Welcome to PhantomPilots.com

Sign up for a weekly email of the latest drone news & information

Police and the Phantom 2 Vision plus

Discussion in 'Phantom 2 Vision + Discussion' started by Will Gardner, Aug 14, 2014.

  1. Will Gardner

    Joined:
    Aug 13, 2014
    Messages:
    8
    Likes Received:
    0
    Three days ago I had my Phantom crash land or was shot down after it had flown about 100 feet past my farm property line into a shooting range that abuts my property. This is a range that I have litigated with in the past. By the way I am a huge supporter of the NRA and the second amendment. The range turned it into the Woodstock Vermont police who were very nice but the downing made the front page of the Vermont Standard today complete with a picture of the damaged Phantom. There was a great benefit to me in the questioning process in that the Phantom was judged to be a toy. That perception was very helpful in concluding the issue with me getting the Phantom back reasonably quickly.
     
  2. cahutch

    Joined:
    Jul 8, 2014
    Messages:
    558
    Likes Received:
    4
    Location:
    Sonoma County, CA
    So you got it back. Was it shot down or not?
    Flying over a shooting range? And one you were not friendly with to boot? What were you thinking?

    I'm no lawyer, but it's my understanding that if you're flying over someone else's property, they are within their rights to shoot it down. It's not manned and it's trespassing.
    Looking at it one way, it's no different than a ball or Frisbee going over the neighbors fence. It sounds like that's the way your police handled it.
    On the other hand, there is a camera attached. It may be a gray area but as I understand it, if you were under 80ft high there is precedence for a trespassing charge.
     
  3. Will Gardner

    Joined:
    Aug 13, 2014
    Messages:
    8
    Likes Received:
    0
    I'm no lawyer either but my wife is. It is a Federal crime to shoot down a drone. A fomer assistant United States attorney and currently practicing was a guest at our home while this was going on. She dug up a recent Forbes article that had an in-depth review of the legalities surrounding a drone shoot down. My wife wife who is a practicing real estate lawyer tells me that air space rights go up to infinity. From what I can tell unless you have a considerable amount of property, which we do, then you are always flying over private property. Might you be able to cite the eighty foot ceiling issue as I would be very interested. PETA has had several issues like this and while I am no fan of PETA I'm considerably impressed with their legal team. I am unsure if it was shot down. I lost contact immediately after a fusillade of about five rounds. I have about 25 minutes of video showing the drone abruptly going up and left. When retrieved it shows a couple of guys standing around it taking pictures and one whacking it with a stick. It showed no evidence of gunshot and I might have flown the thing into a tree. You are spot on with the ball and frisbee analogy. In terms of what I was thinking to fly it over the range my wife has asked me the same question. I guess that I feel at an altitude of 150 feet I can fly wherever I please but I'm giving that issue a great deal of thought. My wife is usually right so maybe you are also. Thank you for your insightful reply
     
  4. dragonash

    Joined:
    Mar 21, 2014
    Messages:
    906
    Likes Received:
    11
    Location:
    Brooklyn, NY
    Forgive me for trying to dumb this down, but I would just like to verify.
    Did you fly INTO the shooting range? Or near the shooting range?
    Or was that not the point of your post and you just wanted us to know that it was labeled as a toy?
     
  5. Will Gardner

    Joined:
    Aug 13, 2014
    Messages:
    8
    Likes Received:
    0
    Your remark speaks to the core of the issue and is not dumbing it down.. There was a question of how close I was to the property line as our properties abut. It ended up on range property. I live in the Peoples Republic of Vermont. They believe here that government is the solution to all problems and that all problems including civil issues should be dealt with by the police. In other states the police will not involve themselves and rightly so in civil issues. Clearly the Phantom is not a toy but the fact that it appears as a toy prompted the police to view this a a "ball or frisbee going over the fence" issue that considerably toned down their enthusiasm to expand the incident. In others words the perception that it was a toy took the heat out of the encounter. I felt that others in a similar situation would benefit from the perception.
     
  6. cahutch

    Joined:
    Jul 8, 2014
    Messages:
    558
    Likes Received:
    4
    Location:
    Sonoma County, CA
  7. Will Gardner

    Joined:
    Aug 13, 2014
    Messages:
    8
    Likes Received:
    0
    What an outstanding article for which I am very grateful. I was unsure of my exact height at the time of downing but it was easily above 100 feet. So what do you think about a 150 minimum level for flyover without triggering the trespass statute?
     
  8. cahutch

    Joined:
    Jul 8, 2014
    Messages:
    558
    Likes Received:
    4
    Location:
    Sonoma County, CA
    I'd be very interested in how/why "It is a Federal crime to shoot down a drone."
    Why would there be a federal law for private hobby aircraft or flying cameras?
    I would think that since it's unmanned, you're not hurting anyone. The operator is unknown. It's trespassing over private property and creating a nuisance and/or unlawfully photographing your property.
    I would think you would be within your rights to shoot it down. Other than, you know, the whole discharging a firearm thing which in my area would be legal if you have 150 yards between you and the nearest occupied dwelling.

