Brock Lorber

More About: Transportation: Air Travel

Air Pirates in Long Beach

On the morning of May 22, 2009, David Perry and two friends boarded his Cessna 210 in Long Beach, CA for a fishing trip in Loreto, Mexico.  As Perry completed his pre-start checklist, the aircraft was surrounded by vehicles from US Customs and Border Patrol (CBP) and Long Beach Police.  Agents and police exited the vehicles, weapons drawn, and forced Perry and his passengers to exit the aircraft for interrogation and conducted a complete search of the aircraft.

According to CBP spokes-bureaucrat Kelly Ivahnenko, the inspection with weapons drawn was justified, but not "normal".

CBP requested assistance from Long Beach police to participate in the inspection, and it was their idea for weapons to be unholstered.  Ivahnenko told AVweb that the CBP agents kept their weapons holstered, a statement Perry vehemently disputes.

CBP agents found nothing in the inspection and, indeed, suspected nothing.  The inspection was supposedly a random check.
AVweb podcast with Perry 

The Ship's Articles
The two major premises, upon which all safety rules and federal aviation regulations reside, are first, safety of persons and property, and second, no person may interfere with the performance of crewmember duties.

14 CFR 91.11 states in whole, "no person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember's duties aboard an aircraft being operated."  That's it.  There is no law enforcement exception to this rule, nor can there be. 

An aircraft is not an automobile that can be safely pulled to the shoulder, put in park, and secured.  An aircraft is considered in operation anytime it is contacted with intention of movement in the air or on the ground.  An aircraft that is not properly secured is a hazard to persons and property.

Any grade-schooler can tell you there are spinning things attached to an aircraft that far too often become human Cuisinarts.  Any adult with a modicum of mechanical sense can tell you there is no transmission connected to the wheels of an aircraft that would prevent it from rolling.  Any pilot can tell you that the starter is considered live any time the master switch is on, and the magnetos are considered live at all times.

Perry became the Pilot in Command of that aircraft from the moment he entered the airport, and the aircraft became in operation the moment he removed the wheel chocks.  Perry and his passengers were scared to remove their seatbelts, concerned the motion would be mistaken as reaching for a weapon.  How likely is it that Perry turned off the master switch and properly secured the aircraft prior to being ordered out?

The actions of CBP and Long Beach police, as confirmed by spokes-bureaucrat Ivahnenko, constitute a super-size, mondo, humongous, ginormous breach of safety rules and federal aviation regulations.  Imagine the nuclear meltdown that would occur in the DOT and Long Beach if this same scenario were to happen on the deck of a ship underway in the Long Beach Harbor.

That is why there can be no law enforcement exception to the crewmember interference rule.  Just like a ship's Captain, until the vehicle is secured or he is relieved by competent authority, the Pilot in Command is God.  Interference with crewmember duties with intent to subvert the authority of the Pilot in Command is properly called by one name: hijacking.

When Pirates Count Their Booty, They Become Mere Thieves
Since this was an inspection conducted by Border Patrol, there can be only four things they were looking for: drugs, guns, fugitives, and large amounts of cash.

Keep in mind, the CBP insists this inspection was random; according to their story there was no suspicion of Perry or his passengers.  If any of those items had been found (even though it is not illegal to transport guns or cash), they almost certainly would have been seized as well as the aircraft.  Under existing asset forfeiture rules, they probably would have gotten away with it.

However, as this inspection was not conducted properly, but as a hijacking with intent to seize property, it must be called exactly as it is: piracy.

Captain, Prepare to be Boarded
FAA inspections are not commonplace, but every student pilot is taught, and federal regulations demand, compliance with FAA inspections.  Compliance is agreed to as a condition for issuance of a license to operate an aircraft registered in the US.

Upon demand of an FAA inspector or law enforcement officer, a pilot must show his or her license.  An FAA inspector may demand access to pilot and aircraft logs, which must be presented with 30 days.

However, nothing in federal aviation regulations allows the FAA or law enforcement to touch or inspect an aircraft, or interfere with crewmember duties, unless the aircraft is presented by the owner/operator for inspection.  For instance, after one-off modifications, an owner/operator may request an inspection for purposes of continuing the airworthiness certificate.

Ivanhnenko told AVweb, "it is within (CBP's) authority to inspect inbound and outbound travelers, vehicles, planes, cargo, etc."  However, to my knowledge, outbound aircraft have never had to "clear customs", although individual passengers may have that requirement.  Aircraft leaving the US can fly directly from any US airport to any foreign airport designated by that country as a Port of Entry.

In the case of aircraft returning from Mexico, the aircraft must clear Mexican Customs outbound as well as US Customs inbound.  But, again, the owner/operator and pilot of the aircraft are presenting the aircraft for inspection.  Not surprisingly, there is a standard procedure for US Customs inspections.

The aircraft is parked in a secure, sanitized area and secured by the pilot.  The pilot and passengers remain with the aircraft and all its cargo until cleared by a Customs agent.  The inspection is completed with no weapons drawn and no crewmember interference.

This contrasts starkly with the conduct of the inspection on Perry's aircraft in Long Beach.  Aircraft are helpless creatures on the ground; it would have been extremely easy to prevent the aircraft from moving and order Perry to secure and exit the aircraft without super-stupid, dynamic tactics which are clear violations of FAA regulations and federal law.

All of which begs the question, where is the FAA/DOT?  While the DOT has some responsibilities for transportation security, it is not within their purview to sacrifice safety in that regard.  Perry's aircraft is a privately-owned, FAA-registered airplane operated under FAA regulations and is not the only incident reported.

No Quarter Asked and None Given
The FAA is often chided as a reactive agency, a characterization they claim to be working to eliminate.  This is a no-brainer situation for the FAA to be proactive in preventing an accidental shooting, human-propeller contact, or aircraft and property destruction.

Finally, "Ivahnenko said the controversy stirred by the Long Beach inspection may prompt an outreach campaign by the CBP to address concerns being expressed by the general aviation community about the new border-crossing rules."

Here's the perfect outreach campaign: US District Attorney Thomas P. O'Brien can investigate and prosecute air piracy in central California.  CBP and Long Beach police can learn by example the expected outcome of extreme stupidity around dangerous machinery.

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