A curious case regarding drone rights is awaiting a final verdict in Louisiana. It is a case that drone operators throughout the country are watching closely and wondering why prosecution was even considered let alone brought into the courtroom. And not only is this case about the rights of drone pilots both hobbyist and professional, but it is a frontal assault on the notion of Federal preemption. This case demands your attention and action.
James Benson of Ruston, Louisiana caught the drone bug back in early 2018 and bought a DJI Inspire 1 to fly for fun. His home and several acres of property are quite a distance outside the small city of Ruston. It is a location ideal for flying drones as the nearest airport with controlled airspace is a solid 30 minute drive away in Monroe, LA. From his yard Mr. Benson launched his Inspire on April 11th and elevated to over 300’ AGL. Staying under 400’ but always over 300’ he sped the Inspire out along his property line, passed briefly over a neighbor’s woods and turned around and came back after reaching about 1500 feet in distance. The entire flight was cruising at near top speed in the 40mph range. The flight followed the FAA’s Part 101 hobbyists regulations which were the rules at the time in April of 2018 – Section 336 of the 2012 FMRA that provides the aircraft is flown strictly for recreation, follows CBO safety guidelines, utilizes an aircraft that in 55 pounds or less, gives way to any manned aircraft, and notifies any airport within 5 miles of the flight.
That, however, didn’t stop the next door neighbor from bursting with ire. Benson’s neighbor, who happens to be a sheriff deputy for Lincoln Parish (Ruston’s county government), visited Benson to complain about the drone flying over his property. The two have had neighborly quarrels for some time and this confrontation was but another between the them, or so was thought at the time. On April 15th, four days later, it surprisingly was even more – James Benson was arrested by the Lincoln Parish Sheriff’s Department and tossed into jail for several hours. He was charged with flying a drone with the prosecution citing that there was an intent to surveil.
As drone operators you are certain to be rolling your eyes and shaking your heads at this claim. All too often we are accustomed to tinfoil hat wearing members of the public who have misnomers about drones. Dealing with these types is often tedious at best and downright scary at their worst. In this case we have the State of Louisiana wearing the tinfoil and holding up a provision in their state law that provides “that surveillance by an unmanned aircraft constitutes criminal trespass” and “the phrase ‘enter upon immovable property’ as using in this Subsection, in addition to its common meaning, signification, and connotation, shall include the operation of an unmanned aircraft system as defined by R.S. 14:337 in the air space over immovable property owned by another with the intent to conduct surveillance of the property or of any individual lawfully on the property.”
Whoa! Already legal scholars are contorting their faces with doubt understanding two significant problems with the provision of criminal trespass extending to drones. The first is the issue of preemption. Here the State of Louisiana is attempting to suggest control over airspace for a particular type of aircraft. They have broadly claimed jurisdiction over all airspace by extending trespass to the airspace above a property but only for drones. This is a direct attempt to usurp the will of the United States Congress who more passed legislation more than a half century ago designating the Federal Aviation Administration (FAA) sole jurisdiction of airspace. 49 U.S. Code § 40103(a)(1) expressly provides that “The United States Government has exclusive sovereignty of airspace of the United States”. Thus the field is already occupied. Landmark cases in the U.S. Supreme Court solidified such jurisdiction as well with Causby v. U.S. tossing out the long-held notion that a land owner owned up to the heavens, Florida v. Riley marking that airspace at 400’ was public domain, and Giancola v. West Virginia Department of Public Safety marking that airspace between 100 and 200’ was also still within the public domain. Moreover, in a case that most every drone owner knows well, Singer v. Newton City, MA found that attempts by local governments to regulate airspace were invalid due to the FAA’s occupancy of the field and Federal law preempting those agencies. Thus, the State of Louisiana is out of bounds lacking such jurisdiction. And, just in case you were wondering too, drones were already determined to be “aircraft” based on both a FAA determination and then backed by the decision of the NTSB Administrative Judicial board in the FAA v. Pirker case.
