Posted by Orin Kerr:
Patriot Act Abuse and the Banach Case:
Over at [1]CrimLaw, Mike argues that the case of a man indicted
recently for [2]directing a laser at a Cessna plane should be
considered an abuse of the Patriot Act. I think he may be right,
although it depends on a factual question about which I don't think we
quite know the answer.
The man, David Banach, was indicted under a Patriot Act provision
codified at 18 U.S.C. 1993(a)(5) that imposes liability against
whoever willfully . . . interferes with, disables, or incapacitates
any dispatcher, driver, captain, or person while they are employed
in dispatching, operating, or maintaining a mass transportation
vehicle or ferry, with intent to endanger the safety of any
passenger or employee of the mass transportation provider, or with
a reckless disregard for the safety of human life.
Banach allegedly pointed a handheld laser at a chartered Cessna jet
with six people aboard when the plane was flying at about 3,000 feet
near Teterboro Airport in Parsipanny, New Jersey. He did this three
times. According to news reports, the pilot and co-pilot were
temporarily blinded by the laser, but were able to land the plane
safely.
According to CrimLaw, the indictment filed in the case charges that
Banach did knowingly and willfully interfere with, disable, and
incapacitate a driver, captain, and person, namely aircraft pilots,
while those aircraft pilots were employed in operating and
maintaining a mass transportation vehicle, namely the Aircraft,
with reckless disregard for the safety of human life.
Mike argues that this is an abuse of the Patriot Act on the theory
that what Banach did was clearly an accident:
Does anyone with any common sense or common decency really think
Mr. Banach was trying to disable an airplane? . . . The guy is more
like Bozo the Clown than Osama bin Laden. And the law should be
able to charge Bozo and Osama appropriately. Charging Mr. Banach
under the PATRIOT Act is abusive.
Whether that's right depends on a factual question, I think. Did
Banach intend to interfere with, disable, or incapacitate the pilot of
the plane? Mike sees the answer as obvious, but I think it's a bit too
early to tell. It seems to me that if the government has solid
evidence that he did, then the charge seems appropriate; if the
government lacks such evidence, however, then the charge is
unwarranted and inappropriate.
So which is it? Banach's lawyer says that his client was acting
innocently; according to the lawyer, Banach was just stargazing with
his daughter when the laser pointer just happened to hit the plane. If
that is true and the government knows it, then yes, I think this is a
case of Patriot Act abuse: the evidence simply does not satisfy the
elements of the crime, and the charge should be dismissed.
At the same time, we don't yet know all the evidence that the
government has, so it seems a bit early to condemn the prosecution for
abusing the law. We'll have to wait and see what evidence the
government offers to support the charge.
References
1. http://crimlaw.blogspot.com/2005/03/what-do-you-mean-by-abuse_28.html
2.
http://www.mcall.com/news/local/all-b7_3nj-lasermar25,0,6654862.story?coll=all-newslocal-hed
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