Illegal to fly under 400 foot?

[jlummel]

I may be worthwhile to call the Chief and ask for clarification of his statements on the 500' lower limit. Let him know that the information you have is different as the FAA is instructing you to remain below 400' and you are just trying to reconcile it.

In Causby the Supreme Court deferred to Congress in setting the lower limit of public airspace, which at that time was 300'-1000' based on the situation, and this was crucial in determining whether the farmer's airspace was trespassed. And while, as others have pointed out, the majority opinion found "The landowner owns at least as much of the space above the ground as they can occupy or use in connection with the land.", the Court recognized that lower limit to public airspace set by the law of the time. They also recognized that the flight path of the aircraft for landing was authorized under the law as well, so rather than trespass it was considered an easement taken by the government, entitling the farmer to due compensation. United States v. Causby 328 U.S. 256 (1946)

While the law the Supreme Court referenced in their decision is depreciated (replaced by 14 CFR §91.119), their logic in determining the case isn't.

It remains to be sorted out how this actually applies to UASes and specifically to model aircraft operating under 336, as the law itself has drastically changed since that case was decided and now allows for operation of certain aircraft below proscribed minimums.

But are model aircraft even subject to that law, or does 336 preempt (which using the logic this case was decided with would mean airspace above the top of the tallest object on the property in question is considered public for the purposes of UAS operation)?

 

[joe21]

But are model aircraft even subject to that law, or does 336 preempt (which using the logic this case was decided with would mean airspace above the top of the tallest object on the property in question is considered public for the purposes of UAS operation)?

Excellent points.

When a rule or law is made, there are often unintended consequences. I fear that the inevitable rules for UAVs will have some very negative side effects.

The concept in Causby and other cases has been primarily to allow for commercial air traffic (as opposed to hobby). It decided the sky is public ownership and individuals cannot regulate the sky over their property to infinity. This however, was applied to _navigable_ airspace. There is still an admission that below some altitude, you own the airspace. (Yes - landing patterns and other factors will adjust that altitude in different circumstances.)

My understanding is that the "500 ft rule" is what has allowed us to fly our unregulated UAVs and other items without FAA interference (until now). (Regulated craft are supposed to be minimum of 500' - the 400' recommended ceiling gives 100' clearance from that). Added to that are the 2012 rules which prohibit the FAA from regulating model/hobby aircraft.

So basically, we have the 0-400' "no man's land." We can do what we want in that space (bear with the generalizations).

Here's the problem. Now the FAA wants to extend their authority - and the public ownership - to ground level. All UAVs and hobby aircraft now fall under their thumb. This has serious implications.

Theoretically, it greatly expands the FAA powers. They could weight in on the height of structures (not skyscrapers, but simple two story structures nowhere near a flight path). They would technically have the authority to regulate a Frisbee or a baseball. They now own the air over your home... you need their permission and approval to do anything in that airspace - even 1" above the ground. They could prohibit you from putting an antenna on your roof, or force you to cut down trees.

Conversely, it they "own" the airspace, they can do anything they want in it without your permission or approval.

When registration was announced, many argued in favor of it using ATVs as an example. I think there is something to that analogy.

An ATV is a recreational vehicle. An ATV cannot be operated on a public road. It can be operated on private property, or many public areas which allow it (i.e. a park). You cannot drive your ATV through your neighbor's property just because there is no fence.

I don't know where this will all end up. Personally, I think the "ATV method" is a great balance. Do what you want on your own property. Keep the federal government up in the public/navigable airspace. Let local jurisdictions decided what can be done in public areas/parks.

The alternative is to potentially turn over all air rights from the ground up to a federal agency.

Living in an area where the debacle know as the "NextGen" landing approach system was implemented, the thought of giving the FAA more air to control is very troubling.

 

[erkme73]

...All a LEO has to do is agree with my logic. If they do and believe your actions meet the definition of criminal trespass, you may be arrested...

In FL (and I would assume in most states), only the owner of the property/business (or his rightful appointees) have the authority to trespass. This can be a verbal request, or with approved signage. Without an owner's objection, LE cannot simply 'trespass' someone for being on private property. That is where (among other things) the Chief overstepped his authority. Absent a specif owner's request that he act on their behalf, he cannot claim that flying over "any private property" constitutes trespassing.

 

[joe21]

In FL (and I would assume in most states), only the owner of the property/business (or his rightful appointees) have the authority to trespass. This can be a verbal request, or with approved signage. Without an owner's objection, LE cannot simply 'trespass' someone for being on private property. That is where (among other things) the Chief overstepped his authority. Absent a specif owner's request that he act on their behalf, he cannot claim that flying over "any private property" constitutes trespassing.

