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Introduction
There is likely no more effective way to flush the system with adrenaline than with a BASE jump. BASE, for the uninitiated, is an acronym for building, antenna, span, and environment. In other words, the four elements from which a BASE jump may commence. The first two have an obvious meaning. Span and environment are bridges and, essentially, cliffs. (For a history of the sport, click here).
One would imagine that such a risk-prone activity would spawn a fair amount of litigation. However, a review of the Lexis database reveals very few cases that have arisen out of BASE jumping activities. This article will analyze those cases and attempt to discover any common threads.
The Basics of BASE
I do not, strictly speaking, have any BASE jumping experience. I have made more than 100 skydives, which is actually quite an unimpressive number in real skydiving circles. The closest I have ever come to a BASE jump was a skydive I made from an ultralight over Western Java back in 2001.
In a conventional skydive, the jumper exits the aircraft while it is in flight, and while the pilot will (hopefully) cut the engine back a little bit, the skydiver still departs from the aircraft with a relative forward speed of at least 60 or 70 mph, and perhaps more depending on the aircraft and the pilot’s manners. That “relative wind” allows the jumper to use his or her body to control the direction and orientation of flight.
In the aforementioned ultralight jump, as in a BASE jump, there is no “relative wind.” The pilot of the ultralight cut off the engine at approximately 6,000 AGL. As the ultralight hung in the air, with no forward momentum, I climbed out and let go. Without any relative wind, the familiar “exit roar” was absent, and I had no ability to control my body flight until gravity sped my descent up enough to create some aerodynamic flow over my body surfaces. Upon reaching that velocity, it was a skydive like any other.
A BASE jumper has a similar experience, without the added luxury of a 6,000 foot plunge. Yes, luxury. Exiting the aircraft at 6,000 feet AGL gives the jumper approximately 36 seconds, at terminal velocity, before a fatal impact with the ground. 36 seconds may not sound like a lot of time, but when your life depends upon it, it is plenty. The average base jump is from about 1,000 feet. The BASE jumper has no margin for error.
Another luxury that BASE jumpers dispense with is the margin for error in flight orientation. Ideally, skydivers endeavor to remain in the same orientation after canopy deployment as before. If the skydiver is facing due north in free-fall, after canopy deployment, he should not rotate. Sometimes, either due to unstable body position, sloppy parachute packing, or any number of other minor reasons, the jumper can rotate causing line twists or simply causing the jumper to fly in a direction opposite to that which he intended. In a normal skydive, it usually will not matter. The canopy pilot can simply turn the parachute around and regain the intended orientation. A BASE jumper is usually only a few feet from the object from which he jumped. An off-heading opening will usually be fatal.
With the extreme risk presented by BASE jumping, it is surprising that there is a dearth of litigation surrounding the practice. As of today’s date, there are no reported tort cases involving BASE jumping (at least not on Lexis). However, there are some interesting criminal cases involving this sport.
BASE Jumps as Reckless Endangerment
People v. Corliss
On April 27, 2006, professional BASE jumper, Jebb Corliss intended to jump from the Empire State Building. He donned a “fat suit” and a mask to disguise his appearance and to hide his parachute. Upon arrival at the 86th floor observation deck, Corliss removed his fat suit, put on his camera helmet, climbed a security fence and scampered up to a ledge. See People v. Corliss, 2007 NY Slip Op 50192U (N.Y. Misc. 2007).
At that point, things went wrong for Mr. Corliss. An anonymous tipster alerted building security to a possible jumper, and the guards tried to restrain Mr. Corliss. Corliss resisted, but the guards got the better of him and handcuffed him to a rail. Corliss informed the guards that this arrangement could result in his death — if the parachute somehow deployed while he was tethered to the building, the wind force would likely have torn his arm off. The guards cut his parachute harness, thus eliminating that risk.
