Tell It To the Judge...

[one800higgins]

I'll be printing all of that info and doing more research before my court date. I don't know how these citation hearing work though...will I be given a chance to explain or demonstrate that the park district's ordinance is invalid relative to control of the airspace above it? Assuming of course that I can make that case.

View attachment 48353

If it’s anything like a traffic violation, you can probably speak to the DA (or more likely an ADA) any time before your court date. They generally have public hours listed on their website where you can speak with someone at the courthouse before the court date. They often hand out reduced tickets on the spot, though they can also dismiss if there is justification. They do this to free up the court systems.

I’d bring a print out of the law you were cited for, a print out of the FAA’s stance on state / local laws on air space, and information about your flight path showing that you took off from non-park property and that the FAA does not recognize that area as a no-fly zone. Probably bring some information on the new pilot program (IPP) that the President signed last November, which started earlier this year, and explain that the FAA is working with local / state entities but that at this moment local / state have no power over the airspace. It’s possible the DA will dismiss it on the spot and send you on your way.

If not, you can always speak to a lawyer and see if they can get it tossed out. I can’t imagine the park system would ever want to battle this in the court and would rather dismiss it and keep ticketing people who aren’t willing to put up a fight.

 

[Norb_DAIS]

PLEASE, keep us informed about this........
How did that Officer know you were out there in middle of nowhere flying???
Do they have drone Radar?

The first responding official (the park ranger) told me that a police officer saw me as he was driving by. Although I was there at around 8:20 on a Saturday morning, the road has its share of traffic. I will post updates as I think it'll be a good learning experience for a lot of us drone pilots. I passed my p107 test back in July and there are still a lot to learn as you do the job.

 

[ac0j]

From the attached citation it appears you took off and flew from “gate 25”. Which makes it sound like you were on park property. The ticket doesn’t say anything about flying. It appears to be more about possession of banned item on their property.
They are getting smarter.

 

[Goof]

Could be starting to split hairs at this point... In Australia, where a park or incorporated property has road access to a main road, the council/RMS/RTA/whatever in charge of roads for that municipality is responsible for the road up to the gate, and the land it lies on. If American state laws are similar, and if you were pulled off the road into a parking area/clearing/or even a gateway without actually entering through the gate, you can probably argue you're not on park property.

Just judging by the position of the car in the video, it looks like this might be the case (you haven't passed through a gate or sign indicating park property).

 

[one800higgins]

From the attached citation it appears you took off and flew from “gate 25”. Which makes it sound like you were on park property. The ticket doesn’t say anything about flying. It appears to be more about possession of banned item on their property.
They are getting smarter.

I don't think that's the case. That looks like a general marker to indicate where the citation was issued, similar to an officer using a mile marker. It does not insinuate that he was on park property when the citation was issued, as it doesn't insinuate that "gate 25" is park property.

I pulled up the parks map from their website and overlaid it on a satellite view of where OP launched from. At least based on the maps they publicly post, he was not on their property for launch. The green highlight in this image is the rough outline taken from a very low res map from the East Bay parks website. Red arrow is "gate 25", which leads to access roads for the windmills. Also, some of the windmills appear to be park property while some are not.

It's possible that the park property extends beyond what they publicly share, but that seems like even more justification to get the ticket tossed.

 

[Norb_DAIS]

From the attached citation it appears you took off and flew from “gate 25”. Which makes it sound like you were on park property. The ticket doesn’t say anything about flying. It appears to be more about possession of banned item on their property.
They are getting smarter.

I was outside that service gate, pretty much on the side of the road as the video shows.

 

[tcope]

I'm likely to just go to the court, speak my peace (respectfully) and pay the fine.

based on what you posted, I think it unlikely that a judge will uphold the citation. US Code allows for _only_ the FAA to regulate airspace. If you were not on park property, they had _no_ authority over you.

To me, this appears to be a clear case of the park ranger not understanding US law.

