Flame Throwers and Glocks!!

Last month, we wrote about a new case  that was going to require a federal court to determine whether or not an unmanned aircraft is an “aircraft.” The judge issued his opinion this week, and his decision is not a surprise to those of us who practice aviation law.

By way of background, the Court was asked to enforce an administrative subpoena issued by the FAA to Mr. Haughwout, who had achieved a certain amount of notoriety for several videos where he fired a flame thrower and a hand gun from a UAS. The subpoenas were the first steps taken by FAA in pursuit of possible civil penalties. Mr. Haughwout had refused to cooperate in the investigation or respond to the subpoena, claiming that the FAA has no jurisdiction over small UAS.

In his written opinion, Judge Meyer noted that federal agencies have broad authority to investigate whenever there is reasonable ground to believe that there is a violation of federal law. Here, 14 C.F.R. § 91.13 prohibits the careless or reckless operation of an aircraft “so as to endanger the life or property of another.” The Court held that “there can be no dispute that the weaponized devices shown on the YouTube videos at least give rise to questions about possible danger to life or property.”

Mr. Haughwout, however, claimed that this section was inapplicable because his small UAS was not an aircraft. The Court rejected that argument, noting that Congress had provided a statutory definition of aircraft that was “stunningly broad,” and includes “any contrivance invented, used, or designed to navigate, or fly in, the air.” The Court characterized Mr. Haughwout’s claim that the statute could not be given such an expansive definition because it would include baseballs and pizza dough, as “creative.” The Court held, however, that the FAA is not required to fully define the hypothetical limits of its authority before it takes action. Rather the question is whether the specific action that is taken by the FAA is permissible. As a result, the Court held that for purposes of this dispute, Mr. Haughwout’s UAS was an aircraft.

The Court did note, however, that if the FAA ultimately decides to fine Mr. Haughwout for flying on his own property in a way that cannot pose a threat to air commerce, some of his other arguments might be worthy of further consideration. The federal government does not have a general police power, and ultimately its authority is limited to the reach of the commerce clause. However, because the FAA’s investigative authority is so broad, the Court concluded that those arguments were best addressed in the context of a well defined and concrete factual record at some point in the future.

So, as expected, this is not the end of the issue. The FAA will have to conclude its investigation and determine whether they want to formally pursue a penalty. Mr. Haughwout, who has shown that he is not shy about fighting with the FAA, will ultimately be entitled to a hearing before an administrative law judge, appeal to the NTSB, and potentially appeal to the United States Court of Appeals for the District of Columbia Circuit. As a result, we will no doubt be writing about this saga for years to come.

Originally posted July 20, 2016

This entry was posted in General. Bookmark the permalink.

Leave a Reply