“Shooting down drones” is all over the news lately. A Kentucky man used “Number 8 birdshot” to shoot down a multi-rotor over his backyard. A Modesto marksman shot down a drone over his neighbor’s farm. A New Jersey Man hit the news for doing the same thing.
The idea that you can shoot down drones is so pervasive that Deer Trail, Colo., announced drone hunting licenses in 2014, at least until the FAA weighed in.
Does that surprise you? If so, you’re not alone. There is a widespread misconception that drones can be shot down with no federal consequences. That’s just not true as the law stands today.
Drones are aircraft
A drone is an “aircraft” under the Federal Aviation Regulations. Shooting down an aircraft is a federal crime. The penalties include 20 years in prison, and a threat to shoot down an aircraft can get you five years in prison (18 U.S.C. §32). The government also can impose fines of up to $250,000.
Why isn’t anyone talking about this? Because it’s complicated.
The “drone law” space is changing so quickly that no one can predict how courts will treat aviation regulations when applied to unmanned aircraft.
Until fairly recently, there was a vigorous debate about whether federal aviation regulations even applied to drones. The “textbook” case (it will be in all the textbooks) is that of Raphael Pirker. Pirker is the first person to successfully challenge the FAA’s authority to apply regulations governing manned flight to drone operations.
Pirker was hired by the University of Virginia to film some video with his drone. The FAA hit Pirker with a $10,000 fine for this commercial flight, arguing that the flight was a “reckless” operation of an “aircraft.”
Pirker’s case was taken up by attorney Brendan Schulman, who successfully argued to an administrative law judge that a small drone could not be an “aircraft” under the existing regulations. He argued that the regulations were written to apply to manned aircraft.
The FAA appealed to the NTSB. Though the NTSB eventually overturned the administrative law judge’s decision, the case shows us how “gray” the law here can be. Pirker eventually settled with the FAA for a small amount.
It’s not surprising that the law is confusing when the experts disagree!
The lesson from the Pirker case is that, as the law stands today, all aviation regulations apply to drones. Hobbyist drone flights are permitted only under the FAA’s guidelines. Commercial drone flights are allowed only under a Section 333 Exemption or similar approval. This is the way of things until the FAA finalizes its “small drone,” or “sUAS” rule.
The upshot? Consider every drone an “aircraft” under the federal regulations.
Destruction of drones (as aircraft!) earns you prison time
You see the result here: If drones are aircraft, and all the “aircraft” laws apply, then destroying a drone is legally the same as destroying a 747.
The consequences of this are pretty clear. Under 18 U.S.C. § 32, it’s a federal crime to destroy or disable an aircraft. Even an attempt or a threat to do so is a crime. Remember, that crime will get you five to 20 years in prison, and a fine of up to $250,000. This should put a damper on vigilante efforts.
Though no U.S. Attorney has brought federal charges against a “drone shooter” (yet), it is a real possibility under the current state of the law.
The law is similar outside the U.S. as well. For example, London attorney Peter Lee has written about the criminal consequences of shooting down drones in the U.K.
No matter where you go, the bottom line is clear: shooting down drones is a crime.
What about insurance?
Could the shooter be covered by any insurance policy? Grant Goldsmith, president of Overwatch, a division of Avalon Risk Management, explains that shooting down a drone—or actually actively shooting at anything—would constitute an “intentional act” on the part of the shooter who is the insured. “Intentional acts are broadly excluded from most insurance policies as underwriters and policy language want clients to behave as reasonable and prudent people when insured,” he adds. Policies don’t want to cover any intentional wrong doing.
There is no “active coverage” in a business policy or homeowners policy providing coverage for the intentional act of shooting down a drone. Goldsmith notes that there may be one possible exception for shooting down a drone for the public good or to protect persons or property, but this is a grey area.
As for a claim for damage to the drone that has been shot down, Goldsmith says, there might be some coverage under a hull policy, but most drone owners and operators purchase both liability and hull coverage. He advises anyone planning to operate a drone, especially in a business, to consult with their agent or broker to ensure that they have the best coverage. Opportunities for agents to sell drone insurance might be to real estate companies or photographers who use drones to take pictures of properties for sale or roofing contractors who are using drones to inspect damaged roofs before sending workers up to repair them.
Most business insurance policies and homeowners insurance policies have aviation exclusions that typically broadly exclude all Aviation-related risk from coverage. “This is why most businesses with Aviation Risk must procure an Aviation Specialty Insurance Product to address Aviation-related risk as these risks are typically excluded from all other standard policies,” Goldsmith explains He believes that both the business insurance industry and the personal lines insurance industry will start writing small drone risk in the future, “but this will probably not occur until the FAA releases its small UAS rules in 2017.”
Steven M. Hogan practices law at Ausley McMullen in Tallahassee, Fla., working with companies nationwide that are developing commercial applications for unmanned aircraft systems. For additional information about his drone law practice, please visit www.dronelawyers.com.