Drones Fought The Law, But Who Won?

At the scene of protests over the Dakota Access oil pipeline, the competing interests of free speech and law enforcement are being put to the test after officers attempted to shoot down a drone being flown by protesters.
By Patrick C. Miller | October 27, 2016

When, if ever, is it appropriate for law enforcement officers to shoot down a drone? That question was put to the test earlier this week over the skies of southcentral North Dakota where protesters from around the country have gathered to block the Dakota Access Pipeline, which would carry oil from the state’s Bakken shale formation to a terminal in Illinois. The Standing Rock Sioux Tribe objects to the pipeline crossing the Missouri River about a mile north of its reservation.

According to a news release issued Sunday by the Morton County Sheriff’s Dept.—which has jurisdiction in the area—a drone was flying directly above a law enforcement helicopter being used for surveillance. According to the statement, “A sheriff on board the helicopter reported to law enforcement on the ground that the helicopter pilot and passengers were ‘in fear of their lives,’ and that the ‘drone came after us.’”

Officers on the ground fired buckshot and less-than-lethal rounds at the drone, striking and damaging it, but not bringing it down. Citing Federal Aviation Administration (FAA) regulations against shooting at aircraft, the owner of Dr0ne2bwild reported the incident to the FAA. The sheriff’s department said a number of drones in the area are operating outside of FAA guidelines “in a reckless and unsafe manner.” Those reports have been forwarded for investigation to the Morton County State’s Attorney in North Dakota.

Putting aside the question of the pipeline, I asked James Mackler, an attorney with the Frost Brown Todd law firm in Nashville who specializes in UAS law, for his thoughts on the situation. He is representing John Boggs of Hillsview, Kentucky, in a civil lawsuit against William Meredith who shot down Boggs’ drone because he claimed it was violating his privacy.

“It’s not as straightforward as saying it’s a violation of federal law to shoot down an aircraft,” Mackler said. “And it’s also not as straightforward as saying that the police can shoot down whatever is interfering with them. The law’s unclear, and it’s certainly a balancing test.”

From a legal perspective, there are two ways of looking at the situation.

“We have obvious first amendment issues,” Mackler explained. “A drone is a legitimate tool for news gathering and a way to supplement freedom of speech, which is something that news organizations—as well as protesters and the police—all have a vested interest in protecting.

“The other side of the equation is law enforcement safety,” he continued. “We’ve recently had an incident where ISIS killed two people by using explosives on a civilian-style commercial drone. It’s not beyond the realm of possibility for a drone to actually be a deadly weapon. You have a situation where law enforcement has to try to balance the rights between freedom of speech, freedom of expression and freedom of the press while, of course, protecting their own safety.”

Unfortunately, neither side has released video showing exactly what the drone was doing or how close it was to the helicopter. Mackler said he leans toward the position of not shooting down another person’s drone.

“The use of force to bring down the aircraft can only be justified in response to a reasonable fear of damage to person or property,” he noted. “I don’t have any idea whether that was a reasonable response under those particular circumstances.”

In any case, the FAA at this point seems to be on the side of North Dakota’s law enforcement authorities. On Wednesday, the agency issued temporary flight restrictions (TFR) four nautical miles around Cannonball, North Dakota, covering the area of the protester camps and where pipeline construction is likely to occur.

The notice to the airman (NOTAM)—in effect to Nov. 5—said only aircraft supporting law enforcement activity under the direction of the North Dakota Tactical Operation Center are allowed to operate in this airspace. A Dr0ne2bwild Facebook posting yesterday said, “Whatever happens Drone2bwild will keep it in drone history for his Standing Rock and all nations.”

There are interesting times ahead for drone history and UAS legal precedent.