BILL ANALYSIS Ó AB 1680 Page 1 Date of Hearing: March 15, 2016 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 1680 (Rodriguez) - As Introduced January 19, 2016 SUMMARY: Makes it a misdemeanor to use a drone to impede specified emergency personnel in the performance of their duties while coping with an emergency. Specifically, this bill: 1)Amends existing statute which makes it a misdemeanor for a person to go to, or stop at, the scene of an emergency and impedes police officers, firefighters, emergency medical, or other emergency personnel, or military personnel in the performance of their emergency duties. 2)Specifies that a person shall include a person who operates or uses an unmanned aerial vehicle, remote piloted aircraft, or drone. EXISTING LAW: 1)States that every person who goes to the scene of an emergency, or stops at the scene of an emergency, for the purpose of viewing the scene or the activities of police officers, firefighters, emergency medical, or other emergency personnel, or military personnel coping with the emergency in the course of their duties during the time it is necessary for AB 1680 Page 2 emergency vehicles or those personnel to be at the scene of the emergency or to be moving to or from the scene of the emergency for the purpose of protecting lives or property, unless it is part of the duties of that person's employment to view that scene or activities, and thereby impedes police officers, firefighters, emergency medical, or other emergency personnel or military personnel, in the performance of their duties in coping with the emergency, is guilty of a misdemeanor. (Pen. Code, § 402, subd. (a).) 2)Provides that every person who knowingly resists or interferes with the lawful efforts of a lifeguard in the discharge or attempted discharge of an official duty in an emergency situation, when the person knows or reasonably should know that the lifeguard is engaged in the performance of his or her official duty, is guilty of a misdemeanor. (Pen. Code, § 402, subd. (b).) 3)Specifies that "emergency" includes a condition or situation involving injury to persons, damage to property, or peril to the safety of persons or property, which results from a fire, an explosion, an airplane crash, flooding, windstorm damage, a railroad accident, a traffic accident, a power plant accident, a toxic chemical or biological spill, or any other natural or human-caused event. (Pen. Code, § 402, subd. (c).) 4)States that every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as specified, in the discharge or attempt to discharge any duty of his or her office or employment, is guilty of a misdemeanor. (Pen. Code, § 148, subd. (a).) 5)Specifies that the fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of resisting, delaying or obstructing an officer, nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person. (Pen. Code, § 148, subd. (g).) AB 1680 Page 3 6)States that every person who willfully commits any of the following acts at the burning of a building or at any other time and place where any fireman or firemen or emergency rescue personnel are discharging or attempting to discharge an official duty, is guilty of a misdemeanor: a) Resists or interferes with the lawful efforts of any fireman or firemen or emergency rescue personnel in the discharge or attempt to discharge an official duty; (Pen. Code, § 148.2, subd. (a).) b) Disobeys the lawful orders of any fireman or public officer; (Pen. Code, § 148.2, subd. (b).) c) Engages in any disorderly conduct which delays or prevents a fire from being timely extinguished; or (Pen. Code, § 148.2, subd. (c).) d) Forbids or prevents others from assisting in extinguishing a fire or exhorts another person, as to whom he has no legal right or obligation to protect or control, from assisting in extinguishing a fire. (Pen. Code, § 148.2, subd. (d).) 7)Specifies that as used in specified code sections, "fireman" or "firefighter" includes "any person who is an officer, employee or member of a fire department or fire protection or firefighting agency of the federal government, the State of California, a city, county, city and county, district, or other public or municipal corporation or political subdivision of this state, whether this person is a volunteer or partly paid or fully paid." 8)Specifies that, "emergency rescue personnel" means "any person who is an officer, employee or member of a fire department or fire protection or firefighting agency of the federal government, the State of California, a city, county, city and county, district, or other public or municipal corporation or political subdivision of this state, whether this person is a volunteer or partly paid or fully paid, while he or she is actually engaged in the on-the-site rescue of persons or property during an emergency" as specified. AB 1680 Page 4 9)"Emergency Medical Technician-I" or "EMT-I" means an individual trained in all facets of basic life support according to standards prescribed by this part and who has a valid certificate issued pursuant to this part." This definition shall include, but not be limited to, EMT-I (FS) and EMT-I-A. (Health & Saf., § 1797.80.) 