April 2008
Volume 77
Number 4
United States
Department of Justice
Federal Bureau of Investigation
Washington, DC 20535-0001
Robert S. Mueller III
Director
Contributors’ opinions and statements
should not be considered an
endorsement by the FBI for any policy,
program, or service.
The attorney general has determined
that the publication of this periodical
is necessary in the transaction of the
public business required by law. Use
of funds for printing this periodical has
been approved by the director of the
Office of Management and Budget.
The FBI Law Enforcement Bulletin
(ISSN-0014-5688) is published
monthly by the Federal Bureau of
Investigation, 935 Pennsylvania
Avenue, N.W., Washington, D.C.
20535-0001. Periodicals postage paid
at Washington, D.C., and additional
mailing offices. Postmaster: Send
address changes to Editor, FBI Law
Enforcement Bulletin, FBI Academy,
Law Enforcement Communication Unit,
Hall of Honor
Quantico, VA 22135.

Features
Laser Weapons
By Robert J. Bunker and
Dan Lindsay

Disruptive and Destructive
Effects of Laser Illuminations
By Matt Begert,
Lisa Campbell, and Sid Heal

Laser Legal Issues
By Madelyn I. Sawyer and
John P. Sullivan

No longer relegated to the realm of
science fiction, laser devices have
become weapons with potentially
deadly consequences.

2
10

Whether wielded intentionally by
terrorists or mischievously by citizens,
laser devices can produce potentially
lethal results.

18

Deterring and prosecuting criminal laser
strikes requires a unified effort among
local, state, and federal authorities.

Editor
John E. Ott
Associate Editors
Cynthia L. Lewis
David W. MacWha
Bunny S. Morris

Criminal Speech
By Martin J. King

Art Director
Denise Bennett Smith
Assistant Art Director
Stephanie L. Lowe
Staff Assistants
Cynthia H. McWhirt
Gabriel E. Ryan
Arlene F. Smith
This publication is produced by
members of the Law Enforcement
Communication Unit, Training Division.
Issues are available online at
http://www.fbi.gov.
E-mail Address
leb@fbiacademy.edu
Cover Photo
© Photos.com

23

Law enforcement officers must know
the extent to which the First Amendment
permits preventative prosecution based
on speech intended to persuade or induce
others to engage in unlawful conduct.

Departments
8 Bulletin Reports
Arrest-Related Deaths
Juvenile Offenders
and Victims
NIDA InfoFacts
Cocaine Smuggling

16 Perspective
Community Involvement
21 Unusual Weapon
Tool Pen
22 Leadership Spotlight
The Heart of Leadership

Send article submissions to Editor,
FBI Law Enforcement Bulletin,
FBI Academy, Law Enforcement
Communication Unit, Hall of Honor,
Quantico, VA 22135.

ISSN 0014-5688

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Recognizing
Laser Threats
© Dynamic Graphics

I

n the spirit of lessons learned from the tragic
events of September 11, 2001, the FBI Law
Enforcement Bulletin presents three feature articles on laser threats derived from both negligent
use and the intentional criminal employment of
laser devices and weapons that can disrupt human
vision and potentially cause short- and long-term
damage to the human eye. The danger this threat
represents increases substantially when civil and
private aircraft, commercial cargo carriers, and airborne law enforcement entities become the targets
of these laser illuminations. Loss of pilot vision
and air-ground reference can result in serious and
catastrophic outcomes that can lead to both crew
and passenger injury and loss of life, as well as
imperil citizens on the ground.
To adequately address this topic, the Bulletin
once again has joined with the Futures Working
Group (FWG), a partnership between the FBI and
the Society of Police Futurists International (http://
www.policefuturists.org). The first such collaboration took place in the January 2004 issue on futures
research and policing. The mission of the FWG
is to promote innovation through the pursuit of
scholarly research in the area of police futures to
ethically maximize the effectiveness of local, state,
federal, and international law enforcement bodies
as they strive to maintain peace and security in the
21st century. Members have completed projects on
such topics as the use of augmented-reality technology, neighborhood-driven policing, homeland
security, policing mass casualty events, and the
future of policing. As part of the FWG, the Futurists in Residence (FIR) program, operational since

2004, affords researchers and practitioners an opportunity to conduct original research. The FIR program, housed within the Behavioral Science Unit of
the FBI Academy, has conducted research on human resource management in policing, the future of
leadership in law enforcement, and the current effort on lasers as weapons that police may encounter
today and, perhaps more so, in the future.
The three feature articles cover several aspects
of laser threats, especially those most applicable
to the law enforcement community. First, “Laser
Weapons” provides an overview of weaponry evolution and how lasers and other forms of directed
energy systems have begun to supplant conventional firearms because of enhanced tactical and
operational functions. Next, “Disruptive and Destructive Effects of Laser Illuminations” describes
the potential dangers associated with lasers and offers countermeasures for those targeted, especially
law enforcement officers. Finally, “Laser Legal
Issues” highlights the importance of deterring laser
incidents and the need for statutory provisions to
enable prosecution for these acts.
All three articles echo the need for the law
enforcement profession and the public to become
aware of the potential dangers associated with laser
illuminations. Whether wielded by a terrorist intent
on forcing an airliner to crash or by an ardent fan
trying to attract a celebrity=s attention, lasers can
cause immense tragedy. But, by recognizing the
dangers, taking steps to reduce illuminations, and
enacting effective laws regarding the malicious
use of lasers, society can ensure that this emerging
threat will not flourish.

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Laser Weapons
An Emerging Threat
By ROBERT J. BUNKER, Ph.D., and DAN LINDSAY

aser and beam weapons
have been the stuff
of science fiction lore
for many years. Good science
fiction, however, is based on
some kind of science fact and, if
done properly, will become less
implausible over time. This now
is occurring with lasersCboth
when used in an improvised
weaponry role and when
produced as dedicated laser
weapons.1
Military entities have debated the implications of a shift to
laser and other forms of directed
energy weaponry for quite some
time. In today’s world of terrorist plots and increasingly violent
criminals, the law enforcement
community must become aware
of this development as well.
While most information on the
topic has been military in nature,
a growing body of literature has
begun to focus on the terrorism
potential and criminal use of
laser systems against civil
aviation and airborne and
ground law enforcement assets.2
This law enforcement threat has
emerged in tandem with a
marked increase in lasings and
illuminations over the past
decade and the national tracking
of these incidents by the Federal
Aviation Administration (FAA).
Other issues of interest touch
upon law enforcement=s future
utilization of lasers and directed
energy weapons and citizens’
future right to bear laserarms
(handheld laser weapons). A

L

2 / FBI Law Enforcement Bulletin
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brief look at the early emergence and development of
firearms can help explain what
now is taking place with lasers.
Legacy of Firearms
Firearms have existed for
well over 500 years. Prior to
their emergence, however, less
sophisticated forms of weaponry included the sword, spear,
lance, and bow. During the
transition to the modern world,
the longbow and crossbow, the
two reigning missile weapons of
the medieval era, were successfully challenged and eventually
replaced by the more advanced
firearm first introduced to the
battlefield in the 14th century.3
Early handheld firearms
looked like miniature cannons.
Wooden sticks were strapped to
iron pipes with one end blocked
and a touch hole bored so as
to ignite the crude gunpowder
mixture. Glowing sticks and
wires brought to the touch hole
served to fire the weapon, which
shooters pointed in the general
direction of the target because
aiming was impossible. From
these humble beginnings, firearms evolved over the course
of centuries into true handheld
weapons with many recognizably modern components. Gains
in standoff range, accuracy,
lethality, and reliability became
dramatically evident as sophistication increased.
Firearms—then characterized as crude and unreliable—
beat out competing weapons of

Dr. Bunker is the CEO of a
security consulting corporation
in Claremont, California.

late medieval and early modern
times because they offered
potentials the other, then dominant, systems did not. Whereas
both longbows and crossbows
had exhausted their human
and quasi-mechanical power
sources, firearms began to
exploit the deadly force capability provided by chemical reactions and internal combustion.
This new and advanced weapon
ultimately would take down the
old medieval order by shooting
the knight from his horse and
breeching the high walls of the
lord’s castle.
This end state came about
by means of a gradual process.
The development of the musket
into the rifle and the addition
of the bayonet culminated in
the ascendancy of the modern
firearm as the dominant system
in warfare. In tandem with longgun evolution, pistols became

Chief Safety Officer Lindsay serves
with the Ontario International Airport,
as well as the Los Angeles, California,
Department of Airports and its Airport
Law Enforcement and Protection
Services.

available for military and
eventual policing functions, and
siege, later field, artillery began
to emerge on the battlefield.
Transition to
Laser Weapons
As in the transition from
medieval to modern weaponry,
legacy systems, such as conventional firearms, will not be
supplanted overnight. Still, this
process of weaponry evolution
will not occur over centuries
but in mere decades as a result
of the ever-increasing pace of
technological innovation.
It is projected that an incremental process will unfold over
the course of many decades as
lasers, and other forms of directed energy weapons, emerge
haphazardly as components that
will augment firearms (e.g.,
laser sights) and also be fielded
as stand-alone systems both

April 2008 / 3

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complementing and challenging firearms.4 As energy source
output, transmission efficiency
(lessened energy loss), storage,
and reliability increase, so, too,
will handheld laser weapon
capability. For this reason, this
developmental pattern, except
for its historically compressed
nature, will likely mimic that of
the firearm.
Beyond offering advanced
power source exploitation
potentials over firearms, lasers possess several enhanced
tactical and operational functions.5 Moreover, for policing
purposes, the most significant of
these capabilities include those
identified as exploiting fifth-dimensional operational space.6
• Speed of light: Because a laser beam travels at 186,000
miles per second, no time
of flight exists for it to hit a
target. As soon as the trigger of the laser weapon is
pulled, the target has been
engaged.
• Energy concentrated on the
target: Unlike many omnidirectional munitions, all
of the energy of a laser is
focused in a coherent beam
upon the target. The smaller
and tighter the beam, the
more energy is concentrated
at the point of impact.
• Straight line of flight:
No fire control is required
to calculate a ballistic
trajectory and lead.

Whatever is aimed at is hit,
based on a straight line of
sight and flight.
• Extreme standoff potential:
Stronger lasers have standoff ranges in excess of most
modern firearms; however,
beam coherence issues arise
at extreme ranges of laser
employment.

“

A laser, like
any other device
or weapon, may be
employed by criminals,
terrorists, or military
combatants.

