'Code enforcement in the sky:' Drone decision debated

May 12—TRAVERSE CITY — Michigan Supreme Court justices had a chance to decide whether the government flying a drone over someone's private property as part of a civil enforcement violates the Fourth Amendment — and they didn't.

"I've been practicing for over 30 years and I believe that one of the first things judges learn ... when they've been elected or appointed to the bench, is only make the decisions that you absolutely have to make to decide a case," said attorney Todd Millar. "And that's what they did."

Millar represented Long Lake Township in zoning enforcement actions filed against local residents Todd and Heather Maxon that stretches back to 2006. That's when Todd Maxon's hobby of buying and fixing up old vehicles attracted the attention of township officials, who said the Maxons had what they called a salvage yard which violated the zoning ordinance.

The Michigan Supreme Court unanimously ruled last week in favor of Long Lake Township, in a secondary dispute with the Maxons, over officials' decision to hire a drone pilot to take photographs of the Maxon's property without first seeking their permission or a warrant to do so.

The Maxons argued they had a reasonable expectation of privacy and the drone flights violated their rights against unlawful search and seizure.

The zoning case was being litigated in Grand Traverse County's 13th Circuit Court, but came to a halt while first the Michigan Court of Appeals and then the state Supreme Court heard arguments and considered legal opinion briefs.

Millar continued to be involved with the case and attended oral arguments, which were made by Grand Rapids attorney William Henn.

"The Township is not advocating for any hypothetical governmental entity that may want to use a drone to peer through the windows of a home," Henn previously said in court filings, adding that drones are legally permissible tools for all sorts of government functions, not the harbinger of any "dystopian concerns."

"Dystopia" is a literary term for an imagined world where, according to Merriam-Webster, people are dehumanized by an all-controlling government.

The American Civil Liberties Union of Michigan, the Mackinac Center for Public Policy, the Cato Institute and the Rutherford Institute filed briefs in support of the Maxons; the Michigan Townships Association and Michigan Municipal League filed briefs in support of Long Lake Township.

The supreme court's ruling filed May 3 takes a narrow, not a wide-angle, view of the issue, stating that even if the drone flights were a violation of the Maxons' rights, the photographs still did not have to be excluded as evidence in the original court case.

At issue is something called the exclusionary rule, which essentially states that Fourth Amendment protections apply to criminal, but not civil, government action.

"We hold that the costs of applying the exclusionary rule in this case would outweigh the benefits," the state supreme court's opinion states. "Applying the exclusionary rule would prevent the Township from effectuating its nuisance and zoning ordinances — a serious cost."

Exclusion of drone photographs and video would not deter misconduct by law enforcement or other government agents, the court ruled.

The justices heard oral arguments on the case in October and didn't rule for nearly seven months — a comparatively long deliberation when compared with other pending decisions during the same term.

Robert Frommer, an attorney with the Institute for Justice, a national nonprofit public interest law firm which took up the Maxons' cause, agreed that the court did not decide the core issue raised in the case.

"I think the court was considering this issue, it just ultimately didn't know how to answer it and threw its hands up," Frommer said, adding the institute and the Maxons were disappointed in the opinion.

"Unless they're going to try to put you in jail, the Michigan Supreme Court has made it so the Fourth Amendment doesn't really apply to a whole host of government actions," Frommer said.

Separately, Frommer and Millar did offer cautions for municipal zoning officials who may be considering sending up drones over residents' homes.

Millar said a previous Court of Appeals decision in the case included a hint that people like the Maxons, who dispute a zone flyover by government enforcement agents, may have grounds for a civil lawsuit.

And Frommer said the state Legislature and the courts may continue to weigh in on what he called a misguided effort toward a kind of "code enforcement in the sky."

It's unlikely the Maxons case will be appealed to federal court, because the Michigan justices took the narrow view and did not render a decision on the larger Fourth Amendment issue, attorneys said.

But that doesn't mean that, at some point, a similar case will be decided by the highest court in the land.

"I think ultimately it will be decided by the U.S. Supreme Court," Frommer said. "How can anybody feel secure if they always have to be looking up into the sky for the government?"

The case now returns to 13th Circuit Court for judge assignment and a status conference, where attorneys will hash out whether to return to the original legal arguments over accusations of zoning violations now years old — or begin anew.