BILL ANALYSIS                                                                                                                                                                                                    Ó



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 168 (Gaines and Jackson)
          Version: August 24, 2015
          Hearing Date:  August 27, 2015
          Fiscal: Yes
          Urgency: Yes
          RD   


                                        SUBJECT
                                           
                              Unmanned aircraft systems

                                      DESCRIPTION  

          This bill would provide emergency responders with immunity from  
          civil liability for any damage to an unmanned aircraft system,  
          if the damage was caused while the emergency responder was  
          providing, and the unmanned aircraft system was interfering  
          with, the operation, support, or enabling of specified emergency  
          services.  

          This bill would also make it unlawful to knowingly,  
          intentionally, or recklessly operate an unmanned aircraft or  
          unmanned aircraft system 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, as specified.  
                                                        
                                      BACKGROUND  

          As with most new technologies, the possibility of having  
          potentially thousands of commercial and private unmanned aerial  
          vehicles or "drones" take to California's skies in the coming  
          years has called into question how well state law is prepared to  
          incorporate these vehicles - and the policy issues associated  
          with their operation - into California's legal landscape.  At  
          present, the use of unmanned aerial vehicles in the skies over  
          California is fairly restricted.  Congress effectively closed  
          the national airspace to commercial drone flights in the Federal  
          Aviation Administration (FAA) Modernization and Reform Act of  
          2012 (Modernization and Reform Act).  (49 U.S.C. Sec.  
          40102(a)(32).)  That act established a framework for safely  
          integrating unmanned aircraft into the national airspace no  
          later than September 30, 2015.  Until these vehicles can be  







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          safely integrated into our airspace, federal law generally  
          prohibits the commercial use of drones.

          While the Modernization and Reform Act does permit certain  
          commercial unmanned aircraft operations to take place before the  
          integration framework is implemented pursuant to special interim  
          requirements, to date, it appears that only a handful of  
          commercial operators have applied for, and received, permission  
          to fly commercial drones, including several film production  
          companies, construction, surveying, and inspection companies,  
          and a number of real estate firms.  The Modernization and Reform  
          Act also sets out a separate interim operation exemption for  
          "public unmanned aircraft," allowing public agencies like police  
          departments to operate drones upon application, provided the  
          aircraft and their operators meet certain minimum standards.   
          (See Section 334 of the Modernization and Reform Act.)  Unlike  
          commercial and public drone operations, flying an unmanned  
          aircraft "strictly for hobby or recreational use" is authorized  
          so long as the operator pilots the craft in accordance with  
          specific safety rules.  (See Section 336 of the Modernization  
          and Reform Act.)  As a result, most of the drones one sees in  
          California today are being piloted by private citizens.  

          Of particular import to this bill are both the practical safety  
          considerations and the legal implications posed by drones and  
          their users when occupying the same space as emergency response  
          aircraft.  To this end, news reports have focused in recent  
          months on instances where drones have interfered with the  
          ability of emergency responders to perform their jobs, such as  
          firefighting.  As noted in a CNN article last month: 

            Of all the elements they must battle in a wildfire,  
            firefighters face a new foe: drones operated by enthusiasts  
            who presumably take close-up video of the disaster.

            Five such "unmanned aircraft systems" prevented California  
            firefighters from dispatching helicopters with water buckets  
            for up to 20 minutes over a wildfire that roared Friday onto a  
            Los Angeles area freeway that leads to Las Vegas.

            Helicopters couldn't drop water because five drones hovered  
            over the blaze, creating hazards in smoky winds for a deadly  
            midair disaster, officials said. (Martinez, Vercammen &  
            Brumfield, Above spectacular wildfire on freeway rises new  








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            scourge: drones, CNN (Jul. 19, 2015)  
              
            [as of Aug. 18, 2015].) 

          Further, in a joint oversight hearing conducted by this  
          Committee and the Legislative Committee on Emergency Management  
          on August 18, 2015, the chief of the state Department of  
          Forestry and Fire Protection testified as to the impact of  
          drones on firefighting efforts. As reported by the Los Angeles  
          Times, a DC-10 air tanker returning to base after fighting the  
          Rocky fire in Northern California came within 50 feet of a  
          drone.  The chief of the state Department of Forestry and Fire  
          Protection commented that the irresponsible use of drones places  
          their crews and pilots in immediate danger. (McGreevy, Private  
          drones are putting firefighters in 'immediate danger,'  
          California fire official says, Los Angeles Times (Aug. 18, 2015)  
           [as of Aug. 18, 2015].)  
                              
