The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the San Mateo County Sheriff’s Office or the Northern California Regional Intelligence Center (NCRIC).
Due to increasing system sophistication and affordability, unmanned aircraft systems (UAS) are becoming more popular among hobbyists and businesses. UAS also pose a threat to homeland security as they could be used for nefarious activity such as preoperational surveillance or as weapons. Consequently, law enforcement officers and fusion centers have experienced an increase in suspicious activity reporting related to UAS. The Federal Aviation Administration (FAA) has not yet finalized a policy for integrating UAS into the national airspace, leaving law enforcement officers without a clear protocol for contact with UAS operators. This paper first examines UAS policy at the federal, state, and local levels. A discussion of recent incidents is provided to demonstrate the threat of UAS and the enforcement action taken. To bridge the gap between current policy and enforcement tools, this paper proposes a solution of creating local ordinances restricting UAS operations to protect critical infrastructure and preserve public safety.
The expansion of unmanned aircraft systems (UAS)1 operations for defense applications in the last two decades has driven growth in the commercial UAS industry where the casual enthusiast can now purchase a ready-to-fly system for less than $300. UAS have emerged as inexpensive and innovative photography and video platforms, often drawing recreational and commercial operators to fly around infrastructure assets of regional or national significance. Sites such as reservoirs, stadiums, bridges, and ports are intriguing subjects for videography but also vulnerable critical facilities. As a result, law enforcement officers and fusion centers have experienced an increase in suspicious activity reporting related to UAS. Due to increasing availability and system sophistication, UAS pose a threat to homeland security as they could be used for nefarious activity such as preoperational surveillance or as weapons.
In addition to threatening critical infrastructure, UAS pose a threat to public safety. A UAS could crash and injure bystanders as the result of the operator losing control of the data link due to equipment malfunction or malicious hacking of the device. Furthermore, UAS could be accessorized with a firearm or improvised explosive and deployed in a crowded area. The responsibility for contacting and determining the motivation of UAS operators falls to local law enforcement.
Federal and state regulations have failed to provide the law enforcement community with any coherent guidelines for conducting encounters with UAS operators. This paper proposes a strategy to mitigate UAS threats to critical infrastructure and public safety whereby municipalities and county governments develop and implement registration criteria for UAS operators and “no-fly” zones around sensitive areas. The idea of using local ordinances to protect against loss-of-life and structural damage provides a rare occasion where the aims of civil liberties groups, UAS hobbyists, and law enforcement officials may coincide.
As the Federal Aviation Administration (FAA) struggles to implement a coherent UAS policy, local law enforcement officers need a more immediate solution to address the surge in popularity of UAS used for commercial and recreational purposes.
Congress first tasked the FAA with integrating UAS into the national airspace when it passed the FAA Modernization and Reform Act of 2012 as Public Law 112-95 on February 14, 2012. The Act served the dual purpose of authorizing FAA funding for the next 4 years and prioritizing the safe integration of civil unmanned aircraft into the national airspace system by September 30, 2015.2 The Act also stipulated that the FAA must publish a 5-year roadmap for UAS policy within 12 months of enactment detailing the process of introducing civil UAS into the national airspace.3 The FAA published the roadmap 9 months late in November 2013. The FAA has missed other deadlines including the naming of 6 test ranges to conduct research for UAS integration. The sites were named in December 2013, one year and three months outside of the 180 day requirement specified in the Modernization and Reform Act. See Table 1 for a summary of FAA Regulations pertaining to UAS Operations.
The FAA Modernization and Reform Act of 2012 established a streamlined COA approval process for local law enforcement, first responders, and academic institutions.8 These public UAS may be used for varied purposes including ordnance detection, search and rescue, damage assessments, and −most controversially− surveillance. Such use cases represent a logical extension to federal agency operations. UAS eligible for the COA program must be operated by public agencies, weigh 4.4 pounds or less, operate within line-of-sight of controller, fly below 400 feet, during daylight hours, within Class G airspace,9 and at least 5 statute miles from any airport, heliport, seaplane base, spaceport, or other location with aviation activities.10 Initially, an organization will receive a COA for training and performance evaluation. Once the entity has demonstrated proficiency in flying its UAS, they will receive an operational COA expanding the allowable operational weight to 25 pounds.11 Although law enforcement and emergency management applications for UAS show much potential, their use is entangled in debate over privacy considerations around the 4th Amendment prohibition of unreasonable search and seizure. This article deals specifically with threats to critical infrastructure and public safety and does not consider law enforcement and emergency management UAS significant threats to either. As a result, analysis of the policy and enforcement environment for public UAS is beyond the scope of this paper.
The Section 333 exemption process is onerous and may not prove sustainable for the FAA in the long run. Petitions and responses are lengthy, with detailed descriptions of the unmanned aircraft system, the pilot-in-command (PIC), the UAS operating parameters, and public interest involved in the proposed commercial activity.23 In addition, the FAA requires each UAS pilot-in-command to maintain a current pilot certificate and valid airman medical certificate.24 This statutory requirement comes from 49 USC § 44711 which prohibits a person from serving “in any capacity as an airman with respect to a civil aircraft engine, propeller, or appliance used, or intended for use, in air commerce…without an airman certificate authorizing the airman to serve in the capability for which the certificate was used.”25 The decision to require similar pilot certifications for both manned and unmanned aircraft operators may serve as a barrier to entry for low-budget companies seeking to use UAS, however as of April 2015 the FAA had received over 900 exemption requests.26 Given their minimal success in enforcing UAS use restrictions to date, it is uncertain if the FAA will have appropriate staffing to deal with this surge of Section 333 petitions.
The FAA’s “Interpretation of the Special Rule for Model Aircraft” issued in June 2014 draws on the statutory requirements of Section 336 to provide specific metrics by which to differentiate model aircraft from UAS. It outlines five criteria for classifying a model aircraft as 1) flown strictly for hobby or recreational use, 2) operated in accordance with a community-based set of safety guidelines, 3) limited to not more than 55 pounds, 4) operated in a manner that does not interfere with manned aircraft, and 5) when operating within 5 miles of an airport, the operator of the aircraft must provide the airport operator and the airport air traffic control tower with prior notice.29 Section 336 also identifies line-of-sight operation as the distinguishing characteristic of a model aircraft.30 Video feeds available to UAS operators often do not require line-of-sight contact to sustain flight and can serve as an easy way to distinguish a UAS from a model aircraft. Although Section 336 protects traditional modelers from forthcoming FAA regulations for UAS, it also states that the FAA retains authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”31 Taken holistically, the FAA’s interpretation of Section 336 may assist law enforcement officers in identifying UAS operations that require further scrutiny.
States have acted quickly to pass laws governing UAS use to compensate for the FAA’s slow pace in developing UAS policy. Since April 2013, legislation aiming to restrict UAS operations has passed in 15 states and deals primarily with constraining use by law enforcement agencies to protect the privacy of citizens.39 These issues fall outside the FAA’s mission to ensure airspace safety and state policy positions vary from complete prohibition to limited acceptance. A summary of state laws governing UAS use is provided in Table 2.
Early on, the states of Virginia and North Carolina took a conservative approach to UAS operations by enacting short term bans on their use by public agencies. This strategy allows more time for policymakers to develop privacy policies.40 The Virginia ban extends through July 1, 2015 and the North Carolina prohibition extends to December 31, 2015. Taking the time to craft thorough policies from the outset will protect the law enforcement community, businesses, and private citizens in the long run, at which point such state laws will presumably be amended to allow UAS use. Other states including Florida, Illinois, Indiana, Montana, and Alaska have chosen a more metered approach to limit public agency use of UAS as it relates to the 4th Amendment prohibition of unreasonable search and seizure.
Some states have enacted legislation that goes beyond regulating public safety use of UAS. The states of Texas, Idaho, Tennessee, and North Carolina stand out for governing UAS use by recreational and commercial users as well. This approach shows that states recognize commercial entities and private citizens are flying UAS in ways that are not effectively regulated by the FAA. For example, real estate, delivery, and agricultural applications for UAS are well documented on YouTube despite current FAA policy prohibiting commercial UAS operation without a Special Airworthiness Certificate (SAC) or exemption.41 Implementing UAS policy at the state level builds a good foundation to encourage commercial growth while seeking to limit unlawful uses of UAS.
Beyond legitimizing UAS operations for business purposes, in June of 2014 Louisiana enacted a law aiming to protect critical infrastructure assets from criminal UAS activity. Louisiana Revised Statute 14-337 defines unlawful UAS activity as the “intentional use of an unmanned aircraft system to conduct surveillance of, gather evidence, or collect information about, or photographically or electronically record a targeted facility without the prior written consent of the owner of the targeted facility.”46 It goes on to define targeted facilities as petroleum and alumina refineries, chemical and rubber manufacturing facilities, and nuclear power electric generation facilities.47 While the FAA can regulate airspace, Louisiana’s statute provides an added element of specificity on the ground. The classification of vulnerable infrastructure facilities varies due to regional geographic, economic, and industrial differences. The Louisiana legislation demonstrates that it may be more appropriate to classify such assets at the local or state level.
In addition to activity or asset-based UAS legislation, states can also enforce takeoff and landing restrictions on their real property. In April 2014 the State of Wisconsin enacted a UAS law that prohibits flying over state land and water in a way that is “imminently dangerous or damaging to persons or property lawfully on the land or water beneath.”48 The subjective nature of the terms “dangerous or damaging” allows for greater officer interpretation of the operating circumstances than would an outright UAS ban over state-owned or private property. As a result, the Wisconsin law may minimize the burden on law enforcement officers because they will presumably only conduct encounters with “dangerous or damaging” UAS operators rather than with every single one.
