CAPE MAY COURT HOUSE _ A Lower Township man has been indicted for using a shotgun to shoot a drone out of the sky in the first such case recorded in Cape May County and one of the first in the nation.
Cape May County Prosecutor Robert L. Taylor said a grand jury on Tuesday returned an indictment against Russell Percenti, 33, of Seashore Road, on charges of possession of a firearm for an unlawful purpose and criminal mischief.
Taylor said the firearm charge is a 2nd degree crime that could bring a sentence of five to 10 years. Criminal mischief is a 4th degree crime that can bring 18 months in prison.
Even if this is a case of trespassing on somebody’s private airspace, which has not yet been proven, Taylor does not want the public taking matters into their own hands.
“We’re trying to send a message early on that if their privacy is being invaded call police. We’re trying to send a message because the use of drones will become bigger and bigger,” said Taylor.
Among other issues, the police don’t want people discharging firearms in residential areas.
“If you shoot in the air it comes down somewhere,” Taylor noted.
Police responding to the 1000 block of Seashore Road on Sept. 26, 2014 did not initially know what to charge Percenti with since there is no local law specifically addressing what is expected to become a more common issue as drones attain widespread use.
The owner of the drone, Leonard Helbig, of the Villas section, told police the helicopter-style drone was being used to capture photographs of a friend’s house that was under construction near Percenti’s house.
While operating the drone, Helbig said he heard numerous gunshots and simultaneously lost control of the drone. Upon retrieving the drone, he noticed it was damaged. He called the police.
When police Lt. Patrick Greene arrived he found the disabled drone and it appeared to have damage from shotgun pellets. He confiscated a shotgun owned by Percenti.
"We interviewed him, and he said, 'Yeah, I did it,'" Greene said shortly after the incident.
Greene had to figure out what to charge Percenti with as there is no local law specifically addressing drones. He chose possession of a weapon for an unlawful purpose, since you can't fire off a shotgun in a residential area, and criminal mischief. He confiscated the shotgun.
"He used a weapon inappropriately. The law is pretty clear on that. And it's criminal mischief to property," Greene said.
As the case made national headlines, there was debate locally whether it should go to Lower Township Municipal Court or be handled by the Cape May County Prosecutor's Office. The incident could create case law on an issue expected to be much more commonplace as drones become cheaper and more widely used.
There have already been cases of drones coming dangerously close to commercial aircraft. A case in Kentucky featured a man shooting at a drone that was hovering over his sunbathing daughter, which raised “peeping Tom” issues that some predict will become more common.
There are already websites dedicated to shooting down drones. Though they may be tongue in cheek, one ammunition company is marketing “drone munition.” The 12-gauge shells with three-inch shot are marketed as lead-free, safe for the environment, and perfect for shooting down quad-copters, a type of drone.
Percenti’s attorney could not be reached for comment on Tuesday to see how he intends to plead. Percenti has been released since posting bail.
If the case goes to trial there should be more details on whether the drone was in Percenti’s air space. Authorities at this point are only saying it was “flying in the vicinity of Mr. Percenti’s home.”
The question of who owns the airspace above one’s property has been debated in the courts many times before amid a tangle of FAA regulations, British common law, the Fifth Amendment to the U.S. Constitution, aerial trespass and other issues. Technically, people do own airspace over their properties but aircraft have certain rights to cross it. Drones could put a new twist on the many legal arguments already documented on the issue.
Regardless of who owns the airspace and whether some sort of trespassing is going on, Taylor doesn’t want citizens to take the law into their own hands and fire weapons in residential areas.
“Do we let homeowners shoot trespassers?” asked Taylor.
Police Chief William Mastriana may have put it best when he said the case is “uncharted territory.”