Don’t Shoot That Drone!

(Source: propertycasualty360.com)  

“Shooting down drones” is all over the news lately. A Kentucky man used “Number 8 birdshot” to shoot down a multi-rotor over his backyard. A Modesto marksman shot down a drone over his neighbor’s farm. A New Jersey Man hit the news for doing the same thing.

The idea that you can shoot down drones is so pervasive that Deer Trail, Colo., announced drone hunting licenses in 2014, at least until the FAA weighed in.

Though Yosemite Sam would be proud of all this, let’s be clear: shooting down a drone is a federal crime.

Does that surprise you? If so, you’re not alone. There is a widespread misconception that drones can be shot down with no federal consequences. That’s just not true as the law stands today.

Now let’s look at why.

Drones are aircraft

A drone is an “aircraft” under the Federal Aviation Regulations. Shooting down an aircraft is a federal crime. The penalties include 20 years in prison, and a threat to shoot down an aircraft can get you five years in prison (18 U.S.C. §32). The government also can impose fines of up to $250,000.

Why isn’t anyone talking about this? Because it’s complicated.

The “drone law” space is changing so quickly that no one can predict how courts will treat aviation regulations when applied to unmanned aircraft.

Until fairly recently, there was a vigorous debate about whether federal aviation regulations even applied to drones. The “textbook” case (it will be in all the textbooks) is that of Raphael Pirker. Pirker is the first person to successfully challenge the FAA’s authority to apply regulations governing manned flight to drone operations.

Pirker was hired by the University of Virginia to film some video with his drone. The FAA hit Pirker with a $10,000 fine for this commercial flight, arguing that the flight was a “reckless” operation of an “aircraft.”

Pirker’s case was taken up by attorney Brendan Schulman, who successfully argued to an administrative law judge that a small drone could not be an “aircraft” under the existing regulations. He argued that the regulations were written to apply to manned aircraft.

The FAA appealed to the NTSB. Though the NTSB eventually overturned the administrative law judge’s decision, the case shows us how “gray” the law here can be. Pirker eventually settled with the FAA for a small amount.

It’s not surprising that the law is confusing when the experts disagree!

The lesson from the Pirker case is that, as the law stands today, all aviation regulations apply to drones. Hobbyist drone flights are permitted only under the FAA’s guidelines. Commercial drone flights are allowed only under a Section 333 Exemption or similar approval. This is the way of things until the FAA finalizes its “small drone,” or “sUAS” rule.

The upshot? Consider every drone an “aircraft” under the federal regulations.

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