Shortly thereafter defendant was removed from the building, arrested and charged with Reckless Endangerment in the First Degree. Following his arrest defendant made several statements, memorialized in the People’s voluntary disclosure form, indicating, inter alia, that the attempted jump was the culmination of a long term dream which he had carefully planned over a ten year period. In addition, defendant told police that he never meant to harm anyone, had studied the traffic patterns of the avenue below and timed his jump so he would land when the traffic lights on the avenue below were red and the avenue clear. Defendant, who did not testify before the grand jury, was indicted for Reckless Endangerment in the First Degree on or about October 5, 2007.
Under New York law, a Defendant may be found guilty of reckless endangerment if that person, under circumstances evincing a depraved indifference to human life, recklessly engages in conduct which creates a grave risk of death to another person. See PL § 120.25.
This standard is met if the defendant is both aware of a substantial and unjustifiable risk that his actions will cause grave harm , and he consciously disregards that risk in such a manner that such disregard is a “gross deviation from the standard of conduct that a reasonable person would observe in the situation” (PL § 15.05[3])”.
The court noted that actual harm to another is not required to sustain a charge of reckless endangerment.
The court held that while Mr. Corliss’ conduct was “dangerous and ill conceived” (their words, not mine), it did not rise to the level of “depraved indifference” for others.
The court recognized that there was a possibility of injury to the Empire State Building security guards, civilians on the observation deck, pedestrians on the street below the building and motorists driving below. However, the “depraved indifference” standard is only met when the defendant’s conduct is described as follows:
…so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill
The court applied this standard to the facts, and found that Corliss’ conduct did not meet this test. In fact, the court recognized that Corliss appeared to take extreme measures to avoid harming others.
The circumstances surrounding this admittedly dangerous stunt suggest that rather than indifference to the risk of harm to others, defendant took affirmative steps to ensure the safety of others. This is evinced by the fact that defendant, an experienced BASE jumper, attempted this stunt while wearing a parachute and after studying the traffic light patterns of the avenue below to maximize chances of landing when traffic was stopped. Such actions are wholly inconsistent with an “utter disregard for human life” and indicate that he appreciated the inherent risk of his conduct and took steps to mitigate such risk. However outrageous this stunt was the evidence before the grand jury demonstrates that defendant took steps to avert risk to others
Accordingly, the court granted Corliss’ motion to dismiss the indictment.
UPDATE – Corliss is now suing the Empire State Building.
Another Update – The New York State Appellate Division reinstated charges against Corliss. See Jeb Corliss’ decision reversed (in part)
Vicarious Criminal Liability for a BASE Jump
United States v. Carroll
In United States v. Carroll, 813 F. Supp. 698 (E.D. Mo. 1993), the Eastern District of Missouri examined whether the ground crew and videographer for a BASE jump could be held criminally liable.
John Christopher Vincent decided to jump from another American architectural icon, the St. Louis Arch. However, this case does not involve Vincent, the jumper, but rather an accomplice, Ronald K. Carroll, who videotaped the jump. Carroll was charged with aiding and abetting and conspiracy as well as disorderly conduct.
The Defendant and another individual, Robert Weinzetl, helped Vincent, the BASE jumper, gather some materials for the jump, drove him to the Arch, and waited as Vincent spent just over two hours climbing the Arch. The rest of the operative facts are as follows:
At 7:00 a.m., with the sun just above the horizon, Vincent readied himself to jump and alerted Carroll and Weinzetl below by way of the radio transceiver. He could see that Carroll and Weinzetl were in position. Vincent directed them to begin filming and taking photographs. He told Carroll to zoom the video camera lens in and out and to photograph the entire Arch; Carroll did so and so advised Vincent. Vincent saw that his getaway transportation was parked nearby. He told Carroll and Weinzetl that he was ready. By radio, Carroll encouraged Vincent. With “Blue sky, black death,” [a common skydiver prelude to a jump] spoken by Carroll and by Vincent, Vincent hurled himself off the top of the Arch. After freefalling clear of the Arch, he opened his main chute and descended to the ground between the legs of the Arch without injury. Carroll and Weinzetl filmed him as he descended. Other people were on the Arch grounds and saw the parachute jump. As soon as he landed, he told Carroll and Weinzetl to continue taking pictures. Vincent quickly gathered his parachute and ran toward his getaway car which was located on the street between the Arch and the levee. Carroll and Weinzetl also began running, taking still and moving pictures as they ran, toward their car. While they were running, Carroll for the first time saw, and told Weinzetl, that they were being chased by an officer, Chief Park Ranger Daryll B. Stone who had seen Vincent land. They ran faster. Vincent made good his getaway. Carroll and Weinzetl were caught, detained, and issued violation notices for their activities.
