Vermont Criminal Laws Outlaw Reckless Acts, like Training with F-35 Jets in a City
But Vermont's Federal and State Prosecutors Grant Impunity
No one is supposed to be above the law. Ordinary Vermont criminal laws supposedly apply to everyone in Vermont. Including Vermont political leaders, such as the governor. Including members of Vermont state agencies, such as Vermont National Guard commanders and pilots. Including the three members of the Congressional delegation. Including the Mayor of Burlington. No one is supposed to have immunity or impunity.
Although they are not the only laws violated, ordinary Vermont criminal laws provide a standard by which the lawfulness or unlawfulness of state action may be clearly established and by which the work of federal and state prosecutors to protect ordinary Vermonters may be evaluated.
13 VSA 1026 Disorderly conduct: “a person is guilty of disorderly conduct if he or she, with intent to cause public inconvenience or annoyance, or recklessly creates a risk thereof: . . . makes unreasonable noise.”
13 VSA 1025 Recklessly endangering another person: “A person who recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury shall be imprisoned for not more than one year or fined not more than $1,000.00 or both.”
13 VSA 1023 Simple assault: “A person is guilty of simple assault if he or she: (1) attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another.”
The standard for “recklessly,” as found in each of these Vermont laws, was established by the Vermont Supreme Court: “A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk.” (State v. Hoadley 147 Vt. 49, 55 (1986)).
The substantial and unjustifiable risk of inconvenience, annoyance, endangerment, and serious bodily injury was admitted by the US Air Force in volume I and volume II of its Environmental Impact Statement (EIS): The Air Force stated that the noise of thousands of F-35 takeoffs and landings each year would turn an oval-shaped area of 2,253 acres surrounding the runway into an area “generally not considered suitable for residential use.” The Air Force stated that 6,663 Vermonters live in 2,963 homes in parts of 3 Vermont cities and 2 towns in that oval-shaped area (Volume 1 p. BR4-30).
The Air Force EIS admitted that populations would suffer widespread “annoyance” at a noise level well below the level produced by training with F-35 jets over densely populated areas of Vermont (Volume II p. C-10, 12, 16 and 18-22). The EIS also admits that the noise is so loud in this area as to damage bodily organs, including those responsible for hearing (C-25), learning, and cognitive development (C-29 to C-30). The Air Force states that the damage to hearing can become permanent from repeated exposure to noise at a level lower than that of the F-35 (C-22 to C-25). And that people in the 2,253-acre area would be subjected to repeated exposure from thousands of F-35 takeoffs and landings each year (BR4-20).
The Air Force EIS provides information showing that injury to learning and cognitive development occur at aircraft noise levels significantly below that required for hearing damage (C-28 to C30). The Air Force summarizes scientific studies showing impaired reading, attention, memory, and problem solving from high aircraft noise levels (C-28 to C30).
The US Air Force EIS admits that the F-35 flights would result in unequal treatment of Vermonters based on race, color, nationality, immigration status, and income. The Air Force EIS states that the F-35 training flight noise has “disproportionate impact” on “low income and minority populations” (BR4-83). The EIS reports that 11.3% of Vermonters are low income while 16% of those living in the F-35 noise zone are low income. It says that just 4.7% of Vermonters are minority while 11% of those living in the F-35 noise zone are minority (p. BR4-81 and BR4-83).
The Burlington airport runway aims directly at the center of the City of Winooski, only 1 mile away. Winooski is an ethnically diverse working-class city where more than 20 languages are spoken and where 98.1% of the 885 children in K-12 are low income and on free or reduced price lunch. The Air Force oval-shaped extreme noise contours extend over more than half of this city. The F-35 training flights target Winooski while affecting none of the tony neighborhoods with their large expensive houses.
F-35 training flights accelerate the global climate emergency, which most impacts black, brown, and indigenous populations: The F-35 gets only 0.5 mile per gallon of jet fuel and consumes over 1,400 gallons an hour while training for wars for oil against people of color. This adds up to a repugnant daily display of environmental racism. In the words of the US Supreme Court, “this is conduct that shocks the conscience.” (Rochin v. California 342 U.S. 165 (1952)).
