Illegal to fly under 400 foot?

[joe21]

A property owner only owns the airspace to the tallest structure. (Tree top, roof, antenna tower)

Not so. A property owner owns "as much of the space above the ground as he can occupy or use in connection with the land." The exact amount has intentionally been left open as it will vary with circumstance. The Causby case specifically notes that this height is not limited or defined by a structure or feature on the land.

 

[GoodnNuff]

A little off topic, but I thought this was interesting:

Proposed 102-story tower would be too tall for FAA approval

The FAA will not approve a 101 story skyscraper here in Seattle because it would be a hazard to air traffic. They weren't able to use their "usable space"...

 

[tcope]

I was already familiar with Causby. Not sure how you could accuse me of being disingenuous (which would not apply whether or not I knew anything about Causby).

It was easier/quicker for me to read and reply as I read. I changed my mind later as you made it clear that you understood the case.

The link you provide to Causby is a wiki page. Even working with the premise that Wiki is correct and not omitting some important facts, you seem to be misreading.

This clearly indicates that the landowner OWNS some amount of airspace above his land.

I agree, Wiki pages are not always 100% accurate. I posted it as a general starting point. It's an easier read to get the general idea.

Causby does not state that the person owns the airspace above their land, it states that they have an easement. A land owner is entitled to use their land as it was intended (as a chicken farm in the Causby's case). A person cannot use the public airspace above that land in such a way as not to allow the land owner to use the land as it was intended. So the land owner does not own that airspace (that is very clear) but it also cannot be used by the public in such a way that it interferes with the land use below it. So if I buzz my drone 5' above your backyard I think I'd be in violation of that case law.

There is a big difference between owning and an easement.

It also states that a trespass in that airspace is the same at trespass on the ground.

Not sure I agree. If nothing else, I don't think that is the correct context. If a person flying is affecting the land use, it very may be _treated_ as trespass... but it's not the same thing.

SCotUS decisions trump FAA assertions. That alone would give local law enforcement the authority and power to enforce trespass laws for a craft flying onto someone's property.

Not at all. They are in no way related. Causby was a civil matter, not criminal.

Remember that the court found in favor of Causby in that case... the US Government lost. (Although the full decision did give contravene the previous common law principle and give the government authority over "navigable" airspace.) The government as a whole was not in the trial. They were the ones who owed and operated the planes being flown over Causby's property. This is the only reason why they were in the case. It had noting to do with the FAA, FAA's authority or regulations. It was a _civil_ matter so Causby's complaint was that the military caused him damages. The Supreme Court in it's ruling for Causby made case law about someone's use of their land and how using public airspace above that land _can_ interfere with the use of the land.

You mentioned earlier that no one owns the airspace over their property, they only have an easement. Again, I think you misread. Based on the above quote, the opposite is the case. The property owner in Causby was determined to have owned the space above his property. It was the government that had taken that easement and thus owed compensation to Causby.

This is incorrect. Here is an outline of the case:

Held:
1. A servitude has been imposed upon the land for which respondents are entitled to compensation under the Fifth Amendment. Pp. 328 U. S. 260-267.

(a) The common law doctrine that ownership of land extends to the periphery of the universe has no place in the modern world. Pp. 328 U. S. 260-261.

(b) The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266.

(c) Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 328 U. S. 263-264.

(d) Flights of aircraft over private land which are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry upon it. Pp. 328 U. S. 261-262, 328 U. S. 264-267.

In Causby the property owner was ruled not to own the airspace but that he was entitled to an easement within that public airspace as to use his land as it was intended. The plane owners encroached upon that easement and caused damages.

It seems that you may be looking at D from your prior post when you say, "It also states that a trespass in that airspace is the same at trespass on the ground". It does not say that it's _trespassing_... it states that it's an _appropriation_ (use). These are not the same things.

"C" appears to be what a lot of lawmakers can't seem to understand. This is why we see many local governments make their own laws up to 400'. This is probably where the "chief" is also confused. It does _not_ state that the FAA is not in charge of airspace below 400'.