Oregon Revised Statute 837, enacted in July 2013, does not describe acceptable UAS use cases for the private sector, but does include proscriptions for all manner of nefarious operations. The law also outlines specific cases in which law enforcement may use a drone to acquire information. It goes on to require that any public agency operating a UAS first must register it with the Oregon Department of Aviation.49 North Carolina’s UAS law also sets out licensing requirements for commercial UAS operators through the state’s Department of Aviation.50 The act of assigning jurisdiction over UAS to a state agency establishes UAS into each state’s existing aerospace framework. It also shows that lawmakers in Oregon and North Carolina believe UAS will become increasingly important assets in airspace. While a state-level foundation for UAS policy may fill in the gaps left by the FAA, the accompanying tools for enforcement are equally important to mitigate the threat environment.
UAS threats to privacy have gained the broadest media coverage and state response, however commercial and recreational UAS threaten critical infrastructure and public safety at the local level. As a result of increasing availability and system sophistication, actors with malicious intent may exploit UAS capabilities to conduct pre-operational surveillance or use them as weapons in kinetic attacks. By nature of their reliance on datalink technology, UAS are vulnerable to accidents, which poses an intrinsic threat to public safety. Recent national case examples demonstrate that these threats remain largely unaddressed by FAA. This policy gap provides an opportunity for state government and local jurisdictions to implement their own UAS policies.
Out-of-the box UAS systems are freely available for purchase on manufacturer websites or through online retailers. Platforms range in quality from battery-operated toys mounted with cameras to diesel-powered craft capable of handling 20-pound payloads. Fixed-wing and multi-rotor devices can fly pre-programmed routes or via data link with flight times ranging from 5 minutes to 54 hours. Communications between the device and operator occur via Wi-Fi or radio frequency in the 2.4-2.485 GHz or 72-76 MHz range, respectively.51 Typical Wi-Fi data link range is line-of-sight or about 1000 feet, however transmitter, receiver, and antenna upgrades on radio controlled models can extend the range from 1-3 miles.52 The motion stability of multi-rotor systems is particularly attractive for collecting high-quality video. Due to this range of capabilities, UAS are popular among both casual enthusiasts and business enterprises.
Despite the fact that the threat of weaponized UAS is currently mitigated by payload capabilities, malicious actors still possess the intent to use UAS in a kinetic attack. A pair of recent federal cases highlights the intent component of a physical UAS threat in the U.S. On April 7, 2014 the FBI arrested Moroccan citizen El Mehdi Semlali Fathi as a part of an immigration investigation that also revealed his aspirations to conduct a bomb attack using a UAS.56 According to FBI recordings, Fathi inquired to a third party about pliers, a cutter, and wires, claiming that the items were intended for a bomb.57 He also stated that he made a chemical bomb in high school and discussed chemical explosives.58 Specifically, Fathi spoke of his plans to fly bombs via “a plane, a remote-controlled hobby-type airplane” into a federal building.59 In September 2014 Fathi pleaded guilty to one count of perjury in an immigration matter but was not charged with anything related to terrorism. Despite the lack of formal charges, the Fathi recordings illustrate the notional intent to use UAS in kinetic attacks.
In another federal case Rezwan Ferdaus was sentenced to 17 years in prison after pleading guilty to attempting to damage and destroy a federal building by means of an explosive and attempting to provide material support to terrorists in 2012.60 For almost a year, Ferdaus planned and took steps to use remote controlled model aircraft as bombs to terrorize the U.S. Ferdaus informed undercover FBI agents, whom he believed to be members of al Qaeda, that he planned to obtain two remote controlled aircraft, fill them with explosives, and fly them into the Pentagon and U.S. Capitol using their built-in GPS systems.61 Ferdaus sought 25 pounds of C-4 plastic explosives to be loaded onto the UAS for the attack.62 This example demonstrates that Ferdaus believed existing UAS capabilities could be used to execute his terroristic intent.
In addition to posing a physical threat, UAS operated as surveillance platforms represent a passive collection threat to critical infrastructure. UAS may be used in the vicinity of critical infrastructure to gather visual information. The following national examples suggest that commercially available (sometimes homemade) systems have the capability to conduct surveillance on protected assets. They also illustrate the complexities involved in determining the intent of a UAS operator and the varied enforcement tools employed by law enforcement officers to take action against dangerous or potentially nefarious flight activities.
On May 5, 2014 a quad-copter crashed onto a 30th floor balcony of the Metropolitan Square Building in St. Louis, Missouri.66 Police were not able to locate the operator of the UAS on-scene, however a man did come forward later that week to claim ownership of the device.67 The man stated he was using the UAS to take video footage of historic buildings. Local police notified the FAA of the incident and the FAA responded that no Federal Air Regulations (FARs) had been violated.68 Ultimately the police did not file charges against the operator due to lack of criminal intent. Although the downed UAS did not cause any physical damage to the Metropolitan building, this incident demonstrates the potential threat of UAS use for conducting surveillance of infrastructure locations.
New York City has successfully used its existing criminal statutes to bring charges against a dangerous UAS operator. In October 2013, the New York City Police Department (NYPD) arrested David Zablidowsky for flying his personal UAS over Manhattan. Zablidowsky’s device crashed outside of Grand Central Station and while no one was injured, NYPD cited him for second degree “reckless endangerment.”69 Specifically Zablidowsky was arrested for “flying a remote controlled helicopter off a balcony, losing control, causing it to crash to the ground from an unreasonable height creating a substantial risk of serious physical injury.”70 NYPD identified Zablidowsky by footage from the camera on his UAS, taken inadvertently while he was setting up to launch.71 In New York, second degree reckless endangerment qualifies as a Class A misdemeanor and would carry a penalty of up to a year in prison if Zablidowsky is found guilty.72 The State of New York has not yet passed any kind of UAS law that might play into the investigation.73 It was not until March 2014 that the FAA independently attempted to assess Zablidowsky a $2200 civil penalty for violation of 14 CFR Sections 91.13(a) and 91.131(a)(1). This incident shows that unlike the FAA, local law enforcement can respond more efficiently to UAS incidents.
Although the State Troopers took successful enforcement action against Beesmer, his case brings to light the potential benefits of enacting facilities-based UAS flight restrictions. Presidential Policy Directive 21 identifies Healthcare and Public Health assets as one of 16 designated critical infrastructure sectors.77 Hospitals and medical facilities are so classified due to the life-saving services they provide in response to natural and manmade disasters.78 A UAS flying around the Mid-Hudson Medical Center in the aftermath of a mass-casualty event could disrupt emergency services operations or potentially provide a malicious actor with information about treatment protocols. On a day-to-day basis, hospitals store hazardous chemicals and controlled substances, as well as radioactive material for their radiology departments and UAS could be used to gather information on ways to access these materials. In addition to threatening the general operations of the facility, the Beesmer case shows that UAS can compromise the privacy of patients through passive surveillance. In this instance, a regulation restricting UAS use around medical facilities would be desirable for civil liberties groups as well as for the public safety community.
The threat posed by UAS to public safety is underscored by a similar instance of a UAS endangering the public. In August 2013, a UAS crashed into the stands of the Petersburg, VA Motorsports Park during an event called the “Great Bull Run.” The accident injured four people who were all successfully treated onsite.79 Unlike the Zablidowsky and Beesmer cases, local law enforcement officials were not able to identify the UAS operator.80 Although a local statute would probably do little to deter nefarious actors from flying a UAS over a crowded area, it would reduce the likelihood that casual enthusiasts would be flying over the event and therefore minimize the risk of accidental loss-of-control and crashing.
The UAS threat to public safety and critical infrastructure converges at high capacity stadium events. According to the U.S. Department of Homeland Security, stadiums themselves are part of the Commercial Facilities Sector of critical infrastructure and attract tens of thousands of people during scheduled events.81 In October 2014 the FAA reissued a longstanding special security Notice to Airmen (NOTAM) that establishes Temporary Flight Restrictions (TFRs) for stadium sporting events to specifically prohibit UAS operations at NFL games, NCAA Division I football games, Major League Baseball games, and NASCAR Xfinity Cup races.82 Local law enforcement officers are encouraged to report suspected violations of NOTAM 4/3621 to their local FAA Flight Standards District Office.83 FAA Special Notice 4/0811 issued in 2009 advises pilots to avoid airspace around power plants, dams, refineries, industrial complexes, military installations, and similar facilities.84 The FAA has demonstrated its intent to apply this Special Notice 4/0811 to all aircraft including UAS to ensure airspace safety.85 Unlike NOTAM 4/3621, Special Notice 4/0811 advises compliance but stops short of establishing a flight restriction. Table 3 summarizes specific FAA use restrictions for UAS that may impact local law enforcement personnel. The effectiveness of information sharing to take enforcement action against violators of these notices is still unknown as the FAA has not yet made public data on the number of reported violations they have received from local officers. Even so, the example of restricting UAS flights over stadiums could be implemented as a local policy for assets or events that attract large numbers of people such as shopping centers, parades, office buildings, or beaches.
In early January 2015, the FAA published a long-awaited letter entitled “Law Enforcement Guidance for Suspected Unauthorized UAS Operations.”86 The 12-page document does not contain any new regulations, but provides detailed information for law enforcement officers encountering UAS or UAS operators. It outlines the FAA’s legal authority to restrict unauthorized and dangerous UAS operations and requests the support of local law enforcement to limit such activities. The document emphasizes the importance of local law enforcement officers in collecting field information on each UAS-related encounter and provides a list of actions that these officers can take to assist the FAA in ensuring the safety of the national airspace system. The FAA encourages immediate notification of suspected violations of federal UAS regulations to one of 6 FAA Regional Operations Centers.87 Although a welcome resource, this Guidance Letter does not directly improve the enforcement options available to local officers. Instead it seems to confirm that the FAA lacks a sufficient staff of Special Agents to enforce federal regulations and intends to rely on local sworn personnel to collect information and report suspicious UAS activity. This strategy reaffirms the need to develop locally-based UAS restrictions to improve the enforcement environment.
