BAY CITY, Mich. — A Bay County drone operator convicted after using a drone to record a police operation is challenging Michigan’s drone law in federal court, arguing the state cannot criminalize lawful recording of police simply because officers believe a civilian drone is interfering with their work.
Ray Rocha, who operates the Facebook-based news platform Baycountylive, filed the federal civil rights lawsuit with the assistance of attorney Philip L. Ellison of Outside Legal Counsel PLC. The lawsuit challenges future enforcement of Michigan’s Unmanned Aircraft Systems Act against people who use drones to record and livestream police activity from lawful locations.
The case stems from a Nov. 10, 2024, police search for suspects near West Arnold and South Warner streets in Bay City.
According to the federal complaint, Bay County Deputy Chris Berg deployed a sheriff’s office drone during the operation. Rocha launched his own camera-equipped drone from the area of Kolb Elementary School and livestreamed the police activity.
Click here to learn more about the lawsuit and see police bodycam video.
The Bay County Sheriff’s Department did not respond for comment on this story.
The lawsuit says the two drones remained substantially separated and cites Berg’s report as acknowledging the civilian drone was not particularly close to the department’s drone. According to the complaint, there was no collision, near collision, emergency maneuver, injury or property damage. The deputy instead ended the government drone operation because of concern that its automated return-to-home flight path could potentially encounter Rocha’s drone.
Rocha was later prosecuted under a Michigan law that makes it a crime to intentionally operate a drone “in a manner that interferes with” certain public safety personnel performing their duties. A jury convicted Rocha in May.
Ellison said the case raises a broader question about how existing laws should apply as drones become increasingly common.
“It really at its core is about a new technology that hasn’t had the law follow as fast as the technology’s developed,” Ellison said in an interview.
Ellison said drones are now used for everything from entertainment to professional work, including his own legal practice.
“So drones, a lot of people have drones now and drones are being used for a lot of different purposes, both professionally,” Ellison said. “So, for example, I’m a I do land litigation. We use drones to get pictures of land and define boundaries and to record things from the air because it gives us a great map to work with.”
At the heart of the case, Ellison said, is the tension between law enforcement’s ability to safely conduct an operation and the public’s First Amendment right to document government officials working in public.
“Constitutionally under the First Amendment, citizens, all citizens, whether you’re the press or you’re a citizen, you’re professional media, citizen media, you have the right to record public officials conducting public business in a public place,” Ellison said. “So if the police are rolled out to a public place with with with the situation, you have the right to record.”
Ellison acknowledged that the right is not unlimited and that people cannot physically interfere with officers doing their jobs.
But he said Rocha’s drone was far enough away that it did not pose that kind of interference.
“He wasn’t anywhere near the crime. Anywhere near the crime scene, close enough to get in the way,” Ellison said.
Click here to learn how Attorney Phil Ellison could help you.
Ellison said the prosecution’s theory was that Rocha’s drone interfered because the deputy operating the police drone had to monitor where Rocha’s drone was located.
“They weren’t even close to each other,” Ellison said. “In fact, we’ve got a little video that shows how far away they were. I mean, not even close. But he’s they just don’t like having other drones up there. And so they used the criminal law to convict him of a misdemeanor. And we’re challenging that process in federal court to say you can’t you can’t stop the watcher, essentially.”
The lawsuit argues that Michigan’s law is unconstitutional as applied to non-obstructive aerial recording because the statute does not define what it means for a drone to “interfere” with police duties.
The complaint raises claims under the First and Fourteenth amendments. It argues that applying the law to non-obstructive recording violates the First Amendment and that the undefined term “interferes” fails to provide adequate notice of what conduct is illegal and gives officers too much discretion to decide when a crime has occurred.
Ellison compared the issue to a person standing behind police tape and recording officers with a cellphone.
“Police have to acknowledge that there is a constitutional, well-established right to record what they’re doing,” Ellison said. “We pay their salaries, we buy their equipment, is the taxpayers. We have the right to watch and record what they’re doing. And you can’t simply say we don’t want you here, We want to put up the curtain and we’re going to criminally charge you if you decide to try to record what it is that we’re doing.”
Rocha received one day in jail and a $575 fine following his conviction, according to Ellison.
The federal lawsuit is not seeking to overturn that state conviction. Instead, Ellison said it is intended to prevent Rocha from being prosecuted again for similar conduct in the future.
“What it does is it serves as a protection to people to say, yeah, we can’t do anything about the conviction, but we can prevent you from being convicted once again,” Ellison said. “And that’s what this court case is trying to do.”
Rocha is seeking a declaration that the law cannot be enforced against future recording unless his drone objectively and materially obstructs, delays, endangers or physically disrupts an identifiable police duty. He is also seeking an injunction preventing enforcement against lawful drone recording unless the aircraft creates an imminent collision hazard or directly and materially impedes a specific police action.
Ellison said the dispute should not be confused with federal aviation regulations governing where and how drones may legally operate.
“The whole point of this is is really the more narrow question is not whether a guy like Ray is FAA compliant because the local police aren’t the FAA police,” Ellison said. “The FAA handles FAA issues.”
Ellison also rejected the idea that local police can simply close the airspace around an incident on their own.
“The police, they can’t just magically shut down the airspace,” Ellison said. “The local police do not have the authority to shut down the airspace.”
Ellison said the case is ultimately about balancing legitimate police safety concerns against public oversight of law enforcement.
“No one’s against the police, but we want to see what you’re doing,” Ellison said.
“Because the best disinfectant is the old line is is sunshine,” he added. “And the way you collect sunshine today is with unfortunately, drones, drones and drone cameras. That’s the best way to get that information.”
The lawsuit names Berg and Bay County Sheriff Troy Cunningham as defendants. The case, Rocha v. Berg et al., was filed in the U.S. District Court for the Eastern District of Michigan and has been assigned to U.S. District Judge Linda V. Parker.
I think the lawsuit is a good idea and just like body cams, will show it is the alleged criminals who cause their own problems. I would advise the police to let the drones prove their professionalism.
I absolutely support this lawsuit against law enforcement in this case and those going forward!! So glad the suit has been filed!!