If, however, you build a high "privacy" fence or take other actions to shield your yard from public view, you would have a reasonable expectation of privacy. It wouldn't matter if someone climbed a tree, put a camera on a long stick to reach over your fence, or flew a UAV over your property... it is an invasion of privacy.

Now we get into more of a legal decision and the context comes more into play. Lets say I have a tree house on some land next to yours and I climb that tree to enjoy my tree house. Can you sue me for looking over your fence? Are you saying _I_ can't enjoy my property (my tree) just because you put up a fence? Can I climb a tree just to stare at you in a bathing suit in your backyard? Probably two difference answers. My point is that the context needs to be considered. But the new/undetermined area is that the drone is in public airspace but it also does provide a vantage point not otherwise available. I'm all for people being able to fly over other people's property if, for example, they are just casually flying. But I'm 100% against someone hovering right over someone's backyard. This leaves a _lot_ of situations in between. It's a tough call. However, I _don't_ agree with local law enforcement trying to govern public airspace. We still need to follow the laws and respect _everyone's_ rights.

Another point which people often misunderstand... While you can take photo in a pubic place, how you use that photo can be limited. Public place or not, everyone still owns their own "likeness." You cannot use a photo of someone for commercial purposes without their permission. What constitutes "commercial" can be debated these days as technology has outpaced the law. If your YouTube video is monetized, it _may_ be considered commercial. You may need an attorney on retainer to find out for sure.

I'd say close, but not spot on. The argument in commercial use is that the photo taker earned money from the use of someone's likeness. So the person's likeness that was used can claim they are entitled to some of that income since it was based on their own self. That is, they have certain rights to their likeness. However, this "right" does not extend to the exact frame of the 1st Amendment. Right to be paid for the use of one's likeness does not interfere with someone's 1st Amendment right to obtain that photo. Another example is that a person can sue for damages over a photo. But this does not negate the 1st Amendment completely. I mention this as its actually _better_ for a person taking a photo to say that they _are_ going to dissimulate the photo. This puts it more in the realm of news which what the Supreme Court has mentioned as specifically protected. If you keep it to yourself it's less "expression" (aka freedom of speech).

Another thing to keep in mind... if the police officer reasonably believes his actions are legal you can be charged with obstruction or resisting. Even if the original charge is dismissed or shown to be unenforceable, the obstruction/resisting charge could still be upheld.

If as court rules that it's not a legal order, you can't be charged with obstruction. It's certainly a role of the dice though. Also, this is only if you don't stop. Personally, I'd take the ticket, stop and then fight it in court to get the case law established.

Thanks very much for the post. I really enjoy your interest in the matter.

 

[CptPhantomFlyAway]

You sure you weren't recording around pigeon shoots? The c.o.p. might have had a vested interest.

 

[TDoodle]

It is also useful to print out the PDF and have it on you to show the police (follow the link to the PDF):
Photography and The Law: Know Your Rights | Photojojo

I was reading this, and I wasn't even a quarter the way in when I decided to reply.
This is great. Is this actual, legitimate law? And if so, is it only in the USA? or does Canada apply as well?

 

[mmtphoto]

Hi all. I am new to the forum and from Pennsylvania USA.
I recently had a discussion with our chief of police who informed me he could charge me with trespassing for flying over private property below 400 foot, as well as confiscate my phantom and phone. Not to mention charge me with stalking if I recorded video or photos while doing so. He claims the Supreme Court has already decided that a landowner owns the airspace above their property up to 400 foot. Please help. I was flying well over 100 foot and doing nothing wrong.

Where is this in Pennsylvania?

 

[GoodnNuff]

I was reading this, and I wasn't even a quarter the way in when I decided to reply.
This is great. Is this actual, legitimate law? And if so, is it only in the USA? or does Canada apply as well?

I understand this to be the law here in the US.
Bert P. Krages Attorney at Law Photographer's Rights Page

 

[joe21]

Causby does not state that the person owns the airspace above their land, it states that they have an easement. A land owner is entitled to use their land as it was intended (as a chicken farm in the Causby's case). A person cannot use the public airspace above that land in such a way as not to allow the land owner to use the land as it was intended. So the land owner does not own that airspace (that is very clear) but it also cannot be used by the public in such a way that it interferes with the land use below it. So if I buzz my drone 5' above your backyard I think I'd be in violation of that case law.

