The Seattle Times recently reported on the pilot of a drone that struck woman at Seattle’s Pride Parade being convicted of Reckless Endangerment, and being sentenced to thirty days of jail. As the defendant’s attorney pointed out in his sentencing memorandum filed with the court, there is no statute or ordinance that specifically prohibits one from flying a drone in public. Instead, the prosecutor chose to charge the defendant with Reckless Endangerment under Seattle Municipal Code 12A.06.050, which mirrors RCW 9a.36.050. The statute and ordinance state, “[a] person is guilty of reckless endangerment when he or she recklessly engages in conduct . . . that creates a substantial risk of death or serious physical injury to another person.” When I try to describe the crime of Reckless Endangerment to my clients, I often describe it as a catch-all crime that prosecutors use when they want to charge someone for doing something stupid, but there is no other specific crime that prohibits the conduct. For instance, if a fan at a Mariners game decides to throw a baseball up in the air for no good reason, and the ball comes down and hits another spectator in the head, what crime has that person committed? An assault would be difficult to prove because for assault, the prosecutor must prove the defendant acted intentionally. Reckless Endangerment may fit because although the act may not have been done intentionally, it certainly was done recklessly.
At sentencing in the drone case, according to the defense’s sentencing memo, the prosecutor was recommending 90 days in jail. The defense was arguing for standard court fines, 80 hours of community service instead of jail, 24 months jurisdiction, and a deferred sentence (which would mean the charge would be dismissed by the court in 24 months if the defendant completed the terms of his sentence). The defense pointed out that in negotiations prior to trial, it appears some form of resolution was reached between defense and the prosecutor but that resolution was vetoed by City Attorney Pete Holmes. The defense contended Mr. Holmes did this for political reasons, and not because the proposed resolution was inappropriate given the facts and circumstances. The defense even pointed out that rather resolve the matter without trial, Mr. Holmes was willing to use tax dollars to fly in an expert witness from out of State.
Ultimately, the court declined to follow the recommendation of both the prosecutor, and the defense, and instead fell in the middle with a sentence of thirty days of jail. Despite the fact that the King County Jail is directly adjacent to Seattle Municipal Court, defendants in Seattle Municipal Court typically serve their jail time at the Snohomish County Jail (in Everett), most likely because it is a cheaper option for the city. Also, as I have previously discussed, jails will typically award one-third off in good time so a thirty day jail sentence is actually a twenty day jail sentence. The court did not agree to allow the defendant to serve the jail on Electronic Home Monitoring or Work Release, but imposed actual jail time. While the court ordered the Defendant to check into the Snohomish County Jail by April 11, 2017, the court also indicated that the jail time and court costs were stayed upon posting of a $10,000 appeal bond. The Defendant has until March 3, 2017 to post this bond. RCW 10.73.040 permits the court to impose an appeal bond where a sentence may be stayed (i.e. postponed) if the defendant posts the bail amount and files a notice of appeal, appealing the conviction to the higher court. Assuming the defendant in this case posts the appeal bond and appeals, he would only have to serve the jail time, and pay the fines, if the higher court upholds the jury’s guilty verdict.
While the court imposed restitution to the victim of the offense in an amount to be determined, the defense’s sentencing memo also notes that the civil matter between the defendant and the victim has not yet been settled. Regardless of the outcome of this criminal case, the victim has the right to sue the defendant for damages in civil court. The amount of damages awarded in a civil case may be more than a criminal case because under RCW 9.94A.750, criminal restitution is limited to “easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury” and “shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses.” Under RCW 4.56.250(1)(b), civil damages can include “noneconomic damages, which include ” subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.”