With increases in the capability and popularity of drones, New Jersey has joined with 40 other states by introducing drone specific legislation that creates criminal liability for certain prohibited uses. These new laws will be in addition to the existing federal regulations/guidelines that, among other things, required the registration of drones by December 12, 2017, with the Federal Aviation Administration (FAA) and restricted airspaces where drones could not be operated. However, the broad federal regulations apparently did not address state specific concerns prompting New Jersey's Legislature to act.
In 2015, the New Jersey Department of Environmental Protection Division of Parks and Forestry issued Policy 2:38, restricting the use of Unmanned Arial Vehicles (UAV), i.e. drones, in state parks prohibiting:
· Disturbing or harassing wildlife
· Interfering with official law enforcement, fire or medical services, or other emergency operations
· Flying in a reckless manner or outside the designated area(s)
· Flying directly over people, vessels, vehicles, or structure and endangering the life and property of others
· Flying outside of visual sight to the operator, with no visual aids authorized, at all times during flight
· Flying after posted park hours of operation
· Using flammable liquids for fueling a UAV
Unsurprisingly, at the confluence of an evolving technology and an attempt to regulate it, there is disagreement. Proponents of drones feel that existing laws, regulating an individual's behavior and not its instrumentality, are sufficient when applied to drones. For instance, laws against trespassing, stalking and assault are adequate to keep drone pilots from remotely running amok.
Conversely, those promoting drone-focused laws believe that concerns unique to drones warrant laws criminalizing conduct specific to drones, such as:
· Interfering with law enforcement, fire, or medical services
· Hunting with drones
· Piloting drones while under the influence of alcohol (BAC of .08 percent or more) or under the influence of a narcotic, hallucinogenic, or habit-producing drug
· Surveillance on prisons
· Operating a drone equipped with a weapon
As enacted - 2016 Bill Text NJ S.B. 3370.
Criminal liability ranges from crimes of the third and fourth degrees or disorderly persons offenses, which can result in up to six months in prison and a $1,000 fine. These standalone offenses do not merge with existing codified crimes, such as harassment, stalking and invasion of privacy.
Additionally, local municipalities are empowered to enact ordinances prohibiting drone use given certain circumstances, such as creating no-fly-zones in and around municipal airfields. For instance, the Township of Bernards enacted Ordinance #2328 that prohibits, among other things, the flying and/or launching of unmanned aircraft at any park or recreation facility.
This attempt to regulate drones in New Jersey will undoubtedly undergo multiple permutations as additional regulatory needs become evident, as regulations are shown to be ineffective, or as regulations are unduly restrictive and overly broad. Furthermore, the fair enforcement or misapplication of federal, state, or local regulations by law enforcement professionals will come with its own learning curve, such as identifying the erratic flying of a beginner compared to the impaired flying of an inhibited pilot. The freedom of use versus reasonable regulation and fair effective enforcement will need to be balanced.
Comment: Currently, some insurers provide limited UAV or drone coverage under their commercial general liability policies. Other insurers offer specific drone or UAV policies. Most homeowners policies exclude coverage for aircraft, but include coverage for "model or hobby aircraft". There is no doubt as UAV activity soars as part of our everyday life, so will the coverage issues both on a commercial and personal
For more information, please contact Bradley A. Baldwin at bbaldwin@wglaw.com or 973.854.1063