Drone on in California, at least for now

If the Legislature had its way, California would have become the state with the greatest protection against conduct by drone operators that endangers public safety and invades personal privacy. But Gov. Jerry Brown had another idea. By vetoing all four bills to reach his desk that would have curbed abuses of this new technology, Brown appears reluctant to get ahead of the curve.

During the last legislative session, at least eight bills were introduced that would have affected the use of drones within California. The impetus for this wave of legislation was obvious. Drones have not only become ubiquitous, they have already been responsible for grounding California firefighting aircraft, forcing a Los Angeles Police Department helicopter to take evasive measures to avoid a collision, crashing into a tennis stadium during a U.S. Open match, and even prompting a private citizen to use a shotgun to down a camera-equipped drone hovering over his backyard. As the Los Angeles Times editorialized last month, "The litany of drone mishaps in recent months has underscored the freewheeling nature of this new technology, which recalls the early days of automobiles, when there were few rules and many accidents. In the latest incident - but surely not the last one - an 11-month-old girl was hit with debris when a man crashed his drone near the Pasadena Civic Center."

Brown first wielded his veto pen on Sept. 9 against Senate Bill 142 by State Sen. Hannah Beth Jackson (D-Santa Barbara). That measure would have imposed civil trespass liability upon anyone flying a drone less than 350 feet above real property without the express permission of the property owner. Having passed the Senate and Assembly with overwhelming support, Brown's veto message called the bill "well-intentioned" but warned that it could "expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action." SB 142 was opposed by the National Press Photographers Association who warned that it would be impossible to comply with or enforce. In addition, the governor may have been influenced by last year's enactment of Assembly Bill 2306, a more targeted measure that broadened the so-called "constructive trespass" statute found in Civil Code Section 1708.8 to cover the use of drones to record audio or video of private personal or familial activities. In his SB 142 veto message, Brown acknowledged that drone technology "raises novel issues that merit careful examination." This led some observers to believe that the remaining three drone-related bills sent to the governor's desk would receive more favorable consideration. But this was not to be.

On Oct. 3, Brown vetoed a trio of bills that would have criminalized hazardous drone activities (along with a half dozen other anti-crime measures) on the grounds that "multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit." The three additional anti-drone measures nixed by the governor were all bipartisan measures introduced by State Sen. Ted Gaines (R-El Dorado) - none of which received a single "no" vote in any legislative committee or on the floor of either the Senate or Assembly.

SB 271 would have criminalized, as an infraction, the unauthorized operation of drones on or above the grounds of a public school while it is in session or within an hour of the beginning or end of the school day. The measure would have exempted law enforcement and news organizations from its prohibitions. Moreover, SB 271 was careful to recognize the limits of state authority by making clear that its provisions would become inoperative in the event of contrary federal law authorizing such conduct.

In this regard, it is worth noting that the Federal Aviation Administration is expected to issue final rules, perhaps before the end of 2015, concerning the commercial use of drones. In February, the FAA promulgated proposed rules that would, among other things, require a drone to remain within the visual line-of-sight of its operator, limit use to daylight hours and prohibit operations over any persons "not directly participating in the operation" or "not located under a covered structure that can provide reasonable protection."

SB 170 would have outlawed the use of drones over prisons and jails in response to incidents across the U.S. where these aerial vehicles dropped contraband, including drugs, inside the walls of correctional facilities. This proposed legislation had the support of major law enforcement organizations. Brown's veto was likely prompted by the statutes (for example, Penal Code Sections 4573-4574) that currently impose felony liability for the smuggling or possession of contraband within such facilities.

Finally, SB 168 was a measure introduced in the midst of California's historic drought and after complaints from the state's Department of Forestry and Fire Protection that the presence of drones over a dozen of this summer's wildfires caused firefighting aircraft to be grounded, in some instances to avoid mid-air collisions. Perhaps most spectacularly, the presence of five drones prevented fire dispatchers from sending water-bearing helicopters for up to 20 minutes to fight a wildfire raging on Interstate 15 in San Bernardino County that ultimately torched 20 vehicles in July.

SB 168 would have provided specified emergency responders with immunity from civil liability for any damage to a drone that was interfering with the operation, support or enabling of emergency services. This proposed legislation would also have made it unlawful to knowingly, intentionally or recklessly operate a drone in a manner that prevents or delays firefighting efforts. Notwithstanding broad-based support and no known opposition, this bill likewise fell victim to the governor's veto pen. In the case of SB 168, Brown likely concluded that the immunity which already exists for public entities under California's Tort Claims Act (Government Code Section 810 et seq.), together with misdemeanor liability that currently exists for resisting or interfering with lawful firefighting efforts or the work of emergency rescue personnel (for example, Penal Code Sections 148.2, 402 and 409.5), was sufficient.

It is too early to assess the possibility that two-thirds of the Senate and Assembly will vote to override any of these four vetoes. Only seven gubernatorial vetoes have been overridden since 1946. Ironically, the last one occurred in 1979 - when California's governor was also Jerry Brown. However, assuming the past is prologue, it remains to be seen whether the FAA's final rules will prompt new or renewed efforts during California's next legislative session to curb abusive drone activities that are neither curtailed nor preempted by the actions of the federal government.