Analysis of reported UAS incidents to the Northern California Regional Intelligence Center (NCRIC) in 2013-2014 indicates that UAS use is increasing and places an additional responsibility on law enforcement to determine operator intent. NCRIC suspicious activity reporting provides an aggregate metric of UAS activity at the regional level. Located in San Francisco, the NCRIC functions as a clearinghouse for information sharing among law enforcement agencies for 15 counties in California and is one of 78 fusion centers across the U.S. As such, the center is ideally situated to gather, analyze, and disseminate information related to emerging threats such as UAS operations. In addition, local agencies look to the NCRIC to pass down information regarding new federal policies and initiatives. This function is particularly germane to UAS as the FAA is delayed in developing nationwide policy. The increasing popularity of UAS by recreational users has resulted in more suspicious activity reports primarily because it is difficult to evaluate intent of the operator. It should be noted that most instances of UAS activity involve harmless hobbyists and are not necessarily indicative of criminal or terrorist activity.
Based on first-hand database access, in the time period 2013-2014 the Northern California Regional Intelligence Center (NCRIC) observed an increase in suspicious activity reporting related to UAS. In the calendar year 2013 the NCRIC received two UAS-specific suspicious activity reports. In 2014 the NCRIC received nine reports for UAS-related activity. The increase in suspicious activity reporting over the past two years confirms that UAS are becoming more popular. The incidence of greater numbers of devices operating in the airspace raises the potential for accidents or injuries to bystanders and increases the threat to public safety. The majority of the reports came from densely-populated urban areas. This may be because urban settings provide more interesting subject matter for UAS operators to film and because there is a greater density of law enforcement officers available to respond to such activity. It is also significant that eight of the eleven total incidents involved flights near infrastructure assets such as structural landmarks or special events locations. This behavior has been observed in other metropolitan areas including Seattle, Charlotte, and Tampa.88 The concentration of the incidents in highly developed locations highlights the importance of local ordinances for regulating UAS operations.
The current FAA enforcement mechanism does not translate well to the domain of unmanned aircraft. Whereas conventional pilots are certificated and fly registered aircraft from recognized locations (airports), UAS do not fit neatly into this existing regulatory framework.92 Consider the following scenario: When the FAA receives a report of a traditional airplane pilot flying recklessly around a bridge; they typically open an investigation and consider the preponderance of evidence to determine whether or not to strip the pilot of his certificate.93 If the pilot then attempted to fly without a certificate he would be in violation of Title 49 U.S. Code where an individual “knowingly and willfully operates or attempts to operate an aircraft eligible for registration under section 44102 of this Title knowing that the certificate of registration is suspended or revoked.”94 Now in violation of U.S. Code, criminal penalties against the pilot would be enforced by a federal law enforcement agency, not the FAA.95 The licensing situation is different with UAS. Unless a UAS has been granted a COA, SAC, or exemption by the FAA, the UAS operator will most likely have neither a pilot’s license nor a registered device. Without these documents the FAA does not have the ability to take certificate action against most UAS operators and must rely more heavily on civil penalties.
FAA regulations also do not preclude a state or local agency from prosecuting criminal matters involving aviation or from implementing more restrictive guidelines for operations. As a regulatory body the FAA can only enforce civil or administrative law with respect to airspace, while local law enforcement agencies can act on their own criminal statutes.96 For example, Class G airspace (1200 feet or lower above ground level) is considered uncontrolled airspace and not regulated by air traffic control.97 States or cities may seek to control UAS operations in class G airspace to expand upon federal regulations or attempt to control specific UAS use cases that the FAA does not.
The status of the first case in which the FAA prosecuted a civil operator of a model airplane with a camera attached shows that FAA policy does not effectively safeguard local infrastructure assets and ensure public safety from UAS operations. The incident involved a subject named Raphael Pirker flying a Ritewing Zephyr model aircraft to take pictures of the University of Virginia Medical Center in 2011, a task for which he was paid. In this case, the FAA sought to assess Pirker a civil penalty of $10,000 for violating 14 U.S.C. § 91.13(a) which states that “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”98 Pirker claimed that he was operating a model aircraft rather than a UAS and filed a Motion to Dismiss the charges against him based on the fact that FARs do not have authority over model aircraft flight operations.99 A judge from the National Transportation Safety Board –the agency charged with investigating and prosecuting all civil aviation-related incidents– initially granted Pirker’s Motion to Dismiss finding that there does not exist an enforceable FAA rule or CFR that applies to model aircraft or for classifying model aircraft as a UAS.100 The FAA Administrator appealed that decision and won a small victory when it was reversed on November 17, 2014. This NTSB judge cited 49 U.S.C. § 40102 (a)(6) where the term ““aircraft” means any contrivance intended, used, or designed to navigate, or fly in, the air” and found that the FAA does have authority to prohibit careless and reckless operation of unmanned aircraft based on 14 CFR § 91.13(a).101 The November decision remanded the case back to the NTSB law judge to determine if Pirker did indeed operate his UAS in a careless or reckless manner.102 The case was settled out of court in January 2015 when Pirker agreed to pay the FAA an $1100 fine.103 Considering that the flight in question took place in 2011, the FAA’s inability to take timely action against Pirker has been interpreted by the UAS community as a sign of federal enforcement impotence and demonstrates the need for local UAS laws to preserve public safety.
The Pirker case marks the first time the FAA attempted to fine an individual UAS operator, however the Administration has employed other enforcement tools and penalties to curtail civil UAS operations. Upon learning of unauthorized UAS flight activity, the FAA has implemented the following chain of consequences in order of severity: verbal warning, a warning letter, and an order to stop the operation.104 For example, when Lakemaid Beer Company posted a YouTube video showing a UAS delivering a 12-pack of its beer to ice fisherman in Minnesota, FAA officials called the company president with a verbal warning to stop operations.105 As of February 2014, the FAA had sent out 17 “cease and desist” letters to companies across the U.S.106 In one such letter sent to TornadoVideos.net in Norman, Oklahoma, the FAA representative claimed that the company’s website indicated that they may be operating UAS for the commercial purpose of selling videos and conducting tornado research without proper authorization.107 Although it is unknown how many phone calls or emails the FAA has sent out to suspected operators, all violators were discovered from complaints, open source information, advertising, or gray literature. This enforcement strategy aims to limit the growth of commercial UAS enterprise, however small scale operations could easily avoid FAA scrutiny by limiting their media exposure.
Oregon took a forward-thinking approach to restricting UAS activity by establishing explicit penalties for weaponizing or hacking UAS. Oregon legislators acknowledged the idea that UAS command and control systems are vulnerable to cyber-attack by establishing criminal penalties for intentionally interfering or gaining unauthorized control over drones licensed by the FAA, DOD or state and local agencies.117 For example, interfering with or gaining control of a UAS licensed by the FAA or operated by a public entity in Oregon is considered a Class C felony.118 The Oregon statute also created a Class A felony provision for persons firing bullets or projectiles from a UAS, using a UAS with laser directed at an aircraft, or crashing a UAS into an aircraft.119 Wisconsin similarly criminalizes the use of a weaponized drone with the penalty of a Class H felony.120 Possessing or using a UAS as a weapon in North Carolina is a Class E felony punishable by up to 5 years in prison.121 While the severity of the penalties varies from state to state, each piece of legislation provides law enforcement with clear guidelines for identifying and citing UAS activity that might endanger the public or threaten infrastructure assets.
Beyond categorical bans, local governments may incorporate UAS use restrictions into broader ordinances. In March 2013, the township of Conoy, Pennsylvania (pop. 3,248) enacted Ordinance 1-3-14 which defines and prohibits specific nuisances in the township.126 The ordinance defines a nuisance as “the unreasonable, unwarrantable, or unlawful use of public or private property which causes injury, damage, hurt, inconvenience, annoyance or discomfort to any person or resident in the legitimate enjoyment of his reasonable rights of a person or property.”127 Among other activities such as storing garbage or junked vehicles and letting buildings fall into disrepair, the ordinance prohibits “the operation of remote controlled or other non-tethered aircraft over property not owned by the operator and without the permission of the property owner” on any public or private property in Conoy Township if that action is determined to constitute a nuisance.128 The ordinance also outlines penalties for noncompliance, beginning with a written notice and escalating to a $300 fine for each violation. Unlike the St. Bonifacius example, the Conoy ordinance does not address airspace jurisdiction and therefore avoids any potential conflicts over FAA authority. As a result, the nuisance ordinance may prove to be more enforceable than a zone-based airspace restriction on UAS operations.
Due to the urban nexus of UAS activity evidenced in NCRIC reporting, enforcing UAS flight restrictions around areas of specific land use is perhaps easier than trying to create airspace regulations that respect FAA authority. The National Parks Service took this approach by enacting their “3-point system” in 2014 to prohibit UAS takeoff, landing, and operation from or on park-owned property.129 The City of Los Angeles had a similar existing Municipal Code dating to 1979 that was invoked in August 2014 when Los Angeles Port Police cited Daniel Saulmon with a misdemeanor for flying his UAS over the San Pedro, CA harbor in violation of Los Angeles Municipal Code 63.44 (B)(8).130 In California a misdemeanor is punishable by up to a $1,000 fine and/or 6 months in county jail.131 Section 63.44 of the Municipal Code prohibits certain activities on property owned by the city or controlled by the Harbor Department specifying that “No person shall land, release, take off or fly any balloon, except children toy balloons not inflated with any flammable material, helicopter, parakite, hang glider, aircraft, or powered models thereof, except in areas specifically set aside therefor.”132 For the Saulmon incident the language of “aircraft, or powered models thereof” was interpreted to include UAS and could be used to restrict UAS activity on other city properties. This example demonstrates that local codes written well before the invention of UAS may include broad language that can still be used by law enforcement personnel to restrict their use. While such creative solutions can limit potentially dangerous UAS operations, clear and specific UAS laws are still imperative for improving the enforcement environment at the local level.