The second issue with Louisiana’s criminal trespass provision is their focus of surveillance. Flight logs from Mr. Benson’s DJI Inspire 1 with an X3 camera clearly show continuous one direction movement at nearly 400’ travelling at over 40 mph. And again, there are two problems with the argument of surveillance. The first of these issues is the speed and direction. 40 miles per hour is moving rather quickly to be considered surveillance. Afterall, can you imagine a police officer or private investigator accomplishing anything on a stakeout by zooming past a residence in their car at a speed of 40 mph? Such speed does not in any way suggest loitering. And surveillance itself isn’t even defined in the statute, but is often meant as close and continuous observation. Certainly, the high-speed singular transit suggests that continuous observation wasn’t taking place. And that leads us to the second problem of proximity. The DJI Inspire 1’s X3 camera is not quite a spy tool. With a 94 degree field of field it is definitely designed for wide visibility of sweeping landscapes.
It has no zoom functionality. And even at a height and distance of 40 feet there is no ability to see facial features of a person or even determine their physique – male or female. The Inspire flying at over 300’ is going to see a lot of acreage, easily dozens of square miles of land in fact, but it isn’t going to be able to discern people on the ground or even be able to figure out the make or model of a car or type of tree.
Finally we have to look more closely at Louisiana’s exemption clause that suggests that the Legislature knew all along that their law was preempted by Federal authority. “The provisions of Paragraph (1) of this Subsection shall not apply to any person operating an unmanned aircraft system in compliance with federal law or Federal Aviation Administration regulations or authorization.” This exemption is quite telling. It expressly is acknowledging that the FAA has sole jurisdiction over airspace by granting that operators who are complying with FAA regulations are exempted from violation of the Louisiana trespassing statue. But it is suggesting that the State can otherwise prosecute under their land use jurisdiction if there are violations of FAA regulations. This challenge to preemption then is both subtle yet direct. The prosecution of Mr. Benson made every attempt to hone in on this area and stretched the bounds of reality at times to do so.
Extraordinary lengths were attempted to make it appear as though Mr. Benson’s flights were not following FAA regulations. The prosecution attempted to make the case that Benson broke FAA regulations by flying beyond visual line of sight (VLOS) arguing that the DJI Inspire 1 could not be seen at a distance of more than a couple hundred feet, suggesting that the elevation at over 300 feet would place the aircraft outside of VLOS and that any distance of more than a few hundred feet would further push the Inspire to not be visible by the unaided eye. The flight logs from the DJI Inspire showed that Benson’s flight extended to roughly 3000’ at over 300’ in altitude. Prosecution witnesses claimed that such altitude and distance would make it impossible to see the aircraft. Certainly DJI Inspire operators would laugh at that notion. The DJI Inspire is of significant size and distinct shape to continue to be able to actually see the aircraft as well as be able to discern the orientation of the drone and its direction of flight. In fact, seasoned drone operators will teach that adding height as distance extends is important to maintaining VLOS as the angle helps by avoiding horizon and ground clutter distractions. And even at that height and distance it remains audible to the operator as the decibel level of the aircraft in flight. The average lawn mower emits approximately 85db and can easily be heard at distances of over 1/4 mile. The DJI Inspire at 79db is the same. And the prosecutions contention that the DJI Inspire couldn’t be seen at over 300’ defeats the notion that Mr. Benson’s neighbor could have seen the drone (which was what prompted the case in the first place).
But moreover, what is curious is that they pressed on the issue of VLOS at all given that the FAA regulations at the time of Mr. Benson’s flights did not have such restriction. In April of 2018 hobbyists were required to follow the Special Rule for Model Aircraft that was found in Section 336 of the Modernization and Reform Act (FMRA) of 2012. Congress had created a carve out for hobbyists that allowed them to operate these unmanned aircraft provided they met five criteria.
- They were flown strictly for hobby or recreational use;
- They were operated in accordance with a CBO’s set of safety guidelines;
- They weighed less than 55 pounds;
- They didn’t interfere with manned aircraft;
- They notified any airport within 5 miles radius of their intent to fly.