”

• Silent: No detonation or
back blast is required as a
by-product of operating a
laser because no internal
combustion or chemical reaction takes place to power
the laser beam.
• Potentially invisible: Infrared lasers are invisible to the
human eye, thus typically
undetectable without infrared detection equipment. In
the case of visible lasers,
they can be pulsed, thereby
limiting the opposing force’s
ability to detect their use.
• Deep clip: As long as a
power source exists, a laser
can continue to operate,

•

•

•

•

which eliminates the need
for large quantities of
ammunition. The only real
potentially inhibiting factor
is overheating because of
long durations of use.
Rheostat: The energy levels
produced can be increased
and lowered, allowing for
the more tailored application
of force. Low levels could
cause less lethal effects,
while more energy emitted
could result in lethal-force
applications.
Frequency shifting: Tunable
lasers, those with shifting
wavelengths, are highly
resistant to countermeasures
based on filters that block
known threat wavelengths.
Unique wounding: Corneal
and retinal damages to the
eyes may take place with
low-energy lasers. Besides
thermal effects, the potential
for photochemical changes
in the eye also may result
from some laser injuries.
Combinations of charring
and lacerations may occur with high-energy laser
injuries, which require a far
more complex medical response than ones produced
by standard firearms.
Psychological impact:
Once personnel, both military and law enforcement,
realize that utilizing magnifying optics or viewing the
operational space with the

4 / FBI Law Enforcement Bulletin

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naked eye can pose the risk
of being injured or blinded,
their mission performance
could become degraded.
This is compounded by
infrared laser use because
damage to the eye can be
taking place without the
target initially even knowing
that it is happening.
Target Sets
Laser devices and weapons
have disruptive (visual) and
destructive (primarily thermal)
effects upon their targets. Under
normal viewing conditions,
weaker low-energy lasers have
only disruptive effects, whereas
stronger ones also have eye
damage and destructive capabilities that allow them to start
fires and either melt or burn
through objects that have little
density. The weaker lasers,
such as laser pointers, typically
are effective at night for vision
disruption purposes, while the
stronger systems can be used
both in daytime and nighttime
conditions. A laser, like any
other device or weapon, may be
employed by criminals, terrorists, or military combatants.
The target sets that can
be disrupted, and potentially
destroyed, by using lasers are
pretty much the same for both
law enforcement and civil
aviation applications. However,
civil aviation tends to have
many more soft targets, such as
fuel trucks, even though police

helicopters are much softer targets than passenger airliners.
Tactics, techniques, and
procedures for individual user
and opposing force laser applications can be generated for
law enforcement red-teaming
purposes.7 Needless to say, as
with any targeting endeavor,
weapons effects can be matched
to target-set weaknesses and
vulnerabilities, and a reasonably
competent operations plan can
be constructed. In this instance,
the eyes (vision) of law enforcement and commercial aviation personnel are the greatest
vulnerabilities.
Conclusion
Several years ago, one of
the authors characterized the
emergence of lasers and directed energy weapons as a

“new gunpowder revolution”8
and still adheres to that observation. Laser weapons and devices
will have an immense impact
on future policing activities, especially in the coming decades
when they mature as systems
and eventually move along the
continuum from exotic to what
will be considered more conventional weapons. This impact
is projected to come about
primarily because of two broad
waves of change in this type of
weapon’s usage.
The first, derived from
negligence and ignorance,
represents the vast majority
of incidents, criminal intent,
and eventual terrorist and
global insurgent use of these
systems.9 Millions of handheld
laser pointers and other lowenergy laser devices have been

Target Sets
Law Enforcement
• Personnel (line officers, specialized units, supervisors)
• Matériel (police cars, helicopters, fixed-wing aircraft,
equipment)
• Infrastructure (buildings, communication systems)
Civil Aviation
• Personnel (pilots, flight crews, passengers, maintenance staff, rescue workers)
• Matériel (aircraft, fuel trucks, equipment)
• Infrastructure (terminals, control towers, radar,
communication systems)

April 2008 / 5

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Airborne Law Enforcement Laser Illumination
By Alfredo Parra, Jr.

At about 10 p.m. on March 21, 1998, I was the flight officer aboard the Ontario, California, Police Department=s helicopter orbiting a burglary in progress. As I was directing
ground officers to the suspect, the pilot, Pete Ambriz, told me that we were being illuminated by a laser. Fortunately, he could maintain control of the helicopter. After officers
took the suspect into custody, Pete turned in the direction of the laser and flew about 500
feet above the ground. Our aircraft, modified with two strobes for low-level operations in
the area of our international airport, also had a 50-million candlepower searchlight, so we
could be seen for miles.
At that point, I was looking at the horizon and saw the laser beam. It was angled from
the ground below and to the left of the aircraft and was not bright enough to cause concern.
Suddenly, however, it moved up and right and, within an instant, a bright intense red light
covered the front windscreen and interior of the cockpit. The beam was too bright to see
through, and there was no visibility to the front of the aircraft. I could see the beam moving, and, occasionally, I could see forward as the beam tracked our aircraft. I saw Pete
flying while looking out the left side of the aircraft as he kept his heading. After about 10
seconds, I saw the beam move downward, fade, then turn off. As the beam was moving
away from the aircraft, I could clearly see its source. The beam was so intense, straight,
and bright that it pointed like an arrow to its source. As it was turned off, I saw it glow
down and move north at the rear of a house and then inside what turned out to be the rear
sliding door. Later, I determined the distance to be just over 1 mile, or about 14 city blocks.
I learned from the manufacturer of the device that, at that distance, the beam would have
been approximately 7 feet in diameter.
I directed Pete to the home and had a ground unit respond. The officer contacted the
suspect and retrieved the device. The suspect subsequently admitted aiming the device at
the helicopter and eventually pleaded guilty to a misdemeanor violation of California Penal
Code Section 247.5, Discharging a Laser at an Aircraft. He was sentenced to 3 months in
the county jail and 3 years on probation.
Detective Parra serves with the Ontario, California, Police Department.

manufactured over the past few
decades, and now dozens, if not
hundreds, of them are directed
at civil, commercial, military,
and law enforcement aircraft;
police and emergency services
personnel; professional and

amateur athletes; bus drivers;
and everyday citizens on a
yearly basis. Fortunately, the
majority of these devices, under
normal viewing conditions, do
not pose eye hazards. Still, these
lasers may offer significant

visual disruption potentials.
Regardless of user intent,
this wave of change already
has begun and is based on
lasers as threat systems to law
enforcement officers. An eventual component of this wave

6 / FBI Law Enforcement Bulletin

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of change will be the creation
of law enforcement policies,
tactics, and countermeasures
with respect to laser threats.10
The second wave of change
is expected to be based on
the utilization of lasers and
other directed energy devices
by law enforcement agencies
themselves. This can be seen
today with laser sights added
to firearms and the use of laser
dazzlers as less lethal forms
of force. While this wave of
change remains immature, over
time, more and more directedenergy capabilities will be
implemented for law enforcement use.
With such scenarios in
mind, the law enforcement
profession must recognize that
lasers are emerging as the weapons of the future. Just as the
firearm ushered in the modern
era, the laser will profoundly
influence what transpires for
succeeding generations.
Endnotes
1
The authors’ past writings on laser
threats include Dan Lindsay and Robert J.
Bunker, “The Laser Threat to California
Airborne Law Enforcement,” The Journal
of California Law Enforcement 34, no.
2 (March-April 2000): 12-20 (an earlier
version, “The Laser Threat to Airborne
Law Enforcement,” appeared in two parts
in Air Beat (November/December 1998,
26-29 and January/February 1999, 14-16);
and Robert J. Bunker, “Terrorist Laser
Employment Against Civil Aviation: Issues, Concerns, and Potential Incidents,”
Transit Policing 8, no. 1 (Spring 1998):
7-8 and 21-28.

2

U.S. Department of Justice, Federal
Bureau of Investigation, FBI Academy Library, Subject Bibliography: Laser Devices
and Weapons (Quantico, VA, June 2007).
3
T. Lindsay Moore, “The Structure of
War: Early Fourth Epoch War Research,”
in Non-State Threats and Future Wars,
ed. Robert J. Bunker (London, UK: Frank
Cass, 2003), 157-170.
4
This projection has provided underlying guidance to less lethal weapons
research and field activities initiated by the
National Law Enforcement Corrections
Technology Center; the National Institute
of Justice Technical Working Group on
Less Lethal Weapons; and the Technology
Exploration Program of the Los Angeles
County, California, Sheriff=s Department.
5
Many of these capabilities were
recognized initially quite sometime ago by
Brigadier Bengt Anderberg, “The Low-Energy Laser Aimed at the Eye as a Potential
Antipersonnel Weapon,” The RUSI Journal 133, no. 1 (Spring 1988): 35-40.
6
Sid Heal, “Fighting in the Fifth
Dimension,” OnPoint: A Counterterrorism
Journal for Military and Law Enforcement
Professionals (April 2005); retrieved from
http://www.uscav.com.
7
Robert J. Bunker, “Criminals and
Laserarms: Counter-Optical Tactics,” The
Tactical Edge 14, no. 8 (Fall 2000): 45-48.
8
Robert J. Bunker, “New Gunpowder
Revolution,” The Police Chief, June 1998,
49. This observation was drawn from even
earlier military-related research Dr. Bunker
conducted on the topic.
9
With a fixation on man-portable
air defense systems, rocket-propelled
grenades, bombs and improvised explosive
devices of various types, and small arms, a
time lag before terrorist laser weapons use
takes place is expected. Still, the Japanese
terrorist group Aum Shrinkyo attempted to
use a laser device as a weapon back in the
1990s, so wild-card scenarios are not out
of the question.
10
Additional forms of directed energy
defense against radio frequency and other
devices also may, at some point, become
warranted.

Wanted:
Photographs

T

he Bulletin staff is
always looking for
dynamic, law enforcementrelated photos for possible
publication in the magazine.
We are interested in photos
that visually depict the many
aspects of the law enforcement profession and illustrate
the various tasks law
enforcement personnel
perform.
We can use color prints,
digital photographs, and
slides. It is our policy to
credit photographers when
their work appears in the
magazine. Contributors
should send duplicate, not
original, prints as we do not
accept responsibility for
damaged or lost prints.
Send photographs to:
Art Director
FBI Law Enforcement
Bulletin, FBI Academy, Law
Enforcement Communication
Unit, Hall of Honor,
Quantico, VA 22135.

April 2008 / 7

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Bulletin Reports

Arrest-Related Deaths
Arrest-Related Deaths in the United States, 2003-2005 contains data from
the first national measure of all types of arrest-related deaths under a new program mandated by the federal Death in Custody Reporting Act (Public Law
106-297). The statute directed all states to report deaths during arrests to remain
eligible for federal correctional grants. This Bureau of Justice Statistics report
provides the number of all arrest-related deaths over a 3-year period by cause of
death and characteristics of the deceased. These fatalities include homicides
(both those by law enforcement officers and other persons), suicides, alcohol or
other drug intoxication deaths, accidental injuries, and fatal medical problems.
The publication lists the deaths by cause for each state, and tables detail the
circumstances surrounding arrest-related deaths, such as the criminal offenses
relating to the arrests, the weapons or other behavior employed by arrest subjects, and the weapons or restraint devices used by officers involved in the
arrest. In addition, the document presJuvenile Offenders and Victims
ents the number of justifiable homicides
by police as collected by the FBI’s UniThe latest edition of the Office of Juvenile
form Crime Reporting Program. To
Justice and Delinquency Prevention’s (OJJDP)
obtain a copy of the report (NCJ
flagship statistical publication, Juvenile Offenders
219534), access http://www.ojp.usdoj.
and Victims: 2006 National Report, is available
gov/bjs/abstract/ardus05.htm.
online at http://ojjdp.ncjrs.gov/ojstatbb/index.
html. The 260-page report offers comprehensive
statistics on juvenile offending, victimization of
juveniles, and the justice system’s response to
these problems. It presents data in easy-to-read
tables, graphs, and maps, narrated by clear, nontechnical analysis. This report is part of OJJDP’s
online Statistical Briefing Book (SBB).