There exists an immediate need to bridge the gap between policy and enforcement action for UAS operations that might endanger critical infrastructure or innocent bystanders. Passing local ordinances represents a key step towards mitigating these threats.
To begin from scratch, a local ordinance would include a pre-established scale for law enforcement officers to escalate a UAS incident. Consider the following scenario in the current policy environment: A security official at a high-rise in a major urban area reports to the police that a UAS is flying outside of the building. A local patrol officer is dispatched to investigate the incident by making consensual contact with the operator. If an operator refuses to answer questions or provide identification in this “walk-and-talk” encounter, the officer is not in a position to detain the subject or seize their UAS because they lack reasonable suspicion to do so.133 Developing municipal or countywide ordinances would allow for more comprehensive reporting of incidents and increase local enforcement authority to restrict reckless or nefarious UAS operations. For example, if an individual hobbyist is cited twice for illegal overflights or reckless operation they might be charged with a misdemeanor, required to pay a monetary penalty, and forfeit their device. This type of standard procedure would eliminate any “gray area” for enforcement at the local level.
In addition to establishing standards for officers dealing with UAS incidents, local ordinances would also include provisions for creating no-fly zones. As discussed earlier, Air Traffic Control is not responsible for airspace below 1200 ft. Only 5 buildings in the U.S. exceed this threshold, so in most cases cities would be within their rights to restrict operations in airspace around high-rises. A sample municipal code might also create no-fly zones in and around specific assets such as electrical substations, shopping centers, arenas, hotels, residential areas, or museums. Another avenue would be to create a categorical prohibition barring any UAS operations in a defined urban area while public parks and open space could be designated as “in-bounds.” This might take the reverse form of Los Angeles Municipal Code 63.44 and is not unreasonable; especially considering the fact that conventional model airplane hobbyists are accustomed to flying their craft away from urban areas.
The intersection of interests among municipal governments, businesses, the public safety community, civil liberties groups, as well as model airplane and UAS hobbyists will facilitate the development of local ordinances to govern use. Legislators and law enforcement liaisons will be able to enlist the support of a broad coalition of groups. Making allies of these entities will facilitate efficient policymaking by hedging against dissent at city council meetings. For example, municipal governments would support no-fly zones for UAS in order to protect their constituents and tax base from physical threats. Commercial enterprises want to protect their facilities and equipment from unauthorized surveillance. The law enforcement and first responder communities would support local ordinances because creating no-fly areas will minimize public endangerment and increase the authority of officers to protect the population. Civil liberties groups that typically oppose UAS use for surveillance as a violation of privacy may actually lend their backing to an ordinance that limits UAS operations. While hobbyists might initially resist restrictions on their model aircraft or UAS flying, any concessions they make in accepting no-fly zones could be rewarded by expanding allowable operations in other parts of the city or county. In this way, stakeholders from all sides may ultimately become allies in establishing local ordinances to prevent potential damage and fatalities caused by UAS.
As with any piece of legislation, UAS ordinances will also encounter opposition. The most vocal opponents of no-fly zones might be commercial operators, or those flying UAS for a profit. Markets for services such as cinematography, real-estate photography, and shipping have already emerged in metropolitan areas. Businesses earn money by using UAS to achieve unique perspectives and faster delivery times so their effectiveness would be hindered by no-fly zones. One potential solution would be to charge a fee for registering a UAS and imposing fines for violating the licensing criteria or the no-fly zones. As a part of the licensing process, UAS owners would also be required to furnish proof of liability insurance. The FAA’s practice of granting Section 333 airworthiness exemptions while still requiring pilot and medical certificates may represent the maximum reach of their regulatory power over civil UAS. Local jurisdictions will still be responsible for most face-to-face encounters with operators. In this way, a local UAS registration requirement could function similarly to a fishing license or permit.
A local registration program or ordinance might also reduce the demand for city and county resources from the current enforcement environment. For example, an officer confronting a dangerous UAS operator without appropriate authority to cite the subject wastes both time and money because there is rarely a definitive outcome, only an ongoing investigation.134 That single encounter requires additional investigative and analytic resources to build a case against the subject whereas an ordinance would ultimately shift those costs over to clerks assigned to process the citations. These workers are often employed at lower wages than sworn personnel.135 A well-worded and specific UAS ordinance that minimizes ambiguity is also essential to minimize the reporting and administrative burden. Any kind of local UAS policy has the potential to increase the workload for city officials and administrators, however registration fees and fines could serve to offset costs and perhaps as sources of revenue for the municipality. Of course life-safety is the first priority of any public safety organization, and resource allocation for enforcing UAS statutes would compete with preventing more “traditional” criminal activity such as gangs, drugs, and homicide.
A local regulation against UAS flights around specifically prioritized assets or events and an accompanying registration program will serve to standardize reporting, citation procedures, and penalties. Enacting a local ordinance establishes a systematic approach by which law enforcement officers can make contact with UAS operators, and gives these officers the code they need to take appropriate enforcement action. Conducting more encounters will ultimately contribute to increasing homeland security by providing more accurate information to differentiate malicious UAS activity from harmless hobby flights. This data can then be used for crime analysis, resource allocation, and predictive policing. The action taken by local jurisdictions to protect critical infrastructure and preserve public safety addresses more nuanced UAS uses than state or federal legislation and may be achieved more quickly. While the FAA continues to send out cease and desist letters to problem UAS operators, local governments should seize this unique opportunity to claim their own enforcement authority.
Alison Yakabe is an Intelligence Analyst in the Risk Management Unit at the Northern California Regional Intelligence Center (NCRIC) in San Francisco. She specializes in GIS data acquisition and management, using spatial analysis to enhance infrastructure protection capabilities. Ms. Yakabe has a particular interest in evaluating emerging threats to the energy, communications, and IT sectors. In 2013 she received the Michael Schooler Award for Excellence in Infrastructure Protection from the National Fusion Center Association for her work creating a geospatial database displaying private sector security cameras in San Francisco. Ms. Yakabe holds an M.A. in International Security with a concentration in Remote Sensing from the University of Denver and a B.A. in Environmental Studies from Dartmouth College.
1 For ease of reading, the term UAS will be used interchangeably with the term “unmanned aircraft.” This paper uses the Federal Aviation Administration (FAA) definition of “unmanned aircraft” to refer to a “device used or intended to be used for flight in the air that has no onboard pilot. This device excludes missiles, weapons, or exploding warheads, but includes all classes of airplanes, helicopters, airships, and powered-lift aircraft without an onboard pilot.” See FAA, “Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap,” (Washington, DC: 2013), 49. http://www.faa.gov/uas/media/uas_roadmap_2013.pdf.
2 Federal Aviation Administration Modernization and Reform Act of 2012, Public Law 112-95 § 332, 126 Stat. 73 (2012), http://www.faa.gov/regulations_policies/reauthorization/media/PLAW-112publ95.pdf.
3 The FAA classifies unmanned aircraft into three operating categories: Public aircraft, civil aircraft, and model aircraft. A public aircraft is operated by a governmental user such as a federal, state, or local agency. A civil aircraft refers to an unmanned aerial system operated for any non-governmental purpose including private sector and commercial use. Model aircraft are operated exclusively by hobbyists. See FAA, “Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap,” 2013, 47-48, http://www.faa.gov/uas/media/uas_roadmap_2013.pdf.
4 U.S. Department of Transportation, Federal Aviation Administration, “N JO 7210.83 Notice- Unmanned Aircraft Operations in the National Airspace System,” July 11, 2014, 1, http://www.faa.gov/documentLibrary/media/Notice/N_JO_7210.873_Unmanned_Aircraft_Operations.pdf.
5 Federal Aviation Administration, “Special Airworthiness Certification: Certification For Civil Operated Unmanned Aircraft Systems (UAS) and Optionally Piloted Aircraft,” Sept 12, 2014, https://www.faa.gov/aircraft/air_cert/airworthiness_certification/sp_awcert/experiment/sac/.
6 Federal Aviation Administration, “Docket No. FAA-2014-0396- Interpretation of the Special Rule for Model Aircraft,” June 18, 2014, http://www.faa.gov/uas/publications/media/model_aircraft_spec_rule.pdf.
7 Federal Aviation Administration, “Fact Sheet – Unmanned Aircraft Systems (UAS),” Jan 6, 2014, http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153.
8 (PL 112-95, February 14, 2012), “Public Unmanned Aircraft Systems,” 49 U.S.C. 334(c)(2)(C), www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf.
10 Class G Airspace is designated uncontrolled airspace 1200 feet or less above the ground surface. Air Traffic Control has no authority or responsibility to control air traffic in Class G airspace. FAA Pilot Handbook 2014, “Chapter 14: Airspace,” 2014, 14-3, https://www.faa.gov/regulations_policies/handbooks_manuals/aviation/pilot_handbook/media/PHAK%20-%20Chapter%2014.pdf.
12 14 CFR § 91.319(a)(2)..
13 Electronic Frontier Foundation, “FAA List of Special Airworthiness Certificates-Experimental Category (SACs),” April 16, 2012, https://www.eff.org/files/filenode/20120416_FAA_Drones_SAC.pdf.
14 FAA, “Press Release – FAA Approves First Commercial UAS Flights Over Land,” June 10, 2014, http://www.faa.gov/news/updates/?newsid=73118.
15 The 6 test range operators are the University of Alaska, State of Nevada, New York’s Griffiss International Airport, North Dakota Dept. of Commerce, Texas A&M – Corpus Christi, and Virginia Tech. Some operators have ranges in other states as well. See FAA, “Test Sites,” Last updated March 13, 2015, https://www.faa.gov/uas/legislative_programs/test_sites/.