You’ll note that these five requirements do not stipulate flying within VLOS. In fact, Congress themselves recognized this later in 2018 and would pass Section 349 in the 2018 FMRA to add VLOS and repeal the 2012 Section 336 carve out. But that new law wasn’t passed until October of 2018, long after Mr. Benson’s April flights. And where it might also be argued that the #2 requirement of operating within the safety guidelines of a CBO might have VLOS requirements, it should be noted that many CBOs did not have VLOS demands and that CBOs were never legally defined (they still aren’t – the 2018 FMRA demands the FAA to do so, but the FAA has yet to complete that task).
What we have is the State of Louisiana attempting to prosecute April 2018 flights using laws that weren’t created until October of 2018, and doing so despite the reality that the aircraft could easily be seen and heard at such a distance as was also proven by the complaintant, Mr. Benson’s neighbor, who spotted the drone and took offense to it being over his property. But additionally we have the State of Louisiana hinging their prosecution on the notion that they can hold a defendant accountable for violation of federal regulations which is its own can of worms and this is where the case really falls apart. The Louisiana trespassing statute is clearly attempting to pull airspace into land use jurisdiction and as noted earlier 49 U.S. Code § 40103(a)(1) gives clear delineation that the Federal government already occupies the field for such jurisdiction. The end around approach of the Louisiana law is to try subverting that jurisdiction by qualifying that if the Federal regulations aren’t met, then the State should have authority. Hmmm, where have we seen this argument play out before…, oh yes, immigration! You never thought immigration law would tie with flying hobbyists drones now did you?!? But here we are and another Supreme Court case to guide us is Arizona v. United States from 2012.
Immigration law, like aviation law, is solely with the Federal government. Louisiana, like any other state in the nation, isn’t able to grant U.S. citizenship. The State can’t just receive a boatload of immigrants from Costa Rica and anoint them as citizens. And the State also can’t go round up Costa Rican immigrants and process their deportations in State courts. Why? They lack the jurisdiction to do so. It does not matter that the immigrants are standing within the State’s boundaries or that they may have broken immigration and customs laws to arrive here. The Federal government is the only entity with that power and Arizona v. United States spelled that out. In 2010, Arizona passed a law intend on allowing the State to crack down on illegal immigration. Section 3 of S.B. 1070, made it a state crime to be unlawfully present in the United States providing that individuals failing to register with the federal government could be prosecuted by the state.
Section 5, of that law made it a misdemeanor state crime to seek work or to work without authorization to do so. Sound familiar – i.e. if you don’t meet FAA guidelines then we’ll hold you accountable to a state law? The Supreme Court’s decision in Arizona v. U.S. made clear that States were not allowed such prosecution, that Federal law could not be enforced by State authorities. This is why there are Immigration and Customs Enforcement (ICE) officers rounding up illegal immigrants and not Louisiana State Police or Lincoln Parish officers doing such. Illegal immigrants are processed by ICE and their cases heard in Federal court. SCOTUS tossed the provisions of the State law as being preempted by Federal authority. The very same applies in prosecution of FAA regulations. And the FAA made this very notion clear in their recent publication of a playbook to all law enforcement of the can and can’t do scenarios in dealing with drone operations. It can be found here: https://www.faa.gov/uas/public_safety_gov/public_safety_toolkit/media/Public_Safety_Drone_Playbook.pdf
The prosecution of the case is now complete. The outcome is awaited as the judge in this case offered that he would have a decision before mid April. But the echoes of the injustice continue to reverberate even without a decision yet rendered. Drone operations in Louisiana are now fully at risk as the State has proven with the prosecution of this case that they have their own interpretation of FAA regulations, that their trespass clause usurps Federal jurisdiction, and that they can use their local authorities to detain and arrest for supposed aviation infractions despite what the FAA themselves direct as appropriate intervention. It should be further noted that the FAA has not instituted any enforcement action on Mr. Benson for the flights in question – and for good reason as there was no violation.
What you can do:
- Write letters to the editor, most especially to the newspaper in Ruston, LA.
- Write to the elected officials in Louisiana demanding removal of aerial trespassing and explaining how ill conceived such statutes are and how they endanger legal operations.
- Call the State Attorney General’s office and voice a complaint
- Sign up to organizations like N.O.D.E. which will alert you of proposed laws or ordinances that need push back from the drone community