Currently, only Oklahoma will allow an individual who is unaffiliated with a government agency to shoot down a drone. (Photo: iStock)
Analysis brought to you by the experts at FC&S Online, the unquestioned authority on insurance coverage interpretation and analysis for the P&C industry. Read more on the National Underwriter website, or contact FC&S editors via Twitter: @FCSbulletins.

In recent years, as drones became more popular and concerns arose about privacy and neighbors spying on neighbors, the topic of shooting drones out of the sky came up as well.

In 2015, a Kentucky man shot down a drone hovering over his yard and was charged with criminal mischief and wanton endangerment.

In 2017, a lawsuit filed in federal court against the shooter was dismissed. The drone owner had filed suit asking the court to make a legal determination whether or not the drone flight was trespassing. The drone owner felt the destruction of the drone was unwarranted and he should be compensated for damages. The court dismissed the case stating that this was the wrong venue, and that it should be handled in Kentucky state court.

Related: 10 risks and misuses for drones

Other drones have been shot down in New Jersey and California. FAA regulations state this is illegal, and many shooters have been arrested for using their firearm to take out an unwelcome drone. Meanwhile, Lockheed Martin and Boeing are selling anti-drone laser weapons, and another company is selling shotgun shells specifically designed for those who feel they have a need for ammunition against drones.

While not making a recommendation, an April 2015 Popular Mechanics article also discussed how to take down a drone. One of the significant points was: what goes up must come down, and bullets falling from the sky are a bad thing.

Actually being able to hit a drone, which is a moving target, is another issue entirely. For instance, what happens if a shooter misses the drone and instead strikes another object (or individual).

Public safety concerns
Drones are becoming ever more popular. According to the Federal Aviation Administration and other sources, there are currently about 1.1 million drones in the United States. Estimates are that by 2021 — only four years from now — that number will be between 3.55 million and 4.55 million.

The FAA says the number of remote pilots is expected to grow from 20,362 in 2016 to 281,300 by 2021.

It’s not just private individuals who have problems with drones.

In June of 2015, the presence of drones caused firefighting aircraft in California to divert from a wildfire, and grounded four responding aircraft for more than two hours. Some of the planes had to drop their fire retardant. The failed mission cost between $10,000 and $15,000.

The very next month, also in California, drone use caused responding aircraft en route to a fire near an interstate to be delayed 20 minutes, allowing the fire to grow substantially. Local county governments subsequently offered rewards up to $75,000 for information on the offending drone flyers, and proposed legislation that would allow firefighters to knock out private drones that impede firefighting efforts — without having to pay for any damage.

Then, in April 2016, the FAA made it clear that shooting at any aircraft, including unmanned aircraft, was a significant safety hazard as well as a federal crime. Among the concerns: Out-of-control drones can fall from the sky and collide with objects in the air or on the ground. Shooting at a drone is a felony under title 18 USC 32, and carries a penalty of 20 years in prison.

In May 2017, draft legislation arrived that would permit government agencies to monitor any drones flying over an American “covered facility, location or installation,” and give the facilities broad leeway to intercept wireless signals going to the drone. If a drone is determined to be a threat, this law would allow the agency to redirect, disable, confiscate or destroy it.

Areas considered “covered” could be search and rescue operations, wildfires, police investigations, and other government activities. The law would make an exception for drones in U.S. hacking and surveillance laws, as intercepting drone signals could be considered wiretapping or accessing a “protected computer,” and disabling or destroying a drone could be considered aircraft sabotage under certain FAA rules. The draft legislation is intended to become part of the National Defense Authorization Act.

Related: 10 Risks and Misuses for Drones

Lawmakers at work
The National Defense Authorization Act of 2017 states that the U.S. Army will conduct an assessment of capabilities of air defense artillery capacity and responsiveness to include threats posed by unmanned aerial systems along with cruise missiles and manned aircraft. The Secretary of Defense also may take action, and may authorize the military to take action to mitigate safety and security threats posed by an unmanned aircraft. These actions include monitoring, detecting, identifying including interception or other access, warning the operator of the aircraft by passive or active communications, and disrupting control of the aircraft without prior consent, which may include disabling by intercepting, interfering, or causing interference with wire, oral, electronic or radio communications to control the unmanned aircraft.

The law also says that those so authorized can seize or exercise control, confiscate, or use reasonable force to disable, damage, or destroy the unmanned aircraft. Any seized aircraft is considered forfeited to the United States.

The Secretary of Energy has the same authority with regards to facilities identified by the Secretary of Energy for purposes of the section and located and owned in the United States or contracted to the United States to store or use special nuclear material.

The goal of this legislation is to protect government facilities and other significant properties from interference by drones. Many such areas are already restricted so that only those with proper authorization can enter the facility. If seen as a threat to national security, this Act allows the Army to dispatch drones.

Related: 5 risks that threaten the drone industry

Up in the air
Since drones can fly overhead, an unauthorized drone can readily fly into restricted areas.

On August 7, 2017, the Pentagon approved a policy that allows military bases to shoot down unauthorized drones in their airspace. Details are unavailable, as the information is classified. But rules of engagement concerning drones have been issued.

Anti-drone measures include water cannons, shotguns, sophisticated electronic warfare systems designed to disable the drone’s controls and power systems. Disabling the power system would avoid issues such as where the bullets are headed when released from anti-drone shotguns or missiles.

Complications arise, however, because many military installations are surrounded by farmland, and farmers often use drones to monitor their crops. The government may have even leased property from the owner.

States rights
Meanwhile, some states have created their own laws surrounding the ability of individuals or state agencies to shoot at drones over their property. Only Oklahoma allows an individual to shoot down a drone if it is not in Federal Air Space. In that state, the homeowner is granted civil immunity.

Other states allow public entities, law enforcement or fire departments to disable drones that endanger an officer’s work or the public’s safety. It seems likely that other states will follow suit.

Continue on for a summary of state-based legislation covering the issue of shooting down nuisance drones.

Originally published on FC&S Legal: The Insurance Coverage Law Information Center. FC&S Legal is
the industry’s ONLY single-source, comprehensive portal developed specifically for insurance coverage law professionals. To find out more, visit www.fcandslegal.com. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. If legal advice is required, the services of a competent professional person should be sought.