Jurisdiction: Railroad vs. FAA ... is this similar to National Parks

[The Roach]

Pay the fine. Then file a counter suit for 100 times that amount for violations of your rights.

 

[jackcutrone]

Russ43 - I am a semi-retired criminal defense attorney. Seed my post above. If you give me more details, I can provide some guidance.

 

[Deleted member 29014]

I'm not sure if I have much of value to add except to begin by pointing out that at least where I am, while city cops answer to an internal affairs bureau and a [mostly lame duck] civilian complaint review board, the transit, crossing and thruway cops answer to virtually nobody. It leads to an environment of even more arrogance and impunity and, inevitably, abuse and general stupidity.

When I read your post I immediately thought of Mr. Kerzic, whose case is a perfect embodiment of the paranoid, arrogant stupidity exhibited by some members of law enforcement here. While the parameters of his case are quite different, they are similar in that you are being prosecuted for having broken no actual law.

Amtrak photo contestant arrested by Amtrak police - Photography is Not a Crime

Amtrak Photo Contest Leads to an Image Problem
(open this link in a private window if the paywall becomes an issue)

I wonder if the ACLU could be helpful, even if only for some kind of referral.

The "authorities" are understandably protective of anything resembling infrastructure and everyone right now is trying to figure out where in the proverbial sand those lines may be drawn. Your case sounds like it could be something that may eventually wind up turning into case law. It could be worth it for everyone "here" to have this case defended vigorously. But that's just my opinion. I'm not a lawyer, but I did stay at a Holiday Inn Express once.

"whose case is a perfect embodiment of the paranoid, arrogant stupidity exhibited by some members of law enforcement here. "
You need to read the community guidelines.

 

[Deleted member 29014]

To answer several of the questions above:
1. the situation took place in NJ ... no issue 2 years ago but now anxiety concerning terrorists prevails
2. the town citation was for "creating a hazardous or physically dangerous condition" and "causing
undue public alarm and risking safety" while operating a drone while "standing in-between tracks".
When the prosecutor saw the drone video and the AIRMAP GPS flight paths, all charges were dropped as
I was clearly outside of the railroad property boundary.
3. the transit police citation (BTW ... this policeman was called in after the fact. He had only second hand info)
was for "defiant trespassing" by flying a drone on the railroad right-of-way. This citation was also
dropped after seeing the drone video and AIRMAP data.
4. the lessor included offense was just drummed up to satisfy the Transit Police ... my lawyer said it
was equivalent to not mowing your lawn in a nice neighborhood. But the prosecutor asked for a $1000
fine. The minimum offense was $200. The judge, who was not open to further explanation, awarded
a $900 fine.
5. I had a choice to fight the case further or accept the lessor included offense charge. Since all criminal
charges were dropped, and since the expected fine was in the $200 "slap in the wrist" range, I accepted
the minor charge.

My concern is that this kind of "justice" will be metered out to many drone pilots. I think a local citizen called
911 to get the police involved. At first, I believe the policeman actually thought I was going to trigger an explosion. At that point, I was "guilty until proven innocent". Since technology is moving so fast ... faster than the regulatory law associated with drones, I believe we drone operators will be subjected to much abuse. I certainly feel I was. This might be a good law case study. What is the prevailing legal argument? Did the town or transit police have any jurisdiction if I did not take off, land, or pilot my drone from railroad property?

Wit respect, this is the wrong place to get legal advice after the fact. Once you are in the "system" it is best to listen to your attorney. If you feel your representation was substandard , you can always file a complaint with the state Bar, same goes for the police if you feel they were out of bounds.

 

[phantomjim]

I recently launched a drone near, but not on, a railroad's right of way. My flight was to take a video from a 60' altitude at a time between scheduled commuter trains. I flew within all FAA rules but received tickets from both local and transit police for trespassing. The court costs and the lawyer retainer fee were in the $1000's. As my drone footage and AIRDATA GPS data showed I was clearly not on RR property, the criminal charges were dropped. BUT ... the transit police, who have issues with "train enthusiasts" who take hand help photos on rail right-of-ways creating dangerous situations, asked the judge for a "lessor included offense" and a fine of $1000. The question I have is whether, from current law, the railroad transit police had any right to charge me for anything as I was not on railroad property and my drone was in FAA airspace. BTW, before the flight, I used AIRMAP and came up with no restrictions. I feel I accrued significant expenses due to uninformed police, a lawyer unfamiliar with the appropriate law, and a judge (possibly not a drone advocate) who finally set the sentence at $900. I am 75, have no criminal record, and over 450 hours of safe legal drone flying. I have passed the 107 remote pilot in command license and interpret the FAA rules very conservatively. So ... any one familiar with the correct law in this situation.