10)"Emergency Medical Technician-II", "EMT-II," "Advanced Emergency Medical Technician," or "Advanced EMT" means "an EMT-I with additional training in limited advanced life support according to standards prescribed by this part and who has a valid certificate issued pursuant to this part." (Health & Saf., § 1797.82.) 11)"Emergency Medical Technician-Paramedic," "EMT-P," "paramedic" or "mobile intensive care paramedic" means "an individual whose scope of practice to provide advanced life support is according to standards prescribed by this division and who has a valid certificate issued pursuant to this division." (Health & Saf., § 1797.82.) 12)Any person who hinders, delays, or obstructs any portion of the militia parading or performing any military duty, or who attempts so to do, is guilty of a misdemeanor. (Military & Vet. Code, § 396.) 13)Specifies that the militia of the State shall consist of the National Guard, State Military Reserve and the Naval Militia. (Military & Vet. Code, § 120.) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "Recently in California a pilot flying a helicopter with seven firefighters on board who were battling a blaze threatening nearby homes, saw a four-rotor drone only 10 feet from his windshield. This forced him to make a hard left to avoid a collision about 500 feet above ground. In another incident, the sighting of five drones in the area of a wildfire that closed Interstate 15 in AB 1680 Page 5 Southern California and destroyed numerous vehicles, grounded air tanker crews for 20 minutes as flames spread. The unregulated and irresponsible use of drones is placing Californians, our firefighters and emergency response personnel in increasing danger. "The existing Penal Code section dealing with interfering with police, fire and EMTs does not specifically state that the crime can be committed by using a drone. By clarifying existing law, police, fire and EMTs will be able to tell drone operators that the use of an unmanned aircraft that interferes with their official activities is a crime and that they must discontinue their use or face being charged. "Unmanned aircraft or the use of a drone is an emerging industry and technology that is rapidly gaining in popularity. The sheer numbers of drones is creating problems and concerns about how and where they should be used and it is only now that they are being regulated by the FAA. AB 1680 recognizes the fact that drones will need additional federal and state regulation but takes a common sense intermediate approach to doing so." 2)Unmanned Aerial Vehicles or Drones: The Federal Aviation Administration (FAA), uses the term "unmanned aircraft systems" to refer to vehicles commonly known as drones. Regarding the types of aircraft that may be considered unmanned aircraft systems, the FAA's fact sheet notes: Unmanned Aircraft Systems (UAS) come in a variety of shapes and sizes and serve diverse purposes. They may have a wingspan as large as a jet airliner or smaller than a radio-controlled model airplane. Regardless of size, the responsibility to fly safely applies equally to manned and unmanned aircraft operations. Because they are inherently different from manned aircraft, introducing UAS into the nation's airspace is challenging for both the FAA and aviation community. UAS must be integrated into a National Airspace System (NAS) that is evolving from ground-based navigation aids to a GPS-based system in NextGen. Safe integration of UAS involves gaining a better AB 1680 Page 6 understanding of operational issues, such as training requirements, operational specifications and technology considerations. ( https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=182 97 ) Although not always thought of when the word "drone" is used, hobby-size airplanes and helicopters that are equipped with digital cameras are becoming more and more affordable for the average consumer. This hobby aircraft may be used for pure novelty, surveying one's yard, or even checking to see the condition of a roof. 3)FAA Policy on Drones: If a drone meets the definition of "model aircraft," and operates within specified parameters, the operator does not need specific authorization from the FAA to fly it. Under FAA regulations a 'Model aircraft'' is (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes. (Section 336 of Public Law 112-95 (the FAA Modernization and Reform Act of 2012).) The FAA has the authority under its existing regulations to pursue legal enforcement action against