16 FAA, Order 8000.372A-,“Unmanned Aircraft Systems (UAS) Designated Airworthiness Representatives (DAR) for UAS Certification at UAS Test Sites,” Dec 12, 2014, 6, http://www.faa.gov/documentLibrary/media/Order/FAA_Order_8000_372.pdf.
17 (PL 112-95, February 14, 2012), “Special rules for certain unmanned aircraft systems,” 49 U.S.C. § 333(b)(1), www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf.
18 (PL 112-95, February 14, 2012), “Special rules for certain unmanned aircraft systems,” 49 U.S.C. § 333(b)(2), www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf.
19 Federal Aviation Administration, “Section 333,” April 14, 2015, https://www.faa.gov/uas/legislative_programs/section_333/.
20 The companies are Astraeus Aerial, Aerial MOB, HeliVideo Productions, Pictorvision, RC Productions Consulting dba Vortex Aerial, and Snaproll Media. See FAA, “Section 333,” Jan 6, 2015, http://www.faa.gov/uas/legislative_programs/section_333/.
21 The companies are Clayco Inc., Trimble Navigation Limited, VDOS Global LLC, Woolpert Inc., Tierra Antigua Realty, and Advanced Aviation Solutions. See FAA, “Section 333,” Jan 6, 2015, http://www.faa.gov/uas/legislative_programs/section_333/.
22 (PL 112-95, February 14, 2012), “Special rules for certain unmanned aircraft systems,” 49 U.S.C. § 333(a), www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf.
23 FAA, “Exemption No. 11138- Regulatory Docket No. FAA-2014-0481,” Jan 5, 2015, http://www.faa.gov/uas/legislative_programs/section_333/media/Trudeau_Douglas-11138.pdf.
24 FAA, “Exemption No. 11111- Regulatory Docket No. FAA-2014-0506,” 10 Dec, 2014, http://www.faa.gov/uas/legislative_programs/section_333/media/Woolpert_Inc_11111.pdf.
25 49 U.S.C. § 44711(a)(2).
26 Federal Aviation Administration, “Section 333 Exemption/Rulemaking,” Accessed March 25, 2015, http://www.regulations.gov/#!searchResults;rpp=50;so=ASC;sb=title;po=0;s=%2522section%252B333%2522%252BFAA;dct=O.
27 (PL 112-95, February 14, 2012), “Special rule for model aircraft,” 49 U.S.C. § 336, www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf.
28 Douglas M. Marshall, “US Aviation Regulatory System,” in Introduction to Unmanned Aircraft Systems, R.K. Barnhart, et al., eds., (Boca Raton: CRC Press, 2012), 48.
29 FAA, “Docket No. FAA-2014-0396- Interpretation of the Special Rule for Model Aircraft,” June 18, 2014, https://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf.
30 (PL 112-95, February 14, 2012), “Special rule for model aircraft,” 49 U.S.C. § 336 (c).
31 (PL 112-95, February 14, 2012), “Special rule for model aircraft,” 49 U.S.C. § 336 (b).
32 Operation and Certification of Small Unmanned Aircraft Systems, 80 Fed. Reg. 9545, Feb 23, 2015.
33 Operation and Certification of Small Unmanned Aircraft Systems, “Visual Observer,” 80 Fed. Reg. 9587, Feb 23, 2015.
34 Federal Aviation Administration Modernization and Reform Act of 2012, Public Law 112-95 § 332, 126 Stat. 73, (2012), http://www.faa.gov/regulations_policies/reauthorization/media/PLAW-112publ95.pdf.
37 Email with Scott Harris, FAA Special Agent, Law Enforcement Assistance Program (LEAP), July 31, 2014.
38 This strategy is similar to the position taken by the National Parks System prohibiting UAS takeoff, landing, or the operator standing on Park property. See National Parks Service Press Release, “Unmanned Aircraft to be Prohibited in America’s National Parks,” June 20, 2014, http://home.nps.gov/news/release.htm?id=1601.
39 The 15 states are Alaska, Illinois, Indiana, Iowa, Louisiana, Tennessee, Utah, Wisconsin, North Carolina, Florida, Idaho, Oregon, Montana, Texas, and Virginia.
40 See Virginia Uncodified Act Chapter 755, “An Act to place a moratorium on the use of unmanned aircraft systems,” (2013), http://lis.virginia.gov/cgi-bin/legp604.exe?131+ful+CHAP0755 . See also N.C. Gen. Stat. § 14-7.16(e) (2014), http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S744v9.pdf. This statute extends the moratorium established in N.C. Gen. Stat. S. § 14-7.16(e) (2013). http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S402v7.pdf .
41 Restricted category SACs allow for commercial operations under 14 CFR § 91.319(a)(2). See FAA, “Press Release – FAA Approves First Commercial UAS Flights Over Land,” June 10, 2014, http://www.faa.gov/news/press_releases/news_story.cfm?newsId=16354. The exemption protocol under Section 333 of the FAA Modernization and Reform Act was first implemented on September 25, 2014. See Federal Aviation Administration, “Press Release- U.S. Transportation Secretary Foxx Announces FAA Exemptions for Commercial UAS Movie and TV Production,” Sept 25, 2014, http://www.faa.gov/news/press_releases/news_story.cfm?newsId=17194&cid=TW251.
42 Tenn. Ann. Code § 39-13 (2014), http://www.capitol.tn.gov/Bills/108/Bill/SB1892.pdf.
43 Tex. Gov. Code § 423-002 (2013), http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.423.htm.
45 Idaho Code § 21-213 (2013), http://www.legislature.idaho.gov/idstat/Title21/T21CH2SECT21-213.htm.
46 La. Rev. Stat. § 14-337(A) (2014), https://www.legis.la.gov/legis/law.aspx?d=919584.
47 La. Rev. Stat. § 14-337(B)(3) (2014).
48 Wis. Stat. § 114.04 (2014), http://docs.legis.wisconsin.gov/2013/related/acts/213.
49 Or. Rev. Stat. 837 § 360 (2013), https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors837.html . See also N.C. Gen. Stat. § 14-401.24 (2014), http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S744v9.pdf.
50 N.C. Gen. Stat. § 14-63-96(d) (2014), http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S744v9.pdf.
51 47 CFR § 90.257(c), http://www.law.cornell.edu/cfr/text/47/90.257.
52 Turbo Ace, “Infinity 9 Octocopter Features and Options,” 2014, http://www.turboace.com/infinity_9_octocopter/bundle_gimbal.aspx .
53 U.S. District Court, District of Massachusetts, “Indictment: United States of America v. Rezwan Ferdaus,” September 29, 2011, 2, http://www.investigativeproject.org/documents/case_docs/1702.pdf.
54 Paul Cruickshank, and Tim Lister, “Analysis: Model Planes as Weapons of Terror,” CNN Security Clearance Blog, Sept 29, 2011, http://security.blogs.cnn.com/2011/09/29/analysis-model-planes-as-weapons-of-terror/.
55 Stephanie Condron and Christopher Leake, “Poison Drones Carrying Biological Weapon are New Olympic Threat Warns Colonel in Charge of Keeping London Calm,” UK Daily Mail Online, May 5, 2012, http://www.dailymail.co.uk/news/article-2140173/Poison-drones-new-Olympic-threat-warns-Colonel-charge-keeping-London-calm.html#ixzz1u450JnEV.
56 Federal Bureau of Investigation, “Citizen of Morocco Admits Fabricating Refugee Application to Remain in U.S.,” July 24, 2014, http://www.fbi.gov/newhaven/press-releases/2014/citizen-of-morocco-admits-fabricating-refugee-application-to-remain-in-u.s.
57 U.S. District Court of Connecticut, Fairfield County, “Affidavit of Anabela Sharp,” April 4, 2014, 16, http://documents.latimes.com/fbi-immigration-arrest-unveils-bomb-plot/.
60 Federal Bureau of Investigation, “Press Release: Man Sentenced in Boston for Plotting Attack on Pentagon and U.S. Capitol and Attempting to Provide Detonation Devices to Terrorists,” Nov 1, 2012, http://www.fbi.gov/boston/press-releases/2012/man-sentenced-in-boston-for-plotting-attack-on-pentagon-and-u.s.-capitol-and-attempting-to-provide-detonation-devices-to-terrorists.
62 U.S. District Court, District of Massachusetts, “Indictment: United States of America v. Rezwan Ferdaus,” Sept 29, 2011, 9, http://www.investigativeproject.org/documents/case_docs/1702.pdf.
63 Michael D Shear, and Michael S. Schmidt, “White House Drone Crash Described as a U.S. Worker’s Drunken Lark,” The New York Times, Jan 27, 2015, http://www.nytimes.com/2015/01/28/us/white-house-drone.html?_r=0.
64 Krishnadev Calamur, “No Charges for Operator of Drone that Crashed at White House,” National Public Radio News, March 18, 2015, http://www.npr.org/blogs/thetwo-way/2015/03/18/393855332/no-charges-for-operator-of-drone-that-crashed-at-white-house.
66 Patrik Jonsson, “Whose drone is it? St. Louis high-rise crash heralds age of private drones,” May 8, 2014, http://www.csmonitor.com/USA/2014/0508/Whose-drone-is-it-St.-Louis-high-rise-crash-heralds-age-of-private-drones.-video.
67 Joe Millitzer, “FAA-No criminal charges for man who crashed drone into a St. Louis building,” June 4, 2014, http://fox2now.com/2014/06/04/faa-no-criminal-charges-for-man-who-crashed-drone-into-a-st-louis-building/comment-page-1/.
68 The FAA serves as a regulatory agency tasked to create and enforce the rules published in the Code of Federal Regulations (14 CFR Part 91). These regulations are commonly called FARs.
69 Jim Hoffer, “Brooklyn man arrested for flying drone over Manhattan,” ABC 7 Eyewitness News, Oct 18, 2013, http://abclocal.go.com/wabc/story?section=news/investigators&id=9292217.
