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Can I shoot down a drone?

The short answer is no, particularly if you live in a city. While Texas law does not allow municipalities to regulate (1) the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies; or (2) the discharge of a firearm or air gun at a sport shooting range, they are allowed to regulate the discharge of firearms within the city limits. TEX. LOCAL GOV’T CODE § 229.001(a). In fact, many cities in Texas have these types of ordinances on the books.

If you shoot down a drone, you could be in in trouble with law enforcement. Recklessly discharging a firearm in a municipality with more than 100,000 people is a Class A misdemeanor, which means a $4,000 fine or up to a year in Jail. TEX. PEN. CODE § 42.12. The Texas Court of Criminal Appeals recognizes that shooting into the sky (presumably where the drone will be flying) in a residential neighborhood or where there are people around is reckless. State v. Rodriguez, 339 S.W.3d 680, 684 (Tex. Crim. App. 2011).

You could get in even more trouble if you “knowingly discharge a firearm at or in the direction of … a habitation, building, or vehicle and [are] reckless as to whether the habitation, building, or vehicle is occupied.” TEX. PEN. CODE § 22.05. This charge is not restricted to a city’s population and is a 3rd Degree Felony.

So, before you pick up your shotgun, review your city’s ordinances and make sure you are not pointing your firearm towards a house, building, or vehicle.

What if I don’t live in the city limits?

Whether you can shoot down a drone outside of a city depends on your county. Like municipalities, counties have the power to regulate the discharge of a firearm. Under TEX. LOCAL GOV’T CODE § 235.022, the county commissioners court can “prohibit or otherwise regulate the discharge of firearms and air guns on lots that are 10 acres or smaller and are located in the unincorporated area of the county in a subdivision.” So, it’s important to find out whether your county has this type of regulation on the books before you shoot down the drone that is on your property.

But, even if you live on more than 10 acres, think twice about shooting that drone down. There are many LAWFUL uses for drones in Texas. Under TEXAS GOV’T CODE § 423.002, those lawful uses include the following:

  • conducting professional or scholarly research for academic purposes;
  • flying in air space designated by the Federal Aviation Administration;
  • as part of an operation, exercise, or mission of any branch of the United States military;
  • mapping;
  • electric or natural gas utility or a telecommunications provider for operations and maintenance, inspecting facilities, easements and routing to provide service;
  • with the consent of the individual who owns or lawfully occupies the real property;
  • law enforcement pursuant to a valid search or arrest warrant, in pursuit of felonies, in investigation of emergencies;
  • at the scene of a spill, or a suspected spill, of hazardous materials;
  • for the purpose of fire suppression;
  • for the purpose of rescuing a person whose life or well-being is in imminent danger;
  • Texas licensed real estate broker in connection with the marketing, sale, or financing of real property, provided that no individual is identifiable in the image;
  • from a height no more than eight feet above ground level in a public place, if the image was captured without using any electronic, mechanical, or other means to amplify the image beyond normal human perception;
  • of public real property or a person on that property;
  • owner or operator of an oil, gas, water, or other pipeline for the purpose of inspecting, maintaining, or repairing pipelines or other related facilities;
  • in connection with oil pipeline safety and rig protection;
  • in connection with port authority surveillance and security;
  • registered professional land surveyor in connection with the practice of professional surveying, provided that no individual is identifiable in the image;
  • professional engineer licensed in connection with the practice of engineering, provided that no individual is identifiable in the image; or
  • if (A) an insurance company or of an affiliate of the company in connection with the underwriting of an insurance policy, or the rating or adjusting of an insurance claim, regarding real property or a structure on real property; and (B) the operator of the unmanned aircraft is authorized by the Federal Aviation Administration to conduct operations within the airspace from which the image is captured.

If you were to shoot down the drone that is lawfully allowed to be flying in the airspace, you could be held liable for the damages.

But if can’t shoot it, what can I do?

First, call local law enforcement, especially if you believe it is taking pictures. If someone is using the drone to take pictures “with the intent to conduct surveillance on the individual or property captured in the image,” it is a Class C misdemeanor. TEX. GOV’T CODE § 423.003. If that person discloses, displays, distributes, or uses the image he or she captures in any way, it becomes a Class B misdemeanor. TEX. GOV’T CODE § 423.004. Law enforcement will be able to help deduce whether the drone is being used lawfully or if there is a possible crime occurring.

In addition to criminal penalties, you can also seek civil penalties for the above-mentioned violations. You can ask a civil court to issue an injunction to prevent the drone owner from capture any images. TEX. GOV’T CODE § 423.006(1). You can also recover $5,000 or $10,000 in civil penalties (depending on the violation). TEX. GOV’T CODE § 423.006(2). If you can prove that the drone owner took the photos with actual malice, you can recover damages and any court costs or reasonable attorneys’ fees you incurred. TEX. GOV’T CODE § 423.006(3).

Can I sue the drone’s owner?

There are two possible causes of action you have at your disposal, neither of which have great clarity in the developing area of drones.

Trespass is the unauthorized entry onto the land of another. Environmental Processing Systems, L.C. v. FPL Farming Ltd., 457 S.W.3d 414 (Tex. 2015). At common law, a property owner’s rights to his or her land reached into the sky under the adage cajus est solum ejus est usque ad coelum, meaning he who owns the soil owns up to the heavens. But the advent of air travel technology, which necessitated public access to airspace, restricted these private property rights. In United States v. Causby, the Supreme Court balanced these two concerns by holding the landowner “must have exclusive control over the immediate reaches of the enveloping atmosphere” but that there is a public interest to treat the “air as a public highway.” Essentially, there is no exact height at which the space above your property is yours.

The Second Restatement of Torts 159(2) interpreted the Causby case as “Flights by aircraft in the airspace above the land is a trespass if, but only if, (a) it enters into the immediate reaches of the airspace next to the land and (b) it interferes substantially with the other’s use and enjoyment of the land.”

The Restatement’s inclusion of “substantial interference” brings nuisance as a legal injury for property owners to consider when a drone flies over your land.

Nuisance is the interference with the use and enjoyment of property, where the interference must be “substantial” and cause “discomfort or annoyance” that is “unreasonable.” Crosstex N. Texas Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 595 (Tex. 2016), reh’g denied (Dec. 16, 2016).

The “substantial” part of a nuisance claim causes problems in a drone context. Unless the drone is flying on your property every day for long periods of time, it is unlikely courts will find the drone is interfering with the use and enjoyment of your property. Both trespass and nuisance law have still not caught up with the technology of drones. This leaves courts to apply out-of-date jurisprudence to the new reality of unmanned aircraft flight.

Each drone encounter requires a very fact-specific analysis of the legality of whether you can shoot it down. The easiest and clearest advice is just don’t do it.

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