Red airspace and black SUVs
A VIP TFR violation can trigger more than an FAA investigation
As pilots and aircraft owners, we should all be familiar with FAR 91.141, which prohibits any person from operating an aircraft over or in the vicinity of any area to be visited or traveled by the president, vice president, or other public figures contrary to the restrictions established by the FAA.
These restrictions appear as a temporary flight restriction (TFR) and are communicated to us as a notice to airmen (notam). We colloquially refer to these as “VIP TFRs.” When the topic comes up in hangar-side chats, it usually focuses on the location and extent of the notamed TFR, ways to avoid or legally operate within the TFR, intercept procedures, and perhaps some shared experience from someone who knows someone who busted a VIP TFR once upon a time.
What’s not so frequently discussed and often misunderstood is what happens after the bust, after an unwelcome military flight demonstration (i.e., intercept), after receiving the notorious request to copy a number and call air traffic control (ATC), and after landing (assuming you’re not determined to be an imminent security threat, against which deadly force may be used). For this article, I’ll avoid the conversation about an investigation from the FAA but assume one will occur.
One of the first things a pilot busting a VIP TFR will experience is some form of contact from the U.S. Secret Service. This could be the arrival of several black SUVs immediately after landing. It could be a house visit in the hours or days after the event. Or it could be a call from a special agent to arrange a meeting at a local coffee shop the following week. Regardless of the timing and nature of initial contact, the pilot should expect a request for an in-person visit with two or more Secret Service special agents anytime a VIP TFR is busted.
It’s worth taking a quick detour to mention that violation of a VIP TFR may be a crime under 49 USC 46307. Because the event may be a crime, and because the Secret Service is a law enforcement agency of the United States, the Fifth Amendment to the U.S. Constitution protects the pilot’s right against self-incrimination. In other words, the pilot cannot be compelled to speak against his or her own interest and may decline to answer any questions from the Secret Service after invoking this right, even when innocent.
Assuming the pilot elects to proceed with the meeting, special agents generally will ask a series of somewhat standard questions. These questions cover two categories: aviation and a general threat assessment. On the aviation side, agents will ask whether the pilot knew of the TFR, whether entry into the TFR was intentional, and for an explanation as to how and why it occurred. While they are at it, the Secret Service will ask to see the pilot’s required documents, like his or her airman certificate and medical certificate (or, in the case of a pilot exercising BasicMed or sport pilot privileges, an explanation as to the legality of the flight without a medical certificate). They might also ask to review the pilot’s logbook and the aircraft airworthiness certificate and registration certificate. Keep in mind these documents are required to be produced for inspection upon a reasonable request from law enforcement. FAR 61.3(l), 61.51(i), and 91.162(c) come to mind.
After satisfying the special agents’ aviation curiosity and assuming the TFR was meant to safeguard the president, the questioning will transition to a security threat determination. Questions may include how the pilot feels about the current president and his administration, whether the pilot has any ill will toward the president, whether the pilot owns any firearms and, if so, how many, what kinds, and where they are located. They may also cover whether the pilot has any past run-ins with law enforcement, criminal history, or any history of aggressive behaviors and mental health issues.
For the most part, these interactions with the Secret Service are benign events intended to discern the pilot’s intent in busting the TFR and whether he or she poses a threat to the protectee. Usually, nothing further will come from the Secret Service as TFR busts are largely unintentional mistakes, and rational pilots wouldn’t intend to harm anyone. It is, however, important for pilots to understand what they are up against, what their rights are, and whether it’s advisable to talk to the Secret Service at all. The best way to do so is to seek competent legal advice. AOPA members with Pilot Protection Services involved in any TFR bust should contact the Legal Services Plan at 800-872-2672 as soon as practicable.
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