A decision is expected in the coming weeks from a U.S. District Court in Kentucky that may set new precedents for U.S. law on air space. Earlier this year, the plaintiff, John David Boggs, filed suit in the U.S. District Court for the Western District of Kentucky seeking a declaratory judgment to clearly define the rights of aircraft operators and property owners. The issue came to a head on July 26, 2015, when the plaintiff’s drone was shot down by defendant, William H. Merideth as, according to Merideth, the Boggs’ drone was found hovering over his property and purportedly taking video or pictures of Merideth’s daughter as she was sunbathing. Merideth, who has since adopted the nickname “The Drone Slayer,” said he was justified in shooting the drone to protect his family’s privacy and to prevent further trespassing. Merideth was charged with felony wanton endangerment and criminal mischief. On October 26, 2015, a Bullitt County District Court Judge dismissed the criminal charges against Merideth saying that the defendant “had a right to shoot” at the aircraft.
According to the plaintiff’s Declaratory Judgment Complaint, this Judge’s ruling has opened the way for a “conflict between state-based claims of trespass to property, invasion of privacy, and trespass to chattels and long standing exclusive federal jurisdiction over the national air space and the protection of air safety,” which lies under the exclusive jurisdiction of the Federal Aviation Administration (FAA). The plaintiff argues that since the U.S. government has exclusive sovereignty over airspace, pursuant to 49 U.S.C.A. § 40103, the air space cannot be subject to private ownership, nor can the flight of an aircraft constitute trespassing. The plaintiff contends that his drone is an unmanned aircraft which is consistent with the existing definition in Title 49 of U.S. Code, 49 U.S.C.A. 40102, which defines an “aircraft” as “a device that is used or intended to be used for flight in the air.”
A core issue in this case is the height of the drone at the time of the shooting. That is because according to FAA regulations, higher air space, typically used by commercial planes, is clearly defined in law. Anything below that height is uncontrolled airspace with no clear rules as to how the air space can or should be used. The plaintiff has argued that his drone did not violate Merideth’s reasonable expectation of privacy because as a general rule, there is no reasonable expectation of privacy in the area surrounding a home in plain view from above. California v. Ciraolo, 476 U.S. 207 (1986). The plaintiff has also argued that Congress has signaled its intent to ensure the safety of aircraft by passing a criminal statute that states that anyone who “sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce” commits a felony. 18 U.S.C.A. § 32. The plaintiff maintains that if this statute is determined to apply to drones, then Merideth is in violation of federal law when he shot down the drone. Finally, the plaintiff admits that while Kentucky law (Ky. Rev. Stat. Ann. § 503.080) permits a landowner to use physical force upon another when such force is immediately necessary to prevent the commission of criminal trespass, the law is silent on the rights of unmanned aircraft to traverse the skies above private property.
The defendant, for his part, filed a Motion to Dismiss the Declaratory Judgment Complaint, arguing that same was nothing more than a small claims court case packaged with a declaratory judgment action in order to invoke federal court jurisdiction. The defendant argued further that pursuant to the Declaratory Judgment Act, 28 U.S.C.A. § 2201, the complaint cannot lie in federal court if diversity in citizenship and the $75,000 amount in controversy threshold is not first established.
Of import will be whether the District Court simply dismisses the plaintiff’s complaint as lacking subject matter jurisdiction or, instead, finds as a practical matter that there is an inherent unresolved conflict between state-based claims and federal jurisdiction over the national air space when it involves drones. Clearly, if this case is heard by the District Court, it will not be binding on other federal court jurisdictions, but it will be influential. Further, any appeal to the appellate court and higher court could set a precedent for the country.
Comment: More cases implicating drones and homeowners’ policies in property damage, personal injury, privacy violations, trespass and criminal wiretapping are expected as the United States has moved to free up the use of small drones by relaxing rules requiring drone operators to have a manned pilots license and specific FAA approval. The FAA expects the number of registered commercial drone users to rise sharply from 20,000 to 600,000 by the end of the year, and that 2.5 million drones will be in use in the U.S. by the end of 2016. This number is expected to more than triple by 2020, with drones expected to become a $5.6 billion industry by 2020.