Lawmakers are scheduled to consider five draft trespass-related bills in mid-September, including measures that would criminalize aerial photography of prisons, flying drones “into the immediate reaches” of airspace over private property and crossing private property to collect antlers on public land.
The draft bill — Prohibiting drones over penal institutions — raises potential conflicts with the First Amendment, the bedrock constitutional clause guaranteeing free speech, an attorney with a national news photographers group said.
The bill states that no person shall “intentionally … [p]hotograph, surveil, broadcast or otherwise record a penal institution or correctional facility through the use of an unmanned aircraft system.” The person in charge of a prison could authorize photography, however.
The Joint Judiciary Committee is scheduled to consider the draft measure during a two-day meeting Sept. 12-13 in Casper.
“[T]he section pertaining to photography is constitutionally suspect.”
Mickey Osterreicher, general counsel for the National Press Photographers Association
The committee has also scheduled discussion on the draft bill Trespass by Small Unmanned Aircraft that would make it a crime to cause a drone to “enter into the immediate reaches of the airspace over … private property” when such action interferes with “use and enjoyment of the land.” The measure appears to lack a definition of the “immediate reaches” of the airspace.
Another bill on the agenda appears to address the issue of trespassing to collect antlers and a fourth bill would add drones to the list of aircraft that are illegal to use for hunting. Yet another draft bill would expunge a data-trespass statute that’s been ruled by courts to be unconstitutional.
The committee continues its charge by the Legislature’s leadership to investigate trespass issues before the next legislative session at the beginning of 2023. The meeting will address a slew of other matters from pedestrian safety, to homicide by vehicle, violence against healthcare workers, security in healthcare facilities and financial exploitation of vulnerable adults. The discussions will be live-streamed through a link available on the Legislature’s website.
First Amendment problem
The draft bill prohibiting drones over prisons would not ban satellite imagery and various government operations. The bill also criminalizes the use of drones to deliver contraband to a prisoner.
The penalty for photographing or delivering contraband would be a misdemeanor punishable by up to a year in prison and a fine up to $2,000. If a drone were used to deliver or attempt to deliver a deadly weapon, its operator could be charged with a felony punishable by 10 years’ imprisonment and up to a $10,000 fine.
The New York Daily News in 2015 reprised a 1971 article regarding a riot at the Attica State Prison, including an aerial news photograph by the Associated Press. A draft bill being considered by the Wyoming Legislature would criminalize aerial photography of prisons in the state, a measure one group believes is unconstitutional. (Screengrab/Daily News/AP)
“The bill as proposed, at least the section pertaining to photography, is constitutionally suspect,” said Mickey Osterreicher, general counsel for the National Press Photographers Association. The FAA’s regulations on flying drones include prohibitions regarding flying over critical infrastructure, Osterreicher said.
But the draft bill appears to go beyond that.
“They’re not actually saying you can’t fly over it [they’re saying] you can’t photograph it, surveil it,” he said. Surveil is not defined in the bill and appears to include news photography, he said.
“I think there’s a problem here … which is to list photography” as an illegal act, Osterreicher said.
“Restricting a First-Amendment-protected right is a problem,” he said. An exemption for news gathering would probably bring the bill in line with constitutional requirements, he said.
Earlier this year a federal judge overturned “stringent drone laws” in Texas, according to the website PetaPixel, citing them as unconstitutional violations of the First Amendment. The press photographers’ group had opposed the legislation and brought the successful suit. The NPPA cited instances where journalists were denied permission or threatened with arrest for seeking to photograph a public construction project and the aftermath of a fatal fire.
The Texas law, like the Wyoming draft bill, uses the word “surveillance” in its prohibitions. Texas is appealing the summary judgment ruling against it to the federal Fifth Circuit Court of Appeals, Osterreicher said.
The draft bill criminalizing trespass by small, unmanned aircraft would set penalties of up to $750 and six months in jail for a violation. A person would be guilty if he or she “causes a small unmanned aircraft to enter into the immediate reaches of the airspace over the private property of a landowner and the entry substantially interferes with the landowner’s or his authorized occupant’s use and enjoyment of the land.”
The measure addresses trespassing in airspace “over” private property, including the undefined “immediate reaches” of such airspace.
Whether crossing the airspace directly above private property is illegal is a matter that’s being contested in a civil case in federal court in a corner-crossing case involving hunters. They were criminally cited — and found not guilty — in Carbon County.
The separate and ongoing civil suit seeks to recover damages from the four Missouri men after they stepped from one piece of public U.S. Bureau of Land Management land to another at the common corner of two private parcels, all arranged in a checkerboard pattern of ownership.
The hunters did not set foot on private property. The owner of the private land, citing Wyoming law, claims that passing through the airspace directly above his ranch constituted trespass.
Another draft trespass bill Prohibiting travel across private land for hunting purposes appears to revive a measure that Rep. Barry Crago (R-Buffalo) proposed during the last legislative session. The bill would amend Wyoming’s law that criminalizes the act of trespassing to hunt or to collect antlers.
Today, the law makes it illegal to “enter upon the private property of any person,” to hunt or collect antlers. The proposed amendment would change that language to make it illegal to enter upon “or travel through” such private property.
During the legislative session earlier this year, Crago said the measure he proposed was not intended to address corner crossing. Instead, it was to make trespass enforcement uniform across the state.
Crago’s measure also was designed to deter trespassing antler hunters who might collect antlers on public land after crossing private land without permission. In such instances antler hunters might find antlers that are worth much more than the maximum $1,000 fine. The existing law also provides for a six-month sentence.
Crago sought to deter antler hunting by including a provision in his House Bill 103 — Prohibit travel across private land for hunting purposes — that would have made antler hunters forfeit their booty. But his measure did not advance in the 2022 session.
The revived draft bill, now potentially sponsored by the committee, does not include an antler-forfeiture clause, however. It does appear to avoid any entanglement with arguments regarding airspace and corner crossing.
“For purposes of this subsection ‘travel through’ requires physically touching or driving on the surface of the private property,” the draft reads.
A couple of other draft bills also seek to address hunting and trespass issues. One would add drones to the list of aircraft prohibited for hunting. The other would repeal elements of the state’s troubled data trespass laws that courts found unconstitutional.
wyomingdigest.com participated as a witness in that court challenge.
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