UAS attorneys advise against shooting down drones

By Patrick C. Miller | August 01, 2018

Two Washington, D.C., attorneys specializing in unmanned aircraft systems (UAS) law say one of the most common questions they’re asked is whether it’s okay to shoot down a drone.

Joshua Turner and Sara Baxenberg work for the Wiley Rein law firm, which recently launched a podcast called Wiley Connected featuring the pair discussing issues related to UAS law. Turner is a partner and co-chair of Wiley Rein’s UAS practice. Baxenberg is an associate with the firm’s UAS practice. They're both experienced in representing clients on UAS legal matters.

They say the simple answer to the question about whether someone should shoot down a drone is “No.” In the podcast discussing the subject, Baxenberg explained, “It’s almost definitely a felony.” The penalty is a fine or up to 20 years in prison. Turner noted that it’s also illegal to jam drones, spoof them or use other electronic means to disrupt them or knock them out of the air.

The problem, according to Baxenberg, is that the federal criminal code is aimed at terrorist attacks against manned aircraft and was broadly written to cover all types of interference with an aircraft. She said lawmakers didn’t envision people on the ground engaging in drone vigilante justice against small quadcopters.

“The second reason you shouldn’t shoot down a drone is that you might get sued,” Turner said. “There is still the possibility the drone owner will come after you for damages.”

This happened in Kentucky where a man who used a shotgun to bring down a drone flying over his property had criminal charges against him dismissed, but then faced a civil lawsuit, which was eventually dismissed as well.

Turner believes most people who ask about shooting down drones are only half serious about it. He said the public attitude stems from a lack of familiarity UAS technology and uncertainties about who’s operating a drone and for what reason. “There’s a feeling that the technology might pose an unknown threat to them and a desire to do something about it,” he said.

Baxenberg said that when state and local policymakers attempt to regulate drones, it’s usually because of a negative experience.

“It seems that every time someone introduces a bill that seeks to regulate drones in any capacity—not necessarily to shoot them down or kick them out—that the policymaker always has a very personal story where they were at their home and they saw a drone buzzing nearby that really unsettled them and encouraged them to do something about it,” she said.  

Turner pointed out that when manned aircraft began flying 100 years ago, aviation was presented with many of the same legal questions that UAS face today. He and Baxenberg agreed that it’s a question of the public becoming accustomed to the technology, law enforcement having a means of identifying who’s illegally flying a drone, the Federal Aviation Administration implementing UAS regulations and the legal system setting precedents.

“There needs to be a technology-based solution that enables law enforcement to identify drones that are in flight,” Baxenberg added. “I do think that will give the public a lot more comfort with the idea of these things being around.”

About 10 years ago, Turner noted that adding cameras to cell phones became a public controversy because of privacy concerns over where and how they’d be used.

“That lasted about as long as it took for everyone to get a camera on their cell phone,” he said. “Everyone adopted new rules of behavior that allowed people to go along and get along with having cameras on their cell phone.

“I suspect that a similar thing will happen with UAS,” he continued. “We’ll see widespread adoption of the technology. We’ll see people become more comfortable with it. The inclination to go out and start shooting drones down will recede as people get more and more familiar with them.”