By Michael Holloway

As unmanned aerial vehicles (UAVs) – drones – become an increasingly common sight, more and more people wonder whether they may legally shoot down a drone flying over their property.  The question is not confined to a radical fringe: at a 2012 Congressional hearing on drones, U.S. Representative Louis Gohmert asked, “Can you shoot down a drone over your property?”  Separately, conservative pundit Charles Krauthammer offered: “I would predict—I’m not encouraging—but I predict the first guy who uses a Second Amendment weapon to bring a drone down that’s been hovering over his house is going to be a folk hero in this country.”

Traditionally, under the ad coeium doctrine, a property owner had control over his property “from the depths to the heavens.”  According to Black’s Law Dictionary, “Cjust est solum, ejus est usque ad coelom et ad inferos – to whomever the soil belongs, he owns also to the sky and the depths.”  But that changed with the advent of the airplane.  In 1926, Congress passed the Air Commerce Act, 49 U.S.C. § 40103(a)(1), which gave the federal government “exclusive sovereignty of airspace of the United States.”  In United States v. Causby, 328 U.S. 256, 261 (1946), Justice William Douglas wrote that the ad coeium doctrine “has no place in the modern world.”  Rather, with the advent of air travel, the national airspace is akin to a “public highway.”  But despite this, a property owner retains exclusive control over the space he or she can reasonably use in connection with the land, and may be entitled to compensation if the government encroaches on this airspace.  Similarly, as the Ninth Circuit pointed out in Hinman v. Pacific Air Transport, a person may become liable to a property owner for trespassing on this space.

Nor are these merely idle threats: a group of animal rights activists in Pennsylvania has repeatedly had its drones shot down while aerially videotaping “pigeon shoots” at a private club.  In April 2014, the town of Deer Trail, Colorado, voted on a proposed ordinance to issue drone hunting licenses; the ordinance offered a $100 bounty for shooting down drones and bringing in “identifiable parts of an unmanned aerial vehicle whose markings and configuration are consistent with those used on any similar craft known to be owned or operated by the United States federal government.”  The initiative ultimately lost badly, with 73% of voters opposed.

Law professor Greg McNeal writes that a person shooting down a government or commercial drone would violate constitute a violation of 18 U.S.C. § 32, which states that anyone who damages or destroys any aircraft in flight in the United States has committed a crime punishable by up to twenty years in prison or a fine of up to $250,000.  McNeal’s analysis assumes that drones constitute “aircraft” within the meaning of the statute, but that has recently come into question.  In March 2014, a National Transportation Safety Board (NTSB) administrative law judge set aside the Federal Aviation Administration (FAA)’s first-ever fine against a commercial drone operator, finding that the small drone at issue was only a “model aircraft,” and not an “aircraft” within the FAA’s regulatory authority.  The drone’s operator, Raphael Pirker, had been hired by a promotional company to shoot aerial video over the University of Virginia campus.  According to the FAA’s complaint, Pirker operated the drone recklessly, including causing one pedestrian to take “immediate evasive action” to avoid being hit.  The FAA fined Pirker $10,000 for operating the drone “in a careless or reckless manner so as to endanger the life or property of another” in violation of 41 C.F.R. § 91.13.

The ALJ tossed the fine, pointing to a 1981 “advisory circular” on model aircraft issued by the FAA, which provided model aircraft operators with voluntary advice such as to maintain distance from populated and noise-sensitive areas, fly below 400 feet, and cooperate with nearby airports.  In the ALJ’s view, the advisory circular represented a binding statement of policy by the FAA that model airplanes were exempt from its general regulatory authority over “aircraft,” a position it could not change later without going through a notice-and-comment period and implementing formal regulations under the Administrative Procedure Act (5 U.S.C. §§ 500).

There are problems with the ALJ’s decision.  It ignores that Congress, by the statute’s clear terms, in 5 U.S.C. §§ 500, gave the FAA the express authority to regulate all “aircraft,” defined expansively in 49 U.S.C. § 40102(a)(6) as “any contrivance invented, used, or designed to navigate, or fly in, the air.”  Ordinarily, when a statute’s terms are clear, it is considered improper for a judge to engage in more subtle acts of interpretation, and the statute here could not be clearer.  While the ALJ considered it a “risible argument” that someone could face FAA enforcement for flying a balsa wood glider or paper airplane without the FAA’s permission, such is the power Congress gave to the FAA in 1926.  The case is currently on appeal before the full NTSB.

In any case, whether or not shooting down a drone could result in a 20-year prison term or a quarter-million dollar fine, it is certainly a bad idea.  As the FAA has stated, shooting down a drone “could result in criminal or civil liability, just as would firing at a manned airplane.”   Expressing your concerns directly to your friendly neighborhood drone pilot is surely a better remedy.