          Accordingly, this bill would make it unlawful to operate an  
          unmanned aircraft or unmanned aircraft system in a knowing,  
          intentional, or reckless manner that prevents or delays the  
          extinguishment of a fire.  Additionally, this bill would  
          expressly provide emergency responders with immunity from civil  
          liability for any damage to an unmanned aircraft system if that  
          unmanned aircraft system interfered with emergency services, as  
          specified. 

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that every person is bound, without  
          contract, to abstain from injuring the person or property of  
          another, or infringing upon any of his or her rights.  (Civ.  
          Code Sec. 1708.)

           Existing law  provides that everyone is responsible, not only for  
          the result of his or her willful acts, but also for an injury to  
          another caused by his or her lack of ordinary care or skill in  
          the management of his or her property or person, except so far  
          as the latter has, willfully or from lack of ordinary care,  
          brought the injury upon himself or herself.  (Civ. Code Sec.  
          1714(a).)









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           Existing law  , the Government Tort Claims Act (Act), specifies  
          rules of civil liability that apply to public entities and  
          public employees in California.  (Gov. Code Sec. 810 et seq.)   
          The Act generally provides that all public entities, state and  
          local, are liable in tort to the extent declared by statute,  
          subject to stated immunities and defenses.  (Gov. Code Sec. 815  
          et seq.)  Public employees are liable to the same extent as  
          private persons, subject to various immunities and defenses.   
          (Gov. Code Sec. 820 et seq.) 

           Existing law  defines a "public entity" to include the state, the  
          Regents of the University of California, the Trustees of the  
          California State University and the California State University,  
          a county, city, district, public authority, public agency, and  
          any other political subdivision or public corporation in the  
          State.  Existing law defines a "public employee" to mean an  
          employee of a public entity.  (Gov. Code Secs. 811.2, 811.4.) 

           Existing law  governs the liability of public entities and public  
          employees with regard to fire protection. (Gov. Code Sec. 850 et  
          seq.)  Existing law generally provides that neither a public  
          agency nor public employee acting in the scope of his employment  
          is liable for any injury resulting from the condition of fire  
          protection or firefighting equipment or facilities, or for any  
          injury caused fighting fires.  (Gov. Code Sec. 850.4.)

           Existing law  provides 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;
           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.  (Pen. Code Sec. 148.2.)

           Existing law  provides that every person is guilty of a  
          misdemeanor punishable by a fine of $100 to $1,000, who, at a  








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          forest fire does any of the following:
           disobeys the lawful orders of any public officer or fireman;
           offers any resistance to, or interference with, the lawful  
            efforts of any fireman or company of firemen to extinguish the  
            fire;
           engages in any disorderly conduct which is calculated to  
            prevent the fire from being extinguished;
           forbids, prevents, or dissuades others from assisting to  
            extinguish the fire; or
           rides, drives, or propels any vehicles or conveyance upon,  
            over, or across any firehose or chemical hose which is used  
            by, or in charge of, any public officer or fireman, or injures  
            or damages in any manner any such hose or apparatus of any  
            kind which is in use by, or in charge of, any public or  
            fireman.  (Pub. Resource Code Secs. 4165, 4166.)

           Existing law  provides 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.  (Pen. Code Sec.  
          402(a).) 

           Existing law  provides that for the purposes of the above, an  
          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 Sec. 402(c).) 

           This bill  would provide that it is unlawful to knowingly,  
          intentionally, or recklessly operate an unmanned aircraft or  
          unmanned aircraft system in a manner that prevents or delays the  








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          extinguishment of a fire, or in any way interferes with the  
          efforts of firefighters to control, contain, or extinguish a  
          fire, including, but not limited to, efforts to control,  
          contain, or extinguish the fire from the air.  

           This bill  would make a violation of the above punishable by  
          imprisonment in a county jail not to exceed six months, by a  
          fine not to exceed $5,000, or by both that fine and  
          imprisonment.