    As you know it's not easy to stay over ones property and I often stray over or deliberately fly over neighbors crop fields, but I try to avoid flying directly over their houses.
    I'm concerned about the possibility of being shot down so it would be good to have a law or legal precedent to cite should that happen.
     
  9. Will Gardner

    Joined:
    Aug 13, 2014
    Messages:
    8
    Likes Received:
    0
    I am too ignorant to paste a link. The article appeared in Forbes magazine, 12/10/13. The title was "Thankfully shooting down a drone will land you in prison". by Gregory S. McNeal. It was sent to me by an attorney as I'm carefully researching this issue since the incident. I agree with you. We have five horses, three dogs and two geese. If a drone pesters the animals, and I've tried this out on our rescued horses, then that drone is going to get shot down. If it means prison than ok I guess. By trying it out I mean bring the drone to fifty foot altitude and circling them. They do not panic but they do not like it. No more horse pictures. I only fly over crops and never neighbors houses unless they ask for a picture. They are delighted to get an aerial view and since the news coverage all my neighbors now want one. It is very rural here in zip 05071. I am on Church Hill road with the very large indoor riding arena. I also have used the drone to find my neighbors breechy cows that get through his fence.
     
  10. Visioneer

    Joined:
    Jan 2, 2014
    Messages:
    287
    Likes Received:
    0
    Location:
    Louisville, Ky, USA
    The linked article is spot on in pointing out that there is not a clear definition of how much airspace over your property is "yours". As it points out, the best case law has come up with is that airspace of which the property owner can "make beneficial use" is his, nothing more. That's vague enough that most every case will be decided on its own merits, and not a lot of help for those who want clear guidance. As for other jurisdictions' legislation, the FAA pretty clearly has sole jurisdiction of the National Airspace System (NAS). They haven't always followed the process for issuing regulations but, ultimately (when they follow the process), they do have the force of law behind them, and they'll be the final deciders of the rules that apply (subject to court challenge of course).

    As for shooting down a drone, the old "ball's in my yard, so it's mine" notion that most of us grew up believing is not legally correct. Here's an excerpt from the AMA's "Model Fliers and Neighbors" paper on that issue, prepared by their attorney.

    "On the other hand, the landowner has a duty to the owner of the plane, as well. The landowner cannot keep the landed plane. That would amount to a conversion of the flier's property and the landowner may be compelled to pay the cost of the plane. The landowner may not intentionally damage the plane, as this would be a trespass to the chattel of the flier. The landowner may ask to have it removed by the flier. The landowner may move the craft himself if its location is causing some harm to his enjoyment of his property, or is creating some other risk of harm. If the owner of the plane does not remove it upon request, the landowner may have the plane removed from the property such as one would have an automobile impounded. In any event, the landowner may not deprive the (owner) of his right to the airplane nor may he intentionally or recklessly cause damage to the craft. If the landowner breaches this duty to the owner of the plane, he exposes himself to liability for conversion, trespass to chattel, replevin, and other forms of recovery designed to enable the (owner) to recover the plane or its value."

    Of course enforcing the law is another matter ... the cost of forcing a landowner to pay for damages done could well exceed the cost of the damages. If just asking didn't work, a simple letter from an attorney might do the trick. Of course the landowner may have recourse for damages resulting from the aircraft's trespass.

    If interested in the legal analysis of trespass and recovery with respect to model aircraft, the AMA document is at http://www.modelaircraft.org/files/2012 ... orsDOC.pdf
     
  11. Will Gardner

    Joined:
    Aug 13, 2014
    Messages:
    8
    Likes Received:
    0
    What a impressive brief. While I am no stranger to the plaintiff side of successful commercial litigation I am a funder of the often exorbitant costs for the same. It would be foolish to battle over a fifteen hundred buck flying camera but the subsequent loss would stick in my craw. No, I would battle over that although that also would be equally foolish. It comes to me that the best course is to avoid these uncomfortable little issues by following the AMA advice. The original intent of my first post was to suggest that the heretofore denigration of the Phantom had a silver lining in that the adversarial parties viewed it as a toy and simply handed it back thus saving probably five thousand bucks in small claims litigation costs not to mention the aggravation. Thank you very much for a clear and equally understandable opinion. I am grateful.
     
  12. w0by

    Joined:
    Feb 3, 2014
    Messages:
    84
    Likes Received:
    0
    Well I live in Illinois and it's a felony to just take your gun and shoot stuff outta the sky. This isn't 1901 anymore folks lmao.
     
