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Opinion “He had a right to shoot at this drone, and I’m going to dismiss this charge”

Faced with rising safety and security risks from a surge in unauthorized drone flights, the U.S. announced a new task force to develop recommendations for setting up a federal drone registry. Rough Cut (no reporter narration). (Video: Reuters)

WDRB News (Ryan Cummings) reports that Kentucky trial judge Rebecca Ward dismissed state charges against William Merideth, who shot down a drone flying over his land:

Merideth said the operator was violating his privacy and spying on his family, but Hillview police arrested Merideth for firing his gun within city limits and charged him with wanton endangerment….
[Merideth] says [David Boggs’s drone] was hovering over his Hillview property and he thought it was spying on his family….
Boggs testified that flight data showed the drone was flying higher than Meredith stated. But Judge Rebecca Ward says that since at least two witnesses could see the drone below the tree line, it was an invasion of privacy.

I don’t know of any more information on the judge’s reasoning — please let me know if you do — but here’s my guess about it:

1. The Kentucky criminal mischief statute makes it a crime to engage in an activity that “intentionally or wantonly defaces, destroys or damages any property” “[h]aving no right to do so or any reasonable ground to believe that he has such right.” I assume the judge concluded that Merideth did have a right to destroy the property, as part of his right to protect himself against trespass (and possibly invasion of privacy, though that’s a tougher call).

2. The wanton endangerment statute makes it a crime to “wantonly engage[] in conduct which creates a substantial danger of physical injury to another person.” That might be hard to prove, if both the shot and the falling drone were highly unlikely to hit a person. And that’s especially so given the wantonness requirement. Under Kentucky law, “A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result” — here, physical injury to another person — “will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

3. It’s not clear from the story what happened to the firing-gun-within-city-limits charge, but that, too, might be subject to a prevention-of-trespass defense; defense of self and non-deadly defense of property tend to be defenses to such charges (consider, for instance, someone shooting a dog that’s attacking one’s own dog), and I expect that non-deadly prevention of trespass would be as well, though I’m not sure.

4. Shooting down a drone may well be a federal crime, though A. Michael Froomkin and Zak Colangelo’s “Self-Defense Against Robots” article suggests otherwise:

The issue is whether [18 U.S.C.] § 32(a)(1) covers shooting down a drone or whether that statute is best understood as applying solely to the destruction of manned aircraft. Section 32(a)(1) makes it a crime punishable by up to twenty years in prison to willfully destroy “any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in [commerce subject to federal regulation].” Id. An “aircraft” is defined as “a civil, military, or public contrivance invented, used, or designed to navigate, fly, or travel in the air.” Id. § 31(a)(1). Read broadly, § 32(a)(1) would seem to apply even to the destruction of a model helicopter and certainly would cover robotic aircraft.
While § 32(a)(1) makes it a crime to destroy an “aircraft,” other subsections of § 32 refer instead to an “aircraft in flight.” See, e.g., id. §§ 32(a)(3), (7). The definition of “in flight” assumes that there has been “embarkation” and will be “disembarkation,” two terms that generally refer to passengers. Id. § 31(a)(4). The different language in § 32(a)(1) provides a textual hook for the argument that Congress intended to extend coverage to the destruction of unmanned aircraft. On the other hand, one could easily ask whether Congress intended such a potentially absurd result. At the time of the passage of the 1956 Act to Punish the Willful Damaging or Destroying of Aircraft or Motor Vehicles, and Their Facilities, and for Other Purposes, Pub. L. No. 709, 70 Stat. 539 (1956), the statute enacting what became codified at § 32(a)(1), it seems highly unlikely that Congress intended to impose a twenty-year sentence for destruction of a model airplane or foresaw the introduction of robotic aircraft. Cf. United States v. McGuire, 706 F.3d 1333, 1335 (11th Cir. 2013) (concerning enhanced penalties for discharge of handgun “in the general direction of an airborne police helicopter”).

In any case, it seems unlikely that federal prosecutors will get involved here.

For more on the legal question, see the Froomkin and Colangelo article, or their post here on that subject; for more on the case, see Wednesday’s Slate Future Tense article (Justin Peters).

Thanks to Prof. Ryan Calo for the pointer.