Not to belabor the point, but you should go back and read the actual majority opinion on the case. Here's one link with the full text:

United States v. Causby 328 U.S. 256 (1946)

Here's one quote, directly from the opinion:

The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land. See Hinman v. Pacific Air Transport, 84 F.2d 755. The fact that he does not occupy it in a physical sense -- by the erection of buildings and the like -- is not material.

Clearly states the landowner OWNS the space above the ground.

Any reference to an easement is directed to the government's actions. It is the defendant in that case that took an easement by flying their planes in the airspace owned by Causby.

There is a big difference between owning and an easement.

Agreed. I simply think you are applying the concepts to the wrong parties in this case. If you can show me quotes from Causby (not the dissenting opinion) that supports your assertion and refute mine, I am happy to be corrected.

Not sure I agree. If nothing else, I don't think that is the correct context. If a person flying is affecting the land use, it very may be _treated_ as trespass... but it's not the same thing.

Not at all. They are in no way related. Causby was a civil matter, not criminal.

Flying through someone's airspace (the owned part as described above) is trespass. Depending on where you are and the circumstances, that trespass may be civil or may be criminal.

In my state, civil trespass can turn into criminal fairly easily. People will often call the Sheriff to deal with civil trespass - one the Sheriff and homeowner inform the offender they are not permitted on the private property, further trespass is considered criminal, including if the offender refuses to leave immediately.

From Causby:

The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it, and that invasions of it are in the same category as invasions of the surface.

Look at the last sentence. It would seem to indicate that flying in someone's yard is no different than entering someone's yard. (Yes, the big difference is that one is an object and the other is a person - but with the current view of camera equipped UAVs I think the difference is meaningless.)

Thus, if flying or waking onto someone's property is the "same" category, then the threshold for trespass (civil or criminal) would be the same.


Back to the original topic, we have the important part.

My position is logically sound. It makes sense. I am not a lawyer or judge. I could be 100% right, 100% wrong or somewhere in the middle.

All a LEO has to do is agree with my logic. If they do and believe your actions meet the definition of criminal trespass, you may be arrested. It would be a legitimate arrest. You will have to get a lawyer who disagrees with the cop's position, spend a ton of money and *maybe* win the case.

If the cop tells you to stop flying, you should stop flying. Always comply with the order (within reason) and argue later. What if you were (or the cop believes your were) operating in an unsafe manner? What if there are other circumstances known to the cop that you are unaware of? There are penalties for failure to comply with a lawful order.

If you are sure you are in the right, take that money you would have spent on defending your arrest and use it to sue the police department. You may win, you may lose... but you will do it without having an arrest record.

 

[joe21]

A little off topic, but I thought this was interesting:

Proposed 102-story tower would be too tall for FAA approval

The FAA will not approve a 101 story skyscraper here in Seattle because it would be a hazard to air traffic. They weren't able to use their "usable space"...

I have plenty of stories regarding that. A shopping center near me is next to a GA airport. They have all sorts of building limitations. Construction of a big retail store was halted by the airport (they didn't want anything built near one of their approach paths). After years of litigation, the airport won.

The gubment takes property and property rights all the time. Sometimes people get compensated for the taking and sometimes they don't. They do have two big advantages... 1) they have unlimited funds to prosecute their case (they use our tax dollars) and 2) they own the court system (technically, as the courts are part of the government and in practice as it is the other two branches of government who appoint the judges that decide the cases).

 

[tcope]

If the cop tells you to stop flying, you should stop flying. Always comply with the order (within reason) and argue later. What if you were (or the cop believes your were) operating in an unsafe manner? What if there are other circumstances known to the cop that you are unaware of? There are penalties for failure to comply with a lawful order.

We've all seen the videos where police tell you that it's illegal to record them. It's 100% incorrect and a flat out lie. They threaten people with citing them or taking them to jail. So there are _many_ situations where police make up their own laws and even lie to people in order to get their personal way. If we all just do what they want then they will know that they can do this and simply do it all of the time. Now you've just lost your rights. You say to argue about it later. What if it's a police officer so you go in to talk to the chief of police. Well, we see here that they can also be as incorrect about the law. Also, they have nothing to lose by simply telling you that you are wrong and walking away. There is nothing for them to gain by really looking into the matter other then having to admit that they were wrong. I'm betting in this case the chief personally does not think drones should be used to take pictures of anyone. If he can get away with telling people that they can't do it, he probably will.