71 Dana Sauchelli, “Toy Chopper-Crash Pilot Snagged by His Own Video,” The New York Post, Oct 18, 2013, http://nypost.com/2013/10/18/toy-chopper-crash-pilot-snagged-by-his-own-video/.
72 New York Penal Law § 70.15, http://law.onecle.com/new-york/penal/PEN070.15_70.15.html.
73 The FAA maintains that UAS operation without a certificate is not permitted in Class B airspace –generally located over urban areas–however this violation did not play into the NYPD arrest, http://www.suasnews.com/wp-content/uploads/2014/05/Zablidowsky-CP-ltr.pdf.
74 New York State Police, “SP Kingston – Unlawful Surveillance Arrest,” July 15, 2014, https://www.nyspnews.com/article_display.cfm?article_id=39366.
76 N.Y. Pen. Law § 70.00, http://law.onecle.com/new-york/penal/PEN070.00_70.00.html.
77 The White House Office of the Press Secretary, “Presidential Policy Directive – Critical Infrastructure Security and Resilience,” Feb 12, 2013, http://www.whitehouse.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil.
79 “Drones, Horns, Injuries: UAS Tumbles into Virginia Bull Run Crowd,” RT, Aug 26, 2013, http://rt.com/usa/virginia-bull-run-drone-002/.
81 U.S. Department of Homeland Security, “Commercial Facilities Sector,” Aug 27, 2014, http://www.dhs.gov/commercial-facilities-sector.
82 See FAA Notice to Airmen (NOTAM) 4/3621, 27 Oct, 2014, http://tfr.faa.gov/save_pages/detail_4_3621.html.
83 Interview with David B. Morton, FAA UAS Integration Analyst, April 4, 2014.
84 FAA, “Special Notice 4/0811,” June 30, 2009, https://www.faa.gov/air_traffic/publications/us_restrictions/fdc_notams/pdf/FDC%20NOTAMS%204-4386%20and%204-0811.pdf.
85 FAA, “Law Enforcement Guidance for Suspected Unauthorized UAS Operations,” Jan 8, 2015, 9, http://www.faa.gov/uas/regulations_policies/media/FAA_UAS-PO_LEA_Guidance.pdf.
88 For the Seattle incident see Michael Konopasek, “Seattle Wants Drone Rules after Space Needle Buzzing,” July 29, 2014, http://www.usatoday.com/story/news/nation-now/2014/07/29/drones-Seattle-Space-Needle-faa/13322795/;For the Charlotte incident see Mark Washburn, “Drone Buzzes Panthers-Chiefs Game and Police Pounce,” http://www.charlotteobserver.com/2014/08/26/5130873/drone-buzzes-panthers-chiefs-game.html; For the Tampa incident seeChristopher Spata, “Drone Video of Downtown Tampa Goes viral,” July 11, 2014, http://tbo.com/news/business/drone-video-of-downtown-tampa-goes-viral-20140711/.
89 FAA, “FAA Compliance and Enforcement Program Order 2150.3B,” Oct 1, 2007, 2-2, http://www.faa.gov/documentLibrary/media/Order/2150.3%20B%20W-Chg%204.pdf.
90 FAA, “FAA Compliance and Enforcement Program Order 2150.3B,” 3-1.
91 FAA, “FAA Compliance and Enforcement Program Order 2150.3B,” 4-38.
92 Interview with David B. Morton, FAA UAS Integration Analyst, April 4, 2014.
93 Interview with Scott Harris, FAA Special Agent, March 20, 2014.
94 49 U.S.C. § 46306(b)(6)(B).
95 Interview with Scott Harris, FAA Special Agent, March 20, 2014.
96 Interview with David B. Morton, FAA UAS Integration Analyst, April 8, 2014.
97 Federal Aviation Administration, “Chapter 14: Airspace,” Pilot Handbook, 2014, 4-3, http://www.faa.gov/regulations_policies/handbooks_manuals/aviation/pilot_handbook/media/PHAK%20-%20Chapter%2014.pdf.
98 U.S. National Transportation Safety Board Office of Administrative Law Judges, “Decisional Order Docket CP-217,” March 6, 2014, 2, http://www.ntsb.gov/legal/Pirker-CP-217.pdf.
101 U.S. National Transportation Safety Board, “Order No. EA-5730,” Nov 18, 2014, 12, http://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5730.pdf.
103 Jack Nicas, “U.S. Federal Aviation Administration Settles with Videographer Over Drones,” Jan 22, 2015, http://www.wsj.com/articles/u-s-federal-aviation-administration-settles-with-videographer-over-drones-1421960972.
104 FAA, “Busting Myths about the FAA and Unmanned Aircraft,” March 7, 2014, http://www.faa.gov/news/updates/?newsId=76240.
105 John Mariani, “Lakemaid Beer Delivery Drone Grounded by FAA,” Jan 31, 2014, http://www.syracuse.com/news/index.ssf/2014/01/lakemaid_beer_delivery_drone_grounded_by_faa.html.
106 Patrick McKay, “FAA FOIA Response 2-4-14,” http://www.dronejournalism.org/news/2014/2/faa-cease-and-desist-letters-show-agencys-attempts-to-control-drone-use-in-the-us.
108 Tenn. Ann. Code § 39-13(10)(c) (2014), http://state.tn.us/sos/acts/108/pub/pc0876.pdf.
109 Tenn. Ann. Code § 39-13(10)(e)(1) (2014).
110 Tenn. Ann. Code § 39-13(10)(e)(2) (2014).
111 La Rev. Stat. § 14337(E)(1) (2014), http://www.legis.la.gov/legis/law.aspx?d=919584.
112 La Rev. Stat. § 14-337(E)(2) (2014).
113 Idaho Code § 21-213 (2013), http://legislature.idaho.gov/legislation/2013/S1134.pdf.
114 Tex. Gov. Code § 423.006 (2013), http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.423.htm.
115 Tex. Gov. Code § 423.002 (2013).
116 Tex. Gov. Code § 423.004 (2013).
118 Or. Rev. Stat. § 837.995 (2013), https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors837.html.
120 Wis. Stat. § 941.292 (2014), http://docs.legis.wisconsin.gov/2013/related/acts/213.
121 North Carolina General Statute § 14.401.24(a) (2014), http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S744v9.pdf.
122 St. Bonifacius, Minnesota, Municipal Code § 115, March 20, 2013, http://sunpatriot.com/2013/03/29/st-bonifacius-ordinance-no-115/.
123 Email correspondence with Rick Weible, Mayor of City of St. Bonifacius, MN, July 17, 2014.
124 City of Evanston, Illinois, “27-R-13: A Resolution Authorizing the City of Evanston to Establish a Moratorium on the Use of Unregulated Drone Technology,” May 21, 2013, http://www.cityofevanston.org/assets/27-R-13%20Unregulated%20Drone%20Technology.pdf.
125 See Charlottesville, VA, Iowa City, IA, and Pierce County, WA.
126 Township of Conoy, Pennsylvania, “Nuisance Ordinance 1-3-14-2013,” March 14, 2013, http://www.conoytownship.org/files/2013/12/1-3-14-2013_Nuisance_Ordinance.pdf.
129 National Parks Service, “Policy Memorandum 14-05,” June 19, 2014, http://www.nps.gov/policy/PolMemos/PM_14-05.htm.
130 Andrew Meyer, “California Cops Confiscate Quadcopter from Activist at Photo Friendly Event,” Aug 7, 2014, http://photographyisnotacrime.com/2014/08/07/california-cops-confiscate-quadcopter/.
131 California Penal Code § 2-24 (19), http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=2-24.
132 Los Angeles Municipal Code § 63.44, “Regulations Affecting Park and Recreation Areas,” Nov 16, 1979, http://www.laparks.org/venice/pdf/lamc63.pdf.
133 Interview with John Gordnier, Legal Advisor Emeritus to Law Enforcement Intelligence Units (LEIU), June 12, 2014.
134 Interview with San Francisco Police Department Sergeant, June 10, 2014.
135 City and County of San Francisco Department of Human Resources, “Classification and Compensation Database,” Accessed Jan 7, 2015, http://www.sfdhr.org/index.aspx?page=32.


Three persons who were qualified to vote in congressional districts of Illinois which have much larger populations than other congressional districts of that State brought suit in a Federal District Court in Illinois, under the Declaratory Judgment Act, to restrain officers of the State from arranging for an election, in which members of Congress were to be chosen, pursuant to provisions of an Illinois law of 1901 governing congressional districts. The complaint alleged that, by reason of later changes in population, the congressional districts created by the Illinois law lacked compactness of territory and approximate equality of population, and prayed a decree, with incidental relief, declaring the provisions of the state law invalid as in violation of various provisions of the Federal Constitution and in conflict with the Reapportionment Act of 1911, as amended. The District Court dismissed the complaint.
Held, dismissal of the complaint is affirmed. Pp. 550-551, 556.
MR. JUSTICE FRANKFURTER announced the judgment of the Court and an opinion in which MR. JUSTICE REED and MR. JUSTICE BURTON concur.
This case is appropriately here, under § 266 of the Judicial Code. 28 U.S.C. § 380 on direct review of a judgment of the District Court of the Northern District of Illinois, composed of three judges, dismissing the complaint of the appellants. These are three qualified voters in Illinois districts which have much larger populations than other Illinois Congressional districts. They brought this suit against the Governor, the Secretary of State, and the Auditor of the State of Illinois, as members ex officio of the Illinois Primary Certifying Board, to restrain them, in effect, from taking proceedings for an election in November, 1946, under the provisions of Illinois law governing Congressional districts. Illinois Laws of 1901, p. 3. Formally, the appellants asked for a decree, with its incidental relief, § 274(d) Judicial Code, 28 U.S.C. § 400 declaring these provisions to be invalid because they violated various provisions of the United States Constitution and § 3 of the Reapportionment Act of August 8, 1911, 37 Stat. 13 as amended, 2 U.S.C. § 2a in that, by reason of subsequent changes in population, the Congressional districts for the election of Representatives in the Congress created by the Illinois Laws of 1901 (Ill.Rev.Stat.Ch. 46 (1945) § 154-56) lacked compactness of territory [p551] and approximate equality of population. The District Court, feeling bound by this Court's opinion in Wood v. Broom, 287 U.S. 1, dismissed the complaint. 64 F.Supp.632.
