Analysis A lawsuit filed against a man who shot down his neighbor's drone might define for the first time who owns the skies in America.
Back in June, 47-year-old William Merideth shot down the camera-carrying $1,800 quadrocopter with a shotgun while it was hovering over his house in Hillview, Kentucky, claiming that he feared it was snooping on his kids.
The owner of the drone, neighbor David Boggs, was unsurprisingly not happy about the situation and confronted Merideth, who then threatened him with a handgun. The police were called and Merideth was arrested for firing a shotgun within city limits, then later charged with criminal mischief and wanton endangerment.
When the case went to court, however, the judge heard from eye witnesses who said the drone was below the tree line when it was shot, and he dismissed the case, saying, "he had a right to shoot at this drone." Owner Boggs, who was hoping to get the cost of his machine out of the case, said he would consider suing Merideth and that's exactly what he has done, filing case 3:16-cv-00006 [PDF] this week asking for $1,500 to cover the drone plus court costs.
What is interesting about the case, however, is the fact that it may help decide a critical legal question: who actually owns the space above your property?
Merideth claims that the drone was trespassing on his property, and the fact that he managed to shoot the drone down with his shotgun highlights the fact that it was relatively close to the ground.
But at what distance from the ground does a landowner's jurisidiction end? And who owns everything above that?
Enter the FAA
According to Boggs' lawsuit, the United States government – but in practice the Federal Aviation Authority (FAA) – has "exclusive sovereignty" over everything above ground, so his drone did not trespass his neighbor's private property.
This argument is put forward by the FAA itself, much to others' repeated mockery. The FAA claims ownership over all airspace, but says it allows for exceptions.
That mindset has led the FAA to demand that every owner of a drone weighing more than 250 grams (half a pound) register the machine with the federal government and pay a $5 registration fee – something that the federal regulator appears to believe is feasible.
However, what is notable is that the FAA's 250-gram rule implicitly recognized the limits of its jurisdiction. An FAA spokesman told The Register that the 250 grams was arrived at by assuming what weight would be the highest acceptable for a drone falling from 400 feet.
Why 400 feet? Because that is the altitude at which the FAA has a solid claim of jurisdiction. Model aircraft guidelines – over which the FAA does not have authority – cover aircraft below 400 feet and more than three miles from an airport.
Despite this calculation, the FAA does not formally accept the 400-foot jurisdiction and in fact claims this rule is a "misperception that may originate with the idea that manned aircraft generally must stay at least 500 feet above the ground." It claims authority over all airspace from the ground up – despite the fact that local law courts have repeatedly ruled otherwise.
In the only federally decided case – carried out by the Supreme Court in 1946 – it was agreed that 83 feet was the distance under which a landowner can claim jurisdiction. That same case also reinforced the 500-foot aircraft ruling.
Why 83 feet? That was due to the very specific details of the case. Farmer Thomas Lee Causby, of Greensboro, North Carolina sued the government for disturbing him and his chickens by flying too low across his land. He claimed the noise from military plans resulted in the death of many of his animals (they flew into the walls in fright at the noise) and he was forced to abandon his business. He sued for compensation saying the government had effectively confiscated his property without compensation.
The farmer's barn was 2,220 feet from the end of the airport's runway and at the official 30-to-1 safe glide angle, that equated to 83 feet above the ground (63 feet above the barn and 18 feet above the tallest tree).
The case went to the Supreme Court because it was noted that there was no law about ownership of airspace above property, and the court decided it was important for that question to be resolved. In the end, it decided that Causby should in fact be compensated for the loss of his business, and the 83-foot rule entered the law books.
So that's the 83-foot rule and the 400-foot rule. What about the 500-foot rule?
Well, that one comes from civil air regulations, created even earlier. It came up with a minimum of 500 feet for aircraft during the day and 1,000 feet at night for air carrier, with a 300-1,000 foot band for other aircraft, depending on the type of plane and the terrain it was flying over.
Time has come
The Causby case set off quite a lot of discussion and review about airspace back in the 1940s, especially since aircraft were becoming increasingly common. And it is very possible – given the advent of drone technology, and in particular commercial plans by Amazon and others to use drones – that we are now at a similar point in history.
Last year, Amazon published proposals for a 200-foot-thick piece of airspace – starting at 200 feet above the ground and extending to 400 feet, with a 100-foot buffer before you hit aircraft – that would be solely for commercial drones. The plan was outlined in a keynote at a conference specifically about unmanned aerial systems held in Silicon Valley.
Amazon's airspace proposal
When you have a huge company publishing plans, and conferences being held on a specific topic, it is clearly time for rethink. And, it is worth noting that the FAA's initial efforts to simply ignore Amazon, by tying up its application to run a test site for drones in red tape, were steamrollered by the company when it repeatedly complained about the situation in Congress and also leaked the news it had received permission from the Canadian government to run such a test site over the border.
In other words, this is exactly the kind of combination of need for clarity and lack of existing laws that the Supreme Court exists to resolve: when we have people shooting down expensive property out of the sky, new laws being proposed to protect people's privacy from drones with cameras hovering over their house, the FAA asking millions of Americans to register their property with the federal government – and imposing a tax to do so – commercial aircraft regulators worrying about collisions, and a set of rules created 70 years ago based on a chicken farm.
Well, then that is a perfect storm in which Mr Boggs and Mr Merideth may enter.
Incidentally, Thomas Lee Causby received $2,000 in compensation for the loss of his chicken farm. David Boggs is only asking for $1,500. ®