Verbal orders vs regulations

Started by RiverAux, November 24, 2006, 10:56:10 PM

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JohnKachenmeister

Fedor:

IF a pilot is FAA current, but not CAP current, how is is flying "Unsafe?"  CAP has administrative rules to make CERTAIN that pilots are current and safe, which amount to doubling the check rides required of pilots.  FAA says one every two years, CAP says annual.  If I can step into my C-172 and fly safely and legally, why am I less safe in a C-172 owned by CAP?

The answer is, of course, that the flight SAFETY is not the issue.  The issue is the insurance coverage.  We guarantee to our insurance carrier that pilots will meet certain minimum standards, and they give us a rate based on those standards.  They also reserve the right to deny coverage when those standrads are not met.

But, in this scenario, IF an accident occured, and IF the insurance carrier denied coverage (Or the Federal Government denied a tort claim in the case of an injury) then MY lawyers go to work.  It is not entirely a done deal, since 12 ordinary folks will be sitting in a box to decide if the insurance company or the government should pay.  Thank God the law doesn't provide for 12 insurance company executives.

My guess in this case, based on dealing with those weasel lawyers for most of my life, they would settle rather than establish a legal precedent that a 60 to 90 day grace period existed in CAP checkride currency.
Another former CAP officer

DNall

Quote from: SJFedor on November 28, 2006, 11:57:59 AM
I'm surprised that someone hasn't brought up the topic of scene safety yet. One of the first things that any first responder, RN, MD, person with an ice pack and a piece of gauze in their glovebox should be assessing before they go running in anywhere is scene safety. Regardless of whether or not the person is FAA current, they're not CAP current, which is yourself making the scene unsafe.

Don't forget, not all RN's and doctors know everything about everything in saving lives from a roadside car accident. Most people don't carry a first in bag in their car or anything like that, plus there's so many different types of RN's and docs out there, it doesn't always make a difference. Nursing home RN's are usually BLS trained only, and know how to dispense pills, take care of the patients, and that's about it. Same with an urology doctor. Unless you've got kidney stones in that car accident, there's not a lot he can do, because he doesn't have the specialized training. ACLS, BTLS, PALS, all those fun certs, not all of the docs or RN's have. And they usually NEVER have the required equipment with them to accomplish any of it.

I work in a teaching hospital/level 1 trauma center in Nashville in the main ED, and we have nurses down there who know more then a lot of our residents, just in training and lifesaving measures. Then, somewhere else in the hospital,we have nurses that, when someone codes, you're lucky if they manage to call the operator to have it called out, have the crash cart in or near the room, and someone maybe has begun compressions on the patient before the code team arrives. This is usually with most of the RN's, PCT's, MR's, and housekeeping from that and adjoining floors all piled in the room to see what's going on.

Just remember, letters at the end of the name don't always mean competence in all situations.  Should a nursing home RN stop at the scene of an accident when there's no medical professionals on scene? Yes, probably. Is she going to be able to do much other then call 911, and maybe do CPR if someone is unresponsive and pulseless? Not really.

People die. It sucks. Whether it's because of slow reaction times, equipment failures, weather, or just that it was beyond our control, it's going to happen. We try our best, but we do so with the spirit of safety in mind, so that we don't add more casualties to an already crappy situation. Sometimes we make the save, sometimes we don't.
I'm not disagreeing with any of that. My mom & brother are both RNs here in town. My brother at County ER dodging bullets between tackling people. My mom on the other hand is flaoting pediatric charge nurse at Tx Childrens & does a couple wknds a month up your way at Vanderbilt. Neither one carries any kind of first aid kit in the car, much less trama bag, and the only thing they'd do passing an accident in the city is duck a little so no one sees them in scrubs. A major accident in a more rural area when no medical personnel are on scene would be an entirely dif situation.

