Pilot-Counsel: LOW FLIGHT: A CASE STUDY

by John S. Yodice

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Many, if not most, pilots have made low passes in their airplanes, sometimes to say hi to friends or family on the ground, sometimes just to sightsee. These low passes are perfectly legal operations so long as they are not done carelessly or recklessly, and so long as they are done at or above the minimum safe altitudes set out in the Federal Aviation Regulations.

One of the most frequently cited regulations charged against general aviation pilots in FAA enforcement cases is FAR 91.119, Minimum Safe Altitudes.

Are pilots out there intentionally busting these minimums? Some few are. But, generally? I don’t think so. At least, not in most of the cases I have seen. In those cases pilots are usually surprised to later find the FAA investigating their flights. So, pilots need to be warned that a low flying, even at altitudes they believe are above the minimums, could be problematic. The dispute, as you can guess, is about exactly how high the airplane was when it flew over some complaining ground witness, usually a non-pilot.

It was a sunny Sunday afternoon. Perfect flying weather. A woman was standing in her backyard washing her car. She saw an airplane flying overhead. It made three circling passes. On one of the passes, she looked straight up and saw an airplane pass over her at what she considered to be an extremely low altitude. The sound of the airplane was very loud. She said the pass was so low and so loud that it frightened her. She reported it to the FAA.

What was the nature of the area over which these passes took place? The woman described her neighborhood as rural, mostly five acre residential lots. Her particular lot was ten acres. Obviously, not a congested area. Was she able to say how high the airplane was as it passed over her? Well, not exactly. She couldn’t say how high the airplane was in feet above the ground. Not unusual in these cases involving non-pilot complaining witnesses. But, she was able to say that it passed over her and her house at about two and a half times the height of the surrounding trees. The trees nearby were about 80 to 85 feet high. Using this method of estimating the height of the airplane, that would make the pass at an altitude of about 200 feet.

She was able to identify the airplane to the FAA as a small white single-engine “Cessna,” a name she equated with small airplanes. She had jotted the registration number down on a napkin. Using the registration number, the FAA was able to look up the owner of the airplane. The FAA called the owner and asked who was flying the airplane that day. The owner checked the logbooks and identified a pilot.

The other side of the story. A young private pilot, a cadet at a well-known military academy, by all accounts a sterling youth, was home for the weekend. His was a flying family. His father, a high-ranking military officer, was a pilot and flight instructor. His brother was also a pilot. The father had taught both his sons to fly.

On this day, our young pilot was flying a Cessna 150 with his brother as a passenger. They were flying over their home, looking for their father who was out by the barn working. The father waved. They circled a few times and then headed out. This kind of flyby of their home was something they had done many times before. They didn’t think there was anything usual about the flight. They were quite surprised to find much later that the FAA was investigating the flight.

Did the airplane pass over the woman and her house as low as 200 feet? Not according to the pilot. The airplane never flew lower than 500 feet over the property. The pilot was sure because, as he always had, he made sure that his indicated altitude was always above 800 feet, which assured at least 500 feet above the ground. The father was a stickler for safety and compliance with the regulations.

An FAA inspector was assigned to investigate the woman’s complaint. The young pilot admitted to the FAA flying the airplane that day, over his home nearby the woman’s house. As a result of the FAA investigation, the FAA ultimately brought an enforcement action against the pilot. The FAA suspended the pilot’s license for 60 days, charging him with violating FAR 91.119 (a) and (c) and FAR 91.13(a). The FAA specifically charged that the pilot “operated an aircraft over a residential neighborhood … below an altitude of 500 feet above the highest obstacle within a horizontal radius of 2000’ of the aircraft” (garbling two different provisions of the same regulation).

Since we are charged with knowing them, it is worth setting out both regulations in full.

FAR 91.119 Minimum Safe Altitudes: “General. Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:
“(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazards to persons or property on the surface.
“(b) Over congested areas. Over any congested area of city, town, or settlement, or over any open air assemblage of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
“(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.” [Helicopters have a special provision.]

FAR 91.13(a), Careless or Reckless Operation is almost always thrown in by the FAA in operational violation cases. It provides:
“(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”

The pilot didn’t feel that he had violated either regulation. He appealed the 60-day suspension to the NTSB. An evidentiary hearing was held before an NTSB law judge. The battle was over the actual altitude of the aircraft as it passed over the woman and her house. The woman testified to her estimate of the altitude of the aircraft using the trees on her property. On the other hand, the pilot, his father, and his brother each testified that the airplane was never closer than 500 feet. The law judge chose to believe the woman. The law judge did not credit the testimony of the pilot, his brother, or his father, probably considering their testimony self-serving, or maybe just in error. However, the law judge did throw out the FAR 91.119(a) charge and reduced the suspension to 45 days. The judge found that the FAA had not proved that the pilot could not have made a safe emergency landing in the event of a power failure.

The pilot then appealed the law judge’s decision to the full NTSB, a procedure he was entitled to. The Board denied his appeal, affirming the judge’s decision and the 45-day suspension.

The interesting aspect of the appeal was a challenge to the complaining witness’ ability to estimate altitude. Here is what the Board said: “Specifically, we do not agree that the Administrator’s witness’ altitude estimate was deficient because she did not herself express it in terms of feet above the ground. She had no hesitancy in asserting that the Cessna passed over her and her house at about two and a half times the height of the surrounding trees, established to be around 80 to 85 feet. Nothing in this record suggests that such an estimate is any less reliable than those that rest on an observer’s professed or presumed expertise in judging distances.”

Whether or not the airplane flew below 500 feet on the pass, is not the main point. That was litigated and resolved. A low pass can lead to the suspension of a pilot’s certificate, even if the pilot honestly believes he or she operated in compliance with the regulations. Pilots need to know that, and make allowance for it.

June 2021 editorial comment and update: This article first appeared in the April 2001 AOPA PILOT magazine. So, what about doing a low pass in connection with a practice approach or a simulated emergency landing approach? How does the FAA view such maneuvers? Taking into consideration the exception clause of FAR 91.119 “Except when necessary for takeoff or landing, no person may operate an aircraft fellow the following altitudes…”, there is an old case (circa 1993) where a pilot was cited for operating below minimum safe altitudes and for careless or reckless operation in connection with a low pass over a runway. The pilot, flying a Learjet, maintained that he was demonstrating a practice landing approach relying on the takeoff and landing exception of FAR 91.119. The FAA issued an order of suspension and on appeal, the NTSB acknowledged that simulated landings at airports are indeed allowed, but ruled that the minimum safe altitude exception was inapplicable where an unsuitable landing site is used. In this case, the low pass was made over a gravel runway. The NTSB cited, as precedential, a previous case where they ruled against a pilot of a Lockheed Electra who flew a rejected landing approach to a 2,000 foot long “grass-dirt-sod” airstrip. The latter NTSB decision stated in part “…that the respondent’s aircraft was not equipped for landings on gravel. It therefore follows that the runway was unsuitable for a landing by that aircraft. Consequently, we must find that the exception set forth in the prefatory clause of section 91.119 does not apply to respondent’s practice approach maneuver.”

Applying the court’s logic, pilots practicing engine out emergency landings away from the airport should also make certain to select a suitable landing site and break off an approach at the appropriate altitude for the overflight area. In other words, abide by the minimum safe altitudes at all times unless you’re actually taking off or landing. And, don’t forget that if an actual emergency exists, pilots may deviate from any rule, including FAR 91.119.

John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com

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