This post originally appeared in the Delmarva Farmer the week of Feb. 21, 2016.
This post should not be construed as legal advice
One issue related to drones and privacy we have not dealt with so far 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.
Why not shoot down a drone? 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 non-navigable airspace.
What does all this mean to you? Simply put, it means you do not control the airspace above your property; the government does. Maryland gives the public the “right to freedom of transit in air commerce through the airspace of this State” (Md. Code Ann. Transp. § 5-1001(a)). While these laws are designed to handle airplanes and not drones, drones still fall under the existing laws until 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. The United States Supreme Court has dealt with trespass by an aircraft in United States v. Causby (328 U.S. 256 (1946)). 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. The 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, a trespass argument 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 live in your house, 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 dealing with 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 for keeping drones from flying over your property are limited. Shooting them down is not an option and can lead to criminal charges. The Kentucky 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.
In short, you should not shoot down a drone because you could face criminal charges and claims for damages for the destroyed drone – you might not get as lucky as the man in Kentucky. The existing legal theories of trespass and nuisance will not provide many protections either. So what is your best option? The General Assembly needs to consider how to update laws to account for drones and provide landowners with legal ways to limit drones from flying over their property.