           This bill  would additionally provide that an emergency responder  
          shall not be liable for any damage to an unmanned aircraft  
          system, if the damage was caused while the emergency responder  
          was providing, and the unmanned aircraft system was interfering  
          with, the operation, support, or enabling of any of the  
          following emergency services:
           ambulance services, including, but not limited to, air  
            ambulance services;
           firefighting or firefighting-related services, including, but  
            not limited to, air services related to firefighting or  
            firefighting-related services; or
           search and rescue services, including, but not limited to, air  
            search and rescue services.

           This bill  would define various terms for the above purposes,  
          including:
           "Emergency responder" means a public entity, a public  
            employee, or an unpaid volunteer, acting within the scope of  
            authority implicitly or expressly provided by a public entity  
            or public employee to respond to an emergency situation.
            "Recklessly" means a person is aware of and consciously  
            disregards a substantial and unjustifiable risk that his or  
            her act will prevent or delay the extinguishment of a fire, or  
            in any way interfere with the efforts of firefighters to  
            control, contain, or extinguish a fire, including, but not  
            limited to, efforts to control, contain, or extinguish the  
            fire from the air.  The risk shall be of such nature and  
            degree that disregard of that risk constitutes a gross  
            deviation from the standard of conduct that a reasonable  
            person would observe in the situation.  A person who creates  
            such a risk but is unaware of that risk solely by reason of  
            voluntary intoxication also acts recklessly for these  
            purposes. 









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           This bill  would go into effect immediately as an urgency  
          measure.   
           
                                        COMMENT
           
           1.Stated need for the bill  

          According to the author: 

            Early in the course of this drought-heightened fire season,  
            private-unauthorized drones have repeatedly halted  
            firefighting efforts.  The simple presence of these drones has  
            forced firefighters to ground mission-critical tanker  
            aircraft, unnecessarily putting pilots, firefighters,  
            civilians and property at risk.  California Law currently  
            makes it a misdemeanor in Penal Code Section 148.2 to  
            interfere with firefighting efforts. Senate Bill 168 increases  
            the possible fines for drone interference with these efforts.  
            Additionally, it will help ensure that emergency responders  
            fighting these fires can do the job of protecting the public  
            without worrying about frivolous lawsuits. As drones become  
            more accessible to the public, their presence in the sky is  
            quickly increasing. It is essential that lifesaving services  
            provided by emergency responders be free to continue despite  
            someone's misplaced desire to capture imagines for YouTube and  
            the like.  

            [Furthermore, c]urrent law does not provide explicit immunity  
            for emergency personnel who damage a drone that is interfering  
            with the emergency services. This bill will clearly state that  
            there is civil immunity in these situations. Impeding one  
            tanker drop could be the difference between life and death of  
            an individual or the loss of an entire neighborhood in flames.  
             Senate Bill 168 is an urgently needed and important piece of  
            legislation that will protect forests, property and the lives  
            of citizens and firefighters.

           2.Bill provides limited immunity from civil liability for  
            damages caused to drones that interfere with the provision of  
            specified emergency services  

          Civil liability has the primary effect of ensuring that some  
          measure of recourse exists for those persons injured by the  
          negligent or willful acts of others, and the risk of that  








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          liability has the primary effect of ensuring parties act  
          reasonably to avoid harm to those to whom they owe a duty.  As a  
          general rule, California law provides that everyone is  
          responsible, not only for the result of his or her willful acts,  
          but also for an injury occasioned to another by his or her want  
          of ordinary care or skill in the management of his or her  
          property or person, except so far as the latter has, willfully  
          or by want of ordinary care, brought the injury upon himself or  
          herself.  (Civ. Code Sec. 1714(a).)  

          With respect to governmental entities' and employees' liability,  
          questions of liability are primarily governed by the Government  
          Tort Claims Act.  The intent of the Tort Claims Act "is not to  
          expand the rights of plaintiffs in suits against governmental  
          entities, but to confine potential governmental liability to  
          rigidly delineated circumstances: immunity is waived only if the  
          various requirements of the [A]ct are satisfied." (Williams v.  
          Horvath (1976) 16 Cal.3d 834, 838.)  The Act provides that all  
          public entities, state and local, are liable in tort to the  
          extent declared by statute, and have certain statutory  
          immunities and defenses.  (Gov. Code Sec. 815.)  With regard to  
          liability for firefighting, the Act generally provides that  
          neither a public agency nor public employee acting in the scope  
          of his employment is liable for any injury resulting from the  
          condition of fire protection or firefighting equipment or  
          facilities, or for any injury caused fighting fires.  (Gov. Code  
          Sec. 850.4.)                            