The District Court was clearly right in deeming itself bound by Wood v. Broom, supra, and we could also dispose of this case on the authority of Wood v. Broom. The legal merits of this controversy were settled in that case, inasmuch as it held that the Reapportionment Act of June 18, 1929, 46 Stat. 21, as amended, 2 U.S.C. § 2(a), has no requirements "as to the compactness, contiguity and equality in population of districts." 287 U.S. at 8. The Act of 1929 still governs the districting for the election of Representatives. It must be remembered that not only was the legislative history of the matter fully considered in Wood v. Broom, but the question had been elaborately before the Court in Smiley v. Holm, 285 U.S. 355, Koenig v. Flynn, 285 U.S. 375, and Carroll v. Becker, 285 U.S. 380, argued a few months before Wood v. Broom was decided. Nothing has now been adduced to lead us to overrule what this Court found to be the requirements under the Act of 1929, the more so since seven Congressional elections have been held under the Act of 1929 as construed by this Court. No manifestation has been shown by Congress even to question the correctness of that which seemed compelling to this Court in enforcing the will of Congress in Wood v. Broom.
But we also agree with the four Justices (Brandeis, Stone, Roberts, and Cardozo, JJ.) who were of opinion that the bill in Wood v. Broom, supra, should be "dismissed for want of equity." To be sure, the present complaint, unlike the bill in Wood v. Broom, was brought under the Federal Declaratory Judgment Act which, not having been enacted until 1934, was not available at the time of Wood v. Broom. But that Act merely gave the federal courts competence to make a declaration of rights, even though [p552] no decree of enforcement be immediately asked. It merely permitted a freer movement of the federal courts within the recognized confines of the scope of equity. The Declaratory Judgment Act "only provided a new form of procedure for the adjudication of rights in conformity" with "established equitable principles." Great Lakes Co. v. Huffman, 319 U.S. 293, 300. And so the test for determining whether a federal court has authority to make a declaration such as is here asked is whether the controversy "would be justiciable in this Court if presented in a suit for injunction . . ." Nashville, C. & St.L. R. Co. v. Wallace, 288 U.S. 249, 262.
We are of opinion that the appellants ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power which cannot be met by verbal fencing about "jurisdiction." It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature, and therefore not meet for judicial determination.
was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each state a due influence in the choice of representatives, so as not to leave the aggregate minority of the people in a state, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils.
1 Kent, Commentaries (12th ed., 1873) *230-231, n.(c). Assuming acquiescence on the part of the authorities of Illinois in the selection of its Representatives by a mode that defies the direction of Congress for selection by districts, the House of Representatives may not acquiesce. In the exercise of its power to judge the qualifications of its own members, the House may reject a delegation of Representatives at large. Article I, § 5, cl. 1. For the detailed system by which Congress supervises the election of its members, see, e.g., 2 U.S.C. § § 201226; Bartlett, Contested Elections in the House of Representatives (2 vols.); Alexander, History and Procedure of the House of Representatives (1916) c. XVI. Nothing is clearer than that this controversy concerns matters that bring courts into immediate and active relations with party contests. From the determination of such issues, this Court has traditionally held aloof. It is hostile to [p554] a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law.
The Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, . . .
The short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House, and left to that House determination whether States have fulfilled their responsibility. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people. Whether Congress faithfully discharges its duty or not, the subject has been committed to the exclusive control of Congress. An aspect of government from which the judiciary, in view of what is involved, has been excluded by the clear intention of the Constitution cannot be entered by the federal courts because Congress may have been in default in exacting from States obedience to its mandate.
The one stark fact that emerges from a study of the history of Congressional apportionment is its embroilment in politics, in the sense of party contests and party interests. The Constitution enjoins upon Congress the duty of apportioning Representatives "among the several States . . . according to their respective Numbers, . . ." [p555] Article I, § 2. Yet Congress has, at times, been heedless of this command, and not apportioned according to the requirements of the Census. It never occurred to anyone that this Court could issue mandamus to compel Congress to perform its mandatory duty to apportion. "What might not be done directly by mandamus could not be attained indirectly by injunction." Chafee, Congressional Reapportionment (1920) 42 Harv.L.Rev. 1015, 1019. Until 1842, there was the greatest diversity among the States in the manner of choosing Representatives, because Congress had made no requirement for districting. 5 Stat. 491. Congress then provided for the election of Representatives by districts. Strangely enough, the power to do so was seriously questioned; it was still doubted by a Committee of Congress as late as 1901. See e.g., Speech of Mr. (afterwards Mr. Justice) Clifford, Cong.Globe, April 28, 1842, 27th Cong., 2d Sess., App. p. 347; 1 Bartlett, Contested Elections in the House of Representatives (1865) 47, 276; H.R.Rep. No. 3000, 56th Cong., 2d Sess. (1901); H.R.Doc. No. 2052, 64th Cong., 2d Sess. (1917) 43; United States v. Gradwell, 243 U.S. 476, 482, 483. In 1850, Congress dropped the requirement. 9 Stat. 428, 432-33. The Reapportionment Act of 1862 required that the districts be of contiguous territory. 12 Stat. 572. In 1872, Congress added the requirement of substantial equality of inhabitants. 1 7 Stat. 28. This was reinforced in 1911. 37 Stat. 13, 14. But the 1929 Act, as we have seen, dropped these requirements. 46 Stat. 21. Throughout our history, whatever may have been the controlling Apportionment Act, the most glaring disparities have prevailed as to the contours and the population of districts. Appendix I summarizes recent disparities in the various Congressional Representative districts throughout the country, and Appendix II gives fair samples of prevailing gerrymanders. For other illustrations of glaring inequalities, see 71 Cong.Rec. [p556] 2278-2279, 2480 et seq.; 86 Cong.Rec. 4369, 4370-71, 76th Cong., 2d Sess. (1940); H.R.Rep. No. 1695, 61st Cong., 2d Sess. (1910); (1920) 24 Law Notes 124; (October 30, 1902) 75 The Nation 343, and see, generally, Schmeckebier, Congressional Apportionment (1941), and, on gerrymandering, see Griffith, The Rise and Development of the Gerrymander (1907).
To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress. The Constitution has many commands that are not enforceable by courts, because they clearly fall outside the conditions and purposes that circumscribe judicial action. Thus, "on Demand of the executive Authority," Art. IV, § 2, of a State, it is the duty of a sister State to deliver up a fugitive from justice. But the fulfillment of this duty cannot be judicially enforced. Kentucky v. Dennison, 24 How. 66. The duty to see to it that the laws are faithfully executed cannot be brought under legal compulsion, Mississippi v. Johnson, 4 Wall. 475. Violation of the great guaranty of a republican form of government in States cannot be challenged in the courts. Pacific Telephone Co. v. Oregon, 223 U.S. 118. The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and, ultimately, on the vigilance of the people in exercising their political rights.
Dismissal of the complaint is affirmed.
* These years were chosen at random.
Art. I, § 2, vesting in Congress the duty of apportionment of representatives among the several states "according to their respective Numbers", and Art. I, § 5, making each House the sole judge of the qualifications of its own members, would remove the issues in this case from justiciable cognizance. But, in my judgment, the Smiley case rules squarely to the contrary, save only in the matter of degree.
I was unable to find such an alternative in that instance. There is one, however, in this case. And I think the gravity of the constitutional questions raised so great, together with the possibilities for collision above mentioned, that the admonition is appropriate to be followed here. Other reasons support this view, including the fact [p565] that, in my opinion, the basic ruling and less important ones in Smiley v. Holm, supra, would otherwise be brought into question.
Assuming that that decision is to stand, I think, with Mr. Justice Black, that its effect is to rule that this Court has power to afford relief in a case of this type as against the objection that the issues are not justiciable.
In my judgment, this complaint should be dismissed for the same reason. Assuming that the controversy is justiciable, I think the cause is of so delicate a character, in view of the considerations above noted, that the jurisdiction should be exercised only in the most compelling circumstances.
As a matter of legislative attention, whether by Congress or the General Assembly, the case made by the complaint is strong. But the relief it seeks pitches this Court into delicate relation to the functions of state officials and Congress, compelling them to take action which heretofore they have declined to take voluntarily, or to accept the alternative of electing representatives from Illinois at large in the forthcoming elections.
The shortness of the time remaining makes it doubtful whether action could, or would, be taken in time to secure for petitioners the effective relief they seek. To force [p566] them to share in an election at large might bring greater equality of voting right. It would also deprive them and all other Illinois citizens of representation by districts which the prevailing policy of Congress commands. 46 Stat. 26, as amended; 2 U.S.C. § 2a.
If the constitutional provisions on which appellants rely give them the substantive rights they urge, other provisions qualify those rights in important ways by vesting large measures of control in the political subdivisions of the Government and the state. There is not, and could not be, except abstractly, a right of absolute equality in voting. At best, there could be only a rough approximation. And there is obviously considerable latitude for the bodies vested with those powers to exercise their judgment concerning how best to attain this, in full consistency with the Constitution.
The right here is not absolute. And the cure sought may be worse than the disease.
I think, therefore, the case is one in which the Court may properly, and should, decline to exercise its jurisdiction. [n3] Accordingly, the judgment should be affirmed, and I join in that disposition of the cause.
Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.
2. Want of equity jurisdiction does not go to the power of a court in the same manner as want of jurisdiction over the subject matter. Thus, want of equity jurisdiction may be waived. Matthews v. Rodgers, 284 U.S. 521, 524-525, and cases cited.