persons operating model aircraft when the operations endanger the safety of the National Airspace System, even if they are operating in accordance with UAS regulations. So, for example, a Model aircraft operation conducted, as specified, may be subject to an enforcement action for a violation if the operation is conducted in a careless or reckless manner so as to endanger the life or property of another. ( https://www.faa.gov/uas/regulations_policies/media/FAA_UAS-PO_ LEA_Guidance.pdf ) Drone operations that are not model aircraft operations may only be operated with specific authorization from the FAA. It is important to understand that all UAS operations that are not operated as model aircraft are subject to current and future FAA regulation. At a minimum, any such flights are currently required under the FAA's regulations to be operated with an authorized aircraft (certificated or exempted), with a valid AB 1680 Page 7 registration number ("N-number"), with a certificated pilot, and with specific FAA authorization (Certificate of Waiver or Authorization). Regardless of the type of UAS operation, the FAA's statutes and the Federal Aviation Regulations prohibit any conduct that endangers individuals and property on the surface, other aircraft, or otherwise endangers the safe operation of other aircraft in the National Airspace System. ( https://www.faa.gov/uas/regulations_policies/media/FAA_UAS-PO_ LEA_Guidance.pdf ) 4)Governor's Veto Message on SB 271 (Gaines) and SB 170 (Gaines) Drone Bills: SB 168 (Gaines), of the 2015-2016 Legislative Session was vetoed by the Governor, and would have made it a misdemeanor operate a UAS, in a manner that prevents or delays the extinguishment of a fire, or in any way interferes with the efforts of firefighters to control, contain, or extinguish a fire. SB 271 (Gaines), Legislative Session of 2015-2016 was vetoed by Governor, and would have made it an infraction to knowingly and intentionally operate an unmanned aircraft system on the grounds of, or less than 350 feet above ground level within the airspace overlaying, a public school providing instruction in kindergarten or grades 1 to 12, inclusive, during school hours and without the written permission of the school principal or higher authority, or his or her designee, or equivalent school authority. SB 170 (Gaines), Legislative Session of 2015-2016 was vetoed by the Governor, and would have created a felony crime for the use of a UAS to deliver contraband into a prison or county jail and creates a misdemeanor crime for the use of UAS over a prison or capture images of a prison. SB 170 passed the Senate on a 40-0 vote and will be heard in the Assembly Privacy and Consumer Protection Committee on July 7, 2015. The Governor vetoed those bills and issued this statement applying to all three bills: "Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and AB 1680 Page 8 particularization of criminal behavior creates increasing complexity without commensurate benefit. "Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded. "Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective." 5)Existing Law Already Criminalizes Obstructing or Delaying Firemen, Emergency Rescue Personnel, Emergency Medical Technicians, Police Officers, Peace Officers, Public Officers, and National Guard Members Discharging Their Duties: The Penal Code specifies that it is a misdemeanor to obstruct, delay, or resist specified positions who are engaged in the discharged of their duties. The list includes firemen, emergency rescue personnel, emergency medical technicians, police officers, peace officers, and public officers in positions for which it is a crime to interfere with discharge of their duties. In addition, a Military & Vet. Code section makes it a misdemeanor for a person to delay or obstructs National Guard or California State Military Reserve from performing any military duty. The language prohibiting "obstructing or delaying" prohibit such behavior regardless of the particular manifestation. Because of the general prohibition on obstructing or delaying, there is not a need to list specific ways (such as use of a drone) that a person can "obstruct, delay, or resist." The Author mentions two situations in which a drone affected firefighting efforts. One involved firefighters in a helicopter and another incident resulted in the grounding of air tankers fighting a wildfire. Both of those incidents could have been charged under Penal Code section 148.2, which prohibits obstructing, delaying, or resisting a fireman, to the extent that the conduct of the drone operator obstructed AB 1680 Page 9 or delayed the firemen in the performance of their duties. 