In the case of William Cox, personal representative for the estate of Robin Fleming, vs. Duke Energy, et. al. the Fourth Circuit recently addressed a glider pilot’s arrest for flying too close to a nuclear power plant, the enforceability of “release-dismissals” and nuclear safety federal preemption issues.

A commercial glider pilot flew his glider over H.B. Robinson Nuclear Plant operated by Duke Energy Progress, Inc. in Hartsville, SC. He flew over the plant at 1,100 feet and then started circling repeatedly near the plant to gain altitude, in a mode of flight known as “thermalling.”

The power plant’s security guard grew suspicious of the glider circling above and put the plant on heightened awareness. Then, he called the Darlington County Sheriff’s Office, the FAA and Shaw Air Force Base reporting the “suspicious” glider. The airport was not aware of the glider operating in the area and neither the FAA nor Shaw could locate the glider on radar. The Sheriff’s office then dispatched deputies to the area, the pilot was ordered to land at the airport, and he was then arrested for misdemeanor breach of the peace.

The pilot noted that he had not entered into any restricted airspace. However, he admitted that he knew he was flying over a nuclear power plant. He also knew that the FAA had instructed pilots to avoid circling near nuclear facilities and that this instruction had been prompted by 9/11. FAA National Flight Data Center, Special Notice 4-0811. He complied with requests to land, although arguably there was no authority to order him to land. He also cooperated with the FBI and Homeland Security interviews.

The pilot spent the night in jail and the next day posted bond. Several weeks later, on advice of counsel, the pilot agreed to waive any civil claims against the Sheriff’s Office in exchange for dismissal of the charge. However, the pilot nevertheless filed a civil action against the Darlington Sheriff’s Office, the Sheriff, and two deputies as well as Duke Energy and Duke’s Vice President of the Robinson Nuclear Plant. His claims involved civil rights violations and state law claims of false imprisonment, false arrest, negligence and civil conspiracy.

The case was dismissed when Defendants’ motions for summary judgment were granted. The court found the pilot had waived the right to bring the civil claims against the Sheriff’s Office, the Sheriff, and its deputies, and that as to Duke Energy, they were not operating “under the color of the law” as required for a violation of civil rights.

Lastly, the court held that the pilot’s remaining state law claims were preempted by the federal law’s exclusive regulation of nuclear safety. The Fourth Circuit Court of Appeals just recently affirmed the summary judgments in the Defendants’ favor. Cox v. Duke Energy Inc., 876 F.3d 625, 637 (4th Cir. 2017).

PRACTICAL TIPS

• Continue to avoid the airspace above or in proximity to power plants. In a post-9/11 era, the authorities take any such activity very seriously. Even if not technically in restricted airspace, there may be other law enforcement repercussions as evidenced by this case.
• Be very careful what you sign when getting criminal charges dismissed. The S.C. Supreme Court has held that the “release-dismissal” like the one signed by the pilot in this case, was not “inherently coercive.” These are reviewed on a case by case basis. When the decision was made voluntarily and there was no prosecutorial misconduct, it will be enforced.
• One who simply requests authorities to arrest another does not become a “state actor.” Duke Energy had its own interests in securing the plant, and the Court agreed that their questions to the pilot were not pursuant to a governmental request or for any governmental purpose, such that it would have subjected Duke Energy to a civil rights action. Even if Duke Energy had requested that the pilot be arrested, this act does not make the requester a “state actor.”
• Remember that in the aviation and in the nuclear safety contexts, federal law may “preempt” actions based on state law. In this case, Federal law regulates the actions of a nuclear power plant in responding to reports of security threats. The pilot’s state law claims against Duke Energy thus could not be brought because the federal law “preempted” them.