Lawsuit claims federal right to fly drones, preemption of state trespass laws

|The Volokh Conspiracy |

From the complaint in Boggs v. Merideth, filed last week in the U.S. District Court for the Western District of Kentucky:

This case involves the intentional downing of Plaintiff's unmanned aircraft by Defendant. Plaintiff was flying his aircraft within Class G airspace and was neither trespassing nor invading anyone's privacy. Defendant has argued to the media and the courts that he was justified in using physical force to prevent what he perceived as an invasion of privacy and trespass upon his property. A state district court judge, dismissing criminal charges against Defendant, ruled that Defendant acted "within his rights."

This turn of events has set the stage for a conflict between state-based claims of trespass to property, invasion of privacy, and trespass to chattles and long standing exclusive federal jurisdiction over the national airspace and the protection of air safety. The tension between private property rights and right to traverse safely the national airspace was resolved during the formative days of manned aviation. The issue is now arising in the context of unmanned aircraft, also known as "drones."

Plaintiff seeks a declaratory judgment from this Court to resolve that tension and define clearly the rights of aircraft operators and property owners….

5. The Federal Aviation Administration ("FAA") has the exclusive authority to govern airspace within the United States and the operation of aircraft. The federal government's interest in regulating aviation is paramount. Federal statutes and regulations … preempt state law in that area.

6. The FAA's airspace designations state that Class G airspace includes uncontrolled airspace that does not fall within any other classification between the surface and any overlying Class E airspace. Class G airspace is part of the navigable airspace the regulation of which substantially affects interstate commerce.

7. The FAA defines an "aircraft" as "a device that is used or intended to be used for flight in the air." 14 C.F.R. § 1.1.

8. On July 26, 2015, Plaintiff was operating by wireless controller an unmanned aircraft (also referred to as a "drone") at an altitude of approximately 200 feet above ground level in Class G airspace over Bullitt County, Kentucky. [There's no paragraph 9.-EV]

10. Plaintiff's aircraft contained an onboard camera capable of recording video and still photographs. Plaintiff's aircraft recorded video of the horizon, woods and the rooftops of various houses. At no time was Plaintiff capturing video or still images of Defendant or anyone on his property. Below is the last image recorded by the aircraft prior to being shot by Defendant:

(Image from court filing.)

11. After approximately two minutes of flight, Defendant shot Plaintiff's unmanned aircraft down with a shotgun, resulting in damage to Plaintiff's property. Defendant later alleged that Plaintiff's unmanned aircraft may have been taking video or still images of Defendant's daughter while hovering over Plaintiff's property, thus Defendant asserts he was protecting his family's privacy rights and preventing further trespass.

12. Defendant was charged by Kentucky authorities with felony wanton endangerment and criminal mischief. On October 26, 2015, Kentucky District Court Judge Rebecca Ward dismissed the criminal charges against Defendant saying that Defendant "had a right to shoot" at the aircraft.

13. Defendant, using the nickname "The Drone Slayer," continues to assert that he was justified in shooting Plaintiff's aircraft and vows to do it again, as evidenced by his Facebook page:

(Image from court filing.)

14. Indeed, Defendant has implicitly encouraged others to engage in the same conduct by selling shirts depicted below:

(Image from court filing.)

15. Given the foregoing, Plaintiff requests a declaratory judgment ….

18. The United States Government has exclusive sovereignty over airspace of the United States pursuant to 49 U.S.C.A. § 40103. The airspace, therefore, is not subject to private ownership nor can the flight of an aircraft within the navigable airspace of the United States constitute a trespass. Unmanned aircraft are aircraft consistent with Subtitle B of Public Law 112-95 and the existing definition of aircraft in Title 49 of the United States Code, 49 U.S.C. 40102.

19. In addition, even if Plaintiff had viewed the defendant's property from the air, which he did not, such viewing would not violate the defendant's reasonable expectation of privacy according to well established federal law. The U.S. Supreme Court has determined, as a general rule, that 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); Florida v. Riley, 488 U.S. 445 (1989) (plurality opinion)….