36 C.F.R. §§ 2.1(a)(5) and 2.17(a)(3) respectively prohibit “Walking on, climbing, entering, ascending, descending, or traversing an archaeological or cultural resource, monument, or statue, except in designated areas and under conditions established by the superintendent” and “Delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit.”
The Defendant, Carroll, was charged with aiding and abetting and conspiracy to violate the above regulations. The elements of conspiracy, under 18 U.S.C. §§ 2 and 371 are: the defendant (a) agreed with another person (b) knowingly to engage in conduct which violates federal law and (c) that at least one of the parties to the agreement committed an act in furtherance of the unlawful objective of the agreement.
The Court found that since Carroll had both videotaped the event and operated radio equipment used in the event, that the aiding and abetting and conspiracy charges were valid.
Of the videotaping, the Court said:
The video recording was, and was known by defendant to be, a substantial part of the overall climb and jump exploit. Vincent had purchased the video camera new and obtained defendant’s promise to operate it. Defendant knew that Vincent had recorded at least one prior BASE jump. It was apparent to defendant that Vincent’s ability to display recordings of his BASE jumps was important to Vincent. One might speculate that Vincent would still have climbed and jumped, even if no one photographed the exploit. But such speculation is irrelevant to this case, because all of the participants in the exploit, including defendant, acted as though the video recording was important.
This reasoning appears to be flawed. It is difficult to see how holding a video camera can be considered aiding and abetting, or even how it can be an overt act in the furtherance of the conspiracy to have someone jump from the Arch. This certainly seems like a judge who had little temperament for extreme sports enthusiasts.
However, the judge continued to find other facts to support Carroll’s liability.
The use of radio equipment for communication to and from Vincent and the defendant also was, and was known by defendant to be, a substantial part of the overall climb and jump exploit.
As Carroll essentially acted as “ground control” for the jump, this ground for holding him criminally liable appears to be supportable. The judge, however, felt it necessary to continue in a manner that displayed his ignorance of the sport.
The very term “BASE,” used by Vincent to describe these jump activities to defendant and others, includes a reference to the use of an antenna, for radio communication. Just as he purchased the video camera new after he arrived in St. Louis, so did he purchase the radio transceiver with two head sets new.
The “A” in BASE does stand for “antenna,” however it refers to an object from which you jump… not some random use of the word “antenna.” This isn’t reversible error, but it is unfortunate that the judge appears to be so intent on holding someone responsible, that he loses his ability to do basic factual research. Nevertheless, while the Judge does appear to be a bit too worked up, and a little less than accurate, the decision does not appear to be reversible error. If the Judge had exercised restraint and simply held that by virtue of acting as ground control, Carroll was liable, this decision would likely be beyond serious legal criticism.
With respect to Count 2, the decision appears to be a little less worthy of such deference.
The disorderly conduct statute under which Carroll was charged, 36 C.F.R. § 2.34(a)(4) requires that the defendant (1) either (a) with the intent to cause public alarm, nuisance, jeopardy or violence or (b) knowingly or recklessly creating a risk thereof, (2) created or maintained a hazardous or physically offensive condition (3) on land subject to the legislative jurisdiction of the United States.
The Judge held that Carroll “acted at least recklessly, if not intentionally, to participate in the creation of a hazardous condition, the climb and the jump from the Arch.” The Judge noted that someone else had been killed trying to jump from the Arch, and that there was a risk of danger to others.
The standard under this statute is, of course, far lower than the reckless endangerment standard under New York law. Nevertheless, this does appear to be a bit of overreaching by the Court.