The law here says they have RN after their name, so they are required to stop even if medical personnel are on scene, and are required to render aide within the limits of their training & ability. The problem comes when you DO have the ability but choose not to use it for your own reasons. That's what's illegal here. While applying it to medical professionals is an easy example, it does also aply to CAP members as trained, experienced, certified (on a 101) SaR personnel. You un-volunteering for a less than appropriate reason will get you tossed in the can with a fat fine on top. Granted it's probably not going to be prosecuted, but you won't know that till you see how big the stink is after the fact. If there's lawsuits flying around & some bad PR, you may very well get hit w/ a criminal charge.

Far as not having a current fm5 making you unsafe, I have to go w/ Kach here in saying that's not how the FAA sees it. It is a violation of insurance conditions, and that is a serious risk to be taking on. A member shouldn't be placed in that position, if anything the org should accept the liability (NOC) & let him fly, otherwise you're stuck. The above law would not be an issue as you are not currently qualified to do the job. You might get some argument given the FAA says you are, but generally if you stick to the book you'll be fine. It's where that can't be done or it doesn't spell things out (all the time) that you get caught in a tight spot.

RiverAux

I'm not a laywer but I think that in most situations such as this your liability (civil or criminal) is based upon what a "reasonable person" would do in your situation. 

With the non-form 5 pilot I'm fairly sure that a reaonable person could not be expected to break the rules of the organization in order to fly a CAP plane to an area that might have a wreck in it.  Especially if he was worried that someone higher in CAP might decide that since he didn't have proper authorization to fly the plane he technically stole the airplane (I've heard rumors of this charge being made against people.  Don't know if its true). 

With the GTL refusing orders of an IC.  Lets say the GTL did a hazard assessment and in his opinion it was unsafe to search where the IC told him to go.  A reasonable person wouldn't expect him to take his team and do something unsafe. 

Now, lets say the GT found a badly injured survivor but did nothing.  They were First Aid qualified and did nothing.  They had excellent radio contact but didn't tell anyone they had a survivor.  They had cell coverage and didn't call 911.  The latter two inactions were in opposition to noraml CAP procedure.  And then the survivor died.  Those folks might definetely be open to civil or criminal charges since a reasonable person would especially have made the radio or cell call for help. 

Now just because the reasonable person argument might let you win the lawsuit, the family could still file it anyway if they wanted and you might or might not get CAP help in defending it. 

JohnKachenmeister

I'd LOVE to see a prosecutor take a case before a judge that the GTL "stole" the airplane.

"Let's see, a CAP member flying a CAP airplane... Who stole what?"

And also, in the scenario, the IC was asking that the GTL merely ferry the plane back to base, not act as a Mission Pilot.
Another former CAP officer

TankerT

What is this thread... like... CAP Pilot D&D?

The IC casts "Power of Flight" on the GTL.  The GTL gains flight +4.

GTL flies the airplane, but runs into the Level 6 CAP Regulation of Doom.

GTL is banninated from this realm, and forced to join the Sea Cadets.

/My story is more realistic... and entertaining...
//Was an Adult Instructor with the Sea Cadets until my unit disbanded.

/Insert Snappy Comment Here

Al Sayre

Lt Col Al Sayre
MS Wing Staff Dude
Admiral, Great Navy of the State of Nebraska
GRW #2787

DNall

Quote from: TankerT on November 28, 2006, 10:18:46 PM
What is this thread... like... CAP Pilot D&D?

The IC casts "Power of Flight" on the GTL.  The GTL gains flight +4.

GTL flies the airplane, but runs into the Level 6 CAP Regulation of Doom.

GTL is banninated from this realm, and forced to join the Sea Cadets.

/My story is more realistic... and entertaining...
//Was an Adult Instructor with the Sea Cadets until my unit disbanded.
Holy crap, that's brain hemeroging from my ear.

I guess you could make a case for unauthorized use, not theft. Kid can't just drive off in mom's car cause they're related.

