Law Enforcement Run Amok
2013-01-28 When Police Go Overboard
The vast majority of police officers are conscientious and do a good
job. But every now and then they get carried away and, when it involves
aviation, that can make a pilot's life living hell.
Our job is certainly to fly within the law but, beyond that, we must
look like we're flying within the law. For example, if you fly near a
busy road and just above it, you'll draw a lot of unwelcome attention.
Fly over that road at 500 feet and nobody will likely think a thing
about it. Fly over a neighborhood at 100 feet and you'll stick out like
mad. Fly over that neighborhood at 1000 feet and nobody will likely even
know you're there. Of course you can't legally fly over a neighborhood at
ANY altitude in our craft but the point is that so much of it is about
appearances. After all, the most likely way we get in trouble is when
the police get called and then get the FAA involved.
Here's a story about sailplane pilot Robin Fleming who did nothing
wrong but, to the police, thought he did.
I recommend joining AOPA.org as they are probably the most powerful
aviation support org out there. And even though they don't represent
ultralight pilots per-se, they help defend our freedoms to fly. Member
numbers are the fuel for their fight.
Here is the article on AOPA's Website. It's archived below in case
the source gets moved.
The Ordeal: From AOPA.org
Pilots returned, one by one, to Bermuda High Soaring in Jefferson,
S.C. By about 5 p.m. on July 26, 2012, the lift had died and everyone
had returned to the gliderport—everyone except Robin Fleming. No one
remembered hearing from Fleming since 1:30 or 2 p.m., and Jayne Ewing
Reid, co-owner and chief tow pilot of the glider club and commercial
operation, was worried.
She called pilots who lived in the region and asked them to try to
contact Fleming on their handheld radios. She flew the club’s Piper
Pawnee in the direction of Fleming’s last known radio call, but found no
evidence of the missing glider or its pilot.
“This is when you get that feeling that something’s not right,” she
said. Fleming always called if he landed out. Worried that something had
happened to Fleming, an avid glider pilot and instructor at Bermuda
High, Jayne Ewing Reid and business partner Frank Reid decided to file a
missing airplane report. Neither suspected that Fleming was in trouble
with the law.
Fleming, 70, had been arrested for breach of peace after flying his
Rolladen-Schneider LS8-18 sailplane noiselessly over the H.B. Robinson
Nuclear Generating Station at an altitude of 1,518 feet MSL—by his
estimates, about 1,000 feet over the power plant’s dome—on his way to
search for lift at nearby Lake Robinson.
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
Nonetheless, Fleming spent the night awake in a cell with 11 other
inmates. The next afternoon, still in custody, he discovered the details
of the charges: “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.”
He finally left the detention center 24 hours after his arrest,
exhausted and eager to clear his name. The charges were dropped the next
month, but now Fleming wants to make sure no other pilots are subjected
to a similar ordeal.
Robin Fleming regularly flies his glider out of Bermuda
High Soaring and instructs there on the weekends. He never expected that
flying the whisper-quiet craft would land him with a breach of peace
Fleming took off from Bermuda High Soaring in Jefferson, S.C., at
12:41 p.m. that day, towed to 2,000 feet AGL by one of the private
airfield’s Piper Pawnees. He had intended to fly to Asheboro, N.C.;
Dillon, S.C..; and Winnsboro, S.C., to complete a 500-kilometer course,
but in soaring one goes where the lift is. A flight recorder installed
in the aircraft for record attempts and competitions shows Fleming’s
circling course as he searched for thermals to the east. He had looped
down to Bennettsville, S.C., he said, when he decided to head home. The
path back to Jefferson, traveling from one small airport to the next in
case the lift died down, would take him near Hartsville Regional
Airport—and the H.B. Robinson Nuclear Generating Station, two nautical
He approached Hartsville from the north at 3,100 feet msl, flying
southwest toward Lake Robinson to look for lift. He had been up to 5,000
feet earlier in the flight, and knew that it went up that high if he
could find it. He just had to get high enough to glide back to Bermuda
The flight started out normally, with an aerotow like this.
Jay Campbell, pictured, was among the pilots who searched for Fleming.