Burglary to BASE Jump?
Redfern v. State
Redfern v. State, 246 Ga. App. 572 (Ga. Ct. App. 2000) discusses potential liability for burglary when entering a structure for BASE jumping purposes. On March 13, 1998, Earl Redfern traveled to a television antenna tower for a BASE jump. On a prior visit to the tower, Redfern took the number from the Master Lock on the tower’s elevator control box, ordered a duplicate key, and used that key to gain access to the tower for his March 13 BASE jump. A security guard noticed that the lock was open, and the elevator in operation. Apparently, this TV tower had a BASE jumper problem, and the guard suspected that it was a BASE jumper in the elevator. The guard called the police, and after some hijinks, Redfern was caught and charged with burglary.
This case came down to the court’s strict application of the elements of burglary, thus relieving Redfern of criminal liability.
[In Georgia,] a person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.
The Georgia Court of Appeals noted that, under Georgia law, the term “building” has a very broad meaning, but it did not encompass a TV tower.
One element common to the various structures found to be buildings under the statute is that they provided an enclosure of some type for people, animals, or goods. We find this element to be lacking in the WCTV broadcast tower at issue.
The Morelli Theory
Parachutes as Aircraft
United States v. Oxx, United States v. Albers, and United States v. Gravity Sports
One can imagine that the kind of person who BASE jumps is the kind of person who is comfortable with “outside the box” thinking. The three Morelli cases demonstrates that this truism extends to counsel for BASE jumpers.
In U.S. v. Oxx, William Oxx, Jonathan Oxx, Martin Tilly, Christopher Berke, David Katz, Steve Mulholland, John M. Henderson, Aaron M. Brennan, and Michael Kvale, (collectively, “the BASE jumpers”) were arrested for BASE jumping in the Glen Canyon Natinoal Recreation Area. The authorities considered the BASE jumpers’ activities to be a violation of 36 C.F.R. § 2.17(a)(3) (1995), which prohibits “delivering persons by parachute within the Glen Canyon National Recreation area without a permit and when not required by an emergency.”
At the trial court in United States v. Oxx, 980 F. Supp. 405 (D. Utah 1996), the defendants argued that their conduct did not violate the statute. They claimed, inter alia:
… BASE jumping cannot be considered as “delivering . . . a person by parachute,” within the meaning of Section 2.17(a).” Although BASE jumping does involve the use of a parachute, the defendants contend that the types of parachutes used in BASE jumping permit the jumper to control the parachute and engage in horizontal flight. The defendants assert that this element of flight control makes BASE jumping similar to hang gliding and other forms of powerless flight. Def. Motion P 4. Because the regulation defines “aircraft” to include any “device that is used or intended to be used for human flight in the air, including powerless flight,” 36 C.F.R. 1.4 (a) (1995), the defendants argue that BASE jumping can only be regulated, if at all, as the use or operation of aircraft under subsection (1) of Section 2.17(a). That subsection purports to permit the use of “aircraft” without a permit in areas “designated by special regulations.” § 2.17(a)(1). The defendants point out that one of the areas so designated is “the entire surface of Lake Powell.” 36 C.F.R. § 7.70 (a)(6) (1995). Accordingly, the defendants assert that because the parachute used in BASE jumping can be deemed an “aircraft” and aircraft use is permitted on Lake Powell, they have not engaged in any prohibited conduct.
This argument, while seemingly a bit over-creative, is not entirely unsupportable. A modern ram-air parachute is, indeed, more akin to a glider than the old round parachutes that were once the only technology available. In fact, the trial court accepted that argument.
Applying the rule of lenity, the Court determined that the defendants conduct was not clearly prohibited by the statute.
the Court notes that the regulation the defendants were charged with violating came into existence pre-BASE jumping and that it appears to be a genuine strain to suggest that prohibition in subsection (3) goes beyond what would normally be thought of as “air drops.” If the Park Service wants to prohibit BASE jumping, they could easily include a paragraph in the regulations and simply say BASE jumping is prohibited. If the regulation is intended to convey to the public a clear message of what conduct is and is not permitted in a national park, that purpose is not served by trying to shoehorn a prohibition against BASE jumping into a regulation that was promulgated with a different mischief in mind.
