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Can you shoot down a drone on your land? New incident raises self-defense questions

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After a New Jersey man spotted his neighbor’s camera-equipped drone flying over his house this week, he fetched a shotgun and peppered the drone with holes, knocking it from the sky. Did he have a right to do so?

Even though local police arrested the man on unlawful weapons charges, some people will feel he had the right to defend himself against an unlawful robot intrusion. More broadly, the episode highlights an emerging issue as more drones take to the skies: how to balance the rights of drone owners against people’s rights to privacy and self-defense.

Home as a castle, from soil to the sky?

Under common law traditions, the New Jersey man appeared well within his rights to shoot down the drone. As the famous 17th century jurist Edward Coke explained, “whoever owns the soil, it is theirs up to Heaven” and “the house of an Englishman is to him as his castle” — implying that property owners can use force against invaders.

These days, of course, it’s not so cut and dry. The arrival of airplanes meant property rights no longer extend right to the sky, while the so-called “Castle doctrine” typically requires a home owner to fear injury before she can use force. This means you better think twice before blasting away at the Phantom 2 hovering above your lawn.

“Generally speaking, tort law frowns on self-help and that includes drones,” says Ryan Calo, a robotics and cyber-law scholar at the University of Washington. “You would probably have to be threatened physically, or another person or maybe your property, for you to be able to destroy someone else’s drone without fear of a counterclaim.”

By “counterclaim,” Calo means that the drone owner could turn around and sue whoever destroys his device, many of which cost over $1,000. In this sense, the law is the same as what applies when a car or a cow trespasses on your land – you can remove the car or cow (or whatever) and bill the owner for your trouble, but you can’t simply destroy the invading article. There’s also some obvious alternatives:

“Most people who encounter alleged trespassers call the police. State “self defense” laws tend to require a threat of imminent bodily harm, and these drones are of course not armed or dangerous, they are just remote controlled model helicopters,” noted drone lawyer, Brendan Schulman.

That might not be the end of the matter, however. As people’s privacy gets eroded by the growing presence of camera-equipped devices, some are suggesting that self-defense rights should be expanded.

When force is necessary

The reason you can’t simply shoot a person (or cow) who steps on your lawn is that the harm would likely outweigh the threat to your privacy and your property. But when using force against a drone, the calculation is different: the drone is likely recording and it may be armed and, unlike other trespassing vehicles, you can’t just tow it away.

These are some of the factors that have led Michael Froomkin, a University of Miami law professor, to suggest that people have a greater right to use force against drones and other robotic intruders.

“If one is entitled to assume the worst then, in the absence of persuasive notice that the robot is harmless, the victim of robotic trespass frequently will be privileged to employ violent self?help,” wrote Froomkin, a co-author of a recent paper titled “Self Defense against Robots.”

The paper doesn’t claim people have a right to waste anything that flies on their land, of course. But it does suggest that, especially in rural areas, courts may find a privilege to shoot down trespassing drones – a conclusion that would be a logical extension of the Castle doctrine.

All this is fine in theory, but how are these drone conflicts playing out on the ground?

Guns, libertarians and the FAA

Calo, the legal scholar, said he’s not aware of cases where courts have ruled on how the law of trespass and self-defense should apply to drones. But it seems like it’s just a matter of time. Shotgun

In 2012, for instance, an animal rights groups claimed that hunters (perhaps unsurprisingly) shot down a drone that the group was using to monitor them. The local police reported filed a “malicious damage to property report,” but nothing more appeared to come of it — and, in any case, the incident didn’t occur on private land where trespass law would apply.

Meanwhile, yahoos across the country have been using drone-shooting in various publicity stunts: a Montana candidate for the House of Representatives published a video of himself firing his rifle at a drone, while a Colorado town voted on a man’s proposal to pay $100 bounties for each downed drone its citizens bring in.

Such gimmicks highlight the growing tension around drones, but they don’t bring much legal clarity. Instead, the rules for when you can and can’t fire on a drone will for now depend on local firearms and mischief regulations, which will vary from state to state. And, as the Froomkin paper noted, “reasonableness” will play a big part in determining what’s legal and what’s not — a farm owner is likely to win more sympathy than an urban apartment dweller when it comes to firing guns at the sky.

