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UAV Legal Perspective

By Patrick C. Miller | January 15, 2015

A common occurrence during Internet debates are well-meaning individuals who proclaim, “I’m not a lawyer, but…”

And then they go on to make an argument that makes it obvious why they’re not a lawyer.

It’s the reason I prefer to ask a lawyer about legal matters rather than taking a stab at providing my own interpretation and removing all doubt about my qualifications to issue legal opinions. Such was the case when I read about the guidelines the Federal Aviation Administration recently provided to law enforcement agencies.

I got in touch with James Mackler, a Nashville criminal defense attorney who has experience with unmanned aerial systems law. He reviewed the FAA guidelines and then called me to give his legal opinion of them.

In short, Mackler said law enforcement officials have every right to investigate possible law violations within their jurisdictions—regardless of whether an unmanned aerial vehicle is involved. But they have no jurisdiction when it comes to enforcing the FAA’s UAS regulations.

“It would be like a cop knocking on your door to see whether or not you got a permit for the addition you just added to your garage,” Mackler explained. “’Can I come in and make sure that your 2 x 4s are properly spaced?’ He would never do that, and if he did, you’d say ‘No.’”

Another example Mackler provided would be a law enforcement officer asking to come on to a farmer’s land to see if he has the FAA’s approval to operate a UAV.

“First of all, the officer wouldn’t do it because he has no jurisdiction to be investigating that,” Mackler said. “Second of all, the farmer would and should simply say, ‘No you can’t. I’m not talking to you about it. You can’t come on my land.’”

That doesn’t mean law enforcement agencies have no authority to investigate incidents involving UAS.

“If I take a quadcopter and deliberately run it into someone’s head, I’m committing assault the same as if I had thrown a beer bottle at them,” Mackler said. “You would expect the police to respond to and investigate that. The police don’t need anyone to tell them that. They’re going to do that regardless. It’s like the FAA is saying to police, ‘You can continue to do what you’re doing.’”

However, Mackler made it clear that law enforcement agencies have no jurisdiction to investigate or enforce FAA’s administrative functions. So, if the FAA’s guidelines have no law enforcement teeth, why were they issued?

"To me this is another example of the FAA really struggling to keep up with facts on the ground instead of getting ahead of things and creating the appropriate regulations,” Mackler said. “They’re just not keeping up."

Unfortunately, that legal interpretation makes sense.