Judge Barry Silverman, writing the opinion for the U.S. Court of Appeals for the Ninth Circuit in United States v. Rodriguez, No. 14-10122 today:
There ought to be a law against shining a laser pointer at an aircraft. In fact, there is, and it's punishable by up to five years in prison, as appellant Sergio Rodriguez discovered for himself. Rodriguez, his girlfriend, and their kids were fooling around with a laser pointer one summer evening in the courtyard of their apartment complex - trying to see just how far it could go - and they shined it at overflying helicopters. Rodriguez was convicted of Aiming a Laser Pointer at an Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced to the maximum sentence: five years in prison. Rodriguez does not challenge that conviction.
He also was convicted of another crime stemming from the same conduct - Attempting to Interfere with the Safe Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5) and (8). That crime requires proof of a willful attempt to interfere with the operator of an aircraft, with either the intent to endanger others or reckless disregard for human life. Rodriguez was charged with and found guilty of the reckless variety, and for that offense, was sentenced to fourteen years in prison.
The evidence clearly shows that Rodriguez was rightfully convicted of aiming the laser pointer at a helicopter (§ 39A). However, there is insufficient evidence that he willfully attempted to interfere with the safe flight of the helicopter (§ 32(a)(5)). Rather, the evidence showed that he was attempting to see how far his laser would go at night - a stupid thing to do, yes, but there is no evidence that he was trying to interfere with the pilot. Section 39A is designed for knuckleheads like him. On the other hand, 18 U.S.C. § 32(a)(5) is designed for both the Osama bin Ladens of the world - people trying to bring down a plane, intending to cause harm - and those who are aware that their actions are dangerous and could harm others, but just don't care. The failure to recognize this distinction is to fail to appreciate that Congress saw fit to create two different crimes, one more serious than the other, for two different types of offenders.The issue of criminal recklessness also came up in the recent Elonis Facebook threats case in the Supreme Court and is discussed here.
About a year after Rodriguez's conviction became final in district court, we decided United States v. Gardenhire, 784 F.3d 1277 (9th Cir. 2015). On very similar facts - a case in which another knucklehead aimed a laser pointer at a passing airplane just for the fun of it - we held, for the purposes of the applicable sentencing guidelines, that there was no evidence "that Gardenhire acted recklessly when he aimed his laser beam at the aircraft. The record is devoid of evidence, let alone clear and convincing evidence, that Gardenhire was aware of the risk created by his conduct." Id. at 1280.
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