On the Charlotte sectional chart, the nuclear power plant is marked with
nothing more than a group obstruction symbol. Fleming 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. If
he couldn’t find a thermal there, he thought, he might have to land at
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 on July 26 she saw that it
was a glider and didn’t think much of it, she said.
“I said, ‘Well, I really don’t think it’s a threat,’” she said. “’I
wouldn’t worry about it.’”
Someone 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 added,
she said she’d try to reach the aircraft on the radio.
Looking for lift over Lake Robinson, 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 said.
He found a thermal, he said, and began climbing to return to Bermuda
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 msl. He turned toward Hartsville again, but found a thermal
and climbed to 2,740 feet. “All I needed was another few hundred feet”
to return to Bermuda High, he said. But he received a radio transmission
for Hartsville telling him to land.
At the airport, Griffin said the officers on the scene told her to
demand the glider land at Hartsville, but that 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, she recalled.
These accounts seem 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 instructed again 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 in Jefferson, SC. After it was made clear that law
enforcement expected him to land in Hartsville the pilot stated that he
The arrest report, however, paints a different picture, alleging that
Fleming “had to be ordered several times to land” before he complied.
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.”
As Fleming landed, Griffin said, about four police cars chased the
non-powered craft down the runway, lights flashing. The glider came to a
full stop at 5:11 p.m.
The H.B. Robinson Nuclear Generating Station
lies adjacent to Lake Robinson and a short distance from the Hartsville
Officers approached the aircraft 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’s account. He asked to call the people waiting for
him at Bermuda High to tell them where he was, he said, but was denied.
He was told he should consider himself under arrest, he recalled.
“’Haven’t you heard about 9/11?’—that’s what they said to me.”
‘No I’m not kidding’
Later that evening, Jayne Ewing Reid emailed the pilots she had asked
for help in the search for Fleming, with news from the FAA: “9:02 pm –
Robins plane is reported to be at Hartsville Airport.” There was still
no word of its pilot.
Frank Reid called Hartsville Regional Airport and got the surprising
news. Jayne Ewing Reid said she was relieved to know Fleming wasn’t in a
field somewhere, but still in disbelief.
“Robin is OK !!” she wrote at 9:17 p.m. in an email to the pilots she
had updated earlier. “He is in jail. No I’m not kidding.”
Jayne Ewing Reid spoke with Fleming a little later when he was able to
make a collect call from his cell, and Frank Reid looked for a lawyer.
Fleming’s friends were baffled that the mild-mannered pilot could arrive
at such a fate.
“That boy has never had a ticket,” Frank Reid said. “… He is the most
laid back and gentle person I have ever seen in my life.”
Breach of peace
The arrest warrant referred to a “no fly zone.” The incident report said
that “a glider or drone had infiltrated the restricted airspace over the
H.B. Robinson Nuclear Power Plant.” But Fleming knew nothing on the FAA
sectional charts prohibited him from flying there.
From flying competitions in the area, he knew that the Savannah River
Site, a 310-square-mile Department of Energy industrial complex that
handles nuclear materials in support of national defense, is marked on
sectionals with a notice requesting—not requiring—that pilots avoid
flight at and below 2,000 feet msl in the area. If a nuclear site as
large as Savannah River didn’t prohibit overflight, how could the area
around the Robinson plant be restricted—especially if nothing said so on
Facilities such as the Robinson plant are addressed in an FDC NOTAM
issued following 9/11: “In the interest of national security and 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 as to loiter in the vicinity 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, posting
on its website on March 7, 2002, that the FAA did not consider this
behavior loitering. “The key is to spend only as much time as needed to
gain lift and move on beyond the facility,” the association wrote.
Fleming had made a single pass over the plant, and his circling had been
mostly on the opposite side of the lake. The FAA looked into the
overflight and later confirmed to AOPA that it found no violation of the
federal aviation regulations—but Fleming was transported to the
Darlington County Detention Center. The Federal Bureau of Investigation
and Department of Homeland Security would interview him the next day,
and Fleming said an officer read the arrest warrant to him around 3:30
p.m. July 27.
