This post should not be construed as legal advice.
Late in 2015, Jon Moyle, Ashley Ellixson, and I published Privacy Issues and the Use of sUAS/Drones in Maryland covering basic issues related to privacy issues with UAVs, more commonly known as drones. One issue related to drones and privacy we did not deal with is: “Can I shoot down a drone over my property?”
The simple answer to this question is NO! Shooting down a drone flying over your property is never a good idea. In the summer of 2015, a Kentucky man shot down a drone flying over his property. The man was arrested and charged with criminal mischief and wanton endangerment. Eventually, a judge dropped the charges, but that does not mean charges in future cases will be dropped. The drone operator has filed a lawsuit against the man who shot the drone down seeking damages from the shooter and requesting that the federal government clarify when a drone can commit trespass (more on this lawsuit in a future post). In short, you should not shoot down a drone because you could face criminal charges and claims for damages for the destroyed drone.
The other reasons not to shoot down a drone turn on how property law has evolved with the invention of the airplane and commercial air travel. The original view of your property was you owned from the center of the earth to the heavens. This view changed with the invention of the airplane, when the federal government and states began to pass laws claiming the ability to utilize the airspace above your property. There is typically no height limit associated with federal airspace; the statute and regulations give the Federal Aviation Administration control over navigable airspace, and the state government regulates the nonnavigable airspace.
What does all this mean to you? Simply put, it means you do not control the airspace above your property; the government does. For example, Maryland gives the public the “right to freedom of transit in air commerce through the airspace of this State” (§ 5-1001(a)). These laws are designed to handle airplanes and not drones, but drones will still fall under the existing laws till state and federal laws change.
Other potential legal theories to keep a drone off your property would be trespass and nuisance. In Maryland, trespass requires that the landowner shows the trespasser 1) interfered with a possessory interest in the property, 2) used act or force against the property, and 3) did so without landowner’s authorization or consent. Trespass to airspace was dealt with by the U.S. Supreme Court in United States v. Causby. In that case, the Court found that trespass by aircraft could occur if the aircraft enters into the immediate reaches of the airspace next to the land and substantially interferes with the owner’s use and enjoyment of the property (Causby). This issue that arises out of this standard is, “what is an immediate reach of the airspace next to the land?” To date, no Maryland court has applied this standard. Currently, we need either the Court of Appeals or the Maryland General Assembly to tell us heights at which trespass can occur. Until this happens, trespass may not help you limit drone travel over your property.
This leaves us with nuisance. Nuisance is doctrine aimed at keeping landowners from losing the ability to use their property from substantial interference. For example, if your neighbor begins to operate a landfill on her property and the smell becomes so unbearable that you are unable to utilize your house to live in, then you may potentially have a nuisance claim. Nuisance claims are very fact-specific and require substantial interference.
With nuisance, Maryland state law makes it unlawful to operate an aircraft at “so low an altitude as to interfere with any lawful existing use of the land or water or the space above the land or water” (§ 5-1001(b)(1)). Many states have similar state laws. Although Maryland does not have a court decision on how an aircraft operator could commit a nuisance, other states have found that repeated interference with a lawful existing use of land, water, or space above land or water would be a nuisance. For example, if a drone constantly flew over your property and spooked your livestock or interfered with farm work ,then this is potentially a nuisance.
Currently, your options are limited on keeping drones from flying over your property. Shooting them down is not an option and can lead to criminal charges. The existing legal theories of trespass and nuisance will not provide many protections. So what is your best option? The General Assembly needs to start considering how to update laws to account for drones and provide landowners with legal ways to limit drones from flying over their property. For more on this, see Privacy Issues and the Use of sUAS/Drones in Maryland (http://go.umd.edu/UAV-FS).
References
Goeringer, Paul, Ashley Ellixson, and John Moyle, Privacy Issues and the Use of sUAS/Drones in Maryland. University of Maryland Publication, FS-998 (Nov. 2015) (http://go.umd.edu/UAV-FS).
Md. Code Ann. Transp. § 5-1001 (West 2016).
United States v. Causby, 328 U.S. 256 (1946).