BILL ANALYSIS Ó
SB 168
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Date of Hearing: September 11, 2015
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Mike Gatto, Chair
SB
168 (Gaines) - As Amended September 10, 2015
SENATE VOTE: 39-0
SUBJECT: Unmanned aircraft systems.
SUMMARY: Increases fines for unmanned aircraft system (UAS)
interference with firefighting activities and grants civil
immunity to public entities, public employees, and unpaid
volunteers and private entities acting within the scope of
delegated authority who damage a UAS in the course of providing
a variety of emergency services. Specifically, this bill:
1) Specifies in the Civil Code that an emergency responder
is not liable for damage to a UAS 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:
a) Emergency medical services or ambulance
transport services, including, but not limited to, air
ambulance services;
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b) Firefighting or firefighting-related services,
including, but not limited to, air services related to
firefighting or firefighting-related services; and
c) Search and rescue services, including, but not
limited to, air search and rescue services.
2) Defines the term "emergency responder," for purposes of
the Civil Code, to mean either of the following, if acting
within the scope of authority implicitly or expressly
provided by a public entity or a public employee to provide
emergency services:
a) A paid or unpaid volunteer; or
b) A private entity.
3) Specifies in the Government Code that a public entity or
public employee is not liable for any damage to a UAS if
the damage was caused while the public entity or public
employee was providing, and the unmanned aircraft system
was interfering with, the operation, support, or enabling
of any of the following emergency services:
a) Emergency medical services or ambulance
transport services, including, but not limited to, air
ambulance services;
b) Firefighting or firefighting-related services,
including, but not limited to, air services related to
firefighting or firefighting-related services; and
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c) Search and rescue services, including, but not
limited to, air search and rescue services.
4) