Texas drone law overturned after judge rules for NPPA in federal lawsuit

[Chip]

The problem I’m specifically concerned with is the exercise of control in the airspace above ground. Whether the property is owned by a private individual or a city/county entity should not matter. In Stanton’s example, it seems that he was piloting while actually on the property. That’s a whole different kettle of fish - which I think the property owner has an inherent right to control.

It sounds to me like the federal judge kicked the aerial trespass and invasion of privacy cans straight down the road. In this passage, he states specifically that existing state laws may be used against drone pilots:

Here, Defendants cannot carry their burden to establish that Chapter 423 is “actually necessary” to protect any identified interests. In enacting the law, state legislators claimed the law would protect private property, individual privacy, and the safety of critical infrastructure facilities. However, Defendants have failed to establish that alternative means are insufficient to sufficiently protect these interests. Plaintiffs note that Defendants have a variety of tools to protect the privacy and private property of Texans from overly intrusive or dangerous drone use without Chapter 423. The Texas criminal trespass statute, Texas Penal Code § 30.05(a); Texas Transportation or Administrative Code; recording and voyeurism statutes, TEX. PENAL CODE ANN §§ 21.15–.17 (West 2020); and tort claims including intrusion upon seclusion, all have been or could be used to protect the privacy of individuals from UAV recordings.

 

[Chip]

What do you think of these news gatherers and disseminators expressing their First Amendment rights to fly over the LAPD? Is the officer's threat to "trespass" a "journalist" totally out of bounds?

 

[Chip]

The federal judge declared the Texas state law invalid for several reasons including being too vague to be enforceable. Among other things, the law prohibited using a drone to conduct "surveillance" but did not define the term. Other states such as Florida did not make the same mistake when they enacted their own drone legislation. Consider this section of Florida law excerpted below:

934.50 Searches and seizure using a drone
(3) PROHIBITED USE OF DRONES.—

(a) A law enforcement agency may not use a drone to gather evidence or other information.

(b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

“Surveillance” means:

1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or

2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

Might that clarify the meaning of surveillance sufficiently to pass constitutional muster?

https://www.flsenate.gov/laws/statutes/2015/934.50

 

[Chip]

Best to ask Vic Moss LOL He would know better then me.

I can tell you what Vic Moss said in August when we discussed the Texas law:

100% BS law. And unconstitutional via the First Amendment. See above. There is a reason this hasn't been used much. No DA wants to be in the history books as the DA who lost a case that should have never been brought.

The Texas law is hot garbage and needs to be abolished.

Vic Moss August 2021

US v. Causby (1946) and what altitude can you legally fly at over someone's property

That is currently being challenged. And TX will lose. Interesting. Can you point me to a link to that please? The law has been on the books for a while, and I agree that the portions of it that control the airspace could be called into question; however much of it regulates the "capture" of...

mavicpilots.com

To be honest, I thought Vic was going way overboard with the hot garbage but I guess he was right.

 

[Xitor]

Personally I didn't have much heartburn with the previous Texas law. I couldn't fly with the purpose of surveillance of private property, but if I'm out shooting sunrise shots and not spending all my time focused on one property, I think I'd be ok. Also, the old law listed as a defense deleting the footage. Only time I've ever seen where deleting the evidence is encouraged. But they didn't want hundreds cases so literally if you just delete the footage if someone complains you were surveilling them you were ok. I can understand how a paparazzi reporter trying to get shot of Sandra Bullock in a bikini would not like that law, but for my drone stuff the Texas law never got in the way of what I wanted to do with my drone.

 

[RangerEd]

As a retired lawyer, I am reading this opinion with great interest. I am hoping to find some support for the notion that NO one except the FAA controls the airspace above their property thereby nullifying any attempts to prohibit flyovers by local govts. I‘m halfway through it and will post if I find anything.

In the meantime, I found this particular nugget funny enough to snort uncontrollably. The case against the govt. was brought by news media types who predictably (and justifiably) claim that the flight restrictions are a violation of their 1st amendment rights both to free speech and freedom of the press. Now here’s the hilarious part of the governments response to that 1st amendment claim:

Paraphrasing here: Yo judge, the 1st amendment doesn’t apply here because the framers of the constitution could not possibly have envisioned the use of drones when they declared both freedom of speech and the press!!!

I don’t think you have to be a lawyer or a constitutional scholar to see how ridiculous that reasoning is. After all, I’m sure the framers of our constitution didn’t envision telephones or the internet. Following this ridiculous logic by the government, free speech shouldn’t apply to those communications either. And by extension, I suppose we also should limit the 2nd Amendment’s protection to muskets because after all, that’s the only firearm type the drafters could “envision.” Hell while we are at it, the FAA’s jurisdiction in the skies is also at risk because who woulda knew we could make things fly justifying control of the National airspace.

Ok, soap box safely stowed in the overhead compartment - here’s the actual text found at the top of page 17 in case you are like me and have to see it to believe it.

“Defendants claim that drone photography cannot be entitled to First Amendment protections because it was not contemplated by the Framers when they drafted the protections for expression and the press.“

HAHAHA gotta love your paraphrasing. Can't wait for the rest.