 

[keith00]

Keep in mind that the judge will be in a city or state court...and it looks like you did, in fact, violate the city/state ordinance. The issue is whether or not the ordinance violates federal law. A city/state judge may not care much for that issue and may only address whether or not you violated the ordinance. That may require you to appeal his or her ruling.

And now we get into how the ordinance works: will you have to appeal it to a federal court to get it properly addressed? If so, will it be worth the effort?

 

[keith00]

And I'm not suggesting you shouldn't fight it...I would totally try to fight it. I just wanted to throw out there how those prosecutors and judges at that level may respond to an argument that the law they enforce is a violation of federal law: that's above my pay-grade.

 

[BlueBay]

It's not a case of fighting it, it's more about justice. You are innocent until proven guilty. No doubt all parties will be polite and sensible. But this is very much 'new ground' for everyone, don't admit to anything you didn't do. They can prove otherwise, if they have the evidence. The takeoff/landing border & geographical evidence is always compelling. If you were located at an authorised area to fly, then I don't see how they can prosecute.

 

[Norb_DAIS]

It's not a case of fighting it, it's more about justice. You are innocent until proven guilty. No doubt all parties will be polite and sensible. But this is very much 'new ground' for everyone, don't admit to anything you didn't do. They can prove otherwise, if they have the evidence. The takeoff/landing border & geographical evidence is always compelling. If you were located at an authorised area to fly, then I don't see how they can prosecute

I'm not expecting to go in there to show them how much "I know" about the FAA rules and how the local ordinance is unfair or flat out wrong...at least not without an abundance of respect for the court.

@keith00 asks "...will it be worth the effort?" and that is the biggest consideration for me. I'm not sure how much the fine will be, but I'm not in a position to be able to engage in a legal fight about this infraction.

If someone wants to foot the legal bills, then maybe. I think the outcome will be interesting for all of us.

 

[tcope]

Keep in mind that the judge will be in a city or state court...and it looks like you did, in fact, violate the city/state ordinance.

Why do you think the person was in the park when he was cited? Why do you think he was not simply flying _over_ the park at the time?

According to the OP he was not in the park and I must say, I'm guessing he is probably correct. Cities not only incorrectly enforce law but even make illegal ones all of the time. I think in this case the law enforcement officer thought he/she could enforce a local law even if the drone is just flown over their property.

No appeal is needed. I don't see any Federal violation but also, local authorities don't have the ability to issue a federal citation. So the OP simply needs to show this. If the local authorities think a violation in federal airspace occurred, they can feel free to refer the _matter_ to the FAA. It would be up to the FAA to bring charges (all of which would not happen).

Personally, I think the OP may want to try to speak to the district attorney before the case is heard and see if they simply want to dismiss the case. I doubt they would give the OP the time of day as their job is to simply spend all day in court. They have a stack of files for that day and most don't want to take the time to talk to everyone before the court date/time. My guess is the prosecutor will offer the OP some type of "deal" right before the hearing. If I was the OP, I'd simply refuse and see what happens. I'd take all the documentation to show he/she was never in the park and then simply argue that the citation is not valid for that reason. I also take a copy of the US Code just in case, to show only the FAA can regulate airspace.

 

[keith00]

Why do you think the person was in the park when he was cited? Why do you think he was not simply flying _over_ the park at the time?

I didn't offer an opinion on whether he was in the park or not. All I know is that he was cited for violating an ordinance.

And the ordinance states: "No person shall engage in any of the following activities within the District except in areas specifically designated and set aside from time to time by the Board for such activities. 409.3 Operate self-propelled (motor driven) Unmanned Aircraft System (UAS aka “drone”) model aircraft, boats, automobiles, or other model craft of any kind or description, or fly any UAS closer than 500 feet above District parklands, as defined by Federal Regulations; (rev. 4/16)."

