A doctor and drone enthusiast from Newton, Massachusetts, has sued his hometown, arguing that a new local ordinance restricting drone flights is unconstitutional.

In the suit, Michael Singer v. City of Newton, which was filed in federal court in Massachusetts last Tuesday, the plaintiff argued that the city has effectively banned drones over the entire town. In short, he claimed that Newton, which sits about seven miles west of downtown Boston, doesn't have the authority to regulate drones in this manner and that his First and Fourteenth Amendment rights, among others, are being violated.

The lawsuit gets to the heart of a question that continues to bubble up in the age of personal, inexpensive drones: to what degree can individuals and municipalities restrict drone use?

The new Newton ordinance, which was passed in December 2016, specifically bans sUAS (small unmanned aerial systems), or drone flights, over private property at or below 400 feet without the property owner’s permission. The law also requires that all drones be registered with the city. The ordinance further stipulates that drones cannot "conduct surveillance," or capture video, still imagery, audio recordings, anywhere that people on the ground would have a "reasonable expectation of privacy."

As Singer, who is representing himself in the lawsuit, wrote:

Defendant crafted the "below 400 feet" restriction as a precise counterpart to the [Federal Aviation Administration’s] "higher than 400 feet" restriction, such that the two rules, concurrently applied, would presumptively prohibit sUAS over most of the land area of Newton, Massachusetts.

It's a tad bit late

The best case law on the issue dates back to 1946, long before inexpensive consumer drones were technically feasible. That year, the Supreme Court ruled in a case known as United States v. Causby that a farmer in North Carolina could assert property rights up to 83 feet in the air. However, the court declined to impose a firm limit as to how high a property owner’s claims go into the sky.

Another lawsuit, Boggs v. Merideth, which is currently progressing in federal court in Kentucky, aims to force a court to make the determination on trespassing.

"Right now, no one knows where to draw the line, but it’s important for the courts to draw the line," James Mackler, a Tennessee attorney who is representing Boggs, told Ars. "That’s why these lawsuits are important, because otherwise we’re not going to get there. If you climb over someone’s fence you know that’s trespassing."

In an e-mail interview with Ars, Singer explained that he is an entrepreneur who wishes to provide medical services via drone. He’s concerned that national airspace could "become hopelessly fragmented" if local laws like this are allowed to stand.

"As a practical matter, the Ordinance will ban commercial UAV operations from our city," he wrote.

"Consider an aerial video service hired to fly a simple, unobtrusive, circular route around a property for a real estate agent. The service can try, as the ordinance now requires, to contact the city and every homeowner under the planned flight path. But will they all agree to the flight? What if the pilot needs to deviate from the planned flight path for safety reasons? Now suppose you’re an entrepreneur like me who wants to provide medical services, or for that matter, any kind of rapid response. You have no time to seek permission. The city has grounded your business before it can even spread its wings."

Regulators

Other cities have already tried to restrict how and where drones can fly. Nearly a year ago, lawmakers in West Hollywood, California, voted to regulate drone flights after one crashed into a power line.

Last year, a report from the National Conference of State Legislatures noted that in Nevada, property owners now have the right to sue for trespass for any drone operator who flies at a height of less than 250 feet over that property and if the owner has warned the pilot once before. Similarly, a law in Oregon also allows for civil suits, but the height requirement is less than 400 feet. Ars is not aware of any civil complaints that have been filed in those states as a result.

Amanda Essex of the NCSL told Ars that at least seven states—Arizona, Delaware, Maryland, Michigan, Oregon, Rhode Island, and Virginia—have passed laws that forbid municipalities in those states from regulating drones.

Neither the FAA nor the Newton City Solicitor’s Office responded to Ars’ request for comment.

"In sum, I believe that airspace and aircraft should be regulated by our nation's aviation experts—the FAA—not by a band of small-town politicians," Singer concluded.

The case has been assigned to US District Judge William G. Young, but no hearings have been scheduled yet.