Los Angeles City Attorney Files First Criminal Charges Against Drone Operator; Raises Questions of Federal Pre-Emption

Los Angeles City Attorney Mike Feuer filed criminal charges against two men for flying drones in the vicinity of a hospital and police heliports. They will be the first to face criminal charges under Los Angeles’ new drone restrictions, and will test the ability of a municipality to restrict drone usage, an area that has traditionally been left to the FAA. The Los Angeles Times reported that On Dec. 12, city prosecutors say a drone flown by Arvel Chappel, 35, forced an LAPD air unit to change its landing path when he flew the device within a quarter-mile of the Hooper Heliport downtown. Days earlier, Michael Ponce, 20, was cited for flying a drone within three miles of several hospital heliports in Griffith Park. L.A.’s new drone ordinance, which the City Council unanimously approved in October, makes it a misdemeanor to fly a drone more than 500 feet in the air, within five miles of an airport without permission or within 25 feet of another person.

However, Chappel and Ponce’s attorneys should be aware that there is some question about the legality of the City’s ordinance. Although L.A.’s drone ordinance closely resembles the Federal Aviation Administration’s civilian drone flight regulations, the City’s ordnance most likely is pre-empted by federal law. Aviation statutes specifically state that “[t]he United States Government has exclusive sovereignty of airspace of the United States.” 49 U.S.C. 40103(a)(1). Moreover, the same statute specifically gives the federal government the authority to establish rules and regulations “for the use of navigable airspace.” 49 U.S.C. 40103(b). This is what is known as “field pre-emption,” where the statutory language is so broad that it pre-empts any state or local laws or ordinances that fall within the purview of the statute. As far back as 1973, the U.S. Supreme Court has upheld the FAA’s authority in Burbank v. Lockheed Terminal, 411 U.S. 624 (1973). In Northwest Airlines,Inc. v. Minnesota, 322 U.S. 292, 303 (1944) The U.S Supreme Court held that “[f]ederal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis into a runway it is caught up in an elaborate and detailed system of controls.”

It should be interesting to see if federal pre-emption will be raised in these cases.