8 / FBI Law Enforcement Bulletin

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NIDA InfoFacts
Understanding Drug Abuse and Addiction represents
one of many brief messages available through NIDA
InfoFacts, developed by the National Institute on Drug
Abuse (NIDA), National Institutes of Health, Department
of Health and Human Services. NIDA supports most of
the world’s research on the health aspects of drug abuse
and addiction. Updated regularly, NIDA InfoFacts have no
copyright on any of the materials, and all can be reproduced
for further distribution. Available at http://www.nida.nih.
gov/Infofacts/Index.html, NIDA
InfoFacts cover a wide range of
topics germane to all concerned
Cocaine Smuggling
with the tragic effects of drug
abuse and addiction.
Produced by the Office of National Drug Control
Policy, Cocaine Smuggling in 2006 provides an overview of the estimated cocaine flow to the United States
for the year. The report covers such topics as coca cultivation and production, cocaine trafficking routes and
methods, and cocaine seizures and disruptions. Estimates
indicated that between 530 and 710 metric tons of cocaine departed South America toward the United States
in 2006. About 90 percent of the flow traveled via the
eastern Pacific and western Caribbean routes to Mexico
and Central America. In 2006, interdiction efforts resulted in 492 metric tons of cocaine, the second highest
total on record. The document (NCJ 220494) is available
at the National Criminal Justice Reference Service’s Web
site, http://www.ncjrs.org.

Bulletin Reports is an edited collection of criminal justice studies, reports, and
project findings. Send your material for consideration to: FBI Law Enforcement
Bulletin, FBI Academy, Law Enforcement Communication Unit, Hall of Honor,
Quantico, VA 22135. (NOTE: The material in this section is intended to be strictly
an information source and should not be considered an endorsement by the FBI
for any product or service.)

April 2008 / 9

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Disruptive
and Destructive
Effects of Laser
Illuminations
By MATT BEGERT, LISA CAMPBELL, and SID HEAL

© Mark C. Ide

ost of the documented
laser incidents (some
intentionally disruptive, others not) have involved
lasing aircraft. The primary
operational effect in such incidents is visual disruption to
pilots with the immediate and
direct concern being the loss of
control of the aircraft. For a hostile individual wielding a laser,
disruption of the pilot’s vision,
as well as a wide range of other
potentially destructive results, is
intentional.
As lasers become more
technologically advanced and

M

hostile forces modify their
tactics for enhanced results, current disruptive outcomes may
worsen, causing greater possible injury or death. Further,
both disruptive and destructive
effects of lasers may bring on
psychological issues not only
for the victims of such incidents
but also for those who could
become targets.
VISUAL DISRUPTION
The mechanics of visual
disruption can be described in
terms of the effect produced
when the eye interacts with

light, specifically changes in
light hitting the eye. The visual
disruption that occurs when a
laser strikes the eye includes
one mechanical reactionCblinking, an involuntary, predictable
startle reflexCand three physiological responsesCglare, flash
blinding, and afterimage.
Glare, a common and foreseen condition for pilots during
flight, results from an intense
light source that obscures an object in a person’s central field of
vision.1 The effects last only as
long as the light source is present. Pilots expect glare caused

10 / FBI Law Enforcement Bulletin

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by low sun angle, landing lights,
and other sources. But, they do
not anticipate the sudden illumination and resulting glare
of collimated laser beam radiation, amplified by reflection
and refraction in the cockpit.2
The unexpected appearance of
laser light causing glare proves
disruptive unlike that from
sunlight, which pilots know
and can predict. In contrast,
flash blindness, a temporary
visual impairment, persists for
several seconds or up to a few
minutes after the light source
is removed.3 Unfortunately, a
laser does not have to be shined
directly into the eye for this to
occur. Reflected or refracted
laser radiation hitting a cockpit canopy can produce flash
blindness. Albeit temporary, the
visual disruption can result in

Operations Officer Begert
serves with the National Law
Enforcement and Corrections
Technology Center-West in
El Segundo, California.

the inability to detect or resolve
a target, similar to the immediate blinding from a camera
flashbulb. The final response,
afterimageCthe transient sensation or the perception of light,
dark, or colored spots left in the
visual field after exposure to
bright lightCcan prove distracting or disruptive and last up to
several minutes.
The disruption from lasing
can affect an aircraft’s mission
or intended operation. A pilot
startled by a laser flash and
suffering from flash blindness,
for example, may inadvertently divert or change a flight’s
course or lose visual references.
In military applications, laser
disruptions can result in a degraded mission, aborted flight,
or denial of essential air support
to ground operations. Further,

Major Campbell serves with
the 146th Airlift Wing, Air
National Guard, U.S. Air Force,
at Port Hueneme, California.

ongoing effective hostile lasings
in a specific location may result
in general area denial. In domestic circumstances, important
consequences of laser disruption could include temporary
restrictions or modifications to
the use of aircraft in support
of law enforcement or public
safety missions.
HEALTH ISSUES
The unique properties of
lasers play a role in their effect on the eye. A tightly collimated laser, for example, will
cause the laser beam to become
focused in a small retinal spot,
much smaller than if another
light source with comparable
power were to hit the eye. This
constricted focus combined with
the increased output power of a
laser may lead to exceptionally

Commander Heal serves
with the Los Angeles County,
California, Sheriff’s Department.

April 2008 / 11

66719.indd 11

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hazardous conditions for the
eye. The nearly monochromatic
property, the very confined
beam divergence over great
distances, and the energy of a
laser also can have an effect on
the eye. In general, at the point
where the eye no longer can
withstand the power or energy
density of a laser, referred to
as the eye’s damage threshold,
barely visible but permanent
physical damage to the retina
will occur.
Three mechanisms can
cause laser-induced eye injuries: thermal, mechanical, and
photochemical. The most common laser eye injury is thermal
in nature. When so affected, the
eye absorbs laser energy, which
raises the temperature and alters
tissue proteins. Less common,
mechanical damage results from
lasers with very short high-frequency pulses and, thus, very
high energy. Such high-energy
pulses can inflict severe damage to the retina because of
extremely rapid absorption of
energy and sharp increases in
temperature. Photochemical
damage, characterized by lower
power and longer energy pulses,
occurs at the shorter visible
wavelengths (e.g., in the blue or
ultraviolet regions of the spectrum). In such cases, repeated or
chronic exposure is cumulative
with the effects being similar to
sunburn.
Common but varying
symptoms may assist in the

preliminary recognition of the
nature and seriousness of the
exposure. Victims of significant
retinal laser injuries typically experience sudden, severe
decreased vision in one or both
eyes. They may notice a bright
flash and occasionally hear a
loud popping sound. They may
or may not feel pain.4 Still, their
affected vision may improve
over several days or months.

“

The unique
properties of
lasers play a role
in their effect
on the eye.

”

Results from laser accidents of varying degrees have
included such medical findings
or symptoms as scotoma (dark
spots); retinal, corneal, or
macular burns; retinal lesions;
swelling; blurred vision; vitreous hemorrhage (rupture of
retinal blood vessels); and blind
spots. Most real laser injuries
are accompanied by some eye
tissue damage. While many
medical or symptomatic findings will improve over time,
some may last much longer.
In cases of more significant
retinal laser injury, the clinical

presentation usually becomes
apparent to ophthalmologists.
Less significant retinal laser
injuries may not be as easily
diagnosed or apparent. For this
reason, details of the event and
all symptoms should be documented and given to an examiner following a suspected lasing.
Notably, in some accidental
workplace lasings, the clinical
effects remained undetected
until inadvertently discovered
by ophthalmologists because
they were asymptomatic and,
therefore, never addressed.
As the number of lasing
incidents increases, especially
by misuse, so does the added
potential for psychological
effects that may occur as a
result of being lased or simply
from the threat of experiencing
such an incident. According
to some military researchers,
the suppressive consequences
of knowing that a lasing could
occur may be numerous and
must be factored into overall
laser biological effects studies.
Such psychological issues
prior to, during, or after a laser
incident may be accompanied
by undue stress or performance
inhibitions and, thus, have
significant impact on mission
accomplishment.5
OFFICER SAFETY
CONCERNS
One highly troubling aspect
for officers being lased is not
knowing the circumstances of

12 / FBI Law Enforcement Bulletin

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the illumination. Is a criminal
sighting a weapon at them? Is
someone trying to harm them
by striking them in the eye with
a laser? Or, is a child, adolescent, or even an adult wielding
the device accidentally or out
of ignorance? Such questions
necessitate quickly assessing
the situation and employing
some basic response protocols
and countermeasures developed
to protect officers during a laser
illumination.6 These response
measures, both passive and active in nature, partially depend
on the intensity (brightness) of
the laser and the officer’s type
of assignment (e.g., on foot, in a
vehicle, or aboard an aircraft).
Countering the Attack
Officers on foot should
readily seek cover if the illumination continues.7 They may
need to look away from the
laser or shield their eyes with
a hand, hat, clipboard, or other
opaque object. Officers should
remember that the effects of a
laser illumination are far greater
at night and under other conditions of darkness because the
human eye has adapted itself for
nighttime vision (i.e., the pupil
is dilated).
Officers in vehicles first
need to make sure that the
startle response from a laser illumination does not result in an
accident. They have the option
of driving through the incident
or parking the car. Turning on

interior lights may help negate
some of the intensity of the laser light. Looking down, shielding the eyes, or finding protection behind an open car door all
represent viable options. If the
illumination comes from behind, officers never should look
into the rearview mirror.
An airborne officer’s first
mission is to aviate and navigate. Depending on the severity
of the laser illumination, officers have some options. They
could look away, shield their

© Photos.com

eyes, raise or lower their helmet visor, place their head out
of the window (in case of laser
light scattering or opaqueness
in the canopy), or make a 180degree turn. At ranges close to
the laser source, officers should
maximize all interior and instrument lighting to counteract the
disruptive visual effects of the
laser illumination.
Regardless of whether officers are on foot, in a vehicle,
or aboard an aircraft, under no

circumstances should they use
a direct-viewing magnifying
device, such as binoculars or
a scope, because these instruments gather and intensify light,
thereby boosting the energy of
the laser that strikes the eye.
Eyeglasses, as well as shiny objects and other reflective surfaces that laser energy can bounce
(diffuse) off of, also pose visual
disruption and injury issues. For
this reason, officers should not
use tactical mirrors for viewing
the illumination.
Officers operating in environments where laser threats are
prevalent can draw upon more
sophisticated countermeasures.
For example, military goggles
and glasses exist that provide
both ballistic and laser eye protection. Filters incorporated into
such eyewear block out common laser threat wavelengths.
For law enforcement use, red
and green laser filters would
have the greatest current utility. Film applied to windshields
and windscreens and potentially
even to mirrors can filter out
harmful laser light. In addition,
smoke rounds represent a sound
tactical response to the threat of
laser illumination because the
particulate matter that blocks
human vision does the same to
laser energy. Laser detectors
and warning receivers, found
in some military vehicles and
aircraft, alert crews to illuminations. This laser warning capability extends to both visible

April 2008 / 13

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and infrared (invisible) lasers.8
Finally, law enforcement
agencies can utilize airborne,
vehicular, and officer-carried
white-light systems (flashlights
through high-intensity spotlights) against the source of
a laser illumination. Multiple
white-light sources, and even
the addition of laser dazzlers,
can create an optical-wall effect
that may isolate and disorient
the wielder. Air units that have
powerful spotlights with good
standoff ranges have proven effective in providing overwhelming white light against suspects
with lasers.

laser energy reflected off of
surfaces.9 In case of an eye
injury, officers should keep
the injured person calm. If a
retinal injury is suspected and
bleeding occurs inside the eye,
the injured person should
remain in an upright, seated
position. Officers should arrange for transportation of the
seriously injured for medical
evaluation and treatment. The
victim might be in shock or
have impaired vision, so selftransportation is not advisable.10

Aiding the Injured
All lasers are capable of eye
damage as a result of three
factors: exposure, aperture, and
energy. Thus, even a weak laser
with a small aperture and
sufficient “loiter time” can
cause injury. Of course, a more
powerful laser needs less
exposure because it has more
energy. While in the vast majority of cases no damage will
result from being illuminated by
a weak laser, officers still
should have their eyes examined. The stated energy output
of many foreign lasers is inaccurate, and worn eyewear
inadvertently may intensify a
laser beam. Eye injuries easily
can take place from direct beam
exposure from more powerful
lasers and potentially even from

The disruption
from lasing
can affect an
aircraft’s mission
or intended
operation.