  13. Werz

    Joined:
    Jun 21, 2014
    Messages:
    143
    Likes Received:
    1
    I'm afraid your wife is mistaken. Although the principle of law she stated was well established under the common law, it has become archaic and nearly 70 years ago, the United States Supreme Court decided "that doctrine has no place in the modern world," holding navigable airspace (generally over 500 feet) to be "subject to a public right of freedom of interstate and foreign air navigation." United States v. Causby, 328 U.S. 256, 260-261 (1946). While that decision was based on the then-existing Air Commerce Act of 1926, and the Civil Aeronautics Act of 1938, the same principle still exists under the United States Code: "A citizen of the United States has a public right of transit through the navigable airspace." 49 U.S.C. ยง40103(a)(2).

    When it comes to flights under 500 feet, the law is a bit more fuzzy. Beneath that altitude, some jurisdictions stick with the old common law rule: Cujus est solum ejus usque ad coelum or "Whose is the soil, his it is up to the sky." My state applies the rule announced by the U.S. Ninth Circuit Court of Appeals almost 80 years ago: "We own so much of the space above the ground as we can occupy or make use of, in connection with the enjoyment of our land. This right is not fixed. It varies with our varying needs and is coextensive with them. The owner of land owns as much of the space above him as he uses, but only so long as he uses it. All that lies beyond belongs to the world." Hinman v. Pacific Air Lines Transport Corp., 84 F.2d 755, 758 (9th Cir. 1936).

    Of course, those rules only apply to trespass. There may be other causes of action which may apply, including claims for nuisance and invasion of privacy.
     
  14. Will Gardner

    Joined:
    Aug 13, 2014
    Messages:
    8
    Likes Received:
    0
    I am grateful for your well considered reply and can not wait to explain a point of law to my wife. In researching this issue I have found as a humble electrical engineer that I know little or nothing of trespass although I do have a grasp of nuisance. The AMA guidelines on the same as previously posted are being slowly digested. Some of these changes predate my wife's graduation from law school. Maybe she missed that lecture? The issue with the gun range is not amusing. Having just spoken to her I am causticly informed that Vermont goes up to the sky.
     
  15. Werz

    Joined:
    Jun 21, 2014
    Messages:
    143
    Likes Received:
    1
    I think the law doesn't place too much emphasis on trespass, i.e. the mere presence of a UAV above certain real property. The law is much more concerned about the ultimate effect. If it is bothering livestock, a claim in nuisance may be a good one. From what I know of animal behavior, ground animals don't care much about what is above them, although the "hornets' nest" sound of a Phantom is another matter. And we have already heard stories about flying critters' reactions to a Phantom occupying their airspace. I know I'm concerned when some of the local hawks appear to be paying attention to mine.

    Privacy violations are another issue. If someone erects a high fence around the property to sunbathe in the nude, they have created a barrier to protect privacy. What can be seen from navigable airpace (500+ feet) without magnification may be open game, but at altitudes below that, or with the use of a zoom lens, there is very probably a violation of privacy rights.
     
  16. Cocoa Beach Kiter

    Joined:
    May 3, 2014
    Messages:
    278
    Likes Received:
    1
    How do we balance the above 500' for navigable airspace with the AMA best practices of staying below 400'?
     
  17. Werz

    Joined:
    Jun 21, 2014
    Messages:
    143
    Likes Received:
    1
    Sadly, we don't. Above 500 feet you gain the ability to avoid claims of trespass. However, over 400 feet, you lose the protection of AMA best practices, which constitute "safety guidelines *** within the programming of a nationwide community-based organization" under P.L. 112-95, Sec. 336(a)(2), 49 U.S.C. 40401, and thus, you lose the statutory exemption for model aircraft which prevents your bird from being regulated by the FAA. Of course, regardless of what the FAA claims, they have not yet promulgated sufficient rules to regulate our birds above that altitude (particularly if they are not flown for a commercial purpose), but make no mistake: those rules are coming.
     
  18. Visioneer

    Joined:
    Jan 2, 2014
    Messages:
    287
    Likes Received:
    0
    Location:
    Louisville, Ky, USA
    Sounds like a personal problem :lol:

    Seriously, if that were true you could charge commercial airlines flying over your property with trespass, be they at 500' or 35,000 feet. I rather imagine that's not the case, even in Vermont.

    It's interesting to see 500' bandied about here as a minimum altitude for manned craft. As one might imagine, it's more complicated than that. The limit is 1000' in "congested" areas (most populated areas) and there is no absolute limit in open spaces or over water, provided a set distance (perhaps 500') is kept from structures, people, watercraft, etc. And there are exceptions for specific uses, e.g., crop dusting. The underlying driver of any altitude limit seems to be that an aircraft should maintain enough altitude that it has a reasonable chance of successfully completing an emergency landing should one become necessary.