The purveyors of F-35 flights in a city knew more than 8 years ago, when the Air Force first published the draft EIS, that the F-35 flights in a city would cause damage to bodily organs and would disproportionately impact low income and minority populations. By foisting F-35 flights in a densely populated area they are knowingly and recklessly causing serious bodily injury to Vermont civilians in violation of Vermont criminal law.
The risk of injury to hearing and learning reported by the Air Force was also confirmed by such respected health organizations as the CDC, the EPA, the World Health Organization (WHO), the Burlington Board of Health, and the Vermont Department of Health. The risk was further confirmed by the noise standards for aircraft established by the FAA and by noise ordinances adopted by cities and towns, including Burlington, South Burlington, and Williston, that bar routine noise at much lower levels than the F-35 within city and town limits.
Data provided by hundreds of Vermonters who filled out F-35 Report and Complaint Forms describing their experiences with F-35 training flights provides evidence verifying the Air Force expectations.
1. 32% find the noise unbearable, 43% deafening, 37% painful, 64% distressing, 34% frightening, 53% inconvenient or annoying, and 76% unreasonably loud. 4% said the noise was “loud but doesn’t bother me much.”
2. 48% reported intense vibration inside their body, 35% ringing in an ear, 5% that hearing remains damaged, 4% that hearing loss was temporary, 68% worry about hearing damage, 24% worry about child hearing damage, and 61% that the noise hurt their ears or their child’s ears.
The testimonies of these hundreds of Vermonters ought to be used to prosecute the political and military leaders responsible and to put an end both to the F-35 training flights in a city and the system of impunity under which these misleaders operate.
The facts about injury were disclosed in the Air Force draft EIS back in 2012 and were in the possession of the Air Force, the Vermont National Guard, Senator Leahy, Senator Sanders, Congressman Welch, then Governor Shumlin, current governor Scott, and Burlington Mayor Weinberger, as well as Vermont military leaders. That was long before the twenty F-35 jets started arriving in Vermont in 2019. The Vermont political and military leaders who pressured the Air Force to base the F-35 jets at the city airport or who are now giving the order for the daily F-35 training flights in a city are, in the words of US Supreme Court, “plainly incompetent or those who knowingly violate the law” (Malley v. Briggs, 475 U.S. 335, 339 (1986)).
Of course, it is not just the routine Vermont criminal laws that are violated by the hundreds of F-35 training flights each month in a city. Injury to a bodily organ is the criterion to invoke the most severe provisions of the Universal Code of Military Justice (UCMJ), the US War Crimes Act, and the 4th Geneva Convention. The annoyance, injury to bodily organs, distress, and trauma hundreds of people reported since the F-35 training flights from the Burlington International Airport began are also illegal in view of Department of Defense and Air Force Directives, Instructions, Policies, and Doctrine. They are also illegal under other Senate ratified treaties and international law. They also violate the rights of Vermonters under the US and Vermont Constitutions.
While prosecutors may bring criminal charges under many of these other provisions, the ordinary Vermont laws provide a clear standard by which to evaluate the willingness of federal and state prosecutors to provide equal justice under law. So far, prosecutors have granted impunity to the Vermont political and military leaders--to the detriment of thousands of Vermont families now suffering under the hundreds of F-35 training flights each month. Conflict of interest is thus revealed in a system in which prosecutors’ view their job to defend other members of government instead of to protect the people from such vicious illegal state action.
By sacrificing the health and safety and rights of thousands of Vermont families for training with F-35 jets in a city, the state’s political and military leaders have revealed themselves as among the most corrupt, most pro-military-industrial complex, and most pro-war.
Igniting protest and social unrest, civil lawsuits, and replacing all of Vermont’s top political and military leaders are steps needed to overturn the system of impunity now prevailing, to implement the rule of law, to hold government officials to account, to protect public health and safety, to provide justice for Vermonters, to stop the F-35 training flights in a city, and to prevent Vermont involvement in any more of the illegal, immoral, unjust, and racist US wars for oil.
War in general is outdated in resolving conflict. The F35 jets represent violence, destruction and supremacy. They only encourage nations and their citizens towards hatred of the USA. We don’t bomb the hell out of sections of our nation that home grown terrorists come from. It is arrogant of the USA to think we are better than others.
The jets are no sound of freedom. There are the sound of aggression in the most ugly way.