“

”

Injured officers should
consult ophthalmologists who
have specifically treated laser
eye injuries. Because laser eye
injuries are uncommon, some
officers may encounter difficulty finding qualified medical
doctors to conduct the examination. In the case of severe injuries and lingering eye pain, they
should contact military ophthalmologists who are experts in
this field.

CONCLUSION
Lasers currently used in
antipersonnel roles are not
the most advanced systems in
existence. However, it is reasonable to assume that more
sophisticated technology will be
employed with malicious intent
in the future.
The law enforcement profession must prepare for such
a threat by ensuring that its
members become aware of the
potential dangers associated
with lasers. These hazards exist
whether the devices are wielded
intentionally by criminals and
terrorists or by citizens ignorant
of the potentially lethal results
of their mischievous actions.
Endnotes
1
Van B. Nakagawara, Ronald W.
Montgomery, Archie E. Dillard, Leon N.
McLin, and C. William Conner, U.S.
Department of Transportation, Federal
Aviation Administration, Office of
Aerospace Medicine, The Effects of Laser
Illumination on Operational and Visual
Performance of Pilots During Final
Approach, DOT/FAA/AM-04/9 (Washington, DC, June 2004).
2
Collimated light means that the
wavelengths of the light beams are parallel, resulting in little beam divergence over
long distances.
3
Supra note 1.
4
Studies have shown that pain is not
frequently reported. Pain may be caused
by rubbing the eyes after laser exposure
and more a result of transient corneal
abrasion from the rubbing versus from the
lasing itself.
5
Additional references employed by
the authors include W.L. Makous and J.D.
Gould, “Effects of Lasers on the Human

14 / FBI Law Enforcement Bulletin

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Eye,” IBM Journal (May 1968): 260;
Yaniv Barkana and Michael Belkin, “Laser
Eye Injuries: Survey of Ophthalmology,”
Major Review 44, no. 6 (May/June 2000):
459-474; Robert P. Green, Jr., Robert M.
Cartledge, Frank E. Cheney, and Arthur
R. Menendez, USAF School of Aerospace
Medicine, Human Systems Division,
Medical Management of Combat Laser
Eye Injuries (Brooks AFB, Texas, October
1988, rev. 1990); and R. James Rockwell,
Jr., William J. Ertle, and C. Eugene Moss,
Rockwell Laser Industries, Inc., and National Institute for Occupational Safety and
Health, Safety Recommendations of Laser
Pointers; retrieved from http://www.rli.
com/resources/pointer.asp.

6

Robert J. Bunker, Laser Threats to
Law Enforcement, International Association of Chiefs of Police Training Key 523
(Alexandria, VA, November 2000), 1-6.
Original tactical review of this training key
provided by Sid Heal.
7
Police horses and dogs also are
susceptible to laser illuminations. Mounted
officers have personal safety issues
concerning controlling their animals. Side
blinders on horses should protect from all
but direct head-on laser illuminations.
8
More sophisticated systems may have
the ability to pinpoint the geospatial
position of the threat laser and provide
geopositioning system coordinates. Even
more advanced systems may be able to

characterize laser frequency signatures.
The gathering of such signatures may
provide useful information for both laser
protection (eyewear filters) and criminal
prosecution (matching the gathered
signature to that of a seized laser).
9
While skin injuries (actual burns)
from lasers also are a potentiality for officers who have been illuminated, overall
vision safety concerns dominate because
very few, if any, of these more powerful
lasers are used in the current domestic
laser threat environment.
10
Rick Mannix, ed., UC Irvine Laser
Safety Newsletter 7, no. 1 (January 3,
2007): 1-2; retrieved from http://www.ehs.
uci.edu.

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Perspective
Community Involvement
The Ultimate Force Multiplier
By Arlene A. Gaylord, M.A.

T

he events of September 11, 2001, dramatically changed the way Americans live. It
also drastically altered how law enforcement
organizations conduct business. Since that tragic
day, local, state, federal, and tribal agencies have
worked and trained together, having recognized
the major shift in the roles and responsibilities
of the law enforcement profession throughout
the United States. Now that law enforcement officers have received terrorism training, they need
to share this knowledge with the members of the
communities they protect and serve. Educating the
public to recognize suspicious activities that could
possibly relate to terrorism may well comprise
the ultimate force multiplier. After all, no locality
has the luxury of having an officer on every street
corner. Therefore, involving citizens is essential
to effectively combat terrorism. Who better than
someone living in a neighborhood or working in a
business district to recognize what truly is happening in that area?
As an example, Neighborhood Watch programs have succeeded in making many communities across the nation safer.1 The program enlists
the active participation of citizens in cooperation
with the agencies that police them in an effort to
reduce crime. This time-tested formula has proven
instrumental in ridding neighborhoods of different
types of crime problems, such as gangs, prostitution, and drugs. This concept could be expanded
to include offering appropriate training regarding
terrorism and, thereby, equipping residents with
the knowledge necessary to effectively identify
suspicious activities that possibly could relate to
terrorism.

San Diego’s Initiative
The FBI’s San Diego office has made building law enforcement-community partnerships a
cornerstone in its investigative and preventative
counterterrorism efforts. Since April 2004, the
office has offered a training program for citizens.
It has shared a 1½-hour course with community
forums, private companies, and Neighborhood
Watch groups throughout San Diego County and
several other neighboring jurisdictions. The premise of this training is simple: a brief overview of
terrorism that teaches community members not
only how to recognize preincident indicators (PIIs)
and suspicious activity but also how to provide an
accurate report to the appropriate law enforcement
agency in a timely fashion.
To help other law enforcement organizations
develop a similar effort, the author presents the
formula that has proven successful in San Diego.

Ms. Gaylord serves as
an intelligence analyst
in the FBI’s San Diego,
California, office.

16 / FBI Law Enforcement Bulletin

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First, agencies should identify employees who not used by domestic terrorists against construction
only care greatly about educating the community sites).
Agencies lacking enough sworn personnel to
but also have established themselves as effective
trainers. Next, they should arm these individuals cover the time necessary to address community
with the knowledge needed and give them suffi- groups can turn to professional support employees
cient time to go out into the community and teach or volunteers who have the appropriate skills and
a basic overview course on terrorism. Although knowledge to provide this critical training. To
specific items to cover in this training can vary by this end, the California Commission on Peace Officer Standards and Training
jurisdiction, four basic compodeveloped a train-the-trainer
nents have worked effectively
class and offered it to interin San Diego.
ested individuals, including
1) A brief historical overview
terrorism liaison and commuof terrorism, both internaEducating the public
nity services officers and other
tional and domestic
to recognize suspicious
employees nominated by their
activities that could
2) A review of terrorism PIIs
departments.
possibly relate to
that members of the
terrorism may well
community may be in the
Conclusion
comprise the ultimate
position to observe
It is time to include the
force multiplier.
3) A discussion on the imporcommunity in law enforcetance of providing informent’s battle against the threat
mation that not only is
of terrorism. The profession
accurate but also timely
must work to train residents to
become its eyes and ears because officers simply
4) An explanation of appropriate reporting procedures, including instructions on who should cannot do it alone. Citizens need to know what to
look for and how to effectively report it to the apreceive the information
This type of training requires few resources. propriate agency.
Building law enforcement-community partnerMost of all, it needs instructors who feel passionately about building law enforcement-community ships can constitute the ultimate force multiplier.
partnerships and who are approachable, knowl- Education and training offered by law enforceedgeable, and enthusiastic about the subject. Who ment agencies to the communities they protect
should receive the training will depend on the and serve could lead to a tip that might identify a
jurisdiction. For example, San Diego has offered critical player in a terrorist cell and provide law
the training to community groups that request enforcement with the opportunity to disrupt, deter,
it and has proactively contacted special interest or stop the next egregious attack on American
groups, such as shopping mall security companies soil.
(supplying training specific to basic terrorism and Endnotes
suicide-bomber prevention) and businesses that
1
provide security services to construction sites
For additional information, access http://www.usaonwatch.
(conducting training regarding recent arson tactics org.

“

”

April 2008 / 17

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Laser Legal Issues
Prosecuting Perpetrators
By MADELYN I. SAWYER, M.A., and JOHN P. SULLIVAN

© Digitial Vision

aser incidents are a
current and emerging
concern to the aviation
and law enforcement communities. When directed against
aircraft cockpits, lasers, under
certain conditions, can distract
or impair the pilot and flight
crew, posing a significant safety
hazard.
The continuance of acts targeting civil airliners and public
safety helicopters highlights the
importance of deterring laser
incidents and demonstrates the
need for statutory provisions

L

officials and the public regarding the risks improper laser use
poses to aviation.1

Federal Regulations
and Criminal Statutes
Over a decade ago, the
aviation and law enforcement
communities initiated the tracking and documenting of lasing
incidents against aircraft and
helicopters in flight. Lasings
have continued, yet progress
in enacting statutes for the
prosecution of individuals who
point lasers at aircraft has been
uneven.
After informally tracking
laser incidents for a decade, the
Federal Aviation Administration
(FAA) established a mechanism
to record laser incidents through
its operations center in Washington, D.C. When pilots report
a lasing incident to the center, it
contacts the FBI and local law
enforcement agencies.2
Despite these regulatory
to enable prosecution for these
efforts, a specific federal laser
acts under both federal and
strike statute still is pending.3
state statutes. Potential means
This legislation would amend
of deterrence and threat mitithe federal criminal code to
gation include restricting the
impose a fine or prison term
sales of certain laser devices;
of up to 5 years for any person
amending or enacting criminal
who knowingly aims the beam
statutes regarding the use of
of a laser pointer at an aircraft
lasers as weapons, as well as
or its flight path. If enacted,
their use against flight operations; providing pilots with laser this would create Title 18, U.S.
eye protection; training pilots in Code, Section 39A, Aiming a
laser countermeasures; expand- Laser Pointer at an Aircraft.
Currently, malicious use of
ing and enforcing laser-free
lasers to interfere with aircraft
zones proximate to airports;
and educating law enforcement can be prosecuted under the

