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June 14, 2018

Legal Update
Tristan P. Colangelo

Flying a drone over land and separately entering another’s property to shoot video insufficient to support a harassment order

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In one of the first appellate cases where the plaintiff claims to have been harassed by the defendant’s use of a drone, the Appeals Court has held that drone use and videotaping of property, while “nettlesome” and perhaps “disruptive,” could not justify the issuance of a harassment prevention order under G.L. c. 258E.  The case, F.W.T. v. F.T., 2017-P-790, clarifies that typical drone use, such as flying it over another’s property and videotaping property is an insufficient legal basis to obtain a harassment prevention order.  In vacating the Trial Court order against the defendant, the Appeals Court left open the question whether a drone could be used in a more intrusive manner that would satisfy the statutory requirements.

The standard used to evaluate applications for harassment orders under c. 258E is well established under Massachusetts law.  The plaintiff must demonstrate by a preponderance of the evidence that the defendant committed three or more acts of “willful and malicious conduct aimed at a specific person” and that were intended to “cause fear, intimidation, abuse or damage to property.”  See G.L. c. 258E, § 1.  The plaintiff must only demonstrate that the acts subjectively caused the plaintiff fear, intimidation, abuse, or damage to property and the court is permitted to draw all reasonable inferences from the evidence supplied.

In F.W.T. v. F.T., the plaintiff (defendant’s son) claimed that F.T. or an employee at F.T.’s direction flew a drone over plaintiff’s property on three occasions, once in the line of sight of a contractor who was operating heavy machinery, and entered the plaintiff’s land on two occasions to shoot video of the property.  Even though the parties had an extensive history of litigation between them, the Appeals Court was unpersuaded that simply flying a drone over land, even if flown within the line of sight of a contractor, constituted harassment as defined by Chapter 258E.  The court acknowledged that the conduct was “nettlesome” and “disruptive,” but held that the harassment standard requires more than simply demonstrating that someone’s conduct aggravated another. It requires malicious or willful intent to cause fear, intimidation, abuse, or damage to property.

The Appeals Court decision clarifies three points regarding harassment prevention orders:

  1. Flying a drone over someone’s property – in and of itself – does not constitute harassment, even though it is annoying and disruptive.  The decision plainly states that “flying drones over or trespassing onto the property to videotape the worksite, viewed separately or as a whole, does not constitute harassment within the meaning of c. 258E.”  The court notes that such behavior likely violates the trespass or nuisance statutes and could subject the defendant to liability under those laws.  Interestingly, the facts here did not specify how close the drone was flown to the contractor or anyone else on the property.  The decision leaves open the possibility that drones flown within close proximity to a person or to obtain views of private settings could support a finding of harassment.
  2. The defendant’s alleged harassing acts must be connected to the defendant’s intent to cause fear, intimidation, abuse, or damage to property.  Willful or malicious conduct is defined as cruelty, hostility, or revenge.  The Appeals Court cited two examples of conduct that, while surpassing the willful or malicious standard, were not shown to have been committed to cause fear, intimidation, abuse, or damage to property.  The plaintiff must expressly draw the connection between the willful or malicious acts and the defendant’s intent to cause the plaintiff fear, intimidation, abuse, or damage to property.  While it is often tempting, a harassment prevention order cannot be used to keep two people away from each other out of convenience.
  3. The plaintiff must establish that the acts did in fact cause fear, intimidation, abuse, or damage to property.  That the defendant may have intended to cause fear, intimidation, abuse, or damage to property, alone, fails to satisfy the statute.  The plaintiff must establish that the acts subjectively caused fear, intimidation, abuse, or damage to property.  In most cases, this requirement is easily satisfied through the plaintiff’s testimony as to his subjective state of mind, but care must be taken not to overlook the effects the defendant’s acts had on the plaintiff.  The court can consider the cumulative effects from a pattern of behavior, but the plaintiff must supply the court with sufficient detail to allow it to determine that the defendant’s conduct unlawfully and actually affected the plaintiff.

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