6)Penal Code Section 402 Does Not Necessarily Criminalize Use of a Drone to Impede Personnel Coping with an Emergency: Penal Code section 402 prohibits conduct that impedes specified personnel responding to an emergency. Arguably a person could not be prosecuted under Penal Code section 402 when using a drone from a remote location, because the section only prohibits conduct that impedes specified individuals performing their duties in coping with an emergency when the "person goes to the scene of an emergency, or stops at the scene of an emergency, . . ." Given the requirement that the person goes to the scene of the emergency, or stops at the scene of the emergency, a person impeding an emergency response by operating a drone when the drone operator was at a remote location, does not fit within the scope of Penal Code section 402. To the extent that a District Attorney's Office felt that criminal charges were warranted, the delay or obstruction of personnel at the scene of an emergency with a drone could currently be prosecuted under the codes mentioned above which criminalize delaying or obstructing specified personnel whether or not they are at the scene of an emergency. If it is important to ensure that Penal Code section 402 addresses the use of drones, it is appropriate to add language to that section. The language of this bill would need to be narrowed or modified to ensure that it addresses the use of a drone at an accident scene from a remote location. The language of this bill does not modify the requirement that the person must go to, or stop at the scene of the emergency, to violate the statute. The current language referring to drones does not necessarily reach individuals that impede an emergency from a location that is remote from the emergency scene. 7)Argument in Support: According to Los Angeles Professional Peace Officers Association, "Existing law provides that it is a misdemeanor to impede the duties of law enforcement officers, firefighters or emergency personnel; but current law AB 1680 Page 10 is silent regarding the interference of law enforcement activity with a "drone" or "unmanned aerial vehicle." Over the past few years, the popularity of drones has resulted in an increase of these devices in the sky; often times at accident sites, forest fires, crowded public events and other locations that have proven problematic for law enforcement and emergency response. There have been examples where public safety crews have had to avoid drones in mid-air responses and divert action plans to alternative sites to prevent endangering public safety officers and the public. "AB 1680 would address this currently unregulated activity and would clarify that these problematic incidents will be classified as misdemeanors; mirroring existing penalties for interfering with law enforcement in any other manner. This appropriate action will likely result in a reduction of these dangerous, unnecessary encounters between drones and law enforcement officers responding to a crisis." 8)Prior Legislation: a) SB 168 (Gaines), of the 2015-2016 Legislative Session, would have made it a misdemeanor operate a UAS, in a manner that prevents or delays the extinguishment of a fire, or in any way interferes with the efforts of firefighters to control, contain, or extinguish a fire. SB 168 was vetoed by the Governor. b) SB 271 (Gaines), of the 2015-2016 Legislative Session, would have made it an infraction to knowingly and intentionally operate an UAS on the grounds of, or less than 350 feet above ground level within the airspace overlaying, a public school providing instruction in kindergarten or grades 1 to 12, inclusive, during school hours and without the written permission of the school principal or higher authority, or his or her designee, or equivalent school authority. SB 271 was vetoed by Governor. c) SB 170 (Gaines), of the 2015-2016 Legislative Session, would have created a felony crime for the use of a UAS to deliver contraband into a prison or county jail and creates AB 1680 Page 11 a misdemeanor crime for the use of UAS over a prison or capture images of a prison. SB 170 passed the Senate on a 40-0 vote and will be heard in the Assembly Privacy and Consumer Protection Committee on July 7, 2015. SB 170 was vetoed by the Governor. d) SB 411 (Lara), Chapter 177, Statutes of 2015, specifies the fact that a person takes a photograph or makes an audio or video recording of law enforcement officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, is not, in and of itself, a violation of willfully resisting, delaying, or obstructing an officer. REGISTERED SUPPORT / OPPOSITION: Support California Fire Chiefs Association California State Sheriffs' Association DJI Technology Los Angeles Deputy Sheriffs Los Angeles Police Protective League Los Angeles County Professional Peace Officers Association Riverside Sheriffs Association Opposition None Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 AB 1680 Page 12