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Is It Illegal To Shoot Down A Drone? Same As Plane, FAA Says, As Minnesota Man Charged With Felony

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Look, I’m not here to promote harmful regional stereotypes. I know you might think Southerners are all driving around with shotguns in their pickup trucks, ready to blast holes in whatever creatures or perceived threats cross their paths, but that’s just not reality, because this time it was a guy in Minnesota.

Travis Duane Winters, age 34, of Butterfield, Minnesota, was charged with two felony counts last week for allegedly gunning a $1,900 drone out of the sky. Although the need for that “allegedly” is questionable: it seems Mr. Winters readily admitted he was the one who shot the drone (as a hunter myself, I recognize the pride of a skilled marksman when I hear it).

The drone’s operator was apparently attempting to capture images of chickens that he claims were being “slaughtered” at a local food production plant because of the pandemic. Which … doesn’t seem to be particularly newsworthy. Slaughtering chickens is kind of what a chicken processing plant does. Anyway, when you spend $1,900 on a drone, I suppose you have to come up with something to do with it, and shortly after two people came over to ask the drone’s owner what exactly he was doing, Winters showed up, shotgun in hand, to dispatch his metallic foe like a low-rent John Connor.

Winters was charged with criminal damage to property and reckless discharge of a weapon within city limits, and is facing justice in Watonwan County District Court. But what really surprised me was some of the reporting on this that said that, in the eyes of the Federal Aviation Administration, shooting down a privately owned drone is also illegal under the same federal aviation laws that make it illegal to shoot down passenger aircraft.

Turns out, under 18 U.S. Code § 32, whoever willfully “sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States” may be fined and/or imprisoned for up to 20 years. The definition of “aircraft” for the purposes of this statute is incredibly broad, and could certainly cover drones, if not paper airplanes. There is some stuff later in the statute about aircraft being used in interstate commerce (which those of us who’ve been through law school and remember Wickard v. Filburn wouldn’t find particularly limiting as to the federal regulation of a drone hovering over your own home), but a court wouldn’t even really have to resort to an interstate commerce analysis because the “special aircraft jurisdiction of the United States” by statutory definition includes literally any aircraft in flight in the United States. I guess it’s sort of like the navigable waters of the sky.

On the face of this statute, it looks like yes, it is indeed just as illegal to down a drone as an airliner. Of course, there would be a bunch of other crimes one would commit by shooting down a passenger aircraft. Murder comes to mind. Still, while the FAA doesn’t distinguish between drones of any size and any other aircraft for the purposes of 18 U.S. Code § 32, the feds have thus far been content to largely let states deal with drone shooters on their own.

So, it is definitely illegal to shoot down a drone, and it is probably illegal under a variety of laws depending on where you happen to be. What is less clear is whether a drone can ever be the means of committing a trespass when it is flying over private property. Modern courts haven’t addressed this question clearly or consistently, and maybe the closest national precedent we have is a 1946 Supreme Court case which said that although “the airspace is a public highway,” that did not include “the immediate reaches above the land.” (the case is United States v. Causby, and was about landowners who had to suffer planes repeatedly gliding toward a nearby runway at just 83 feet above their property).

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If you see a drone somewhere you don’t think it should be, my suggestion, rather than reaching for the ol’ shotty in the corner, would be to call local law enforcement. Don’t bother calling me though; I’ll be busy digging a tiger trap for the Roomba.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

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