Same here in NY. The thing is, the police chief didn't arrest anyone. He stated he "could." If he drove to the scene based on a property owner's complaint of trespass, he is well within his authority. If the flyer refused to stop (what some have suggested as a course of action) then an arrest would be within his authority. Likewise for stalking or harassment... there is an assumption a complaint was made by the injured party. You cannot change someone with stalking if you can't produce a person who claims to be stalked.

 

[erkme73]

There was no mention of the police having a problem with video. There was no mention of the police making rules which superseded those of the FAA.

That's interesting, given that the OP specifically stated this:

...Not to mention charge me with stalking if I recorded video or photos while doing so. ...

That is a direct threat NOT to record... Again, without a complaint from a specific property owner, this is prior restraint on the free right to record.

People watch too many "am I free to go" videos on YouTube. Sure, you have rights, but so does everyone else. You do NOT have the right to trespass on private property. You do not have the right to harass or stalk people. There has to be a balance on both side.

The issue isn't whether the OP was asserting rights to fly over private property when the owners clearly complained to the police to prevent it from happening. Trespass requires the owner of private property to clearly object to the presence of an individual - either verbally, through signage, or through prior authorization/agreement with law enforcement. Absent that, the Chief cannot make a wholesale blanket statement speaking for "all private property" owners.

The police chief in question may have gone too far (and certainly didn't understand the 400' thing) but he wasn't attempting to deny the OPs rights - he was defending the rights of private property owners.

What about private property owners who don't have any objection to someone flying over their property? The Chief spoke for them without their consent, policy, law, or authority. THAT is the problem.

Make no mistake about intent. It doesn't matter what the Chief's motives are - benign, or nefarious - the result is the same. Someone who was committing NO crime, was approached, threatened, and illegally ordered to cease a permitted, legal action. An action, by the way, which can put "eyes in the sky" to observe that very Chief and his subordinates. There is an endless supply of government officials who vehemently oppose the public's right to film them. That provides plenty of ulterior motive to crack down on any 'drones' that are in the public space - under the guise of 'protecting privacy rights' of homeowners.

 

[richardtomcat]

Hi all. I am new to the forum and from Pennsylvania USA.
I recently had a discussion with our chief of police who informed me he could charge me with trespassing for flying over private property below 400 foot, as well as confiscate my phantom and phone. Not to mention charge me with stalking if I recorded video or photos while doing so. He claims the Supreme Court has already decided that a landowner owns the airspace above their property up to 400 foot. Please help. I was flying well over 100 foot and doing nothing wrong.

Communities will have laws .. fliers will insure that. I called my police department to discover the regs, rules laws that my community may have before I flew. It's a courtesy to the community I live in. As of this moment they have none. I hope to be a part of the development of our local regs before some fool takes that opportunity away. I understand your Chief's concerns. It doesn't appear that you do.

 

[richardtomcat]

Hi all. I am new to the forum and from Pennsylvania USA.
I recently had a discussion with our chief of police who informed me he could charge me with trespassing for flying over private property below 400 foot, as well as confiscate my phantom and phone. Not to mention charge me with stalking if I recorded video or photos while doing so. He claims the Supreme Court has already decided that a landowner owns the airspace above their property up to 400 foot. Please help. I was flying well over 100 foot and doing nothing wrong.

Careful .. lotta armchair, weekend lawyers on this thread. Be thoughtful is all I have for you.

 

[erkme73]

Same here in NY. The thing is, the police chief didn't arrest anyone. He stated he "could." If he drove to the scene based on a property owner's complaint of trespass, he is well within his authority. If the flyer refused to stop (what some have suggested as a course of action) then an arrest would be within his authority. Likewise for stalking or harassment... there is an assumption a complaint was made by the injured party. You cannot change someone with stalking if you can't produce a person who claims to be stalked.

With all due respect, you're talking about a completely different scenario. IF the property owner complained about being videoed, stalked, or the flight of a drone over his property, THEN the officer can approach, spell out the law, and explain what happens if he doesn't leave. But absent a complainant, there is no grounds for the approach/harassment/threat. It would be like approaching a bank customer and threatening them with arrest for attempting to rob the place if they ever show up again - without the bank ever reporting a robbery. There has to be a victim. Based on what the OP has written, there wasn't one (other than the Chief's ego).

 

[Kingpin]

I have not lost interest at all, simply watching, reading, and learning....which is why I posted in the first place. As far as where in PA? North east


Sent from my iPhone using PhantomPilots mobile app

 

[erkme73]

I understand your Chief's concerns. It doesn't appear that you do.

