Aviation Lawyers Doubt State Laws Restricting Drones

Daily Report for Executives provides in-depth coverage of unfolding legislative, regulatory, and judicial news from the nation’s capital, the states, and around the world. This daily news service...

By Michael J. Bologna

Feb. 2 — State legislators are expected to devote considerable energy in 2016 to bills restricting the use of drones, particularly near prisons, but several aviation law practitioners told Bloomberg BNA that states hold only minor legal authority to legislate in this area.

Dozens of states will consider restrictions on the use of drones, or unmanned aircraft systems (UAS), in response to concerns over the technology's impact on criminal conduct, privacy, public safety, security and trespassing, according to the National Conference of State Legislatures (NCSL). Some states will also consider measures permitting municipalities to create no-fly zones as a strategy for safeguarding local infrastructure including water treatment facilities, chemical plants and nuclear power stations.

Several states are exploring criminal penalties and fines for drone pilots airlifting contraband into correctional facilities. Enthusiasm for such legislation follows a series of headline-grabbing incidents in Ohio and Oklahoma last year, when outsiders attempted to drop forbidden items beyond the gates of prisons, including drugs, hacksaw blades, mobile phones, pornography and weapons. Tennessee became the first state to enact a statute restricting such conduct last year and California, Louisiana, Michigan, New Hampshire, New York, Washington and Wisconsin are considering similar measures this year.

“It’s a major concern of prison administrators,” George Camp, co-executive director of the Association of State Correctional Administrators, told Bloomberg BNA Feb. 1. “We are now in the process of estimating the number of incidents in the past year and the degree to which legislation is being proposed to address those concerns.”

Joshua Turner, a partner in the Washington, D.C., office of Wiley Rein LLP, said he understood many of the policy concerns motivating state lawmakers and corrections administrators, but their legislative prescriptions are probably preempted by federal aviation statutes and would not sustain legal challenges.

“As a general matter, any state law that tries to restrict the operation of aircraft, including unmanned aircraft, is probably preempted,” Turner said in an interview Feb. 1. “So if you’re talking about restrictions on where you can fly unmanned aircraft, if you are talking about who can operate these aircraft, if you are talking about certifications for operating these aircraft—all of those things strike me as right in the heartland of federal authority.”

Federal Authority to Regulate

The Federal Aviation Administration (FAA) was adamant about its authority to regulate drones in the nation's navigable airspace in its recent “State and Local Regulation of Unmanned Aircraft Systems Fact Sheet”. The agency said it would guard against “inconsistent state and local restrictions” that could limit the flexibility of the agency.

“If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result,” the FAA said in its Dec. 17, 2015, fact sheet. “In turn, this ‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow.”

In 2014, the FAA issued an interpretation of its existing federal authorities clarifying that unauthorized use of model aircraft and drones near airports is restricted.

Amanda Essex, a transportation analyst for NCSL, said 2015 was an active year for state legislation regulating drones. In total, 45 states considered 168 bills related to drones. Twenty-two states enacted 26 statutes and another five states passed resolutions addressing the use of such aircraft.

For example, Arkansas prohibited the use of UAS to “commit voyeurism” and Mississippi classified the use of drones for “peeping tom” activities as a felony. New Hampshire and West Virginia prohibited hunting with drones. Maine and Virginia established standards for law enforcement agencies to gain warrants for the use of drones during criminal investigations. Tennessee became the first state in the country to ban the operation of drones over the grounds of a correctional facility.

Bills Focusing on Prisons

Essex said 2016 is expected to be another active year and noted that many states are anxious to follow Tennessee's lead with respect to correctional facilities.

Wisconsin state Sen. Richard Gudex (R) is leading the charge in his state with two separate bills addressing drones in the context of criminal conduct. On Jan. 5, Gudex introduced S.B. 498, which prohibits the operation of a drone over a state correctional facility. Violations would result in a $5,000 fine. The proposed law also grants units of local government authority to enact ordinances limiting the operation of drones over designated areas within their jurisdiction and impose penalties of up to $2,500 for violations.

On the same day, Gudex introduced S.B. 497, which specifies that people using a drone to commit a violation of the state criminal code be subjected to enhanced penalties for the underlying crime.

Gudex said he was motivated to draft the two bills after learning about the contraband incidents last year at prisons in Ohio and Oklahoma. He said corrections departments, law enforcement agencies and municipalities need new tools to deal with potential security breaches posed by drones, adding “we live in an age where terrorism is a real threat.”

“There is nothing in state statute or at a national level about how to prosecute someone for misusing a drone,” Gudex said in an interview. “So this really starts the conversation here in Wisconsin and it allows law enforcement to begin working with local authorities to create ordinances to deal with these issues and impose fines where they see violations.”