18 / FBI Law Enforcement Bulletin

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provisions of Title 18, U.S.
Code, Section 32, Interfering
with Flight Crews, or under the
Patriot Act (P.L. 107-56) section
pertaining to acts of violence
directed against mass transportation systems.
State Criminal Statutes
Several states, notably
California, have specific
statutes available to address
laser strikes. The California
Penal Code, for example,
creates a felony for aircraft laser
incidents and misdemeanor
provisions for those interfering
with aircraft.
• California Penal Code Section 247.5: Any person who
willfully and maliciously
discharges a laser at an
aircraft, whether in motion
or in flight, while occupied
is guilty of a violation of
this section, which shall
be punishable as either a
misdemeanor by imprisonment in the county jail for
not more than 1 year or by
a fine of $1,000 or a felony
by imprisonment in the state
prison for 16 months, 2
years, or 3 years or by a
fine of $2,000.
• California Penal Code Section 248: Any person who,
with the intent to interfere
with the operation of an
aircraft, willfully shines a
light or other bright device,
of an intensity capable of
impairing the operation of
an aircraft, at an aircraft

shall be punished by a fine
not exceeding $1,000 or by
imprisonment in a county
jail not exceeding 1 year
or by both that fine and
imprisonment.
Other California sections
address pointing lasers at persons (CPC Section 417.25) and
at peace officers (CPC Section
417.26) and prohibit sales of
laser pointers to minors (CPC
Section 417.27 [a]). Florida
has similar provisions in Section 784.062: Assault; Battery;
Culpable Negligence-Misuse of
laser lighting devices, wherein
subsection (3)(a) states that
“Any person who knowingly
and willfully shines, points,
or focuses the beam of a laser
lighting device on an individual operating a motor vehicle,
vessel, or aircraft commits a

Special Agent Sawyer, a former
air traffic controller with the U.S.
Navy, serves with the Federal
Aviation Administration based
in Los Angeles, California.

felony of the third degree” and
subsection (3)(b) holds that
when “such act results in bodily
injury commits a felony of the
second degree.” Most recently,
Ohio created a second-degree
felony in Section 2909.081
where “No person shall knowingly discharge a laser or other
device that creates visible light
into the cockpit of an aircraft
that is in the process of taking
off or landing or is in flight.”
The Banach Incident
The U.S. Attorney’s Office,
District of New Jersey, successfully prosecuted a Parsippany,
New Jersey, man for pointing
a laser into the cockpit of an
aircraft on final approach to
Teterboro Airport.4 On December 29, 2004, a green laser (significantly more powerful than

Lieutenant Sullivan serves
with the Los Angeles County,
California, Sheriff’s Department.

April 2008 / 19

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Mitigating the Threat
Several measures are available to deter, detect, and mitigate the impact of laser threats.6
• Restrict the sales of certain laser devices
• Amend or enact criminal statutes regarding the use of lasers as weapons, as well as
their use against flight operations
• Provide pilots with laser eye protection, potentially problematic for helicopters but
worthy of research
• Train pilots, especially airborne law enforcement officers, in laser countermeasures
• Expand and enforce laser-free zones proximate to airports
• Educate law enforcement officials and the public regarding the risks improper laser
use poses to aviation

a red one and readily available
for less than $120) was pointed
into the cockpit of a charter
aircraft with six passengers. The
windscreen and cockpit were
illuminated three times during
final approach with the aircraft
traveling at a speed of approximately 250 knots and an altitude
of about 3,000 feet. Both pilots
were disoriented and temporarily lost their night vision.
Two days after the incident, the pilots accompanied
investigators in a Port Authority
helicopter aerial surveillance
flight to ascertain the laser
location based on where the
charter aircraft was at the
time of illumination. During
the helicopter’s flight, it also
was illuminated by a green
laser, which led authorities to
the home of David W. Banach.
Mr. Banach denied intentionally

aiming a laser at the aircraft,
claiming first that his 7-yearold daughter was responsible
and then later that he was
using the laser to point out
stars to the child on the night
of the initial charter aircraft
illumination.
During subsequent interviews, Mr. Banach recanted
his explanation implicating his
daughter and admitted to shining the beam at the helicopter
and at the charter aircraft. No
charges were filed for the helicopter incident because it was
not considered a mass transit
vehicle.
Mr. Banach was charged
with three counts under the
Patriot Act, Title 18, Sections
1993, 1001, and 1002. Under
count 1, Interference with
Pilots of an Aircraft, he faced
a potential sentence of 20 years

in prison. The Advisory U.S.
Sentencing Guidelines allowed
for a range of 18 to 24 months.
As the guidelines were nonbinding, the judge imposed a sentence of 2 years’ probation.
U.S. Attorney Christopher J.
Christie stated, “We accept the
sentence imposed on Mr. Banach,...the needs of justice and
deterrence had to be balanced.
At no time did we believe Mr.
Banach was involved in terrorism or that he should face 20
years in prison. Nonetheless,
his conduct posed an immediate
threat to innocent lives...and
Mr. Banach now stands as a
convicted felon. Everyone is
now on notice: anyone considering such purposeful conduct
can expect the full weight of
federal prosecution and a
potentially lengthy prison
sentence.”5

20 / FBI Law Enforcement Bulletin

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Conclusion
Deterring and prosecuting
criminal laser strikes against
aircraft requires a unified effort
among local, state, and federal
law enforcement; cooperation
with the Federal Aviation
Administration; and awareness
and collaboration with the
aviation community. Such
efforts are essential to ensure
safety in the national airspace,
to protect airborne law enforcement activities, and, ultimately,
to help prevent air crashes and
disasters resulting from criminal
and potential future terrorist
employment of laser weapons
Cimprovised or otherwise.
Indeed, the most successful
way of denying terrorists the
possibility of adopting this

“science fiction” weapons
system is effective enforcement, prosecution, and prevention of laser crimes by routine
criminals. In all of these cases,
feasible deterrence and enforcement will benefit from the skillful and appropriate use of effective state and federal statutes
specifically crafted to address
laser threats, coupled with an
awareness by law enforcement
and prosecutorial authorities of
the content of the statutes and
the nature of the threat.
Endnotes
1
Adapted from Bart Elias, Lasers
Aimed at Aircraft Cockpits: Background
and Possible Options to Address the Threat
to Aviation Safety and Security, Congressional Research Service, CRS Report for
Congress, January 26, 2005.

2

Commercial laser devices are regulated by the Food and Drug Administration, and enhanced provisions to restrict
sales of more powerful lasers and more
pronounced warning labels on all products
may be warranted.
3
A House resolution (H.R. 1615), the
“Securing Aircraft Cockpits Against Lasers
Act of 2007,” was passed by the House
and referred to the Senate on May 23,
2007.
4
Indictment in U.S. District Court,
District of New Jersey-CJG/20050003;
http://www.usdoj.gov/usao/nj/press/files/
pdffiles/Indbanach.pdf.
5
Press release, February 17, 2006, U.S.
Attorney’s Office, District of New Jersey;
http://www.usdoj.gov/usao/nj/press/files/
bana0217_r.htm.
6
For additional information, see Dan
Lindsay and Robert J. Bunker, “The
Laser Threat to California Airborne Law
Enforcement,” The Journal of California
Law Enforcement 34, no. 2 (March-April
2000): 16.

Unusual Weapon
Tool Pen
These photos show an item that appears to be a pen. Actually, it is an unusual weapon containing various metal blades and tool attachments that offenders may attempt to use against
law enforcement officers.

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Leadership Spotlight
The Heart of Leadership
The essence of leadership is not giving things or even providing visions. It is
offering oneself and one’s spirit.
—Lee Bolman and Terrence Deal

hen most of us think back to the
leaders we have encountered and
worked with throughout our careers, a few always stand out among the rest as
exceptional. Over the years, I have noticed a
common denominator in the leaders I admire
the most—their desire and effort to help and
serve others.
The act of providing help to the people
we work with takes significant personal time
a n d e n e rg y
(e.g., physical, emotional,
and psychological) and a
sincere yearning to work toward the success of someone
else. It also means potentially postponing or
even disregarding our own desires, which can
be difficult in a society that has a growing
appetite for instant gratification and personal
success.
Before graduating from college, I received valuable advice from a professor who
recommended I seek a veteran employee to
mentor me in my first job. Of all the advice I
received, this tidbit stuck with me the most.
Just as he recommended, I found a person
willing to take me under his wings. As it

W

turned out, this individual demonstrated a
desire to help me (and others) beyond anything
I ever had anticipated. Without realizing it,
his actions literally taught me the importance
of helping and serving others and, ultimately,
deepened my personal faith. What made the
help special? There were no ulterior motives,
and no strings were attached. The advice
given was free of charge, abundant, direct,
and always presented in a way to promote
my growth. This
person clung to
the philosophy
that helping
others was the
highest form of
leadership and only could be accomplished
through one’s actions, not by words alone.
If you are a leader or aspire to be one, consider taking time in your career to help those
within your circle of influence. The contributions of one person to the success of another
equates to a lifetime of achievement built on
a foundation of true and lasting success. This
is the heart of leadership.
Christopher Lenhard, program leader over the University Education Program’s sabbatical component within the Leadership
Development Institute, prepared this Leadership Spotlight.

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Legal Digest

Criminal Speech
Inducement and the
First Amendment
By MARTIN J. KING, J.D.

© Photos.com

“It remains fundamental that while
the state may not criminalize the
expression of views—even including the view that violent overthrow
of the government is desirable—it
may nonetheless outlaw encouragement, inducement, or conspiracy to take violent action.”1

he First Amendment
provides that Congress shall make no
law abridging the freedom of
speech, press, or assembly.2
However, these “freedoms are
themselves dependent upon the
power of a constitutional government to survive,” and if the
government is to survive, “it
must have the power to protect
itself against unlawful conduct
and, under some circumstances,
against incitements to commit

T

unlawful acts.”3 The law recognizes that certain public dangers
must be curtailed before they
are realized or even imminent.
Accordingly, early intervention and disruption of potential
criminal activity at the stage of
planning, organizing, and preparing are central components
of law enforcement strategies
designed to protect the public from harm.4 This article
examines the extent to which
the First Amendment permits

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preventative prosecution based
on speech intended to persuade
or induce others to engage in
unlawful conduct.
Preparation to commit a
criminal act can itself be a
criminal violation under conspiracy, attempt, or other provisions of federal criminal law
defining preparatory crimes.
Among these, Title 18, U.S.
Code, Section 373 comes
closest to a general prohibition
of incitement by making it a
crime to “solicit,” “command,”
“induce,” or “otherwise endeavor to persuade” another person
to commit a crime of violence.5
Crimes that induce the commission of criminal activity may
implicate free speech principles
because they characteristically
are committed by speech advocating, advising, or teaching,
albeit with the intent of causing
a specific criminal objective.6
Although courts vigilantly

will ensure that prosecutions
are not based improperly on
the mere expression of unpopular ideas, if the evidence shows
that speech crossed the line
into criminal solicitation,
procurement of criminal activity, or conspiracy to violate
the laws, then prosecution is
permissible.7
Preventative Prosecution:
The Concept of Inchoate
Crimes
The three main forms of
inchoate crimes are attempt,
solicitation, and conspiracy.8
Inchoate offenses allow law
enforcement officials to prevent
the consummation of substantive criminal offenses by permitting anticipatory intervention
once an individual’s actions
sufficiently have manifested
intent.9 Like a completed
offense, an inchoate offense
requires that a defendant

“

Crimes that induce the
commission of criminal
activity may implicate free
speech principles because
they are characteristically
committed by speech
advocating, advising,
or teaching….

Special Agent King is a legal instructor at the FBI Academy.

