Matthew Berard on evolving drone law
By Steve Thorpe
Legal News
In a very short time, remote-controlled flying drones have gone from being an exotic rarity to being an important part of the U.S. military’s arsenal and a common, relatively low-cost hobby. Matthew Berard of Plunkett Cooney’s Detroit office concentrates his practice on medical liability and insurance coverage. A licensed private pilot, Berard also serves as the membership chair for the DRI Aviation Law Committee and is a member of the Lawyer-Pilots Bar Association, Aviation Insurance Association, Michigan Business Aviation Association and Aviation Law Section of the State Bar of Michigan.
Thorpe: Your firm held an upcoming webinar on drone law on Nov. 12. Tell us about it.
Berard: Our webinar “Prepare for Takeoff: The Emerging Trend of Drone Use by Law Enforcement” focused on the considerations and implications of operating “drones,” or Unmanned Aircraft, for law enforcement. The FAA has approved drone use for a number of different public applications to police departments, departments of transportation, public universities, NASA, the FBI and other public entities. With my colleagues Jason Bulbuk and Rochelle Ralph, Bill Reising of Plunkett Cooney’s Flint Office moderated us through this webinar that provided an overview of drones, the challenge of integrating drones into our National Airspace System, governmental applications, search and seizure issues and governmental immunity from drone use liability.
Thorpe: How do the Federal Aviation Regulations intersect with the law? If I break a FAR, have I broken the law, even if I’m not a licensed pilot?
Berard: The FARs govern aviation operations. One is not exempt from the penalties associated with unauthorized drone operations simply because they are not a licensed pilot. However, I note that if a licensed pilot operates a drone illegally, the penalties are even stiffer for the operator as the FAA believes that the certificated pilot should appreciate the potential for endangerment. Nonetheless, we need to recognize that by operating a drone outdoors the operator is sharing airspace with manned aircraft and is subject to federal regulation. As a pilot, one thing I am particularly worried about is a mid-air collision with manned aircraft, whether it might be a Cessna 172 or a Boeing 747. Not only are the occupants of those aircraft at risk, but also the people and property on the ground if the affected aircraft is forced to make an emergency landing.
Thorpe: Law enforcement has embraced drones. What are potential search and seizure and warrantless search issues? How are the courts treating evidence obtained in this manner?
Berard: Law enforcement agencies have used aircraft for years. In fact, the United States Supreme Court has ruled on the constitutionality of using publicly operated aircraft for surveillance from legally navigable airspace. It is not clear whether, and to what extent, that precedent will apply to drones or if a court would distinguish the use of a drone with that of a full sized helicopter that might not be able to fly quite as low. The analysis might hinge on what constitutes a legal operation of a drone for law enforcement purposes, at what altitude those operations are permitted, and whether it was in legally or publicly navigable airspace. And while we might perceive drones to be quad-copters, it is not outside the realm of possibility that one day a law enforcement agency could operate a fixed-wing predator drone for use at high altitude. Another concern is what happens if a deputy brings a personal drone along during their shift to get a better look into somebody’s backyard or curtilage of their dwelling.
Thorpe: My drone damages property or injures a person. Can I be criminally charged?
Berard: It depends. For instance, with respect to Temporary Flight Restrictions (TFRs) over sporting events, the FAA advises law enforcement that potential criminal charges that may apply include reckless endangerment, operation of a motor vehicle while under the influence, trespass and assault. Further, if somebody uses a drone to carry out a criminal act, the drone is simply an instrumentality of that crime and the person may be charged. There are also privacy considerations and existing local, state and county criminal codes might apply depending on the circumstances. If you are operating a drone and it causes damage or injury, it is also possible that the operator will be subject to penalties from the FAA.
Thorpe: What are some of the insurance implications of drones?
Berard: There is much discussion in the insurance industry about drones and whether they are insured. Generally, insurance policies have an aircraft exclusion that precludes coverage for bodily injury and property damage arising out of the ownership, maintenance or use of an aircraft. Although some view drones as toys, they certainly meet the definition of “aircraft” in the dictionary as well as under the Michigan Aeronautics Code. The FAA has also concluded that drones are “aircraft.” However, homeowners policies in particular might specifically define the term “aircraft” as “any contrivance used or designed for flight, except model aircraft or hobby aircraft not used or designed to carry people or cargo.” This definition serves as an exception to the aircraft exclusion but might not apply to restore coverage for drones because a drone is not a “model or hobby aircraft” or is used or designed to carry cargo. Nevertheless, some insurers are issuing separate policies altogether specifically for drones.
Thorpe: What’s on the immediate horizon for drone law?
Berard: The FAA missed its September 2015 deadline mandated by Congress to create regulations integrating drones into our airspace system. Hopefully, we will see those regulations within the next year. Drones will need to be registered with the FAA (i.e. they will need a tail number). I believe we can also expect to see states continuing to enact laws with respect to drones that might ultimately have little to no effect given federal preemption issues. Unfortunately, at this point legal precedent with respect to drones issues is rare and might not fully develop unless or until issues arise.
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