It’s unclear exactly how the concept of a no-fly zone was introduced,
and a spokesman for the Darlington County Sheriff’s Office did not
return phone messages requesting comment. Charles Ellison, site
communications specialist at the nuclear plant, said that as he
understands it, there is no no-fly zone around the facility. 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
Fleming said he understands the nuclear site’s initial concern, but
thinks the ordeal could have stopped right there when security personnel
who came to question him at the airport saw him in the police car and it
became evident he wasn’t a threat. Ellison said it’s the plant’s policy
to turn the matter over to local law enforcement. “Once we’ve
neutralized the threat, we step back and we remove ourselves from the
issue,” Ellison said.
How close was Fleming to the plant? His flight recorder, which logged
his position every four seconds, 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 cited security staff as
estimating it “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. “There’s just no way he ever did
Freedom to fly
Fleming estimated he had been awake for almost 30 hours when he
entered a 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 July 27. He recalled that someone told him there
was no intention to charge 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 or published by notam in the area of the plant.
About 5:30 p.m., Fleming collected his pilot certificate and other
belongings. Pilots from Bermuda High met him at the detention center and
drove him to Hartsville to retrieve his glider.
Fleming was unable to stow his aircraft safely in its
trailer while he was in custody for 24 hours.
The attorney Frank Reid had found represented Fleming for the breach
of peace charge, but Fleming sought additional assistance from an
attorney familiar with aviation through AOPA’s Legal Services Plan/Pilot
Protection Services. John Hodge, an attorney and 17,000-hour pilot who
has flown gliders, provided aviation-related information under the
plan’s 20 hours allotted for local law enforcement issues. From the
FAA’s perspective, Fleming’s flight was legal and legitimate: No
restricted or prohibited areas were charted. Plus, local law enforcement
does not have the authority to order an aircraft to land, Hodge said.
And any argument that Fleming delayed in complying with the request to
land must take into account the nature of a sailplane: Just like a
sailboat, it can’t simply go directly from Point A to Point B.
A better knowledge of aviation issues among law enforcement officials
may have produced a better result for Fleming. Griffin said she had to
tell the officers on the scene to clear out the runway, and one officer
talked about commandeering the airport. “He was running around, the one
guy that was commandeering everything, saying, ‘We were going to shoot
him down,’” she said.
On the other hand, Griffin said that pilots from the Chesterfield
County Sheriff flew the department’s helicopter to the airport, but 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.’”
Fleming waited outside the courtroom Aug. 21 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 said, he reluctantly agreed. 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.
In a post-9/11 environment, pilots must be sensitive to security
concerns, but that doesn’t mean they must give up their freedom to fly.
In its communication to members about the rules for flying near power
plants and other infrastructure, the Soaring Society of America 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 on the far side of the
airport as much as possible and minimizing overflight of the nuclear
plant. But no law prohibits pilots from flying over it, and AOPA is
working to ensure that law enforcement agencies and security at critical
infrastructure understand how to respond appropriately when they have a
concern about an aircraft.
AOPA routinely works with federal agencies on security issues, and the
association reached out to staff at the TSA and National Protection and
Programs Directorate to inform them of the issue. The association
requested action formally in a letter to DHS, the organizations’ parent
“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,” wrote AOPA Senior Vice President
Melissa Rudinger in the letter. She urged the department 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 in a letter 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 at all levels
“by providing them with education on airspace matters via the local TSA
Federal Security Directors and headquarters engagement. 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.” AOPA continues to press the agency, along with the
National Protection and Programs Directorate which deals with
infrastructure protection, to explain what these education efforts
entail; the association also has offered to assist in developing
guidance and resources on general aviation-related issues.
AOPA General Counsel Ken Mead emphasized the importance of continued
advocacy, explaining that it is “outrageous under these circumstances to
be confined in jail without charges being filed for this length of
time." He added, "We should be persistent in demanding corrective action
as well as better educational efforts of law enforcement authorities.
Although the breach of peace arrest warrant that was ultimately filed
refers to a ‘No Fly Zone’ neither the federal nor local authorities
could cite a federal violation because this was not a ‘No Fly Zone.’”
Look for further coverage in February AOPA Pilot’s “Breach of peace.”
information on AOPA’s Legal Services Plan/Pilot Protection Services.