          This bill would additionally provide immunity from civil  
          liability to emergency responders for any damage to an unmanned  
          aircraft system, if the damage was caused while the emergency  
          responder was providing, and the unmanned aircraft system was  
          interfering with, the operation, support, or enabling of  
          specified emergency services (ambulance services firefighting or  
          firefighting-related services, and search and rescue services).   
          For these purposes, emergency responders would include not just  
          public entities or employees, but also unpaid volunteers, who  
          are acting within the scope of authority implicitly or expressly  
          provided by a public entity or public employee to respond to an  
          emergency situation. 

          Although immunity provisions are rarely preferable because they,  
          by their nature, prevent an injured party from seeking a  
          particular type of recovery, the Legislature has in limited  








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          scenarios allowed for measured immunity from liability to  
          promote other policy goals that could benefit the public.  As  
          noted in the Background, recent news reports have surrounded  
          dangers posed by drones to firefighters fighting wildfires in  
          this state.  (See Background.)  One such article, quoting  
          officials, describes how "[l]ow-flying air tankers cannot share  
          the sky with drones because the small aircraft can be sucked  
          into jet engines, causing the engines to fail and the planes to  
          crash."  (Barbash, Drones impede air battle against California  
          wildfires. "If you fly we can't," pleads firefighter, Washington  
          Post (Jul. 31, 2015)  
           [as of Aug. 19, 2015].) 

          As a matter of public policy, the public arguably benefits from  
          knowing that concern of liability from damage caused to drones  
          would not delay or affect the decision-making process of  
          emergency responders in emergency response situations, such as  
          when fighting wildfires, providing ambulance services (including  
          air ambulance services), or conducting search and rescue  
          efforts.  Further, as a practical matter, the bill would provide  
          only immunity from damages caused to the unmanned aircraft  
          system itself, and even then, only if the drone actually  
          interfered with the emergency services.  Additionally, as noted  
          above, public entities and public employees already enjoy  
          immunity from civil liability for any injury resulting from the  
          condition of fire protection or firefighting equipment or  
          facilities, or for any injury caused fighting fires, when acting  
          in the scope of their employment.  

           3.New misdemeanor for using a drone to interfere with the  
            extinguishment of a fire  

          Current California law contains several provisions that make it  
          a misdemeanor to interfere with the provision of various  
          emergency services.  For example, under Penal Code Section  
          148.2, any person who willfully acts to interfere with the  
          lawful efforts of any fireman or firemen or emergency rescue  
          personnel in the discharge or attempt to discharge an official  
          duty is guilty of a misdemeanor.  Under that law, it is also a  
          misdemeanor to willfully engage in any disorderly conduct which  
          delays or prevents a fire from being timely extinguished.   
          Separately, Penal Code Section 402 generally provides that it is  








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          a misdemeanor for a person to go to or stop 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,  
          and impeding such emergency personnel in the performance of  
          their duties in coping with the emergency.  (Pen. Code Sec.  
          402(a).)   
          This bill now seeks to expressly provide that it is unlawful to  
          knowingly, intentionally, or recklessly operate an unmanned  
          aircraft or unmanned aircraft system 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, including, but not limited to, efforts to  
          control, contain, or extinguish the fire from the air.  Any  
          violation of this provision would be punishable by imprisonment  
          in a county jail not to exceed six months, by a fine not to  
          exceed $5,000, or by both that fine and imprisonment.  

          With respect to the bill's Penal Code provisions, the Orange  
          County Professional Firefighters Association, Local 3631 writes  
          that "[t]he job of firefighters is already an inherently  
          dangerous one, and one in which every minute lost is a minute in  
                          which tragedy may occur. Activities undertaken by private  
          citizens that impede the ability of firefighters to do their  
          jobs must be curbed and penalized.  The flying of unmanned  
          drones by private citizens not only jeopardizes the safety of  
          firefighters, but it also all but ensures that fires which  
          otherwise could be tamed, will needlessly and dangerously  
          spread."  The County of San Bernardino argues, in support, that  
          this bill will "discourage the reckless behavior of individuals  
          that endanger the lives and property of our residents and  
          emergency personnel."  