20. Further, Congress has indicated its unambiguous intent to ensure the safety of aircraft. Pursuant to 18 U.S.C.A. § 32, whoever "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. Although this statute may not create a private right of action, the interpretation of the statute is critical to the determination of the claims asserted herein. Should the court determine that this statute applies to unmanned aircraft, as it should, that would leave no room for Defendant's assertion of the right to self-help or the Kentucky District Court Judge's ruling that Defendant was "within his rights" to shoot the aircraft.

21. Conversely, Kentucky law regarding trespass does not specifically address the rights of unmanned aircraft to traverse the skies above private property. It defines a trespasser as "any person who enters or goes upon the real estate of another without any right, lawful authority or invitation, either expressed or implied." Ky. Rev. Stat. Ann. § 381.231. A trespasser may be subject to civil suit and/or criminal prosecution. Kentucky law also permits resort to self-help in response to trespass. A landowner may use physical force "upon another person when the person believes that such force is immediately necessary to prevent the commission of criminal trespass." Ky. Rev. Stat. Ann. § 503.080.

22. Given the clear conflict of federal and state laws, as applied to the facts of this action, Plaintiff desires a judicial determination of the respective rights and duties of Plaintiff and Defendant with respect to Plaintiff's rights to operate an aircraft within Class G airspace and recover damages for trespass to chattel caused by Defendant's intentional shooting of that aircraft….

25. For those reasons, Plaintiff seeks the following declaratory judgment:

(A) An unmanned aircraft is an "aircraft" according to Federal law.

(B) An unmanned aircraft operating in Class G airspace in the manner alleged above is operating in "navigable airspace" within the exclusive jurisdiction of the United States.

(C) That Plaintiff was operating his unmanned aircraft in the navigable airspace within the exclusive jurisdiction of the United States and not within Defendant's property;

(D) That the operation of his unmanned aircraft in in the manner alleged above did not violate the defendant's reasonable expectation of privacy; and

(E) That a property owner cannot shoot at an unmanned aircraft operating in navigable airspace within the exclusive jurisdiction of the United States when that aircraft is operating in the manner alleged above….

[State trespass to chattels claim, included as supplemental to the declaratory judgment claim:]

27. Defendant intentionally intermeddled with personal property in the possession of Plaintiff, specifically, his unmanned aircraft.

28. Defendant impaired the property as to its condition, quality, to value.

29. Plaintiff's property was damaged by the reduced value, condition and quality of his aircraft in an amount of approximately $1,500.00….

I doubt that the federal court will accept this claim.

1. It's not clear that the court has jurisdiction, despite the presence of a federal claim, since the key federal claim is essentially an anticipated defense to a state claim ("If I fly over his land, he might sue me in state court for trespass, and I would have a federal defense, so I'm trying to prevent that by seeking a declaratory judgment"). Such claims are sometimes allowed in federal court (see Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing (2005)), but not always.

(There probably wouldn't be federal jurisdiction over a claim that "if I fly over his land, he might shoot my drone down again," since, as the complaint notes, the federal aviation statutes likely don't authorize civil lawsuits based on interference with aircraft. And the trespass to chattels claim—"defendant damaged my drone"—is a state law claim, which can only get into federal court as supplemental to a valid federal claim; though federal law may be relevant to deciding whether the defendant has a valid defense against the trespass to chattels claim, that doesn't itself provide federal jurisdiction.)

2. Beyond the jurisdictional question, federal courts have considerable discretion about whether to grant declaratory judgment is granted. And it seems to me likely that the court will want to give the FAA the first crack at these sorts of questions, rather than stepping in and resolving the matter itself.

Still, it's possible that the federal court will indeed let the case proceed to the merits (which are likewise unclear). And in any event, I thought the argument was worth passing along—because, you know, drones!