The power of a court of equity to act is a discretionary one. . . . Where a federal court of equity is asked to interfere with the enforcement of state laws, it should do so only "to prevent irreparable injury which is clear and imminent."
American Federation of Labor v. Watson, 327 U.S. 582, 593, and cases cited.
In the present suit, the complaint attacked the 1901 State Apportionment Act on the ground that it, among other things, violates Article I and the Fourteenth Amendment of the Constitution. Appellants claim that, since they live in the heavily populated districts, their vote is much less effective than the vote of those living in a district which, under the 1901 Act, is also allowed to choose one Congressman, though its population is sometimes [p568] only one-ninth that of the heavily populated districts. Appellants contend that this reduction of the effectiveness of their vote is the result of a willful legislative discrimination against them, and thus amounts to a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment. They further assert that this reduction of the effectiveness of their vote also violates the privileges and immunities clause of the Fourteenth Amendment in abridging their privilege as citizens of the United States to vote for Congressmen, a privilege guaranteed by Article I of the Constitution. They further contend that the State Apportionment Act directly violates Article I which guarantees that each citizen eligible to vote has a right to vote for Congressmen and to have his vote counted. The assertion here is that the right to have their vote counted is abridged unless that vote is given approximately equal weight to that of other citizens. It is my judgment that the District Court had jurisdiction; [n2] that the complaint presented a justiciable case and controversy; [n3] and that appellants had standing to sue, since the facts alleged show that they have been injured as individuals. [n4] Unless previous decisions of this Court are to be overruled, the suit is not one against the State, but against state officials as individuals. [n5] The complaint attacked the 1901 Apportionment Act as unconstitutional, and alleged facts indicating that the Act denied appellants the full right to vote and the equal protection of the laws. [p569] These allegations have not been denied. Under these circumstances, and since there is no adequate legal remedy for depriving a citizen of his right to vote, equity can and should grant relief.
The 1901 State Apportionment Act, in reducing the effectiveness of appellants' votes, abridges their privilege as citizens to vote for Congressmen, and violates Article I of the Constitution. Article I provides that Congressmen "shall be . . . chosen . . . by the People of the several States . . ." It thus gives those qualified a right to vote and a right to have their vote counted. Ex parte Yarbrough, 110 U.S. 651; United States v. Mosley, 238 U.S. 383. This Court, in order to prevent "an interference with the effective choice of the voters," has held that this right extends to primaries. United States v. Classic, 313 U.S. 299, 314. While the Constitution contains no express provision requiring that congressional election districts established by the States must contain approximately equal populations, the constitutionally guaranteed right to vote, and the right to have one's vote counted clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight to each vote cast. To some extent, this implication of Article I is expressly stated by § 2 of the Fourteenth Amendment, which provides that "Representatives shall be apportioned among the several States according to their respective numbers . . ." The purpose of this requirement is obvious: it is to make the votes of the citizens of the several States equally effective in the selection of members of Congress. It was intended to make illegal a nationwide "rotten borough" system as between the States. The policy behind it is broader than that. It prohibits, as well, congressional "rotten boroughs" within the States, such as the ones here involved. The policy is that which is laid down by all the constitutional provisions regulating the election of members of the House of Representatives, including Article I, which guarantees the right to vote and to have that vote effectively counted: all groups, classes, and individuals [p571] shall, to the extent that it is practically feasible, be given equal representation in the House of Representatives, which, in conjunction with the Senate, writes the laws affecting the life, liberty, and property of all the people.
It is true that the States are authorized by § 2 of Article I of the Constitution to legislate on the subject of congressional elections to the extent that Congress has not done so. Thus, the power granted to the State Legislature on this subject is primarily derived from the Federal, and not from the State, Constitution. But this federally granted power with respect to elections of Congressmen is not to formulate policy, but rather to implement the policy laid down in the Constitution that, so far as feasible, votes be given equally effective weight. Thus, a state legislature cannot deny eligible voters the right to vote for Congressmen and the right to have their vote counted. It can no more destroy the effectiveness of their vote in part, and no more accomplish this in the name of "apportionment," than under any other name. For legislation which must inevitably bring about glaringly unequal representation in the Congress in favor of special classes and groups should be invalidated "whether accomplished ingeniously or ingenuously." Smith v. Texas, 311 U.S. 128, 132. See also Lane v. Wilson, 307 U.S. 268, 272.
Had Illinois passed an Act requiring that all of its twenty-six Congressmen be elected by the citizens of one county, it would clearly have amounted to a denial to the citizens of the other counties of their constitutionally guaranteed right to vote. And I cannot imagine that an Act that would have apportioned twenty-five Congressmen to the State's smallest county and one Congressman to all the others would have been sustained by any court. Such an Act would clearly have violated the constitutional [p572] policy of equal representation. The 1901 Apportionment Act here involved violates that policy in the same way. The policy with respect to federal elections laid down by the Constitution, while it does not mean that the courts can or should prescribe the precise methods to be followed by state legislatures and the invalidation of all Acts that do not embody those precise methods, does mean that state legislatures must make real efforts to bring about approximately equal representation of citizens in Congress. Here, the Legislature of Illinois has not done so. Whether that was due to negligence or was a willful effort to deprive some citizens of an effective vote, the admitted result is that the constitutional policy of equality of representation has been defeated. Under these circumstances, it is the Court's duty to invalidate the state law.
It is contended, however, that a court of equity does not have the power, or, even if it has the power, that it should not exercise it in this case. To do so, it is argued, would mean that the Court is entering the area of "political questions." I cannot agree with that argument. There have been cases, such as Coleman v. Miller, supra, pp. 454, 457, where this Court declined to decide a question because it was political. In the Miller case, however, the question involved was ratification of a constitutional amendment, a matter over which the Court believed Congress had been given final authority. To have decided that question would have amounted to a trespass upon the constitutional power of Congress. Here we have before us a state law which abridges the constitutional rights of citizens to cast votes in such way as to obtain the kind of congressional representation the Constitution guarantees to them.
It is true that voting is a part of elections, and that elections are "political." But, as this Court said in Nixon [p573] v. Herndon, supra, it is a mere "play upon words" to refer to a controversy such as this as "political" in the sense that courts have nothing to do with protecting and vindicating the right of a voter to case an effective ballot. The Classic case, among myriads of others, refutes the contention that courts are impotent in connection with evasions of all "political" rights. Wood v. Broom, 287 U.S. 1, does not preclude the granting of equitable relief in this case. There, this Court simply held that the State Apportionment Act did not violate the Congressional Reapportionment Act of 1929, 46 Stat. 21, 26, 27, since that Act did not require election districts of equal population. The Court expressly reserved the question of "the right of the complainant to relief in equity." Giles v. Harris, 189 U.S. 475, also did not hold that a court of equity could not, or should not, exercise its power in a case like this. As we said with reference to that decision in Lane v. Wilson, 306 U.S. 268, 272-273, it stands for the principle that courts will not attempt to "supervise" elections. Furthermore, the author of the Giles v. Harris opinion also wrote the opinion in Nixon v. Herndon, in which a voter's right to cast a ballot was held to give rise to a justiciable controversy.
In this case, no supervision over elections is asked for. What is asked is that this Court do exactly what it did in Smiley v. Holm, supra. It is asked to declare a state apportionment bill invalid, and to enjoin state officials from enforcing it. The only difference between this case and the Smiley case is that there, the case originated in the state courts, while here, the proceeding originated in the Federal District Court. The only type of case in which this Court has held that a federal district court should, in its discretion, stay its hand any more than a state court is where the question is one which state courts or administrative agencies have special competence to [p574] decide. This is not that type of question. What is involved here is the right to vote guaranteed by the Federal Constitution. It has always been the rule that, where a federally protected right has been invaded, the federal courts will provide the remedy to rectify the wrong done. Federal courts have not hesitated to exercise their equity power in cases involving deprivation of property and liberty. Ex parte Young, supra; Hague v. CIO, 307 U.S. 496. There is no reason why they should do so where the case involves the right to choose representatives that make laws affecting liberty and property.
Nor is there any more difficulty in enforcing a decree in this case than there was in the Smiley case. It is true that declaration of invalidity of the State Act and the enjoining of state officials would result in prohibiting the State from electing Congressmen under the system of the old congressional districts. But it would leave the State free to elect them from the State at large, which, as we held in the Smiley case, is a manner authorized by the Constitution. It is said that it would be inconvenient for the State to conduct the election in this manner. But it has an element of virtue that the more convenient method does not have -- namely, it does not discriminate against some groups to favor others, it gives all the people an equally effective voice in electing their representatives, as is essential under a free government, and it is constitutional.
1. People v. Thompson, 155 Ill. 451, 40 N.E. 307; Fergus v. Mark, 321 Ill. 510, 152 N.E. 557; Fergus v. Kinney, 333 Ill. 437, 164 N.E. 665; People v. Clardy, 334 Ill. 160, 165 N.E. 638; People v. Blackwell, 342 Ill. 223, 173 N.E. 750; Daly v. Madison County, 378 Ill. 357, 38 N.E.2d 160. Cf. Moran v. Bowley, 347 Ill. 148, 179 N.E. 526.
2. 28 U.S.C. 41(14); Bell v.Hood, 327 U.S. 678.
3. Smiley v. Holm, 285 U.S. 355; Koenig v. Flynn, 285 U.S. 375; Carroll v. Becker, 285 U.S. 380; Wood v. Broom, 287 U.S. 1; Nixon v. Herndon, 273 U.S. 536, 540; McPherson v. Blacker, 146 U.S. 1, 23-24; see also cases collected in 2 A.L.R. note, 1337 et seq.
4. Coleman v. Miller, 307 U.S. 433, 438, 467.
5. Ex parte Young, 209 U.S. 123; Sterling v. Constantin, 287 U.S. 378, 393.