My take is that if you have reached 75 and this is your most negative experience with the criminal justice system, you have led a charmed life. Practice a little stealth. I always assume that someone might hassle me even when I'm flying totally legally so I try to stay as invisible as possible.

 

[blueh32006@gmail]

Very interesting case. You might consider contacting the ACLU. One of my other hobbies is aviation photography, which puts me at airports with a long lens on my camera - not popular with law enforcement, but perfectly legal. We have an informal aviation spotting group that's been run out of publicly-accessible property on the airport many times, and met with airport officials to try to smooth over the matter. They responded by telling us photography is illegal on airport property. We went to the ACLU, who was interested in the case. It never went to court, but the airport backpedaled with a press release stating photography is legal anywhere the public is allowed on airport property. The matter made national news: Plane spotters allege harassment at Connecticut airport

Connecticut aka THE nanny state will try to regulate any and all activities whether there are laws on the books or not. The are literally hundreds of cases where people were arrested and/or ticketed for violating a non existent regulation or law. I worked for the State and moved out of Connecticut the day I retired.they make things up then try to justify them (example) they wanted to implement a 30% tax on State employee retirement payments for retiree's that no longer live in Connecticut Totally illegal as well as not following retirement contract that the State signed into law 99.9 % of the police/law enforcement are outstanding, the politicians State and local and people appointed to various positions Commissioners etc... Make up rules and expect police or State and local employee's to enforce these rules until they are exposed or brought to Court they don't care if it goes to Court or gets dropped because you the person targeted have to pay a lawyer or waste time fighting it the State covers their costs And pays them to go to court if necessary. Think about WHO you vote into office. They make the rules and appoint their friends as Commissioners of Departments and Agencies.

 

[Bad Andy]

Once you are in the "system" it is best to listen to your attorney.

Or, get a better attorney.

 

[Bad Andy]

"whose case is a perfect embodiment of the paranoid, arrogant stupidity exhibited by some members of law enforcement here. "
You need to read the community guidelines.

Exactly what guideline do you think I have violated??

 

[jackcutrone]

None as far as I can tell. Am curious as to how Luis is gong to respond.

 

[jackcutrone]

I want to make clear that I am not anti- law enforcement if anything the opposite but that doesn’t mean they don’t have their share of bad apples.

 

[Bad Andy]

I want to make clear that I am not anti- law enforcement if anything the opposite but that doesn’t mean they don’t have their share of bad apples.

In spite of enormously compelling justification, I'm not anti LE either.

But I do wish the good apples did more about the bad apples.

 

[Russ43Phantom]

Now for the UNJUST conclusion of this unfortunate episode.

Having reviewed my drone video and the AIRMAP data, both charges, by the local police and the NJ Transit Police, were dropped. The citations were for Disorderly Conduct for flying a drone while on RR property. I was definitely NOT on RR property. So the citations were dropped immediately.

Now for the UNJUST part. The town dropped all charges. The NJ Transit police, acting with the town prosecutor, pleased for charging me with a lesser included offense (out of thin air) for Disturbing the Peace. The prosecutor asked for a $1000 fine. The judge awarded a $900 fine.

Some issues. Neither the judge nor my attorney knew the range of fines available for the minor offense. $900 seems punitive for a repeat offender or for someone who has had many run-ins with the law. I have NEVER been before a judge in 75 years. If I was being fined for Disturbing the Peace, did, if anyone, call in to complain that their peace was disturbed? If a motorcycle or a car drives by with a loud muffler, can anyone call to get a Disturbing the Peace citation on the rider/driver? Is $900 an appropriate fine? (Seems the judge has a negative attitude to drones)

As indicated earlier, to assure this kind of miscarriage of justice due to anti-drone bias does not continue, what can be done? Should manufacturers of drones, like DJI, join with user groups to provide a clearinghouse of lawyers who are familiar with drone law and can defined drone pilots. Should this type of miscarriage of justice be encoded in "case studies" to build "case law" to better define precedent for proper and improper legal findings?

This is a real drone pilot issue.

 

[jackcutrone]

Probably the best challenge would have been to appeal. But it also sounds as if you might have pleaded guilty which would pretty much preclude an appeal. I can certainly sympathize. You are a layman and relying on your lawyer’s advice which usually is a good idea. I can’t say that this is what happened but over a life’s career as a criminal defense attorney I saw many instances where an attorney was reluctant to take a case to trial usually because either they weren’t confident of their own trial skills or money - if I plead this out it takes less time, I can pocket my fee and move on to the next case/ fee.

I am not in the least being critical. You were right to rely on the advice of your attorney who should not have been reluctant to take the case to trial. After all the worst that could have have happened is that you would have to pay 1000 instead of the 900 not that big a deal.

