocent Owners" Must Be Protected

Another concern is that this bill makes it too easy to seize an aircraft, and too difficult to reclaim it if the owner is innocent. Over the years, our organization has been involved in many cases where seizure and forfeiture laws have been abused. Once an aircraft is seized, its owner � even if totally innocent of any criminal activity � may have to spend many years and thousands of dollars to reclaim his property.

Current civil asset forfeiture laws allow police to confiscate the property of an individual based only upon probable cause to suspect that the property was involved in a crime. The owner of the aircraft may not have been involved in any kind of criminal activity. The seizure could be the result of the activities of a previous owner or someone who, without the owner�s knowledge, used the aircraft in criminal activity. It could even be the result of a mistake on the part of law enforcement officers.

"Innocent owner" provisions provide, in certain circumstances, for an innocent owner to recover possession of property through an expedited process. Many of our concerns regarding aircraft seizures could be addressed by specifying in the bill that "innocent owner" provisions do apply to this legislation.

Current Status:

Congress passed S. 1259 without the "order to land" language.

Another bill that included the same language, HR 3858, was introduced by Rep. Duncan Hunter on May 13, 1998 as part of the Republican Leadership�s "Drug Free Borders" effort, but no action was taken on that bill. The language was also added as an amendment to the Senate�s tobacco bill, which was withdrawn from consideration before any action was taken.