2nd Amendment Up in the Air

As a follow-up to last week’s post about a Colorado town that was set to issue, essentially, hunting licenses to shoot down unwanted drones and unmanned aerial vehicles (“UAVs”), the Federal Aviation Administration (“FAA”) has chimed in.

No way, says the FAA.

Makes for good news, but it should not take flight as legal matter.  This year, in a court opinion titled United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013), a federal court evaluated crimes of violence in the special aircraft jurisdiction and it may have application to the UAV context:

In the case, an inebriated man, distraught because of losing his girlfriend and his job, took his father’s loaded .38–caliber revolver from an unlocked safe and out into the driveway of his home.  He fired off several rounds, including in the general direction of an airborne police helicopter.  For that, he was convicted by a federal jury under 18 U.S.C. § 32(a)(1), which outlaws attempts to set fire to, damage, destroy, disable, or wreck an aircraft in the special aircraft jurisdiction.

The Eleventh Circuit Court of Appeals affirmed the conviction in a decision written by Sandra Day O’Connor, retired Associate Justice of the United States Supreme Court, sitting by designation. Justice O’Connor found that the jury’s decision was supported by sufficient evidence and that the trial judge was correct ruling that this was a crime of violence for purposes of firearm enhancement and consecutive sentences under 18 U.S.C. § 924(c)(1)(A).  The shooting took place in the special aircraft jurisdiction of the United States, which is defined as an “aircraft in flight,” 49 U.S.C. § 46501(2), which is further defined as encompassing the time “from the moment all external doors are closed following boarding through the moment when one external door is opened to allow passengers to leave.”  Id. § 46501(1)(A).

Given these definitions, the shooter attempted or threatened destruction of very sensitive property and probably lives and was necessarily convicted of attempting to damage or disable an aircraft that was either flying or else ready to take off or arriving at a destination with people on board.  The shooter argued that the use of force or a serious risk of using force is not necessarily involved in the disabling of an aircraft, e.g., deflating tires, disabling the ignition, or disengaging fuel lines while the airplane is on the ground, or disconnecting onboard circuitry, disabling the radio transponder, and interfering with the aircraft’s radio equipment while the airplane is in the air.  Justice O’Connor disagreed, writing that “attempting to disable an aircraft while people are on board is itself an act of force in the meaningful sense … and disabling a airplane in the special jurisdiction of the United states at least involves a serious risk that force will be used in its completion.”

Will be curious to see how, or if, this law is extended, to drones.