The Chief can have concerns. We all have concerns. There's nothing wrong with having concerns. It's when the Chief, motivated by his concerns (or any other reasons) makes up his own laws as he goes. Intentions may be a noble as the day is long, but doesn't give him the right to use his badge to bully someone who is doing absolutely NOTHING wrong.

The Chief could have easily approached, expressed his concerns and been done with it. The OP could have been kind, explained what he was doing, and both would have had a better understanding of each other's perspective. Or, the OP could have told the cop to pound sand and refuse to talk to the Chief. Without reasonable articulable suspicion that the OP was committing a crime, there was no reason for the OP to even listen to the Chief. All that aside, when the Chief starts throwing threats around, demanding that the OP stop his LEGAL activity, it crosses the line between "being concerned" and violating the OP's civil liberties. When done under the color of law, the Chief loses his qualified immunity, and becomes personally liable for his actions.

 

[joe21]

The Chief spoke for them without their consent, policy, law, or authority.

I agree with almost everything you wrote. We are on the same page. Where we disagree is what we took away from the OP.

I did NOT get the impression that the Chief was speaking for anyone. Since there was no actual incident described, I see the Chief speaking in generalities.

I am hoping that a Chief of Police understands he needs a complainant to take action on a complaint. Of course he cannot enforce a trespass law unless the requirements of the law are met. He would likely not investigate someone for standing in a backyard, unless the owner called about a stranger lurking there.

Lot's of assumptions all around. The Chief could be an ill-informed, power-hungry bureaucrat. At the same time, he may be have already received dozens of calls from irate citizens complaining about drone activity over their property. We simply don't know the circumstances.

That said - the police chief's comments (as written) were essentially correct. They may not tell the entire story (such as needing a property owner to complain for it to be trespass) but that doesn't make them any less factual in the correct circumstances.

Again, we have no idea if there was a complaint which caused the Chief to approach the person. The way it was written, I have the impression that the flyer approached the Chief on the topic. The OP never claimed he was asked to stop flying... only that he _could_ (not would) be arrested for flying over private property.

 

[richardtomcat]

The Chief can have concerns. We all have concerns. There's nothing wrong with having concerns. It's when the Chief, motivated by his concerns (or any other reasons) makes up his own laws as he goes. Intentions may be a noble as the day is long, but doesn't give him the right to use his badge to bully someone who is doing absolutely NOTHING wrong.

The Chief could have easily approached, expressed his concerns and been done with it. The OP could have been kind, explained what he was doing, and both would have had a better understanding of each other's perspective. Or, the OP could have told the cop to pound sand and refuse to talk to the Chief. Without reasonable articulable suspicion that the OP was committing a crime, there was no reason for the OP to even listen to the Chief. All that aside, when the Chief starts throwing threats around, demanding that the OP stop his LEGAL activity, it crosses the line between "being concerned" and violating the OP's civil liberties. When done under the color of law, the Chief loses his qualified immunity, and becomes personally liable for his actions.

Did my best. Continue playing attorney. This man has you in his sights now. Obviously you can afford to challenge him in court. Have a good day.

 

[erkme73]

784

I agree with almost everything you wrote. We are on the same page. Where we disagree is what we took away from the OP.

I did NOT get the impression that the Chief was speaking for anyone. Since there was no actual incident described, I see the Chief speaking in generalities.

I am hoping that a Chief of Police understands he needs a complainant to take action on a complaint. Of course he cannot enforce a trespass law unless the requirements of the law are met. He would likely not investigate someone for standing in a backyard, unless the owner called about a stranger lurking there.

Lot's of assumptions all around. The Chief could be an ill-informed, power-hungry bureaucrat. At the same time, he may be have already received dozens of calls from irate citizens complaining about drone activity over their property. We simply don't know the circumstances.

That said - the police chief's comments (as written) were essentially correct. They may not tell the entire story (such as needing a property owner to complain for it to be trespass) but that doesn't make them any less factual in the correct circumstances.

Again, we have no idea if there was a complaint which caused the Chief to approach the person. The way it was written, I have the impression that the flyer approached the Chief on the topic. The OP never claimed he was asked to stop flying... only that he _could_ (not would) be arrested for flying over private property.

Ok, then we are in agreement. If there were active complaints about property rights being violated, that's an entirely different scenario than the one I read. Would be nice if the OP could provide a little more detail.

 

[joe21]

I have not lost interest at all, simply watching, reading, and learning....which is why I posted in the first place. As far as where in PA? North east


Sent from my iPhone using PhantomPilots mobile app

So how about some detail? Were you flying at the time? Did the Chief order you to stop flying under threat of arrest? Or was it more like "you'd better be careful where you fly - some people don't like it and you would be trespassing if you fly over their private property."