Wisconsin is not alone:

  •  California is considering S.B. 811, which prohibits people from operating drones on or above the grounds of a state prison or a jail, classifying such offenses as misdemeanors. A similar measure passed the Legislature last year, but was vetoed by Gov. Jerry Brown (D).
  •  Louisiana is considering H.B. 19 , which prohibits the use of a UAS above schools and correctional facilities, and establishes penalties for violations. Louisiana already prohibits UAS surveillance of petroleum refineries, chemical and rubber manufacturing operations and nuclear power stations without prior consent.
  •  Michigan is considering H.B. 4866, which prohibits people from operating drones within 1,500 feet of a jail or state prison. Violations are categorized as a felony, punishable by up to four years in prison and a fine of $2,000.
  •  New Hampshire is considering H.B. 1654, which prohibits the use of a drone in the airspace above a county or state correctional facility or municipal jail, or within 100 yards of such facilities. Violations would be treated as a misdemeanor.
  •  New York is considering S.B. 6222, which prohibits any person from operating a drone within 1,000 feet of a correctional facility. The bill grants corrections officers the authority to shoot down any drones flying in violation of the proposed statute.
  •  And, Washington is considering S.B. 6437, which prohibits any person from operating a drone within 1,000 feet of a correctional facility and classifies violations as felonies.

    Federal Aviation Law

    While these bills may carry laudable goals, Gregory Winton, founder of The Aviation Law Firm in Annapolis, Md., and a former FAA staff attorney, said the proposals just don't square with federal aviation law. He warned that most of the state statutes currently enacted and the new batch of corrections measures would be challenged if states pursue enforcement.

    “If I was the defense attorney, the first thing I would do is tell the state you can’t possibly create a regulation that restricts the use of an aircraft. First and foremost it’s an aircraft whether it’s manned or unmanned,” Winton said in an interview with Bloomberg BNA. “You can’t restrict these activities in the air space. You don’t have ability to do that. It’s preempted.”

    Turner advised state lawmakers to look closely at the FAA's UAS fact sheet before enacting anything.

    The fact sheet lays out the FAA's statutory authority for regulating all navigable airspace in the U.S. and discusses significant court precedents affirming that authority over states and local units of government. The FAA specifically called on states and localities to contact its Office of Chief Counsel when considering: operational UAS restrictions on flight altitude, flight paths, operational bans and any regulation of the navigable airspace; and, mandates on UAS training or equipment such as geo-fencing.

    The FAA pointed to a limited group of state and local activities involving drones for which the agency does not have authority.

    “Laws traditionally related to state and local police power—including land use, zoning, privacy, trespass, and law enforcement operations—generally are not subject to federal regulations,” the FAA wrote.

    States Have Adequate Authorities

    Mark Dombroff, an aviation and transportation partner in the Washington, D.C., office of Dentons, questioned the need for state and local legislation addressing potential misuse of drones. He said states and municipalities already enjoy significant authority for managing criminal or improper conduct whether the tool is a gun, a camera or a drone.

    In the context of privacy, Dombroff said states already have criminal voyeurism and peeping-tom statutes. With respect to securing chemical plants, water treatment facilities and nuclear stations, he said states already have criminal trespass laws. And, in the context of correctional facilities, states and municipalities have wide authority to prosecute persons bringing contraband into prisons whether the vehicle is a drone or a chocolate cake containing a hacksaw blade.

    “The reality is states don’t need to legislate,” Dombroff told Bloomberg BNA. “What they have to do is sit back and take look at the laws already on their books. It may require a little tweaking, adding the word ‘drone' or ‘remotely piloted vehicle.' I think most states will find that they have more than adequate legal basis already.”

    Winton advised lawmakers to research their current statutory authorities and then consult with federal officials on any potential statutory gaps with regard to drones.

    “I would tell state legislators to meet with their attorneys general and coordinate with the FAA and the Department of Justice before you pull that trigger,” he said. “You can’t let your legislature come out with an unconstitutional law just because you think it is in the best interests of your state.

    Drone Threats to Prisons

    Martin F. Horn, a professor of corrections at John Jay College of Criminal Justice in New York and executive director of the New York State Sentencing Commission, stressed that the drone threats aimed at prisons are real and have not been adequately addressed through any state or federal laws. Horn called for state and federal cooperation to: prohibit and punish individuals operating drones in and around prisons; prohibit use of drones to aid escaping prisoners; and, permit corrections officers to disable drones.

    “They [corrections officials]) absolutely do not have the legal tools to address this—they have no tools. It’s not even clear an officer has the authority to shoot at a drone buzzing a prison perimeter tower,” Horn said. “I think there is a tremendous lack of knowledge and a lot of confusion.”

    By Michael J. Bologna

    To contact the reporter on this story: Michael J. Bologna in Chicago at mbologna@bna.com

    To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com