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Hey, Shooter, Leave Them Drones Alone

By Patrick C. Miller | January 14, 2016

When attorney James Mackler gives talks on legal issues related to unmanned aerial systems (UAS), one of the questions he’s frequently asked is whether it’s okay to shoot down a drone if you think it’s invading your privacy.

“It’s almost always the first question I get asked,” said the Nashville attorney with the Frost Brown Todd law firm in Nashville. “For a while, I was telling people that there was a guy in Kentucky who was charged criminally for doing that. So you shouldn’t do it. And then the charges got dismissed.”

Now Mackler finds himself in the middle of the controversy that made international news when on July 26 last year, William Meredith shot down John Boggs’ DJI Phantom 3 in Hillview, Kentucky. Mackler is representing Boggs in a civil lawsuit against Meredith filed last week in U.S. District Court in Kentucky.

In media interviews, Meredith said his privacy was being invaded. He admitted using a shotgun to bring down Boggs’ drone because he thought the operator might be spying on his daughters or looking to steal something from his property. He claimed the drone had flown over above his property on multiple occasions.

“It’s an invasion of privacy,” the self-proclaimed “Drone Slayer” told TV station WDRB a few days after the incident. “When he hovered above my property for more than a few seconds, I felt like I had the right to defend my property.”

Meredith was charged with two felonies—wanton endangerment and criminal mischief. However, in October, Bullitt County District Judge Rebecca Ward said that because two witnesses claimed the drone was flying below the tree line, it was an invasion of privacy.

“He had the right to shoot this drone, and I’m going to dismiss this charge,” the judge ruled.

Boggs released video recorded during the flight showing that its camera was pointed out toward the horizon, not hovering over Meredith’s home or looking down at it. He also released flight telemetry recorded on a tablet showing that his drone was always near or above 200 feet. But Mackler said the judge only considered the testimony of the witnesses in dismissing the charge.

Beyond helping Boggs recover $1,500 in damages for the loss of his drone, Mackler hopes the lawsuit will result in the courts providing more legal clarity in issues related to the reasonable expectation of privacy, trespassing and airspace navigation.

“We’re asking the court to make a ruling saying that under the circumstances of this case, a property owner does not have the right to shoot down the drone,” Mackler explained. “It’s a complaint for declaratory judgement for damages, which is a fairly unusual type of lawsuit. It’s basically a lawsuit where you’re asking the court to decide a disputed issue of law that needs to be resolved in order to determine the relative rights of two parties.”

The outcome of the lawsuit has potential consequence for UAS businesses across the country.

“It provides an increased level of certainty to their legal boundaries,” according to Mackler. “When you’re trying to plan a commercial operation, you need to know your legal boundaries so you don’t cross them—geographically and operationally.

“So this court’s ruling, we hope, is going to give some more guidance,” he continued. “Businesses have difficulty growing in the face of uncertainty. The more certainty you can give to a business, the easier it is for them to plan and grow their business.”

The lawsuit will also tackle issues of the Federal Aviation’s regulatory authority in and jurisdiction over the national airspace, as well as the agency’s definition of what constitutes and aircraft.

It’s early in a process that could take months or years to sort out. Until the case is decided, you might want to think twice about whether it’s a good idea to direct anti-aircraft fire at the neighborhood drone.