As to your suggestion about some entity developing a panel of lawyers who are familiar with drone laws there are too many practical problems not the least of which is that there won’t be very many lawyers who would be knowledgeable and getting them to travel to represent people would be expensive. I suppose the AMA is a possibility for such an undertaking but you still have the issue of the small pool of lawyers. Any lawyer worth his or her salt would be able to do enough research on drone law to ably represent someone if they are willing to put in the time.

As I mentioned in a previous post to be a lesser included offense the original offense would have had to include all the legal elements of the lesser offense. I would be willing to bet that is not the case here. Not to mention there are often constitutional issues of vagueness and overbreadth with disorderly conduct laws

Again its a matter of getting an attorney who is willing to really fight. Of course the client has to pay for the lawyer’s time which can often be a stopper.

Sorry you had a bad experience.

 

[Russ43Phantom]

Probably the best challenge would have been to appeal. But it also sounds as if you might have pleaded guilty which would pretty much preclude an appeal. I can certainly sympathize. You are a layman and relying on your lawyer’s advice which usually is a good idea. I can’t say that this is what happened but over a life’s career as a criminal defense attorney I saw many instances where an attorney was reluctant to take a case to trial usually because either they weren’t confident of their own trial skills or money - if I plead this out it takes less time, I can pocket my fee and move on to the next case/ fee.

I am not in the least being critical. You were right to rely on the advice of your attorney who should not have been reluctant to take the case to trial. After all the worst that could have have happened is that you would have to pay 1000 instead of the 900 not that big a deal.

As to your suggestion about some entity developing a panel of lawyers who are familiar with drone laws there are too many practical problems not the least of which is that there won’t be very many lawyers who would be knowledgeable and getting them to travel to represent people would be expensive. I suppose the AMA is a possibility for such an undertaking but you still have the issue of the small pool of lawyers. Any lawyer worth his or her salt would be able to do enough research on drone law to ably represent someone if they are willing to put in the time.

As I mentioned in a previous post to be a lesser included offense the original offense would have had to include all the legal elements of the lesser offense. I would be willing to bet that is not the case here. Not to mention there are often constitutional issues of vagueness and overbreadth with disorderly conduct laws

Again its a matter of getting an attorney who is willing to really fight. Of course the client has to pay for the lawyer’s time which can often be a stopper.

Sorry you had a bad experience.

Thanks. You confirmed the feelings/decisions regarding this case. I do feel I should have been smart enough to ask any lawyer who represented me how much experience they had in this area before discussing a retainer. Having little knowledge on making an assessment of the outcome of an appeal, I went with the "end it now" with a clearly defined outcome vs. pushing forward. I think my lawyer could have pushed much harder for the low end of the range of fines ... but, again, he works in that court and faces the prosecutor and judge often. I think it was in his interest to avoid full conflict with both the judge and prosecutor ... at my expense. That's what concerns me most about this situation.

 

[Russ43Phantom]

Probably the best challenge would have been to appeal. But it also sounds as if you might have pleaded guilty which would pretty much preclude an appeal. I can certainly sympathize. You are a layman and relying on your lawyer’s advice which usually is a good idea. I can’t say that this is what happened but over a life’s career as a criminal defense attorney I saw many instances where an attorney was reluctant to take a case to trial usually because either they weren’t confident of their own trial skills or money - if I plead this out it takes less time, I can pocket my fee and move on to the next case/ fee.

I am not in the least being critical. You were right to rely on the advice of your attorney who should not have been reluctant to take the case to trial. After all the worst that could have have happened is that you would have to pay 1000 instead of the 900 not that big a deal.

As to your suggestion about some entity developing a panel of lawyers who are familiar with drone laws there are too many practical problems not the least of which is that there won’t be very many lawyers who would be knowledgeable and getting them to travel to represent people would be expensive. I suppose the AMA is a possibility for such an undertaking but you still have the issue of the small pool of lawyers. Any lawyer worth his or her salt would be able to do enough research on drone law to ably represent someone if they are willing to put in the time.

As I mentioned in a previous post to be a lesser included offense the original offense would have had to include all the legal elements of the lesser offense. I would be willing to bet that is not the case here. Not to mention there are often constitutional issues of vagueness and overbreadth with disorderly conduct laws

Again its a matter of getting an attorney who is willing to really fight. Of course the client has to pay for the lawyer’s time which can often be a stopper.

Sorry you had a bad experience.

BTW ... the lesser included offense was "Disturbing the Peace". How many local citizens called in to complain? Should I have asked? If someone doesn't like the sound of a loud muffler, can one complaint by one person, get someone else cited for "Disturbing the Peace". If so, if the defendant has had a clean record for 75 years, should the first fine be set at $1000. That sounds very punitive ... a clear miscarriage of justice in my opinion.