Finally, the FAA is still plodding away with overdue rules about how and where to integrate consumers into the nation’s airspace. Schulman, the aviation lawyer, pointed to a law that makes it a serious federal crime to destroy an aircraft  — a law that, in theory could apply to drones:

“That does not seem right to me, because that statute was clearly intended to protect people who are flying in the air, not toy helicopters.  But the FAA has recently taken the position that all of these devices are just “aircraft” for legal purposes. There are unintended consequences to trying to cram new technology into existing legal frameworks without carefully considering all the consequences.”

25 Responses to “Can you shoot down a drone on your land? New incident raises self-defense questions”

  1. James McRight

    I like to walk around on my property in my birthday-suit, so does my wife and when my realtor asked me what I was looking for when I was looking for a piece of property, I told him if I was standing in my yard need to take a pee I would like to just swing it out and take a pee without worrying about someone standing there looking at me; my property is surrounded by timberland. These little high priced spy toys in the sky are an invasion of my privacy and when the law examines the film the owner of the spy toy will have pictures of a man and his wife in their birthday suits and I will be the first one filing charges against the owner of such spy toy in the sky and all of my guns are legal..

  2. Jason Passerell

    My neighbor started shooting my chickens because they crossed the property line. I called the sheriffs office and they told me he could kill them if they were on his land and I could be sighted for “Live stock at large”. So here in Ohio, if a drone is over my land i can shoot it?

    • “Cited,” not “sighted.” Whatever happened to spelling? Many people spell purely phonetically these days—as if they don’t read books anymore, and can spell only from the sound of a word, not the look of it on paper. It’s sad.

  3. Richiepooh

    If radio signals you happen to transmit in your own property happen to be on the same frequency of the drone causing it to go haywire and crash you could hardly be responsible.

    • will never happen. They work on a locked on 2.4 ghz frequency between the transmitter and receiver. and a lot of them use what called frequency hopping ( constantly changing frequency channels) to eliminate interference

  4. Wayne Carrington

    I would think a drone operator is knowingly guilty of trespassing when piloting his device onto private property a distance that is more than straying. The operator of the device should be open to trespass charges if the device was used to record images on the private property without permission of the property owner.

  5. Joe Belkin

    It should be very simple – you cannot hit anything living (humans or otherwise) as long as you can reach it with a gun, you can take it down – it’s clearly not an animal. you can’t shoot at a plane or glider or parachute since it’s human but a machien over your property, it’s YOURS to do as you choose. Very simple. If you try and put a camera peering into my property, it’s mine. Unless you ask permission or get a permit for public lands, it shoudl be legal to take down a surveillance device.

  6. Jason Young

    While I appreciate the commentary and investigation on property laws, note that the basis of your story is false – the pilot never flew over the shooter’s property.

    • I don’t think a few pics and an interested parties statement qualifies as “proof” it NEVER trespassed.

      As far as property rights…if your fruit tree hangs over my fence? If it’s good fruit it’s GONE. yum And nothing you can do about it. And btw the fruit is in the air. Doesn’t matter if the fruit was attached to your controller or the tree on your property the fruit is MINE.
      SO…consider your quad gone if it trespasses my property with no advance notice of intent! Just like your formerly assumed fruit.

      As far as future thought goes on so called “flight rules”, FAA garbage, and future tech advances no one has bothered to mention…
      So..when the motors get quieter, and they develop a cool pick up (grapple) device to go with the hd cam, AND your quad is watching my yard and I have left my wallet out on a patio table…cuz you know it’s my yard and why can’t I take my wallet out of my pocket and put it on MY table? I go inside to get some burgers to cook on the grill and ZOOOM

      Quad strikes-wallet GONE! BOOM

      You could be casing my home for valuables. Scouting my yard for potential metal scrap.
      And yes if I have a pool or whatever you could be taking pics of my wife or daughters to use for whatever nefarious uses you have in mind…cuz I don’t know you!
      It’s just an object on my property that SHOULD”NT be there without some form of prior notice of intent OR let’s just say it..MY PERMISSION!

      Yeah shotgun was kinda heavy handed and thoughtless…but maybe the guy wasn’t forward thinking.

