Asked and Answered . . .


Matthew Berard on Drone Law and Navigable Airspace

By Steve Thorpe

A man whose drone was shot down by a Kentucky property owner is asking a court for $1,500 in damages and a decision on who had rights to the airspace. At issue is whether John Boggs’ drone was trespassing or if it was flying in airspace within the jurisdiction of the FAA. Matthew Berard is an associate at Bowman and Brooke LLP practicing product liability litigation with a strong focus on automotive, aviation and drone law. As an FAA certified private pilot, he leverages his flight knowledge and technical training to defend manufacturers in complex product-related claims. When he’s not practicing law or flying his Cessna 172, he participates in many aviation-centered legal organizations and authors articles about insurance, aviation and drone law.

Thorpe: Tell us about the Kentucky case.

The issue that gave rise to Boggs v. Merideth began with criminal charges against the man who shot down the drone over his property, believing it was used to spy on his teenage daughter while sunbathing in the backyard. The Kentucky judge presiding over the criminal matter dismissed the charges saying the owner was within his rights to shoot down the drone. The drone’s owner brought a declaratory judgment action in Kentucky Federal Court to determine, among other things, whether a property owner can shoot at an unmanned aircraft operating in navigable airspace. This question necessarily requires the federal judge to also determine that the drone was in legally navigable airspace in the exclusive jurisdiction of the United States and whether operating a drone over one’s property violates any reasonable expectation of privacy. Aside from the separate claim for the damage to the $1,500 drone, this case will likely be the first to address the interplay of property/privacy interests and a drone operator’s right to fly in navigable airspace.

Thorpe: The U.S. Supreme Court considered the issue in 1946 in United States v. Causby, holding that a chicken farmer could be compensated for the loss to his business caused by military planes that skimmed the tops of trees on his
property. Tell us how that might pertain. Do you see some of these new issues making it to the high court?

The issue in Causby was whether the nuisance of military aircraft constituted a governmental “taking” of a chicken farmer’s land that was situated next to an airport, not whether the chicken farmer owned the airspace over his property. I consider Causby to address a separate issue from whether property rights extend to the airspace above. In part, the court focused strictly on the definition of “navigable airspace” in 1946 (500 feet above the ground during the day and 1,000 feet at night). Thus, the court simply concluded that the aircraft were not in navigable airspace, despite flying on the glide slope for landing, set by the FAA’s predecessor agency. We all know take offs and landings are a gradual process and since Causby, Congress defined “navigable airspace” in the Federal Aviation Act to include the airspace needed to ensure the safety in takeoff and landing. Thus, Causby would likely be decided differently today. Nonetheless, the Causby court stated that “[t]he superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it, and that invasions of it are in the same category as invasions of the surface.” Yet, Causby noted the frequency and severity of the sound and light from large aircraft at low altitude, causing chickens to be frightened and fly into walls and die, as the basis for determining there was a taking of the land below. Although Causby is distinguishable for a number of reasons, it will be interesting to see if courts rely on the same justifications in Causby with respect to a comparatively silent drone with much less effect on land below than large military aircraft.

Thorpe: Proposed drone rules have had little to say about property rights. Will that have to change?

I do not believe drone regulations could expressly govern one’s real property rights. However, if the regulations state that legally navigable airspace for drones extends from the surface up to 500 feet above ground level, it may be difficult for property owners to justify shooting down aircraft in legally navigable airspace. There may be a restriction on how close a drone can fly near a building that might set the boundaries for what is “legally navigable airspace” around a home. Such a restriction could be consistent with Causby’s holding with respect to “superadjacent airspace” in the “immediate reaches above land.”

However, one case in particular, Air Pegasus of D.C., Inc. v. United States, addressed whether the operator of a heliport in Washington, D.C. could assert a property interest in the airspace above his business after a no-fly zone went into effect on September 11, 2001 (which still exists today). The flight restriction extended from the surface of the land and, consequently, closed his business because his customers were not permitted to fly in to, or out of, his heliport to refuel or store their helicopters. The Federal Circuit noted that the flight restriction did not interfere with the operator’s right to use the property, but only affected access to it. The court stated that “navigable airspace is public property not subject to private ownership” and “[p]rivate property interests simply do not, as a general matter, exist in the navigable airspace of the United States.” Thus, with reference to Causby and Air Pegasus the issue will hinge on what is “legally navigable airspace” for a drone.

Thorpe: A bill has been introduced in the Utah legislature that would allow law enforcement to “neutralize” drones by shooting them down. It’s caused quite an uproar. Tell us about that.

Utah Senate Bill 210 attempts to set parameters for where drones can fly. For instance, it proposes a restriction on flying drones within 500 feet of a correctional institution, within three miles of wildfires, near gatherings of more than 500 people and prohibits aerial voyeurism. The bill also contains language that would permit law enforcement to disable, damage, interfere with or otherwise take control of the unmanned aircraft or its systems. Perhaps with the exception of criminalizing aerial voyeurism, there is a federal preemption issue with Utah’s attempt to govern airspace, an area under the exclusive jurisdiction of the United States. Separately, there is the issue of permitting a local police officer to interfere with aircraft in navigable airspace and whether that officer could even establish that the drone is being used for aerial voyeurism such that he or she is justified in shooting it down. Not only would bullets be flying up into the air, once hit, the drone itself would fall from the sky and potentially cause injury to persons on the ground. The Supreme Court has ruled, albeit in the Fourth Amendment context, that you have no reasonable expectation of privacy in what can be seen by somebody looking down from an aircraft operating in legally navigable airspace. If a drone is flying above your property in legally navigable airspace, it is going to see the same thing somebody in a manned aircraft could see if they looked out their window. A drone flying next to your house and looking in your bedroom window is one thing. A drone operating in legally navigable airspace is quite another. This is why it will be difficult for the property owner in the Kentucky case to successfully argue the drone invaded his family’s reasonable expectation of privacy when a helicopter flying over in legally navigable airspace over his backyard could have seen the same thing.

Thorpe: In Europe, a UK company is offering a “drone bazooka” and Dutch police are training eagles to take down drones. Is some kind of drone “arms race” developing and what are the legal ramifications of that?

There have been a few proposed methods to combat errant drones and it appears there is a focus on safely disabling drones without shooting bullets straight up into the sky. Again, the issue will be whether the drone was in legally navigable airspace and whether local law enforcement has the authority to extend its jurisdiction to aviation where it is exclusively governed by Federal Government. Aside from methods to disable drones, we may see more drones equipped with geo-fencing capabilities, a technology programmed into the drone that creates a virtual fence that prohibits it from operating in restricted airspace.