What that leaves is to _respectfully_ continue to do what you are allowed to do and see if they do indeed issue a citation. You can then either have the prosecuting attorneys office drop the charges or get a judge to rule on the matter. In most cases if you lose, its a max of a $500 fine (max). To me, it would be worth doing that and getting a ruling.

You can't sue the police dept in a situation like this. If you were not cited you'd need to sue the city, county or state. That costs a _lot_ of money. Its far cheaper to get someone to write a ticket and fight it for a judges ruling.

 

[joe21]

What that leaves is to _respectfully_ continue to do what you are allowed to do and see if they do indeed issue a citation. You can then either have the prosecuting attorneys office drop the charges or get a judge to rule on the matter. In most cases if you lose, its a max of a $500 fine (max). To me, it would be worth doing that and getting a ruling.

I've also seen those videos. There is a time and a place to play armchair lawyer. Some people know the "rules" better than some police and some police know the rules better than some people. You play that game and you roll the dice.

What you see in those YouTube videos are some people fighting government overreach and "winning" the battle. There are also people who do similar things in the wrong situations and get arrested. Even if they are acquitted or just end up paying a fine, they still have an arrest on their record.That follows you to job applications and other things. They are not always acquitted of all charges.

Nothing wrong with fighting for your rights. Just understand the potential consequences. It is also VERY important to fully understand your rights and how to exercise them.

You claim that you should ignore what *you believe* to be an unlawful order and continue to "do what you are allowed to do." I submit that it is yet to be determined "what you are allowed to do" in this situation.

I haven't seen any videos of people with drones challenging trespass or privacy laws by continuing to fly until the police walked away.

In my state, there are laws against trespass. Fit the legal definition and I can call the Sheriff to enforce them. You may "believe" you are on public land, or think you have a "right" to be there. Refuse to leave (respectfully or otherwise) and there will be trouble. You will get arrested for trespass, among other charges. You will NOT win because you ARE trespassing. "I though it was public land" or "I thought the Sheriff was wrong" will not be a valid defense. Even if the Sheriff was wrong, it is likely the other charges will stick. In either situation you will be out some serious legal fess. Maybe your state is different. In my state, refusing a lawful order to vacate private property will involve more than a $500 fine (as it should).

You are welcome to be the tip of the spear in the fight for rights on this one. If you claim you have the "right" to enter private property with your UAV and no one can stop you, I believe you are going to lose that fight in short order. We have enough problems with our rights as drone flyers already - we don't need to be fighting for changes in property law so we can overfly our neighbor's properties.

 

[GoodnNuff]

There is a time and a place to play armchair lawyer.

So True.
I've always thought a public forum is one of those places that isn't appropriate as the conclusions one makes may often be taken to heart by a reader, and it may land them in a legal quagmire.

But it is so entertaining when y'all flex those armchair muscles...

 

[normr]

What city is this chief from?


Sent from my iPad using PhantomPilots mobile app

 

[mmtphoto]

What town in Pennsylvania?


Sent from my iPhone using PhantomPilots mobile app

 

[erkme73]

Wait a second... A cop who doesn't know the law, asserts false authority, and uses the color of law to intimidate and threaten you if you don't obey his unlawful commands? No way that would ever happen...

(yes, that is sarcasm)

FWIW, law enforcement has a very long and troubled history with accepting citizens' rights to video in public (or from private property). It has nothing to do with drones. There are entire websites devoted to exercising the First Amendment practice of photographing and filming in public. Documenting events from public (or from private property where the owner has not explicitly prohibited your activity) is protected, as such documented material may (and often is) used in the expression of some future speech (i.e. YT videos, blogs, news gathering, etc). By preventing you from collecting such information, government is effectively subjecting you to 'prior restraint'. There are numerous court cases which have set precedent calling any action by government to limit the documenting of events in public as unconstitutional.

