Are UAVs Fair Game Over Private Land

By: Elton F. Dean III
 

Two recent legal developments have further muddied the waters for operators of Unmanned Aircraft Systems (UAS), or “drones,” regarding private property and trespass or alleged trespass.  In particular, one judicial decision and one state legislative action are tilting the balance towards the rights of landowners.  These developments may increase the number of private landowners that take matters into their own hands when confronted by a UAS over or near private property.  

In July of 2015, a man in Kentucky made international headlines  when he shot down a drone belonging to David Boggs as it allegedly flew over his property.  The man, Meredith, alleged that the drone flew over his property multiple times below the tree line and as low as 10 feet. However, Boggs provided evidence that the drone did not fly over Meredith’s property or at a low altitude and Meredith was eventually arrested and charged with criminal mischief.  Meredith’s supporters called him the “The Drone Slayer” and sold merchandise to fund his defense.  A local judge dismissed the charges against him, found that the drone represented an invasion of privacy and, held that Meredith “had the right to shoot” the drone.  

The drone owner Boggs filed a federal civil suit (Boggs v. Meredith) to establish that UAS were aircraft in federal airspace and to seek damages for his damaged property.  The court ultimately granted Meredith’s motion to dismiss the suit , finding that Boggs lacked subject matter jurisdiction to bring the suit in federal court.  As such, the Federal court failed to rule on the questions of whether the drone was operating in Federal airspace, or whether Meredith was liable for damages to Boggs, thus leaving such decisions in the hands of the states.  

Along those lines, the second development that may be unwelcome news to UAS operators comes from the state of Oklahoma.  A bill  being considered in the Oklahoma Senate would eliminate liability for a landowner who voluntarily damages or destroys a drone on their property.   The current Senate Bill SB660  recites, in part,  

 “Any person owning or controlling real estate or other premises who voluntarily damages or destroys a drone located on the real estate or premises or within the airspace of the real estate or premises not otherwise regulated by the Federal Aviation Administration or where a reasonable expectation of privacy exists, shall, together with any successors in interest, if any, not be civilly liable for causing the damage or destruction to the property of such person.”

An amendment has been proposed to expand the definition of a drone from that equipped with “a recording device” to include UAS having “a camera or a recording device.”    It is also important to note that the bill relates to airspace not otherwise regulated by the FAA –such airspace of which the FAA says does not exist (The FAA regularly points to the fact that Congress vested it with the authority to regulate all airspace 49 USC §§40103, 44502, 44701-44735).

Aside from regulated airspace, the proposed bill would also prohibit liability where there is a “reasonable expectation of privacy.”  While this phrase is often used in the context of government intrusions and searches, there is no clear consensus as to how far reasonable expectations of privacy may extend from a dwelling. This is particularly relevant in rural or remote areas where UAV operation may be more prevalent.    

For now, it remains unclear how the FAA or state legislatures will ultimately address incidents where drones intentionally or unintentionally cross private property and how landowners may legally handle these instances.

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