A magistrate judge from the Northern District of California has denied a drone operator’s motion to dismiss a lawsuit brought by the United States of America, alleging two misdemeanor counts of violating national defense airspace by flying a drone over Levi’s Stadium and the Oakland-Alameda County Coliseum during National Football League (NFL) games.
Defendant Tracy Mapes argued unsuccessfully that the plaintiff’s claim should be dismissed because the information in the claim “(1) fails to provide adequate information about the charges … , and (2) fails to state an offense even if additional information is added.”
On May 14, 2019, the government filed a criminal complaint charging the defendant with violating national defense airspace, in violation of 49 U.S.C. § 46307. The complaint is accompanied by an affidavit from a Special Agent with the United States Department of Transportation Office of Inspector General regarding the legal and factual basis for the government’s complaint against the defendant. The affidavit explains that pursuant to 49 U.S.C. § 40103(b)(3), on July 20, 2017, the FAA issued a temporary flight restriction that “prohibits all aircraft—including small unmanned aircraft—from operating within a three nautical mile radius of any stadium with a seating capacity of 30,000 or more people during, among other events, regular or post season NFL … games” during certain times (stadium TFR). The affidavit in support of the complaint further states that the “pursuant to § 40103(b)(3), the FAA classifies the airspace defined in the stadium TFR as ‘National Defense Airspace.'” Id.
The government’s missive alleges that on or about November 26, 2017, the defendant “while piloting an Unmanned Aircraft System, did knowingly, and without lawful authority, conduct aircraft operations in restricted airspace” above Levi’s Stadium and the Oakland-Alameda County Coliseum, which are “stadiums having a seating capacity of 30,000 or more where a NFL game was occurring, in violation of Title 14, Code of Federal Regulations, Section 99.7, a regulation prescribed under Title 49, United States Code, Section 40103(b)(3).” Id.
The defendant’s motion to dismiss argues that “the government failed to fairly inform the defendant of the charges against which he must defend and does not enable him to plead an acquittal or conviction in bar of future prosecution. The government’s opposition argues that the charging documents are sufficient and that even if they were not, amendment or a bill of particulars, not dismissal, would be the appropriate remedy.”
The court added that such missives “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. Proc. 7(c)(1). Further, “the charging document must (1) contain the elements of the offense charged and fairly inform a defendant of the charge against which he must defend, and (2) enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007). The defendant argued that the plaintiff is deficient in both respects.
On the first point, the court concluded that the complaint contains “sufficient information to fairly inform the defendant of the charges against him, and therefore the defendant’s motion to dismiss on that basis is denied.”
On the second point, the court wrote that in “considering a hypothetical future second charge against the defendant would not be limited to the contents of the charging documents in this case. ‘When determining the preclusive effect of a jury verdict, we must ‘examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ See Sivak v. Hardison, 658 F.3d 898, 918-19 (9th Cir. 2011) (quoting Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)).
“Accordingly, the court concludes that the defendant is adequately protected against future prosecution for the same offense, and therefore the defendant’s motion to dismiss on that basis is denied.”
Finally, the court considered the defendant’s argument that the government failed to state an offense. The defendant claimed the FAA Modernization and Reform Act of 2012 “codified the FAA’s longstanding hands-off approach to the regulation of model aircraft” by “providing that the FAA ‘may not promulgate any rule or regulation regarding a model aircraft.'” Id. at 3 (quoting Taylor v. Huerta, 856 F.3d 1089, 1091, 429 U.S. App. D.C. 87 (D.C. Cir. 2017)). According to the defendant, Congress’s subsequent expansion of the FAA’s authority, at least as it applied to the promulgation of registration requirements for model aircraft, did not occur until December 17, 2017 (citing Taylor v. Fed. Aviation Admin., 351 F. Supp. 3d 97, 100 (D.D.C. 2018)), which “was after the date of the alleged offenses in this case—November 26, 2017.”
The government countered with two arguments.
“First, the government argues that the D.C. Circuit in Taylor v. Huerta made clear that its decision did not extend to the FAA’s authority to regulate the safety of national airspace, even as applied to model aircraft. Second, the government argues that the defendant’s drone does not qualify as a model aircraft and that he was not operating it as a model aircraft. Specifically, the government argues that the defendant’s drone does not satisfy the definition of a model aircraft in 14 C.F.R. § 101.1(a)(5) because it was not flown within visual line of sight, and it was not flown for hobby or recreational purposes. In addition, the government argues that the defendant was not operating the drone as a model aircraft because he did not comply with requirements in Section 336 of the FAA Modernization and Reform Act that require model aircraft to be flown strictly for hobby or recreational purposes, operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization, and flown within five miles of an airport only with prior notice.”
The court sided with the government, noting that “the stadium TFR falls within the safety exception to the model aircraft safe harbor in the Modernization Act, the allegations against Defendant are sufficient, regardless of whether Defendant’s drone meets the definition of a ‘model aircraft’ in 14 C.F.R. §101.1(a)(5) or whether he was operating his drone within the safe harbor provided in Section 336(a) of the Modernization Act.”
USA v. Tracy Michael Mapes; N.D. Cal.; Case No. 19-cr-00286-SVK-1, 2020 U.S. Dist. LEXIS 26268; 2/14/20
Attorneys of Record: (For Tracy Michael Mapes, Defendant) Graham E. Archer, LEAD ATTORNEY, Federal Public Defender, Oakland, CA; Severa Keith, Office of the Federal Public Defender, San Jose Office, San Jose, CA. (For USA, Plaintiff) Scott Simeon, LEAD ATTORNEY, San Jose, CA.
