A recent decision in the infamous "Drone Slayer" case answers some questions relating to the role federal courts will play as individuals seek to vindicate their property and privacy rights against UAS operators. But at the same time the decision leaves many questions unanswered, including the critical question of whether air over one's land is public or private airspace.

In the decision, the United States District Court for the Western District of Kentucky dismissed the lawsuit of a hobbyist whose UAS was shot down by a neighbor who saw the UAS hovering over his land.[1] The UAS operator filed suit in federal court against the neighbor, who later began referring to himself publicly as the Drone Slayer, seeking to recover for the damage to his UAS under Kentucky state law, as well as a declaratory judgment that he was flying his UAS in federal airspace.

In a case where no other basis for jurisdiction existed, the UAS operator asserted that the court had federal question jurisdiction because he was flying his UAS in federal airspace and his claim sought resolution of a longstanding debate over private versus public airspace, and therefore raised "significant" federal issues. The court disagreed.

The court ruled that the FAA's "interest in enforcing its regulations in the context of a state law tort claim for trespass to chattels is limited or nonexistent."[2] Similarly, the court disagreed that resolving whether the UAS operator was flying his UAS in federal airspace would resolve the entire dispute, as the UAS operator contended; the court noted that it would still have to address the other requirements for the application of the privilege to shoot down the UAS under Kentucky state law, as among them the reasonable belief in the need to defend property.

While the Boggs decision does not provide UAS commercial operators (and hobbyists) with a clear delineation between private and public airspace, it still provides useful takeaways. The Boggs decision highlights the federal courts' reluctance to disturb precedents like United States v. Causby, in which the US Supreme Court simultaneously found "that the airspace is a public highway" and that "it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere." The decision can also be interpreted as demonstrating federal courts' desire to defer to states on UAS issues, particularly in areas of trespass as well as privacy. Previously, the FAA has taken the position that these areas are "generally [] not subject to federal regulation."[3]