I hate to say it, but your Chief is just another badge bully who is used to people immediately complying with every barked order. Make sure you carry a small, discrete camera with you AT ALL TIMES when you fly . Something like a Mobius can be hung off your key chain. When he comes back to make these threats, hire a lawyer and file a CRIMINAL COMPLAINT with your AG against him personally, under Section 242 of Title 18 "DEPRIVATION OF RIGHTS UNDER COLOR OF LAW". At a minimum, articulate that your are documenting your contact with him, putting him on notice that he's not just dealing with the average, uneducated citizen. You have rights. Stand up for them.

 

[kirk2579]

Wait a second... A cop who doesn't know the law, asserts false authority, and uses the color of law to intimidate and threaten you if you don't obey his unlawful commands? No way that would ever happen...

(yes, that is sarcasm)

FWIW, law enforcement has a very long and troubled history with accepting citizens' rights to video in public (or from private property). It has nothing to do with drones. There are entire websites devoted to exercising the First Amendment practice of photographing and filming in public. Documenting events from public (or from private property where the owner has not explicitly prohibited your activity) is protected, as such documented material may (and often is) used in the expression of some future speech (i.e. YT videos, blogs, news gathering, etc). By preventing you from collecting such information, government is effectively subjecting you to 'prior restraint'. There are numerous court cases which have set precedent calling any action by government to limit the documenting of events in public as unconstitutional.

I hate to say it, but your Chief is just another badge bully who is used to people immediately complying with every barked order. Make sure you carry a small, discrete camera with you AT ALL TIMES when you fly . Something like a Mobius can be hung off your key chain. When he comes back to make these threats, hire a lawyer and file a CRIMINAL COMPLAINT with your AG against him personally, under Section 242 of Title 18 "DEPRIVATION OF RIGHTS UNDER COLOR OF LAW". At a minimum, articulate that your are documenting your contact with him, putting him on notice that he's not just dealing with the average, uneducated citizen. You have rights. Stand up for them.

It is kind of funny.

those ideas and recommendations about video or audio recording when flying are EXACTLY the same recommendations suggested when Concealed Carry laws started opening up.

Carriers were finding LEO did not get the new laws etc and were harassing them often with similar threats etc.
So small cams etc were suggested for protection...
its not used or needed so much anymore , now the laws are clear, the same through out the state, and folks are used to them now.

I see drones following this same pattern of learning and acceptance. Especially once the FAA gives solid clear cut parameters

 

[tonyb0007]

Hi all. I am new to the forum and from Pennsylvania USA.
I recently had a discussion with our chief of police who informed me he could charge me with trespassing for flying over private property below 400 foot, as well as confiscate my phantom and phone. Not to mention charge me with stalking if I recorded video or photos while doing so. He claims the Supreme Court has already decided that a landowner owns the airspace above their property up to 400 foot. Please help. I was flying well over 100 foot and doing nothing wrong.

Simply stated, he is wrong. Nobody owns the air above them except the US government. If he were to charge you, you would have a easy and successful lawsuit. But heads up, there will be law introduced to protect the space above a private individual. It's coming, only a matter of time.

 

[mmtphoto]

this is my third time I'll ask then I guess the OP has lost interest-where in Pennsylvania did this happen? Since he only has 2 posts on this forum, maybe it's not as it appears?

 

[joe21]

It's kind of funny how people read into the original comment.

There was no mention of the police having a problem with video. There was no mention of the police making rules which superseded those of the FAA.

The police chief referenced in the OP merely mentioned trespass for flying over private property and stalking charges. Both charges would be appropriate and valid under the right circumstances (UAV or not).

People watch too many "am I free to go" videos on YouTube. Sure, you have rights, but so does everyone else. You do NOT have the right to trespass on private property. You do not have the right to harass or stalk people. There has to be a balance on both side.

The police chief in question may have gone too far (and certainly didn't understand the 400' thing) but he wasn't attempting to deny the OPs rights - he was defending the rights of private property owners.

 

[joe21]

Simply stated, he is wrong. Nobody owns the air above them except the US government.

The US Supreme Court seems to disagree with you on that point. See prior posts with sources quoted for more information.