      However if the guy flying the quad wasn’t thoughtless also he would have gone over to the neighbors house and introduced himself ahead of time and said ” hey, just want to let you know I am videoing the house next door going up”

      Wouldn’t have been so hard would it?

      Then this would have never occurred I think.

      Takes two.

      BUT if it’s on/over my you really think you will get it back?
      Think about it.

  7. Gun owner

    If the FFA days shooting drones is the same as shooting planes, then aren’t there criminal charges for flying planes over populated areas at low/unsafe altitudes and without a license?

    As for the ak comment, not smart. When you miss, that 123 gr bullet will be coming down a mile away. My 12gauge Benelli Vinci w full choke on the other hand might prove entertaining.

    I believe you can easily make a case that the camera could put your privacy, livelihood, and life at risk. You should be able to argue that you felt the house was being cased for security flaws, posting naked pics of your wife who was sunbathing at the time (whether she really was or not), or your kids faces for future ransoms….

    As for “destruction of property”, if you found a hidden camera in your window, do you have a duty to return it to the owner? Would a court prosecute you if you destroyed a hidden camera you found?

    But now the question is what if the drone was clearly flying over your neighbors house but pointing the camera at your house…? It’d be akin to someone w a telephoto lens in a car on the street. A crime? Probably. Can you shoot it then? Doubt it.

    Better not fly that thing over a farm during bird season though. Might be victim of an “honest mistake”.

  8. Back up though. This article barely touches on the currently known facts of the story. From what we know, the drone pilot was in fact flying the drone as a favor to a construction buddy over a house that he was building. Percenti then yelled at the pilot to get the drone off his property, which it wasn’t, and began firing shotgun rounds at the drone and over the head of the pilot.
    Even expensive commercial drones are not capable of gathering detailed images from the height at which the drone was flying, and based on the released pictures, it is easy to see that the drone was in fact over the house being built and that Percenti was in fact firing off his property.
    I consider myself a cautious individual, and wouldn’t hesitate to down a drone obviously encroaching on my property, but this seemed more like frantic paranoia than anything.

  9. Mr. Shulman’s obviously wrong statement “and these drones are of course not armed or dangerous” implies that the device itself is not the weapon – see un-armed airplanes as weapons on 9/11. I propose Mr. Shulman demonstrate his position by allowing a maximum speed impact of one of these devices into his face.

  10. James W Thomas

    I am not from NJ where the laws there prevent people from owning weapons here in tennessee if PETA flys a drone harassing me they can expect to kiss that drone good by an Ak47 leaves pretty big holes!.

  11. Truth be told, I didn’t have to read all of this article to know that people have the right to guard their privacy on their own land.

    I guess when a drone records someone’s child changing clothes in his or her bedroom and place that recording on the Internet, then the question of privacy will become clear for all.

    The police should have charged the owner of the drone with trespassing on private property.

    In a lot of cases, good sense trumps the need for legal interpretation.

    • Linda M. Jung

      I agree with you 100%. I guess every state is different when it comes to drones. My question is what would be the difference between having a drone fly over your home and having a home on a river and having tubers float past your backyard? Here in Texas there have been big fights over tubers going down river and throwing their beer cans in the river. So far home owners have no rights over the river. So will or can this be the case for the “air” over your property as well?

  12. The operator of the robot should be guilty of trespassing himself but maybe only if the robot does any recording or streaming of sensor data (images being just one type of such data) or if it can handle objects. Obviously if the robot is fully autonomous ( not live guided or programmed for a certain path but it decides itself what to do) then the owner should be less guilty.
    And you should have started with the privacy issue since that’s the most relevant part for now. Noise can also be relevant and should be factored in.

    • Tom Hudspeth

      I was under the impression, based on an old case I heard of, that you can take video, but as long as you don’t show it or post it on the internet, just keep it to yourself, you are not breaking any laws. (Landlord had a hidden camera mounted behind a double mirror in the bathroom. He kept all the videos private.

      • Robert Bolender

        A landlord is completely different than a neighbor. Peeping tom laws, which are criminal, would definitely apply. Even a landlord could not violate a tenant’s right in this way as they have control of the property when paying rent.