 

[Jagerbomb52]

Personally I didn't have much heartburn with the previous Texas law. I couldn't fly with the purpose of surveillance of private property, but if I'm out shooting sunrise shots and not spending all my time focused on one property, I think I'd be ok. Also, the old law listed as a defense deleting the footage. Only time I've ever seen where deleting the evidence is encouraged. But they didn't want hundreds cases so literally if you just delete the footage if someone complains you were surveilling them you were ok. I can understand how a paparazzi reporter trying to get shot of Sandra Bullock in a bikini would not like that law, but for my drone stuff the Texas law never got in the way of what I wanted to do with my drone.

I can't remember how many years ago it was but the cattlemen had a lot to do with getting a law in to stop people from flying over the slaughter yards to document them. There were a few videos on youtube of the confrontations of the drone pilots and the cops that were being paid off by the cattlemen (rumored)

 

[Chip]

I can't remember how many years ago it was but the cattlemen had a lot to do with getting a law in to stop people from flying over the slaughter yards to document them. There were a few videos on youtube of the confrontations of the drone pilots and the cops that were being paid off by the cattlemen (rumored)

Drone plane spots a river of blood flowing from the back of a Dallas meat packing plant

Drone plane spots a river of blood flowing from the back of a Dallas meat packing plant

A Texan man got pictures using a personal drone plane of a bright red creek just behind an old meat packing plant that was funnelling pigs blood into a nearby river.

www.dailymail.co.uk

Drone pilot finds “river of blood” outside Dallas meatpacking plant

 

[Robert Prior]

I can't remember how many years ago it was but the cattlemen had a lot to do with getting a law in to stop people from flying over the slaughter yards to document them. There were a few videos on youtube of the confrontations of the drone pilots and the cops that were being paid off by the cattlemen (rumored)

Ag-gag laws have been around for a generation. Drones are just one more way abuses can be documented, so the same logic in industrial farms trying to stop them applies.

Ag-gag - Wikipedia

en.wikipedia.org

"Ag-gag laws" hide the cruelty of factory farms from the public. Courts are striking them down.

"Ag-gag laws," explained.

www.vox.com

 

[Chip]

"Ag-gag laws have been around for a generation. Drones are just one more way abuses can be documented, so the same logic in industrial farms trying to stop them applies."

Ag-gag - Wikipedia

en.wikipedia.org

"Ag-gag laws" hide the cruelty of factory farms from the public. Courts are striking them down.

"Ag-gag laws," explained.

www.vox.com

Great link, very interesting. AG GAG Law--catchy too, I like it. The public policy rationale for such laws seems to literally be, the public cannot handle the truth. Or some cannot and will disrupt the whole program.

 

[ScottTX]

I agree Scott - any victory on any grounds in favor of our rights to responsibly use airspace is good news.

BTW - I'm from Denver & I really miss it

 

[Kywon McCain]

Drone plane ?

 

[rjwmorrell]

The park (in between the buildings) is sort of a "neutral" site, so I don't know if that clarifies anything. However, that brings up another (interesting) scenario: I sometimes take-off from my apartment building and fly...which may explain why they never approached me then (they can't enter my property). The plot thickens...

I think the other commenters point was that "someone" owns the park, it is not just free, unowned land. It could be the land is controlled by the apartment buildings jointly, or one of them with some sort of easement for the other, etc. A property lawyer or surveyor would be the one to ask -- and the ownership would be filed in the city land registry or land titles office.

 

[LoudThunder]

I lived in Texas in the Mid-90s and my wife and I liked to canoe the waterways, especially the Concho River, outside and right through the city of San Angelo. I have not followed the Texas Drone Law issue as I am now on the east coast. However, their water-rights laws were a convolute mess. It seems that any water that flows onto their land is theirs; however, they cannot dam it up to prevent it from flowing off their land, meaning they cannot take it all.

But in our experience much of the Concho River flowed through various rancher's properties, meaning they owned the land on both sides of the river and they often put barbed wire fences across the river. They claimed it was to keep their cattle from "swimming" away. We were told several times by ranchers, carrying weapons that we were trespassing on their "land" (we were in a canoe on the river).

The authorities were no help as the law (as it was written in the 1800's did not anticipate pleasure boating…) was too vague as whether we were trespassing or not. Since there were cases of various boats, canoes, and even folks on inner tubes being shot at, we seldom used our canoe in Texas…

So, in the meantime, I would advise all Droners in Texas to Fly High and Fly Fast…

 

[Robert Prior]

The authorities were no help as the law (as it was written in the 1800's did not anticipate pleasure boating…) was too vague as whether we were trespassing or not.

I'm guessing America doesn't have our equivalent of navigable waterways?

Or is it just Texas being Texas?

 

[LoudThunder]

Or is it just Texas being Texas?

Oh, that came up but as you mentioned, it's Texas being Texas. And as you very well know, people who own ranches that stretch across rivers, that may have been in the family since Sam Houston was president of the Republic of Texas, and they have oil money, and a lot of influence in the county, often get their way, right or wrong…

Below is a map of Tom Green county. Note the really odd "pan-handle" shape.



Texas land law dictated county size to an average size of 900 Square miles, and square in shape, for the most part based on having no more than a day's ride to the county seat by horseback… the exception to the square rule was if a natural boundary was included, river, mountain range, etc…

Tom Green County was then too large and had to be subdivided, but a land owner, way out west there in the panhandle was not about to allow that to change and he was not about to live in Irion County which is named after a politician when Texas was a republic and there was bad blood between the families… But this land owner was powerful enough to keep his ranch in Tom Green county and the rest be damned…