If nothing else, this case should garner the counsel for the defendant, Fred Morelli, an award for biggest, shiniest, brassiest coglioni of the year. To argue, and successfully so, that a parachute is not a parachute but rather an aircraft is the kind of outside the box thinking that will either get a lawyer sanctioned or applause. In this case, Morelli gets the latter. (In the interest of full disclosure, Mr. Morelli showed the author a great deal of kindness when the Author was in law school, seeking assistance in researching various elements of skydiving law).
Unfortunately for the defendants, the victory was short lived. And, as much as the author might applaud the argument, it does appear to be a bit of a logical stretch and it would be intellectually dishonest to write that a reversal was not forseeable.
On appeal, in United States v. Oxx, 127 F.3d 1277 (10th Cir. 1997), the 10th Circuit held that “A parachute by any other name is still a parachute, and delivering a person by parachute is prohibited.” Federal regulations define a parachute as a device used or intended to be used to retard the fall of a body or object through the air. 14 C.F.R. § 1.1 (1997). The improvements and evolution of parachute technology does not make the Federal regulations obsolete. While there have been significant changes to parachute technology, none of these changes disturbs the fact that ram air parachutes are still “parachutes.”
Under the statute, delivering a person by parachute is permitted in an emergency. At oral argument, the defendants extended one last-ditch creative argument: that the jumps were permitted because the parachutes were deployed in “an emergency.” The logic behind this is that whenever a person jumps off a cliff, there is an emergency. The 10th Circuit, somewhat ungraciously, dispensed with this logic by simply stating: “That argument, of course, will not fly.”
On remand, in United States v. Oxx, 56 F.Supp. 2d 1214 (D. Ut. 1999), the defendants tried, again, to argue that their “devices” were not properly described as “parachutes,” and the Court properly determined that this question had already been resolved. However, the BASE jumpers in this case appeared to live charmed lives — or perhaps the District Court appears to have gathered sympathy for the men. The Court held that the prosecution failed to establish the essential component of the charge — that there was no permit. Despite the fact that three Park Service officials testified, none of them noted the absence of a permit in their testimony, nor was there any other evidence offered to establish the nonexistence of a permit.
As a result, the charges were dismissed, and presumably the Department of Justice found more important crimes to prosecute.
United States v. Albers, 226 F.3d 989 (9th Cir. 2000)
In U.S. v. Albers, we re-examine the issues in U.S. v. Oxx. In this case, Attorney Morelli returns and attempts to convince the 9th Circuit that modern ram-air parachutes are, in effect, “aircraft.” Unfortunately for Morelli’s clients, the 9th Circuit declined to split with its neighbor Appeals Court, and ruled accordingly.
In doing so, the 9th Circuit noted that the defendants’ expert witness referred to the equipment as “ram air parachutes,” and used definitions that strongly suggested that the parachutes fit into the government’s definition of that term. Additionally, the 9th Circuit noted that legislative history showed that there was an intention to omit parachutes from the definition of “powerless flight devices.” In 1975, the Department of the Interior proposed a definition of these devices that included parachutes, but the final regulation omitted reference to parachutes. The 9th Circuit properly held that this omission demonstrated an intent to remove parachutes from the PFD definition.
Finally, the Albers Court visited the issue of BASE jumping as disorderly conduct as discussed in United States v. Carroll supra. The defendants argued that since they did not disturb a single member of the public, there was no disorderly conduct. However, the Court concluded that the relevant inquiry was “whether the defendants deliberately disregarded a substantial and unjustifiable risk of creating a hazardous or physically offensive condition of which they were aware.”
While this has shades of People v. Corliss, supra, the result is a completely different heading. The court determined that there was a potential of harm to boaters in the lake below, since the BASE jumpers could have, theoretically, landed on the boats – thus harming an unsuspecting person on deck. Perhaps this was a bit of legal-stretching karma coming back to bite Morelli. (Not that Morelli was deserving of anything but good karma). This likelihood of harm seems to be a far cry from “substantial,” even if it would be properly called “unjustifiable.”