Based on the wording of the ordinance, I would conclude that the ranger correctly interpreted the ordinance that he cited on the citation. And if the prosecutor sticks with it, I think he would be correctly enforcing the ordinance. And if the judge upholds it, I think the judge would be correctly enforcing it.

Simply put, the ordinance makes it a violation to fly over the park closer than 500 feet above the park...regardless of where you launch.

But that's not the issue. The issue is whether or not the ordinance itself is legal. But the ranger, the prosecutor, and, possibly even the judge, don't get the luxury of deciding whether or not laws passed by a legislative body are legal or not. That's typically the purview of appeals courts.

Yeah, the ordinance is wrong. But that doesn't mean the people in the first line of enforcement will be able to do anything about it.

 

[keith00]

And I'm not saying they will enforce it when confronted with the federal rules, but who knows? The local rules are in conflict with the federal rules...and they enforce the local rules.

I think he'll have a good chance of getting it torn up if he approaches the prosecutor before-hand. That won't do anything to change the law or the enforcement by the rangers, but it will solve his problem.

 

[tcope]

But that's not the issue. The issue is whether or not the ordinance itself is legal. But the ranger, the prosecutor, and, possibly even the judge, don't get the luxury of deciding whether or not laws passed by a legislative body are legal or not. That's typically the purview of appeals courts.

Actually it _is_ the judges _specific_ duty to rule on this matter. An appeals court is where a local judge would be over-ruled. Judges rule that a law is not valid all of the time. The judge can also rule in the same regard that the person who wrote the citation has no legal right to do so as they have no jurisdiction over public airspace. It is really the same thing though.

Again, ruling the local law unenforceable to the judges actual job. This is one way we get case law.

 

[keith00]

Actually it _is_ the judges _specific_ duty to rule on this matter. An appeals court is where a local judge would be over-ruled.

I guess we'll see.

 

[Mr. Salty]

And I'm not saying they will enforce it when confronted with the federal rules, but who knows? The local rules are in conflict with the federal rules...and they enforce the local rules.

And the Supremacy Clause of the U.S. Constitution says that when there is such a conflict between state/local laws and federal laws, federal law wins, period. A judge will know this.

 

[keith00]

And the Supremacy Clause of the U.S. Constitution says that when there is such a conflict between state/local laws and federal laws, federal law wins, period. A judge will know this.

And the lawmakers knew that, too. But here we are.

 

[Norb_DAIS]

Thanks for presenting these viewpoints. Each has its own merits. When I looked up the ordinance, it does state that you are prohibited from flying below 500' above District parklands. It does not address where the flight originates or terminates. But as we all know, flying above 400' AGL is illegal according the FAA so they are effectively closing off the airspace above the park, which we all seem to agree is not within their power to do so.

I'll be calling to try and speak to someone at the court for clarification. If they decide to throw it out, great! If not, I'll at least have their interpretation and decide what to do at that point.

 

[tcope]

And the lawmakers knew that, too. But here we are.

Local lawmakers are easily paid off to make any law you want. Happens _every_ day. I suspect that they do know their laws won't hold up but the game goes like this... an illegal law is made. The police stop someone breaking this illegal law. They then tell the person to stop and tell them if they don't they will be cited. At this point many people will stop... thinking they face a fine. Basically they are bullied into obeying the illegal law. In some case the person will be cited and perhaps just pay the fine. The local government just made some easy money. Perhaps instead it goes to the prosecutor. If the person does not show up to court, easy money. If the person does show up either the prosecutor drops the charges or the judge throws out the charges. That information is difficult for most people to know. In the end, the local government has _nothing_ to lose and has a lot to gain. If the law is found to be illegal, no one is held accountable.

In Utah a local dealership (with millions of dollars) paid to have a law passed that dealer could not be open on both Sat and Sun. This is an actual law. Is it really the government's place to tell a dealership when and when they cannot sell cars? In this case, this dealership did not want to be forced to be open on Sunday. They also did not want to lose business to other dealerships. So they paid off some lawmaker to make this law.