BILL ANALYSIS Ó
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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