”

engage in prohibited conduct
(actus reus)—which can be
limited to certain forms of
speech—coupled with the
requisite mental state (mens
rea). Unlike the actus reus in a
completed offense, however,
the proscribed conduct in an
inchoate offense is not prohibited because of its harmful effect
but because it sufficiently
demonstrates a purpose to act
in furtherance of a criminal
intent.10 The mens rea for
inchoate crimes, therefore, is
the specific intent to commit a
particular completed offense,
or target or object of crime.
Inchoate crimes focus on
the mental state of the actor and
render the prohibited conduct
ancillary in the sense that it
only serves to demonstrate the
likelihood that the actor would
have done everything necessary
to realize the criminal intent.11
Nevertheless, it must be emphasized that the attempt, solicitation, or act in furtherance of a
conspiracy never is criminal in
the abstract. Rather, criminality
arises only when the inchoate
conduct has the violation of
some other law as its specifically intended objective. In this
way, prosecution of inchoate
crimes protects the public from
harm by preventing the consummation of substantive offenses
when an individual’s actions
have demonstrated a serious
intent to cause a criminal act to
occur.12

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First Amendment Principles
The First Amendment’s
guarantee of freedom of expression is sweeping but not absolute. The categories of speech
that do not receive constitutional protection include obscenity,13 defamation,14 fighting
words,15 and words likely to incite imminent lawless action.16
The seminal case on incitement is Brandenburg v. Ohio,17
in which the U.S. Supreme
Court overturned a conviction
based on the Ohio Criminal
Syndicalism Act because it
punished “mere advocacy” as
“distinguished from incitement
to imminent lawless action.”18
Clarence Brandenburg, who
was the leader of a Ku Klux
Klan group, was charged with
advocating the “necessity, or
propriety of crime, violence,
or unlawful methods of terrorism as means of accomplishing
political reform”19 as a result of
a speech he made at a Klan rally
in which he proclaimed that “if
our President, our Congress, our
Supreme Court, continues to
suppress the white, Caucasian
race, it’s possible there might
have to be some revengence
taken.”20 Although the principle
of freedom of speech does not
sanction incitement to commit crimes, “the mere abstract
teaching...of the moral propriety
or even moral necessity for a resort to force and violence, is not
the same as preparing a group
for violent action and steeling it
to such action.”21

A few years later, in Hess v.
Indiana,22 the Supreme Court
emphasized that the test enunciated in Brandenburg requires a
factual basis to distinguish
abstract expression from the
concrete use of expression to
effectuate prohibited conduct.
In Hess, the defendant, who
was among a crowd of protestors being lawfully dispersed by
police during an antiwar rally,
was arrested for loudly proclaiming, “We’ll take the…
street later.”23 Witnesses who
overheard the statement testified

“

…criminality arises
only when the
inchoate conduct
has the violation of
some other law as its
specifically intended
objective.

”

that Hess did not appear to be
exhorting the crowd to go back
into the street, that his statement
did not appear to be addressed
to any particular person or
group, and that his tone, although loud, was not louder
than that of other people in the
area. The Court held that Brandenburg prohibited the state
from punishing this alleged
advocacy of illegality as a form
of disorderly conduct, principally because the defendant’s

statement “amounted to nothing
more than advocacy of illegal
action at some indefinite future
time.”24 Furthermore, the Court
reasoned that “[s]ince the
uncontroverted evidence
showed that Hess’ statement
was not directed to any person
or group of persons, it cannot
be said that he was advocating,
in the normal sense, any action.”25 The Brandenburg test,
in other words, requires both
an intent and likelihood that
the expression in question—
advocacy of the use of force
or of law violation—will produce imminent unlawful
action.26
Federal courts consistently
have applied the Brandenburg test to find speech that
advocates, teaches, or justifies
lawless action in an abstract
way is fully protected under the
First Amendment, so long as the
speech is not directed to inciting imminent lawless action,
and such protection endures
even if it can be demonstrated
that the speaker hopes that
someday such lawlessness may
occur.27 For example, in McCoy v. Stewart,28 a federal court
of appeals affirmed a grant of
habeas corpus for a conviction
based on speech concerning
gang-related activity because it
was nothing more than abstract
advocacy of overarching gang
philosophy, which lacked the
necessary intent to further or
promote criminal acts.29 As the
court explained:

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The circumstances of McCoy’s speech—interspersed
at a barbecue and a social
party, while Bratz members
were drinking, chatting and
listening to music—made it
unlikely anyone would act on
it imminently. Moreover, his
advice was very general. McCoy’s ideas…were abstract
in that they were not aimed at
any particular person or any
particular time.… In addition,
McCoy’s suggestion that the
Bratz tag up the neighborhood to let their presence be
known was given without any
recommendation as to how
or when to place the graffiti.
Because McCoy’s speech to
the Bratz, like the protestor’s
speech in Hess, at most advocated lawlessness at some
future indefinite time, and
did not incite lawlessness,
it was protected by the First
Amendment.30
The court’s analysis in McCoy comports with the prevailing view that incitement as a
particular form of unprotected
advocacy can be punished only
if the government can establish
that the speaker intended to
further an illegal aim through
knowing affiliation with persons
likely to be immediately animated by the speech. Advocating criminal gang activity by
suggesting that it would be a
good idea to “tag up” the neighborhood undoubtedly carries
with it some potential for harm.

However, the role of the free
speech principle is to insulate
the sphere of expression from
legal restrictions based on the
determination that the negative
consequences of speech may
prevail only marginally over the
positive ones.31 The harm resulting from expressing a point of
view may be mitigated by the
expression of contrary views,
by the fact that people have the
good sense and strong enough
© Banana Stock

moral values not to adopt harmful views, and by the fact that
harmful opinions will disqualify
themselves from general acceptance when people realize
the negative consequences of
acting on them.32 Because the
expression of viewpoints typically is subject to a number of
harm-mitigating factors, the net
harm of advocacy usually is
low. This supports the idea that
the government should refrain
from regulating viewpoints and
explains the “imminent-incitement” requirement imposed by
Brandenburg.

Of course, speech that does
more than express a point of
view also can be a form of criminal conduct not subject to First
Amendment protection.33 In this
regard, a discernable distinction
exists between incitement that
likely will result in unlawful
activity in the immediate future
and speech uttered with criminal intent but not necessarily
resulting in an imminent violation of the law. For example,
speech in the form of purposeful instruction for criminal
conduct can support liability for
aiding and abetting unlawful
activity in both the criminal and
civil contexts if a crime actually
eventuates from the instruction.34 Among the most well
known speech-based aiding and
abetting cases is Rice v. Paladin
Enterprises, Inc., in which relatives of a murder victim brought
a wrongful death action against
the publisher of Hit Man: A
Technical Manual for Independent Contractors because it
gave “detailed factual instructions on how to murder and to
become a professional killer”
and allegedly incited the actual
murder.35 Clearly, Hitman was
not abstract advocacy, and,
indeed, an extraordinary aspect
of the case was Paladin’s stipulations that it not only knew
its instructions might be used
by murderers but it actually
intended to provide assistance
to would-be murderers upon
receipt—in fact, that it assisted

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in the commission of the crime
at issue.36 Nevertheless, the
district court granted Paladin’s
motion for summary judgment
and dismissed plaintiffs’ claims
that Paladin aided and abetted
the commission of the murder,
holding that these claims were
barred by the First Amendment
as a matter of law.37
On appeal, the court specifically rejected the claim that the
publication was protected under
the Brandenburg doctrine,
observing that the Supreme
Court has recognized “that one
obviously can prepare, and even
steel, another to violent action
not only through the dissident
‘call to violence,’ but also
through speech, such as instruction in the methods of terror or
other crime, that does not even
remotely resemble advocacy, in
either form or purpose.”38 The
court acknowledged that to prevent the punishment or even the
chilling of innocent, lawfully
useful speech, the First Amendment may in some contexts
stand as a bar to the imposition
of liability on the basis of mere
knowledge that the information
imparted could be misused to
advance criminal activity. Indeed, the court in Paladin noted
that Hitman not only contained
detailed and specific instructions but also was distributed
to a narrow target audience.39
An evidentiary requirement
of purposeful, concrete action
intended to further criminal

activity might be particularly
important to reduce exposure to
liability of those who publish,
broadcast, or distribute information to large, undifferentiated
audiences. At the same time, a
specific intent requirement does
not relieve from liability those
who would, for profit or other
motive, intentionally assist and
encourage crime and then seek
refuge in the Constitution:

“

The categories of
speech that do
not receive
constitutional
protection include...
words likely to
incite imminent
lawless action.

”

Like our sister circuits,
at the very least where a
speaker—individual or
media—acts with the purpose
of assisting in the commission of crime, we do not
believe that the First Amendment insulates that speaker
from responsibility for his
actions simply because he
may have disseminated his
message to a wide audience.
Were the First Amendment to
offer protection even in these
circumstances, one could

publish, by traditional means
or even on the Internet, the
necessary plans and instructions for assassinating the
President, for poisoning a
city’s water supply, for blowing up a skyscraper or public
building, or for similar acts of
terror and mass destruction,
with the specific, indeed
even the admitted, purpose
of assisting such crimes—all
with impunity.40
The principle identified in
Brandenburg is that the constitutional guarantees of free
speech do not permit the government to proscribe advocacy
“except where such advocacy is
directed to inciting or producing
imminent lawless action and is
likely to incite or produce such
action.”41 When speech takes
the form of advocacy—that is,
when it appears to be expressed
for the purpose of influencing
beliefs—the imminent-incitement test is justified as a means
to separate abstract expression
of ideas from speech likely to
cause injury. The same imminence requirement does not necessarily apply to speech intended to facilitate the commission
of a crime in a concrete way
by, for example, performing a
teaching or instructional function.42 When speech is designed
to help bring about criminal
activity and eventually does so,
the speaker may be guilty of
aiding or abetting the commission of the completed offense.