          As a matter of public policy, the addition of a new misdemeanor  
          would appear consistent with other California law that makes it  
          a misdemeanor for anyone to offer resistance to, or interfere  
          with, the lawful efforts of any fireman or company of firemen to  
          extinguish the fire.  (See Pub. Resources Code Secs. 4165, 4166;  
          that misdemeanor is punishable by a fine of $100-$1,000, plus  
          penalty assessments, or if the person refuses to pay the fine by  








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          one day in county jail for every $5 of fine.)  

          4.Support if amended  

          The California Ambulance Association (CAA) writes that it  
          "wholeheartedly supports" the concept of providing immunity for  
          civil liability to emergency responders for any damage caused to  
          unmanned aircraft systems if that damage is caused while the  
          emergency responder was performing emergency services and the  
          unmanned aircraft system was interfering with the provision of  
          those emergency services.  However, CAA notes that the bill's  
          narrow definition of emergency responders excludes private  
          ambulance companies and argues that "[p]rivate ambulance  
          companies are essential emergency responders and need immunity  
          from civil liability, too.  We request that [the] bill be  
          amended to include immunity from civil liability to ALL  
          emergency responders, not solely those employed by public  
          agencies or volunteers."  

          The Orange County Professional Firefighters Association, Local  
          3631 also writes a "support if amended" letter, requesting that  
          the bill be amended to include specific reference to "emergency  
          medical services:" 

            The provision of fire department services often comprises  
            emergency medical response, which may or may not include  
            transportation services.  The bill's current reference to air  
            ambulance services, without corresponding reference to  
            emergency medical services, could be interpreted to mean that  
            basic EMS rendered by firefighters at the scene of an  
            emergency (where transport is not a component) was intended to  
            be excluded from this measure.  As this might leave one  
            category of fire services professionals open to liability,  
            where others are not, we respectfully request that the bill be  
            clarified to include specific reference to "emergency medical  
            services." 


           Support  :  California Ambulance Association (Section 1 of the  
          bill: support if amended); California Fire Chiefs Association;  
          CAL FIRE Local 2881 (Section 2 of the bill); County of San  
          Bernardino; Fire Districts Association of California; Orange  
          County Fire Authority Board of Directors (Section 2 of the  
          bill); Orange County Professional Firefighters Association,  








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          Local 3631 (support if amended)

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  California Police Chiefs Association; League of  
          California Cities
          
           Related Pending Legislation  :

          SB 167 (Gaines and Jackson, 2015) is substantially similar to  
          the Penal Code provisions of this bill.  That bill is currently  
          in the Public Safety Committee.  

          SB 271 (Gaines, 2015) would make it an infraction to operate an  
          unmanned aircraft on or above the grounds of a public school  
          providing instruction in kindergarten or grades 1 to 12.  This  
          bill is pending in the Assembly Appropriations Committee.

          SB 170 (Gaines, 2015) would provide that a person who knowingly  
          and intentionally operates an unmanned aircraft system below  
          "navigable airspace," as defined in federal law, overlaying a  
          state prison is guilty of a misdemeanor, and would also provide,  
          with certain exceptions, that a person who knowingly and  
          intentionally captures images or data of a state prison through  
          the operation of an unmanned aircraft is guilty of a  
          misdemeanor.  This bill is pending in the Assembly  
          Appropriations Committee.

          AB 14 (Waldron, 2015) would create the Unmanned Aircraft Systems  
          Task Force, which would be required to research, develop, and  
          formulate a comprehensive state policy for unmanned aircraft  
          systems.  The task force would be required to submit, among  
          other things, a policy draft and suggested legislation  
          pertaining to unmanned aircraft systems to the Legislature and  
          the Governor on or before January 1, 2018.  This bill failed  
          passage in the Assembly Transportation Committee and was granted  
          reconsideration.

           Prior Legislation  :  None Known 

                                   **************
          








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