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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