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When speech is specifically
intended to induce another to
engage in criminal activity, the
request or command itself may
constitute an inchoate crime,
such as conspiracy or solicitation, even when a follow-up violation is not imminent. At least
one justice of the U.S. Supreme
Court has observed that “long
range planning of criminal
enterprises—which may include
oral advice, training exercises,
and perhaps the preparation of
written materials—involves
speech that should not be glibly
characterized as mere ‘advocacy’ and certainly may create
significant public danger.”43
The Crime
of Solicitation
In attempting to discern
the sometimes hazy borderline between constitutionally
protected expression of beliefs
from unprotected inducement
of criminal activity, an essential
task is to distinguish speech
that simply conveys an idea to
another person (that later might
be acted upon) from speech that
amounts to actual participation
in the performance of an illegal
act.44 The federal criminal code
contains a provision, at Title 18,
U.S. Code, Section 373, that
serves as a general prohibition
on the solicitation of violent
criminal activity and may serve
to illustrate how lines are drawn
in this area. Section 373 provides, in pertinent part, that:

Whoever, with intent
that another person engage
in conduct constituting a
felony that has as an element the use, attempted use,
or threatened use of physical force against property or
against the person of another
in violation of the laws of
the United States, and under circumstances strongly
corroborative of that intent,
solicits, commands, induces,
or otherwise endeavors to
persuade such other person to
engage in such conduct, shall
© Digital Stock

be imprisoned not more than
one-half the maximum term
of imprisonment or…fined
not more than one-half of the
maximum fine prescribed for
the punishment of the crime
solicited, or both; or if the
crime solicited is punishable by life imprisonment or
death, shall be imprisoned for
not more than twenty years.45
Solicitation proscribed by
this statute often will take the
form of speech inasmuch as the

phrase “otherwise endeavors
to persuade” is intended to be
construed broadly to cover any
situation “where a person seriously seeks to persuade another
person to engage in criminal
conduct.”46 Criminal “solicitation” and “incitement” are not
necessarily synonymous terms.
Unlike incitement, the solicitation statute does not impose
limits on the immediacy and
likelihood of the completed
crime. Rather, to be convicted
of solicitation, it is sufficient to
show that a speaker is serious
about crimes of violence being
carried out.47 Solicitation is an
offer or invitation to another to
commit a crime with the intent
that the crime be committed.
The crime is complete once
a verbal or other form of request is made with the requisite
criminal intent. Solicitation is
an inchoate crime, rather than
a form of advocacy. The harm
is in asking, irrespective of the
reaction of the person solicited,
and the crime of solicitation
is completed by the solicitation itself, whether or not the
object of the solicitation ever
is achieved, any steps are taken
toward accomplishing it, or the
person solicited immediately
rejects it.48
By its terms, the federal solicitation statute requires proof
of intent that another person
engage in violent unlawful
conduct, and the circumstances
must strongly corroborate that

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intent. Examples of circumExhortations to violence by
stances strongly corroborative
radical clerics to a body of
of intent as required for a
followers may exhibit aspects of
conviction for soliciting a crime advocacy and religious exercise,
of violence “include the defenboth of which are protected by
dant offering payment or anoth- the First Amendment.52 Even to
er benefit in exchange for com- the extent that they are subject
mitting the offense; repeatedly
to First Amendment protecsoliciting or discussing at length tions, “[s]ermons in all religions
in soliciting the commission of
are by their nature not mere
the offense, or making explicit
speeches that advocate ideas
that the solicitation is serious;
in the abstract but exhortations
believing or knowing that the
person solicited had previously
committed similar offenses;
and acquiring weapons, tools
…to be convicted
or information for use in comof solicitation, it is
mitting the offense, or making
suffi
cient to show that
other apparent preparations for
49
a speaker is serious
its commission.” Persuasion
accompanied by an induceabout crimes of violence
ment, such as a money payment
being carried out.
(e.g., murder for hire)50 or an
explicit or implicit threat or
command evidences sufficient
criminal intent and should raise
designed to encourage action.
no significant First AmendCongregants do not listen to
ment issue. However, solicitation cases involving persuasion these teachings solely out of
academic interest or for entertaking the form of advocacy
tainment. Religion moves folor urging of unlawful action
lowers to act on their beliefs.”53
without adequate evidence of
The question, then, is when
inducement could be subject to
does exhortation become crimiFirst Amendment challenges
nal inducement? The answer
under the Brandenburg docappears to lie at the point where
trine. There clearly is potential
adequate evidence exists to
for ambiguity in this area, but
support the conclusion that the
charges based on advocacy of
speech is more than ideological
criminal activity without more
or rhetorical because it is comcould implicate imminence
municated such that followers
requirements.
would perceive a serious intent
Line drawing is most difto carry out the violent criminal
ficult, perhaps, in cases involvactivity urged upon them.
ing terrorist religious speech.51

“

”

The prosecution of Sheik
Omar Abdel Rahman may serve
to illustrate this point. Sheik
Abdel Rahman, an Islamic
scholar and cleric, was convicted for actions arising out of
a wide-ranging plot to conduct
a campaign of urban terrorism.54
The conviction rested substantially on sermons and discussions whereby Abdel Rahman
instructed his followers to plan
for violent criminal activity. On
appeal, his lawyers argued that
he was improperly convicted
based on the inflammatory
content of his speech and for his
religious beliefs, both of which
should have been protected
under the First Amendment. In
rejecting this argument and upholding the conviction, the U.S.
Court of Appeals for the Second
Circuit pointed out that freedom
of speech and religion do not
extend so far as to bar prosecution of one who uses a public
speech or a religious ministry
to commit crimes.55
The evidence justifying
Abdel Rahman’s conviction
showed beyond a reasonable
doubt that he crossed the line
that separates protected speech
from criminal conduct. His
speeches were not simply the
expression of ideas; in some
instances they constituted the
crime of conspiracy to wage
war on the United States
(Title 18, U.S. Code, Section
2384) and solicitation of attacks
on U.S. military installations,
as well as of the murder of

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Egyptian President Hosni
Mubarak (Title 18, U.S. Code,
Section 373).56 For example,
Abdel Rahman told one of his
followers that he “should make
up with God...by turning his
rifle’s barrel to President
Mubarak’s chest, and kill[ing]
him.”57 On another occasion,
speaking to a follower about
murdering President Mubarak
during his visit to the United
States, Abdel Rahman said
“Depend on God. Carry out this
operation. It does not require a
fatwa.… You are ready in
training, but do it. Go ahead.”58
The evidence further showed
that when a follower consulted
with Abdel Rahman about the
bombing of the United Nations
Headquarters, Rahman told
him, “yes, it’s a must, it’s a
duty.”59 On another occasion,
when Abdel Rahman was asked
by a different follower about
bombing the United Nations, he
counseled against it on the
ground that it would be “bad for
Muslims” but added that the
follower should instead “find a
plan to destroy or to bomb or
to...inflict damage to the American Army.”60 The court concluded that words of this nature that
instruct, solicit, or persuade
others to commit crimes of
violence violate the law and
may be properly prosecuted
regardless of whether uttered in
private, in a public speech, or in
administering the duties of a
religious ministry.61

Conclusion
A person cannot be convicted on the basis of beliefs or the
expression of them even if those
beliefs favor violence. In Brandenburg, the Supreme Court
held that the government may
not criminalize advocacy of the
use of force or violence except
where such advocacy is directed
at inciting imminent lawless
action and is likely to do so.
Speech or expressive conduct
that does not incite imminent
action but also does not amount
to advocacy can be punished

© Photos.com

without violating the constitutional rights of the speaker
when the speech exhibits an
unambiguous and serious intention to commit or induce the
commission of a violent crime.
Far from merely attempting to
influence beliefs, such speech
constitutes a step toward completed violence. “Speech is not
protected by the First Amendment when it is the very vehicle
of the crime itself.”62

Endnotes
1
Million Youth March, Inc. v. Safir, 63
F. Supp. 2d 381, 390 (S.D.N.Y. 1999) (citing U.S. v. Rahman, 189 F.3d 88, 115 (2nd
cir. 1999), cert denied; Nosair v. U.S., 528
U.S. 982 (1999), et seq.
2
The First Amendment provides that
“congress shall make no law respecting the
establishment of religion, or prohibiting
the free exercise thereof; or of abridging
the freedom of speech, or of the press;
or the right of the people peaceably to
assemble, and to petition the government
for a redress of grievances.” U.S. Const.,
Amend. I.
3
American Communications Ass’n.,
C.I.O. v. Douds, 339 U.S. 382, 394 (1950).
4
See, e.g., National Strategy for
Homeland Security, Homeland Security
Counsel, October 2007; (retrieved from
http://www.dhs.gov/xlibrary/assets/nat_
strat_homelandsecurity_2007.pdf). The
terrorist attacks on September 11, 2001,
were acts of war against the United States
and the principles of freedom, opportunity,
and openness that define the American
way of life. Today, homeland security is
principally defined as a concerted national
effort to prevent terrorist attacks within the
United States.
5
18 U.S.C. § 373(a).
6
See, e.g., Model Penal Code §
5.02(1)(“A person is guilty of solicitation
to commit a crime if with the purpose of
facilitating its commission he commands,
encourages, or requests another person
to engage in specific conduct that would
constitute such crime or an attempt to
commit such crime, or would establish his
complicity in its commission or attempted
commission.”).
7
189 F.3d. at 117.
8
See, Model Penal Code §§ 5.01
(criminal attempt), 5.02 (criminal solicitation), 5.03 (criminal conspiracy); Mizrahi
v. Gonzales, 492 F.3d. 156, 160-61 (2nd
Cir. 2007).
9
“Terrorist Financing,” U.S. Attorney’s
Bulletin, 51, no. 4 (July 2003): 6; (retrieved from http://www.usdoj.gov/usao/
eousa/foia_reading_room/usab5104.pdf).

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10

Double Inchoate Crimes, 26 Harv. J.
on Legis. 1, 7-9 (1989).
11
Id.
12
Id.
13
Sable Communications of California,
Inc. v. F.C.C., 492 U.S. 115 (1989).
14
Beuharnais v. Illinois, 343 U.S. 250
(1952).
15
Chaplinsky v. New Hampshire, 315
U.S. 568 (1952).
16
Brandenburg v. Ohio, 395 U.S. 444
(1969). There is a distinction between laws
that criminalize threatening speech based
on its content and laws that criminalize
the incitement of illegal activity beyond
the speech itself. In Virginia v. Black, 538
U.S. 343 (2003), the court held that a state
may ban cross burning carried out with the
intent to intimidate but that a provision in
the Virginia statute treating any cross burning as prima facie evidence of intent to
intimidate violated the First Amendment.
Id. at 358-59. With respect to criminalizing threatening speech, “the speaker
need not actually intend to carry out the
threat. Rather, a prohibition on so-called
true threats is justified when it ‘protect[s]
individuals from the fear of violence’ and
‘from the disruption that fear engenders,’
in addition to protecting people ‘from the
possibility that the threatened violence will
occur.’” Id. at 360 (citing R.A.V. v. City of
St. Paul, 505 U.S. 377, 388 (1992)). However, as Black demonstrates, there may be
circumstances, such as when conducted on
private property in connection with a KKK
rally, when even the inherently offensive
act of cross burning is a form of protected
expression. Accordingly, the constitutional status of legislation that purports to
regulate hate speech or threatening speech
based on the content of the speech itself
may be less than clear. In contrast, statutes
that criminalize speech that incites violent
illegal action usually do not pose constitutional problems.
17
Id.
18
Id. at 449.
19
Id. at 449, FN 3.
20
Id. at 446.
21
Id. at 448 (quoting Noto v. United
States, 367 U.S. 290 (1961)).

22

414 U.S. 105 (1973).
Id. at 107.
24
Id. at 108.
25
Id. at 108-09.
26
See, Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002) (The mere
tendency of speech to encourage unlawful
acts is not a sufficient reason for banning
it.).
27
See, e.g., U.S. v. Damon, 676 F.2d
1060 (5th Cir. 1982); Alliance to End Repression v. City of Chicago, 742 F.2d 1007
(7th Cir. 1984); Gay Lesbian Bisexual
Alliance v. Pryor, 110 F.3d 1543 (11th Cir.
1997).
28
282 F.3d 626 (9th Cir. 2002), cert.
denied, 537 U.S. 993 (2002) (see, note 41
below).
29
Id. at 631.
30
Id. at 631-32.
23

“

A person cannot
be convicted on the
basis of beliefs or the
expression of them
even if those beliefs
favor violence.