I wasn't pushing the good samaritan/legal obligation argument to be silly about this. I was trying to draw the CAP civilian volunteer parallel to UCMJ. Too many people talk about us being volunteers & act like we're really free to do what we want. That's crap & gets us treated like crap (off the street volunteers) by the AF & professional emergency responders. There's certainly a moral obligation to follow orders, a reg obligation unless you feel like quitting CAP, and I was trying to make a case for a basis in state law that I don't think a lot of people have thought about but may find useful in motivating their people to think of this as a disciplined paramilitary organization rather than a habbiest flying/SaR club.

The no answer moral quandry of this conversation is useful to test our minds occationally as officers. Lord knows I'd prefer not to be faced with such a situation & that be the first time I'd ever considered the possibility that regs aren't going to tell me how to do everything including wipe my butt, where else I might look for guidance, and hey maybe prod the common sense nerve to make sure it still works when needed.

lordmonar

Quote from: RiverAux on November 28, 2006, 04:23:12 AM
You keep bringing up examples of professionals who are duty bound to act by state law.  A regular John Doe CAP member is a whole nother story. 

That being said, anyone can sue anyone over anything. 

Well there is the rub.

In CAP we have only a personal oath forcing us to obey any order or regulation. 

In the simplest context....you can violate regs as far as your want to remain with the organization and as far as the organization will let you run with it.

That is the rub.   Let's forget the FAA, insurance, the victums.....what will CAP do?  Will cap 2b you because you refused to follow an order that violated regs?  NO...heck no!  On the same note...would they 2b you because you followed an order to violate regs?  Maybe....depends on the reg, the individual giving the order and the situation.

For example...Regional has not fired PAWG or CAWG CC's for their orders that violate 39-1 and they have not 2b'ed anyone in those wings for following those orders.

ERGO....we have a defacto example of that yes.....local commanders can issue orders that violate regulations and get away with it.

Because the rule enforcers don't care about THIS situation.  But if a wing commander said to heck with the form 5 process....I think that national would have some words with him.

It's called situational leadership.  It's what we teach our cadets (or should be).
PATRICK M. HARRIS, SMSgt, CAP

ADCAPer

Quote from: lordmonar on November 25, 2006, 12:12:11 AM
That is the catch 22 of the UCMJ.  All orders are considered lawful until proven otherwise...but we are responsible for our action even if we are ordered to do so.

I don't think that's exactly right. I can't find it in the UCMJ, but according to the Manual for Courts Martial, Section 916(d), (Discussion) "An act performed pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have known it to be unlawful."


lordmonar

Quote from: ADCAPer on December 02, 2006, 04:47:28 PM
I don't think that's exactly right. I can't find it in the UCMJ, but according to the Manual for Courts Martial, Section 916(d), (Discussion) "An act performed pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have known it to be unlawful."

Quote from: MCM Part 4, Art 90, Para c (2)(a)(i)(2) Disobeying superior commissioned officer.
(a) Lawfulness of the order.
(i) Inference of lawfulness. An order requiring
the performance of a military duty or act may be
inferred to be lawful and it is disobeyed at the peril
of the subordinate. This inference does not apply to
a patently illegal order, such as one that directs the
commission of a crime.

So...unless it is "patently" illegal we must infer it to be legal.  So any gray order is considered to be legal.
PATRICK M. HARRIS, SMSgt, CAP

JohnKachenmeister

Lord M:

You are correct.  You disobey an order at your peril.  In combat, disobeying an order can be a capital offense.

But, an order that is ON ITS FACE illegal, should not be obeyed.

Illegal does not mean "Contrary to regulations."  I wish I was paid on the basis of how many times I've heard general officers say:  "I don't care what the reg says, here's what I want done..."

Note to the congenitally stupid:  It got done.

In the Army, Cavalry units are FAMOUS for aggressively violating uniform regulations.  They wear unauthorized crossed sabre branch brass (the authorized "Armor" branch brass is crossed sabres with a tank superimposed over them) and they wear cavalry Stetson hats with their dress blues. 

Its all a part of their charm.
Another former CAP officer