One author offers an excellent critique of this portion of the ruling:
The court made a fine attempt at performing a proper analysis of the history, definition, and elements of the DCR. Unfortunately, they quit too soon and left the job unfinished. The elements of the crime are: (1) Intentionally; (2) causing public alarm, nuisance, jeopardy or violence or knowingly or recklessly creating risk of same; and (3) which accordingly results in the creation or maintenance of a hazardous or physically offensive condition. The court expeditiously and irresponsibly narrowed the elements of the crime to recklessly creating a hazardous condition. It then turned to the Model Penal Code for a proper definition of the word “reckless,” which consists of a conscious disregard of a substantial and unjustifiable risk, involving a gross deviation from the standard of conduct of a law-abiding person in the same circumstance. If the standard is the average law-abiding BASE jumper, it is easily met in this case. The court neglected to discuss this issue, so one is left wondering exactly what standard the court applied.
See Mark W. Thompson, Base Jumpers Plummet from the Heights of the Vehicle Exception, 23 Whittier L. Rev. 515, 534-535 (2001).
From experience, the Author can state that it would take significant skill and determination to hit a boat in Lake Powell while landing a ram-air parachute. The author has landed in lightly wooded areas, mangrove swamps, golf courses, and one time in a herd of cattle. With the technology available in a modern ram air parachute, even a jumper with very little skill, would be able to avoid a target as large as a boat.
Additionally, it seems like a serious stretch for the court to say that there was a “substantial” risk of harm to others. There are no documented cases (at least none I could find) in which a BASE jumper has ever injured another person. Id at note 151 (literature reviewed to 2001 in that article, but a subsequent 2001 to 2007 literature and case law review reveals no change in the data).
United States v. Gravity Sports, Ltd., 2000 Colo. J. C.A.R. 6737 (10th Cir. 2000).
In this case, the defendants were, as in U.S. v. Carroll, supra charged with aiding and abetting a BASE jumper. They apparently tried to convince the court that the parachutes used in the BASE jump were not “parachutes” as the statute contemplated that term. The Court was unimpressed, and relied directly upon U.S. v. Oxx.
We find that the device used in this case is exactly the same device as that used in Oxx. We therefore find no principled way to distinguish this case from prior controlling authority of this court.
This case seems to mark the death knell to the Morelli theory that ram air parachutes are actually non-powered aircraft.
Conclusion
BASE Jumping, as unlawful as it usually is, has spawned relatively little case law. However, the courts that have handled BASE jumping cases appear to suffer from a lack of knowledge of the sport.
When it comes to skydiving, the only way to truly understand the sport is to try it. Those who have never tasted 120 mile per hour wind, with no metal skin around them, have never known true self-reliance and are missing out on a thrill that can not be matched on terra firma. Until then, each “whuffo” (what skydivers call non-skydivers) will think that they are the first clever soul to utter the question, “why would you jump out of a perfectly good airplane?” (The answer is that most skydiving planes are anything but “perfectly good airplanes”).
If skydivers are a step removed from mere mortals, BASE jumpers are truly a species unto themselves. Given that fact, it is no surprise that there seems to be a trend toward bad and confused decisions in BASE jumping cases — borne from an inability of the trier of fact to understand the basic theories of the activity.
For example, the Morelli theory, while likely to raise a few chuckles among the non-skydiving community, is not all that much of a logical stretch. Unfortunately, courts are not comfortable ruling, essentially, that “a parachute is not a parachute,” no matter how meritorious such an argument may be. (Personally, I think Morelli’s argument is brilliant and accurate).
Practitioners who may be fortunate (or unfortunate as the case may be) enough to handle a BASE jumping case would be well-advised to spend as much time educating the court on the particularities of BASE jumping and basic skydiving facts. Better yet, a judge who has made even a single tandem jump would be a welcome sight to lawyers with BASE cases.
