A Game of I Spy: Neighborhood Drone Usage

August 12, 2015

In July, a Kentucky man was arrested after he shot down a neighbor’s drone that he says was hovering over his yard where his daughter was sunbathing.William “Willie” Merideth, 47, of Bullitt County was charged with first degree criminal mischief and first degree wanton endangerment for shooting down an $1,800 drone that he says was only 10 feet in the air at the time of the shooting.  For Merideth, it was a matter of protecting his property and his privacy.  In recent months, other property owners with similar sentiments have shot down drones that were hovering over their private property.
The law has not kept pace with technology with respect to drones, especially for drones operated by private individuals.  Flying objects beyond the bounds of one’s property is not new; radio-controlled planes have been around since the mid-1950’s and inevitably were flown over a neighbor’s private property.  What is new is the capability to capture high-resolution photographs or video by the flying object.  Many drones sold today come equipped with cameras ranging from 12-14 megapixels; however, cameras with much greater capability have been developed and are ready for use.  Defense Advanced Research Projects Agency (DARPA) and the US Army “have taken the wraps off ARGUS-IS, a 1.8-gigapixel video surveillance platform that can resolve details as small as six inches from an altitude of 20,000 feet (6km).”  It is easy to understand that property owners are concerned that drones may be used for much more than recreational activities to include nefarious activities such as surveying private property for possible theft and that the actions of the drone would be considered trespassing if they were conducted by an individual.
Unfortunately, many more property owners will likely be taking unilateral action against “spying” neighborhood drones.  According to Chris Anderson, former editor of Wired Magazine and now head of drone manufacturer 3D Robotics, it is estimated that at least 500,000 drones have been sold in the United States alone. Another report states that Amazon is selling more than 10,000 drones a month.
The existing laws are not equipped to handle neighborhood drone usage.  The most relevant case, United States v. Causby, dates to 1946.  In Causby, the Court held that a North Carolina farmer’s property rights extended up to 83 feet in the air and therefore, he could seek compensation for military aircraft that were flying over his farm and disturbing his sleep and his chickens.  However, the Court also stated that aircraft must have a “minimum safe altitude of flight” of 500 feet.  Thus, a legal gray area was left between 83 feet and 500 feet.
Proposals have been made to manage the lower level of airspace.  One proposal would reserve from the ground up to 200 feet for hobbyists, 200 to 400 feet would be a high-speed zone for commercial use, and the space between 400 and 500 feet would remain a buffer zone.
States and municipalities are also attempting to control drones usage.  Under a proposed law in Oklahoma, where drones may be used in cattle theft, it would be legal to shoot down a drone on your property.  “Under the law, you would still have to abide by city rules, meaning you could not shoot down a drone in a residential area, but you could take a bat to one.”  However, these laws are almost certain to be unconstitutional as they are preempted by federal law.  The Supremacy Clause would nullify state and local laws that conflict with federal law and currently the FAA regulates all aspects of aviation.  In 1999, the Third Circuit held in Abdullah v. American Airlines that state regulation of aviation safety was federally preempted.
While the state of the law is gray for drone usage and the rights of property owners, what is not gray is that lawmakers must take action soon.  In the wake of the drone shooting by Merideth, Popular Mechanics published an article entitled “How to Shoot Down a Drone.”  Various methods of downing a drone are discussed, from shotguns to nerf guns to water guns.

But, as the author noted: “Yes, a shotgun is your best bet at taking down a drone.”