When Stupid is Criminal

Photo courtesy Greenfield District Court

This afternoon, 57-year old Steven Fay will appear in court in Massachusetts to face criminal charges for being supremely stupid, recklessly stupid, deadly stupid. In what some aviation attorneys say is extremely unusual, a private pilot has been indicted for involuntary manslaughter for unintentionally crashing his airplane and killing his daughter.

Charging a grief-stricken man who has lost his child seems on the surface to be a step-too-far.  Further, criminalization of error - including suspicion of bad decision making - is highly controversial and rarely practiced here in the United States though it is a different story in other countries. In Brazil the most well-known recent case was the arrest of two American business jet pilots on a ferry flight over the Amazon jungle, whose wing clipped a Gol Airlines 737 causing it to crash and killing everyone on board. But pilots, mechanics and air traffic controllers have faced jail time in Croatia, France and other countries.

Fay's airplane the night of the crash Photo by Massachusetts State Police

Fay's indictment is notable because it is uncommon for the law to swoop in on general aviation accidents when no intent to cause injury is apparent. In that case it is usually left up to the regulators to act.  


The Federal Aviation Administration did indeed revoke Fay's private pilot's license two months after the accident charging him with "a blatant disregard for the regulations airmen operate under" because he was flying an airplane for which he was not qualified. Fay had only a license to fly single engine aircraft. The FAA also called him "an immediate threat to aviation safety." (On the second charge, I'd quibble with the wording, the immediacy of the threat having already passed.) 

But the actions of Steve Fay seem so out there in terms of imprudence, if someone is going to make a test case of criminalizing stupidity, this seems the guy to go after.

Here's what happened. On New Year's Day one year ago, the New Hampshire native flew his 51-year old, twin-engine Cessna 310 from Keene to Orange Municipal Airport in Massachusetts. With only 50 hours experience in the airplane and with his adult daughter on board, Fay decided to practice touch and go landings at night. The NTSB report says approaching the airport, the plane hit trees before crashing inverted into a creek.  Fay was not seriously injured, but his daughter who did not have her seat belt on because she was looking for a map during the approach, was ejected from the airplane and killed. 


According to the Associated Press, Fay's flight instructor reportedly told authorities he'd repeatedly warned Fay that he was not ready to solo in the 310, which Fay had purchased the previous year. Flight instructor Michael Truman said he felt Fay's "airplane was still too much for him." That Fay ignored not just the FAA regulations but the advice of the person who knew his flying best, was part of what led the district attorney Steve Gagne to seek criminal charges.


"His conduct unfortunately resulted in the tragic death of his own daughter, but it also endangered anyone who happened to be in his flight path," he told me in an email. "Particularly those who live in the residential neighborhoods adjacent to the Orange Airport," Gagne said.

I confess, when I first heard of this case, the fact that the pilot was related to his passenger seemed to argue against a criminal complaint. But Gagne's point, that Fay just as easily could have killed someone else bears consideration. 

Yesterday, as I was riding right seat while my 17-year old son practiced driving stick shift, a SUV in the oncoming lane barreled past and we saw the driver holding her smart phone up at eye level to read as she drove. We did not notice if she had a child in her car, but she could easily have killed mine. 

At what point does law enforcement step in in cases of stupidity?  A court will soon take up that question and it's not a moment to soon.