31

”

See W. Sadurski, Freedom of Speech
and Its Limits (Norwell, MA: Kluwer
Academic Publishers, 2002), 69.
32
Id.
33
See, A Test For Criminally Instructional Speech, 91 Virginia Law Rev. 1973,
1987-91 (2005) (“[M]ere advocacy does
not intend to foster lawless action, is not
likely to do so, or both. In each case, it is
completely protected. Incitement, by contrast, both intends to foster lawless action
and is likely to do so. It is unprotected.
Finally, speech that aids and abets both intends to foster lawless action and actually
does so. It too is unprotected by the First

Amendment and faces penalties under
the criminal law.”).
34
In the federal criminal code, aiding
and abetting is encompassed as a rule of
criminal culpability at 18 U.S.C. § 2(a),
which provides: “Whoever commits an
offense against the United States or aids,
abets, counsels, commands, induces, or
procures its commission is punishable as
a principle.” To convict for aiding and
abetting a criminal offense, the evidence
must establish that the offense actually was
committed. See, e.g., U.S. v. Korab, 893
F.2d 212, 213 (9th Cir. 1989).
35
Rice v. Paladin Entreprises, Inc., 128
F.3d 233, 239 (4th Cir. 1997).
36
Id. at 242.
37
Id.
38
Id. at 265 (internal citation omitted).
39
Id. at 247.
40
Id. at 248.
41
395 U.S. 444, 447.
42
For example, 18 U.S.C. § 231(a)(1)
prohibits a discrete type of conduct involving expression by making it a crime to
teach or demonstrate the use, application,
or making of any firearm, explosive, or
incendiary device, as well as any technique capable of causing injury or death
to persons, knowing, having reason to
know, or intending that the same will be
unlawfully used in furtherance of a civil
disturbance. See, U.S. v. Featherstone, 461
F.2d 1119 (5th Cir. 1972), cert. denied, 409
U.S. 991. Specific teaching or instruction
of particular persons also can constitute
the crime of aiding and abetting various
different completed offenses. See, U.S. v.
Knapp, 25 F.3d 451, 457 (7th Cir. 1994);
U.S. v. Rowlee, 899 F.2d 1275 (2nd Cir.
1990); U.S. v. Buttorf, 572 F.2d 619 (8th
Cir. 1978) (all holding that persons who
counsel and assist others to file false or
fraudulent tax returns act outside the zone
of mere advocacy protected under the
Brandenburg doctrine).
43
Stewart v. McCoy, 537 U.S. 993, 994
(2002) (statement of J. Stevens respecting the denial of the petition for writ of
certiorari).
44
See, 1997 Report on the Availability
of Bombmaking Information (prepared

April 2008 / 31

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by the U.S. Department of Justice as
required by section 709(a) of the Antiterrorism and Effective Death Penalty Act of
1996) (hereinafter: Bombmaking Report)
(retrieved from http://www.cybercrime.
gov/bombmakinginfo.html) (“This
critical distinction—between advocacy
of unlawful conduct on the one hand, and
‘instructions’ for unlawful conduct, on
the other—was recognized by Professor
Thomas Emerson in his seminal treatise
on the First Amendment: [C]onduct that
amounts to ‘advice’ or ‘persuasion’ should
be protected; conduct that moves into the
area of ‘instructions’ or ‘preparations’
should not. The essential task would be to
distinguish between simply conveying an
idea to another person, which idea he later
may act upon, and actually participating
with him in the performance of an illegal
act. It is true that the distinction does not
offer automatic solutions and that courts
could easily disagree on any particular
set of facts. But this process of decision
making is related to the nature of ‘expression’ and the functions and operation of
a system of freedom of expression. It is
therefore a rational method of approaching
the problem. Thomas Emerson, The System
of the Freedom of Expression 75 (1970).”).
45
18 U.S.C. § 373(a) (Thompson/West
2007).
46
United States v. Buckalew, 859 F.2d
1052, 1054 (1st Cir. 1988) (quoting S.
Rep. No. 307, 97th Cong., 1st Sess. 183-84
(1982)).
47
See, U.S. v. Sattar, 272 F. Supp. 2d
348, 374 (S.D.N.Y. 2003) (In upholding
the sufficiency of an indictment of a member of a group engaged in international terrorism, known as The Islamic Group, aka
Gam’a al-Islamiyya, et. al (IG), for violating 18 U.S.C. § 373, the court said: “The
defendant’s arguments that the allegations
are insufficient in that they fail to show
that Sattar was serious about the crimes of
violence being carried out is also without
merit. The allegations that Sattar participated in drafting and distributing the fatwa
and disseminating Sheik Abdel Rahman’s
renunciation of IG’s cease fire are far more

specific as to his intent than the example
posed by the defendant of someone who
shouts ‘kill the umpire.’”
48
The crime of solicitation under 18
U.S.C. § 373 potentially is distinguishable
from other conspiracy crimes that may
be committed by speech but also must be
accompanied by overt acts of co-conspirators that were animated by the speech.
For example, 18 U.S.C. § 2384 prohibits
seditious conspiracy. See, Rahman, 189
F.3d at 114-15. Sheik Abdel Rahman was
convicted of violating both § 2384 and
§ 373 for his involvement in a terrorist
conspiracy involving conspiracy to bomb
buildings and soliciting assassination.
More recently, Ali Al-Timini was convicted in 2005 and received a life sentence
following indictment under both § 373
and § 2384 for soliciting others to engage
in a conspiracy to wage war against the
United States. See, U.S. v. Khan, 309 F.
Supp. 2d 789, 821 (E.D. Va 2004), U.S. v.
Chandia, 2008 WL 186180, FN1 (4th Cir.
2008). Khan was convicted for acting upon
Al-Timini’s urging to fight for the Taliban
against the United States and actually
took some overt acts in furtherance of that
suggestion.
49
U.S. v. Hale, 448 F.3d 971, 983 (7th
Cir. 2006).
50
See, e.g., U.S. v. Devorkin, 159 F.3d
465 (9th Cir. 1996) (Upheld a conviction
for solicitation, 18 U.S.C. § 373, where
the underlying felony solicited was murder
for hire, under 18 U.S.C. § 1958. Compare, U.S. v. Chong, 419 F.3d 1076 (9th
cir. 2005) (Murder for hire requires as an
element of the offense a promise or agreement to pay something of pecuniary value
in exchange for seeking a murder). The
involvement of a money payment is not a
necessary element of the crime of solicitation but the existence of a payment or an
agreement to pay money is evidence that
strongly corroborates intent that a crime of
violence be committed).
51
For a treatment of the complexity
added when free exercise principles are intertwined with minatory religious speech,
see, e.g., Terroristic Speech: Giving the

Devil the Benefit of the First Amendment
Free Exercise and Free Speech Clauses,
28 SHLR 1230 (1998).
52
See, Incitement in the Mosques:
Testing the Limits of Free Speech and Religious Liberty, 27 WTLR 3, 29-30 (2005).
53
Id. at 63.
54
189 F.3d at 103. See also, United
States v. Salameh, 152 F.3d 88 (2d Cir.
1998) (affirming convictions of all four
defendants).
55
Id at 117.
56
Id.
57
Id.
58
Id. See also, Id. at 104 (“The government adduced evidence at trial showing
the following: Abdel Rahman, a blind
Islamic scholar and cleric, was the leader
of the seditious conspiracy, the purpose of
which was jihad, in the sense of a struggle
against the enemies of Islam. Indicative of
this purpose, in a speech to his followers,
Abdel Rahman instructed that they were
to ‘do jihad with the sword, with the cannon, with the grenades, with the missile...
against God’s enemies.’ Govt. Ex. 550 at
22. Abdel Rahman’s role in the conspiracy
generally was limited to overall supervision and direction of the membership, as
he made efforts to remain a level above the
details of individual operations. However,
as a cleric and the group’s leader, Abdel
Rahman was entitled to dispense fatwas,
religious opinions on the holiness of an
act, to members of the group sanctioning
proposed courses of conduct and advising
them whether the acts would be in furtherance of jihad”).
59
Id.
60
Id.
61
Id.
62
128 F.3d 233, 244 (citing U.S. v. Varani) 435 F.2d. 758, 762 (6th Cir. 1970).
Law enforcement officers of other than
federal jurisdiction who are interested
in this article should consult their legal
advisors. Some police procedures ruled
permissible under federal constitutional
law are of questionable legality under
state law or are not permitted at all.

32 / FBI Law Enforcement Bulletin

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3/13/2008 12:16:56 PM

The Bulletin Notes
Law enforcement officers are challenged daily in the performance of their duties; they face each
challenge freely and unselfishly while answering the call to duty. In certain instances, their actions
warrant special attention from their respective departments. The Bulletin also wants to recognize
those situations that transcend the normal rigors of the law enforcement profession.

Officer David Chaulklin of the Division of Capitol Police in Richmond,
Virginia, responded to a report of a man contemplating suicide on the roof
of a seven-level parking deck. When Officer Chaulklin arrived, a security
guard informed him that the individual was sitting on the top ledge and not
responding. After Officer Chaulklin made contact, the man advised that he
was having a bad day, turned his back, and placed his legs over the ledge.
Quickly, Officer Chaulklin grabbed him around the waist, pulled him to the
ground, and secured him with the assistance of the security guard. Later, officers recovered a loaded 20-gauge shotgun from the individual’s vehicle.
Officer Chaulklin

One morning, Agent Joe
Strand of the U.S. Customs and
Border Protection, Trooper Steve
Vanderport of the Minnesota
State Patrol, and Sergeant Jeff
Klein of the Roseau, Minnesota,
Police Department responded to
call of an infant not breathing.
Knowing that the ambulance
would take time to arrive, the ofAgent Strand
Sergeant Klein
Trooper Vanderport
ficers rushed to the scene. Upon
arrival, the officers confirmed that the 4-month-old infant was not breathing and had no heartbeat. Immediately, they began CPR. Agent Strand performed rescue breathing, Trooper Vanderport provided chest compressions, and Sergeant Klein maintained telephonic communication
with the ambulance crew and attended to the child’s mother. After several minutes, their efforts
were rewarded when the baby
began breathing on his own and
Nominations for the Bulletin Notes should be based on either the rescue of
showing a weak pulse. The efone or more citizens or arrest(s) made at unusual risk to an officer’s safety.
forts of Agent Strand, Trooper
Submissions should include a short write-up (maximum of 250 words), a
separate photograph of each nominee, and a letter from the department’s
Vanderport, and Sergeant Klein
ranking officer endorsing the nomination. Submissions should be sent to
saved this baby’s life.
the Editor, FBI Law Enforcement Bulletin, FBI Academy, Law Enforcement
Communication Unit, Hall of Honor, Quantico, VA 22135.

66719.indd 33

2/28/2008 6:25:21 PM

U.S. Department of Justice
Federal Bureau of Investigation
FBI Law Enforcement Bulletin
935 Pennsylvania Avenue, N.W.
Washington, DC 20535-0001

Periodicals
Postage and Fees Paid
Federal Bureau of Investigation
ISSN 0014-5688

Official Business
Penalty for Private Use $300

Patch Call

The patch of the Defiance, Ohio, Police Department depicts the city as it began. In 1794,
General “Mad” Anthony Wayne established Fort
Defiance as a base for operations against all opposing forces. The city derived its name from this
pioneer fort.

66719.indd 34

The Pierre, South Dakota, Police Department
serves the state capital. The agency’s patch features the state capitol building and a shield with the
colors of the United States. Red symbolizes courage, strength, and valor; white stands for peace and
truth; and blue signifies vigilance, perseverance,
and justice.

2/28/2008 8:02:39 PM