Update: Turgeon was found not guilty on all counts Thursday evening.
A citizen journalist in Morton County, North Dakota is facing up to seven years in jail for flying a drone over the North Dakota Pipeline protests.
In October, Aaron Turgeon was arrested by Morton County Police and was charged with a felony count of Reckless Endangerment, a misdemeanor count of Reckless Endangerment, and a misdemeanor count of Physical Obstruction of a Government Function, according to court documents obtained by Motherboard. Together, he faces up to seven years in court if found guilty. His court case is Thursday.
For weeks, Turgeon (who also goes by "Prolific the Rapper") documented the North Dakota Access Pipeline protests for several Facebook groups that livestreamed and posted photos and videos about the movement. Several of these aerial videos documented police shooting protesters with water cannons and tear gas canisters.
The case raises important questions about the limitations of the First Amendment and the ability for local and state police to enforce laws against drone pilots. The state laws used to arrest Turgeon are rarely used to pursue a drone pilot, and airspace safety has typically been enforced by the Federal Aviation Administration, not local law enforcement.
In a court document, the state argues that Turgeon's drone is a deadly weapon: "The offenses alleged … are acts of violence, using a [drone] as a weapon, careless of the consequence to the life and limb of officers and protesters alike."
The case hinges of course on whether or not the court believes that Turgeon was flying recklessly. We've seen this discrepancy come up numerous times before: A pilot claims they are in complete control of their aircraft, but law enforcement disagrees. Who a judge decides to believe in this instance will determine whether Turgeon spends years in jail or walks free.
According to an affidavit signed by Sergeant Shannon Henke, Turgeon "operated the drone 25-50 feet above ground over approximately 150-200 protesters that were unprotected."
"I approached Turgeon and instructed him to land the drone, he did. I attempted to seize the drone from Turgeon as evidence and was prevented to do so [sic] by a group of approximately 25 protesters," Henke wrote in the affidavit. "The reckless operation of the drone by Turgeon placed the lives of the protesters and law enforcement on the ground in danger of injury and possibly death."
Henke also wrote that Turgeon flew near a North Dakota Highway Patrol aircraft; a video released by the Morton County Sheriff's Department shows the drone and a plane stay a considerable distance from each other. Previously, law enforcement in other states have lied about drone encounters with police aircraft.
In a filing with the court, the state alleges that "if the plane came down as a result of the UAS [drone], it could have killed those below."
In an interview with Indigenous Life Movement, Turgeon said he complied with the officer when he was approached and did not come close to injuring anyone.
"I never endangered anybody and I never tried to do anything wrong," he said. "I never flew my drone toward a plane … having this thread hanging over me is the hardest thing I've ever been through in my life."
There are a few things at issue here: The FAA has made flying over people illegal without a specific waiver under its Part 107 regulations, which were released last year. The FAA has handed out a handful of penalties for pilots operating an aircraft "in a careless or reckless manner," but those have typically been fines of a couple thousand dollars at most; no one has gone to prison yet for flying a drone inappropriately.
But Turgeon is being charged under North Dakota state law, not under federal law. According to North Dakota state law, "Reckless Endangerment" is defined broadly: A person is guilty "if he creates a substantial risk of serious bodily injury or death to another." As any drone operator will tell you, the risk of bodily injury is largely dependent on the flying skills of the pilot, which likely can't be assessed on the spot by a police officer.
If found guilty, it would be the first time I've heard of a drone pilot going to jail based on the assessment of a police officer on the ground.
The case is particularly contentious because during the height of the Dakota Access Pipeline protests last year, the FAA and local police conspired to create what many legal experts saw as an illegal no fly zone designed to keep media from filming police.
Both local police and federal agencies have been slow to make information about police surveillance and suppression of the protests public: Several Freedom of Information requests filed by Motherboard and other news outlets have been outright rejected, while a FOIA request about the no fly zone has been delayed several times and is now two months past the FAA's self-imposed deadline.