Legal Analysis and a Cave Video
Hang Son Doong
I’ll start with some videography since I came upon this amazing video. Ryan Deboodt, owner of Ryan Deboodt Photography in Beijing had the opportunity to record an aerial drone video of the world’s largest cave – Hang Son Doong in Vietnam. The video is amazing, both for the natural features and the quality of the footage.
The cave boasts its own river and jungle and is large enough to hold an entire block of Manhattan or allow a 747 jet to pass through it. It wasn’t accessed by humans until five years ago, but now a developer has the unfortunate idea of building a cable car that would allow mass access to tourists. Enjoy the video.
Rivera v. Foley – Hartford, CT
This is a follow up to an article I wrote about a Connecticut reporter, Pedro Rivera, who was stopped by Hartford Police for flying his personal UAS near an accident scene.
Mr. Rivera filed suit last year against Lt. Brian Foley, major crimes division commander at the Hartford Police, alleging a violation of his First and Fourth Amendment rights. The suit is based on his appearance at an accident scene on February 1, 2014. He was acting in his personal capacity and not for his news station, was standing away from the scene on public property, and was flying the UAS about 150 feet over the scene.
The complaint filed by Mr. Rivera contained multiple allegations, and as such the ruling is somewhat complex. This ruling was in response to the defendants’ Motion to Dismiss for Failure to State a Claim (a “12(b)(6)” motion, for the Federal Rule of Civil Procedure that addresses it). I’ll break it down as succinctly as possible below, but in short the District Court ruled against Mr. Rivera on all grounds but one. Some of the reasons were procedural, but will effectively allow police to do the same thing in the future without the UAS user having legal recourse.
Also, the court noted that some of its ruling was based on cases that apply only to the Second Circuit (Connecticut, New York, and Vermont). Mr. Rivera can appeal if he so chooses, and this case does not bind other courts.
Mr. Rivera’s claims under 42 U.S.C. § 1983 are as follows (Section 1983 essentially allows a person to sue a governmental entity for violations of other federal rights, such as those protected by the U.S. Constitution):
- Violation of Plaintiff‘s Fourth Amendment right to be free from unreasonable seizure, as a result of the officer’s actions at the accident site,
- Violation of Plaintiff‘s First Amendment freedom of speech when the officers prevented him from recording police activity.
- Violation of Plaintiff‘s First Amendment right to assemble at the accident site and monitor the police response to a motor vehicle accident,
- Retaliation against Plaintiff for exercising his First Amendment right to assemble at the accident site and record police activity, and
- Violation of Plaintiff‘s First Amendment right to freedom of the press as a result of the officer’s attempt to have Mr. Rivera suspended from his job at a local television station.
- The lawsuit against the Hartford Police Department was thrown out on procedural grounds because it is not a “legal entity” under Connecticut State Law that can be sued under §1983. Therefore, one must sue the municipality and not a component of it.
- However, the court took the claims against the Police Department and considered them as if they were against the City of Hartford. The Court then found that Mr. Rivera did not state any official policy of the City of Hartford that caused the situation to occur, which is required to sue a municipality under §1983. An “official policy” can be one that is (1) actual municipal policy, (2) municipal custom or practice (including if the City acquiesced to or tacitly authorized the conduct), or (3) the decision of a municipal policymaker with final policymaking authority. The Court found that none of these were satisfied and the the case against the City was also thrown out.
- This left the two police officers, which the City claimed were eligible for “qualified immunity.” This allows municipal officer performing discretionary functions to be shielded from suit in their individual capacity. The Court recognized that this is a difficult defense for the officers to prove. It can be met if the officers conduct violated a constitutional right that was clearly established, and if it would have been clear to a reasonable officer that his conduct was unlawful in the situation he confronted (the comments below match with the numbers above relating to Mr. Rivera’s claims):
- The Court found that the officers had a basis to stop Mr. Rivera and detain him and his property, therefore dismissing the Fourth Amendment claim. In short, he refused to stop flying “an unusual and likely unidentified device into a cordoned-off area at the scene of a major motor vehicle accident and ongoing police investigation” and therefore allowed the officers to conclude that he was interfering with a police investigation. The Court said that at a minimum, reasonable officers could disagree on the legality of their conduct in stopping Mr. Rivera. I’m intrigued by the “into a cordoned-off area” statement, since he was 150 ft over it, but more below.
- There is no First Amendment freedom of speech)right in the Second Circuit to record police activity and therefore no basis to argue there was a violation of his rights (1st, 7th, 9th, and 11th Circuits do provide such a right; the 3rd and 4th do not; and the remainder are silent). Furthermore, the Court found that the Circuits which do allow recording have addressed hand-held devices, not UAS. The Court also cited United States v. Causby, an aviation case from the mid-century, which found that a landing aircraft at 83 feet was in the landowner’s private airspace. I find the Court’s reliance on Causby to be overly simplistic. Later cases have found that rather than using a fixed altitude to delineate private from public airspace, one must perform a fact-specific analysis. That was not done here, and I don’t think one can say that 150 ft over an active police scene is in the private airspace of the landowner below without a more detailed analysis.
- The Court found that there is no basis to say one “has a clearly established First Amendment right to assemble at the scene of an active police investigation and fly an unidentified object into a designated crime scene.” This sentence gives some insight into the Judge’s opinion regarding UAS, but tracks with the reasoning above.
- See Number 3 – since there is no right to assemble, there could be no retaliation.
- The Court found that Mr. Rivera could proceed with his case on the First Amendment “prior restraint” claim. The Officers “acted to suppress Plaintiff‘s right to freedom of the press when he contacted Plaintiff’s employer and threatened to withhold the ‘goodwill’ of the Department if Plaintiff was not ‘disciplined,’ resulting in Plaintiff‘s suspension from his job as a photographer and editor.” The Court noted this is a particularly concerning allegation given his role in the press. This does not mean he won on this claim – only that the case can proceed.
I’m not sure what the future holds for this case, but will keep an eye on the prior restraint portion of the lawsuit as it progresses.
Electronic Privacy Information Center v. FAA
- to set aside the NPRM regarding small drones published on February 23, 2015;
- to review FAA’s denial of EPIC‘s March 8, 2012 petition; and
- to hold unlawful the FAA’s withholding of proposed drone privacy rules
EPIC contends that the FAA Modernization and Reform Act requires the FAA to promulgate rules regarding privacy concerns with UAS. The FAA denied the request in November 2014, stating that the FAA triages the regulations that must be updated, this is not an immediate safety concern, and that rules regarding small UAS would be forthcoming. EPIC does not believe the rules address privacy concerns, which is accurate since they are focuses on physical safety of people and property. This will be a case to watch.