 

[erkme73]

Did my best. Continue playing attorney. This man has you in his sights now. Obviously you can afford to challenge him in court. Have a good day.

I'm not playing attorney. I'm just an American who is sick of the comply or die mentality that everyone else seems to be accepting as the new normal. Our founding fathers revolted from the King over lesser things.

 

[joe21]

784


Ok, then we are in agreement. If there were active complaints about property rights being violated, that's an entirely different scenario than the one I read. Would be nice if the OP could provide a little more detail.

It is funny how we all "fill in the blanks" based on personal experience and bias. The OP didn't have much detail to go on.

 

[jlummel]

Conversely, it they "own" the airspace, they can do anything they want in it without your permission or approval.

Not necessarily so, as the airspace classifications are per treaty and law. Class G airspace (starting at the ground) is uncontrolled, so the FAA can never really "own" it, regulate it or place restrictions on it (it would then be a different class of airspace if they did). There are areas such as around airports and such where other classes of airspace extend to the ground that the FAA does "own". Here's a video that explains airspace:

So we generally fly our model aircraft in Class G airspace, which in most areas goes up to 1,200'. This classification of airspace didn't exist at the time Causby was decided, and I contend it changes the height of public airspace referenced by the Court in deciding the case (since they deferred to the Congress's definition, which changed over time). This takes navigable airspace down to ground level, leaving only "The landowner owns at least as much of the space above the ground as they can occupy or use in connection with the land."

A common occurrence on public land, in your ATV analogy, is where parcels of land are leased to private holders. So while you can zip across the public land, you still have to stay out of the parcel that is in the control of private hands, unless it included an easement for such activities. And then you would be limited to the easement.

Just to be clear, this is a personal opinion and these issues may have been addressed authoritatively at some point in time that I'm just not aware of or missed.

But if I'm right, then the airspace above the tallest object on that property is public property, or at the very least a public easement. Either way, flight cannot be restricted by local laws as they would be preempted. Nor can photography be restricted, as it's not illegal to take a picture from the street where the camera is facing a private property.

Want more airspace, add something taller to the property! But if you stay above the private airspace of the property then there is no trespass.

 

[JamesBandes]

Look. Your 400' ceiling might seem all safe and cozy. The chief doesn't agree. It's his **** town.

False arrest can be met with a counter claim for damages and probable qualifies for something called treble damages (3 times actual damages). I agree try to play nice but if that fails and you don't mind spending the night in the can you could tell the chief to proceed and you will seek justice in the system and will sue him personally for false arrest and civil protection. Oh there is an old dying, sue them all and let them fight to get dismissed. Sue the chief and the department and the town etc or should I say et. al. Hahahah

 

[Kingpin]

Hi all. I am new to the forum and from Pennsylvania USA.
I recently had a discussion with our chief of police who informed me he could charge me with trespassing for flying over private property below 400 foot, as well as confiscate my phantom and phone. Not to mention charge me with stalking if I recorded video or photos while doing so. He claims the Supreme Court has already decided that a landowner owns the airspace above their property up to 400 foot. Please help. I was flying well over 100 foot and doing nothing wrong.

I never said he "would" charge me, he claims he could, because I was flying under 400 foot.
This has gone in every direction when my real question was in reference to property owners owning the airspace over their property to 400 for which he claims has already been decided by the Supreme Court.


Sent from my iPhone using PhantomPilots mobile app

 

[Steve_in_DE]

I am going to guess that your police chief came up with the 400 foot figure after doing his own google seach. Unfortunately there seems to be no clear guidelines (that I could find) from the FAA or the AMA regarding drone altitude minimums.

Doing my own google search I found a fun fact...

"...The most famous case of this kind comes from 1945 when a chicken farmer named Thomas Lee Causby sued the US government for flying approximately 83 feet above his property, the noise of which caused a bunch of Causby’s chicken’s to accidentally kill themselves by running into walls. Causby won his case and the courts agreed that although a property owner wasn’t entitled to own all of the air above their land, they were entitled to enough so that planes flying overhead wouldn’t kill their chickens. Progress!..."

And a page that uses that 83 foot number - Drone Wars: Who Owns The Air?

I think the part of the various laws that deal with all this that will give drone owners the most trouble is this bit of vagueness...

"Flight by aircraft in the airspace above the land of another is a trespass, only if[xiv]: entry into the immediate reaches of the airspace next to the land is involved, and entry interferes substantially with the owner’s actual use and enjoyment of his land."

The AMA only says, "Check and follow all local laws and ordinances before flying over private property."

GOOD LUCK!