BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1680       Hearing Date:    June 21, 2016    
          
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          |Author:    |Rodriguez                                            |
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          |Version:   |May 5, 2016                                          |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                       Subject:  Crimes:  Emergency Personnel



          HISTORY

          Source:   Author

          Prior Legislation:SB 167 (Gaines) not heard 2015
                         SB 170 (Gaines) Vetoed 2015
                         SB 262 (Galgiani) Failed Senate Judiciary 2015
                         SB 263 (Gaines) not heard 2015
                         SB 271 (Gaines) Vetoed 2015
                         AB 56 (Quirk) inactive Senate Floor
                         SB 15 (Padilla) failed Assembly Public Safety  
          2014 
                         AB 1327 (Gorell) Vetoed 2014
                         

          Support:  California Association of Air Medical Services;  
                    California Fire Chiefs Association; California Police  
                    Chiefs Association; California Special Districts  
                    Association; California State Sheriffs' Association;  
                    California Statewide Law Enforcement Association; Fire  
                    Districts Association of California; Los Angeles  
                    County Sheriff's Department

          Opposition:Legal Services for Prisoners with Children








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          Assembly Floor Vote:                 78 - 0


          PURPOSE
          
          The purpose of this bill is to make it a misdemeanor to use a  
          drone to impede specified emergency personnel in the performance  
          of their duties while coping with an emergency.

          Existing law 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. (Penal Code  148 (a).) 

          Existing law 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. (Penal Code  148 (g).) 

          Existing law 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: 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 b) Disobeys the lawful orders of any fireman or  
          public officer;  Engages in any disorderly conduct which delays  
          or prevents a fire from being timely extinguished; or 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. (Penal Code,  148.2)

          Existing law provides that 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 & Veterans Code,  396.) 








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          Existing law 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  
          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. (Penal Code   
          402 (a).)

          Existing law 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. (Penal Code  402  
          (b).) 

          Existing law 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. (Penal Code  402(c).) 

          This bill amends Penal Code Section 402 to state that a person  
          subject to this section shall include a person, regardless of  
          his or her location, who operates or uses an unmanned aerial  
          vehicle, remote piloted aircraft, or drone that is at the scene  
          of an emergency.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  








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          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:









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              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.

          COMMENTS
          1.  Need for This Bill
          
          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 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  








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               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.  

               Last year the Joint Legislative Committee on Emergency  
               management and the Senate Judiciary Committee held a  
               hearing on drones in California.  While the use of  
               drones has been presenting increasing numbers of  
               problems and difficulties, many of those testifying  
               recommended moving slowly to see what the Federal  
               Aviation Administration's response would be in  
               regulating unmanned aerial vehicles.

               AB 1680 is a modest step in ensuring that drones do not  
               interfere with law enforcement, fire fighters and  
               emergency personnel. 

          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 understanding of  
               operational issues, such as training requirements,  
               operational specifications and technology  








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               considerations.  
               (https://www.faa.gov/news/fact_sheets/news_story.cfm?new 
               sId=18297) 

               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. 

          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_LE 
          A_Guidance.pdf) 

          Drone operations that are not model aircraft operations may only  
          be operated with specific authorization from the FAA. In  
          addition, 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 registration 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  








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          the safe operation of other aircraft in the National Airspace  
          System.  
          (https://www.faa.gov/uas/regulations_policies/media/FAA_UAS-PO_LE 
          A_Guidance.pdf
          
          3.  Obstructing, Interfering with or Impeding Emergency  
          Personnel
          
          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.

          In addition, 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, . . ."

          This bill clarifies that a person operating a unmanned aerial  
          vehicle from a remote location is included in the definition of  
          Penal Code  402.

          This section does the same thing as AB 2320 (Calderon) which is  
          also being heard at the June 21, 2016 hearing.

          


          4.  Governor's Veto Message on 2015 Drone Bills

          SB 168 (Gaines) 2015,  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,  








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          or extinguish a fire. 

          SB 271 (Gaines), Legislative 2015, 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.  

          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 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.  Support
          
          The California Fire Chiefs Association and the Fire  
          Districts Association of California support this bill  
          stating:

               Firefighters and other emergency service providers have  








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               reported a number of incidents where drones have  
               significantly altered their ability to respond to an  
               emergency.  It is time to establish a criminal penalty  
               for those who choose to ignore common sense and deploy  
               drones in areas where wildfires are being fought and  
               who interfere with firefighters and EMS personnel  
               attempting to perform their duties in responding to  
               emergencies.

          




          6. Opposition

          Legal Services for Prisoners with Children opposes this bill  
          stating:

               The stated purpose of this bill is to ensure the safety  
               of emergency responders and protect the site of an  
               emergency or crime. However, including an additional  
               action in the scope of a misdemeanor will not actually  
               keep people from using drones to interfere with  
               emergency personnel, but will put more people behind  
               bars. When this bill is looked at in isolation, it may  
               appear that it would contribute to overall safety of  
               the public and ability of emergency personnel to  
               respond to emergencies without interference.  However,  
               when evaluated in the context of the actual results it  
               would cause, it becomes evident that the effects of  
               this bill would not achieve the author's intended  
               consequences. Rather than protecting the emergency  
               personnel at the site of emergencies, this bill would  
               incarcerate more citizens.

                                      -- END -





          









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