Next week are the elections, and many of the initiatives on the ballot in California, along with those running for office, create provocative issues. However, much of the rhetoric can be whittled down to a simple question: "How much do we want the Government to regulate and control our lives?" I have been thinking a lot about this lately. No matter how carefully one tries to adhere to the myriad of regulations and daily bureaucratic necessities, a new twist always makes itself known to further complicate this maze called life. Therefore, it came as no surprise when this morning I read the bizarre circumstances leading to the recent United States Appellate Court Case of Gasho v United States of America. The factual scenario reads as if it were a Kafka novel.
According to the statement of the case, John and Sharon Gasho owned an aircraft restoration company in Tucson, Arizona. In 1988 they flew a DC-3 to Scottsdale Municipal Airport for a meeting with a Federal Aviation Administration inspector. The Gashos were prudently complying with Federal Aviation Regulations, and wanted the FAA's approval before modifying the aircraft. Federal Aviation Regulation section 91.715 requires special flight authorization issued by the FAA under certain conditions involving foreign registered aircraft. The FAA inspector issued a special flight authorization to the Gashos since they wanted to terminate the United States registration on the aircraft before exporting it to Canada. The Canadian buyers wanted the United States registration terminated before it was flown to Canada, and the Canadian government would not issue a valid Canadian registration until the aircraft entered Canada. Therefore, the Gashos properly worked with the FAA to obtain approval and thus remove the United States registration markings and place Canadian markings on the aircraft.
An air traffic controller at Scottsdale then noticed that the registration markings on the DC-3 had changed after its arrival. Customs agents were alerted and the aircraft owners were confronted while still at their hotel. They explained that the FAA participated in the changing of the registration markings and that a special authorization permit was issued. Nonetheless, the Gashos were treated as criminals and advised of their Miranda rights. The Gashos, accompanied by their daughter, a local lawyer, were taken by the customs agents to the airport. Despite having been shown the paperwork, the customs agents were not convinced of the legitimacy of the transaction and therefore seized the aircraft for the "knowing and willful display of false or misleading markings". After having seized the aircraft, the agents allowed Sharon Gasho to enter the aircraft to remove her personal belongings and the aircraft's radio. While inside the DC-3, she removed the log books. She then exited the aircraft in plain view of the custom agents holding a plastic bag in which the log books were placed. In front of the agents, her husband shouted asking whether she had removed the log books. She replied that she did. The bag was then placed into their daughter's automobile. At no time did the agents protest or attempt to stop Mrs. Gasho from removing the log books from the aircraft and placing them into the car. Only after everyone entered a local FBO to make copies of the FAA documents did the customs agents demand that the log books be handed over. The Gashos refused, claiming that a warrant was required. They were then arrested. While her parents were being handcuffed, the daughter retrieved the log books from her car and provided them to the Customs agents.
During the booking process, an Assistant United States attorney told a Customs agent that his office would not prosecute the case. Nonetheless, the agent's supervisor ordered that the booking go forward and the Gashos were told that charges would be filed. Sixteen months after they were arrested, the Gashos were formally advised by the United States attorney that no prosecution would occur. A few weeks after the seizure of the aircraft, it was released and flown to Canada.
The Gashos filed a lawsuit against the United States of America under the terms of the Federal Tort Claims Act seeking damages for false arrest, false imprisonment, intentional infliction of emotional distress and abuse of process. This case involved the dismissal of the case and granting of Summary Judgment in favor of the United States of America by the District Court, and the Gashos' subsequent appeal. The major issue to be decided by the court on appeal was whether the District Court could grant a Summary Judgment, finding as a matter of law that the Customs agents acted reasonably and with probable cause. In summary, the Appellate Court stated:
"Even if we were to permit officers to infer specific intent from a person's refusal to consent to a search, such an inference would be unreasonable in this case, under the totality of the circumstances: Customs agents provided no notice that the log books were seized, they allowed Sharon Gasho to board the aircraft for the specific purpose of removing items, she made no attempt to conceal her removal of the log books, and the agents knew she removed the books but did not immediately object. Indeed, some time passed before the agents asked for the log books. The passage of time between the removal of the log books and the Gashos' refusal to turn them over attenuates any inference of specific intent. Under these facts, Sharon Gasho's act of removing the log book from the aircraft does not necessarily evince any criminal purpose. She simply could have been removing her personal property, which Customs gave her permission to do. 'Probable cause is lacking if the circumstances relied on are susceptible to a variety of credible interpretations not necessarily compatible with nefarious activities.'"
Fortunately, the United States Court of Appeal came to the Gashos' rescue and allowed them to continue their case against the United States government. But should they have been placed into a situation where they had to be arrested, threatened with prosecution, and entwined in a bizarre legal morass in the first place? The facts of this case prove that one can never be too careful. The aircraft owners attempted as best as they could to adhere to the letter of the law by obtaining the approval of the FAA and special flight authorization. While it is true that the Customs agency is overburdened with illegal activities, especially in the area of the Country where this incident occurred, the facts of this case point to overzealous agents overstepping their bounds.
When I was a child, the message of the 1950's Sci-Fi movies was that there are unknown forces lurking within our atmosphere and beyond ready to get us. It appears that those forces are closer than we care to believe, and can swoop down at a moment's notice to carry us away into the endless chasm of bureaucratic madness. BEWARE!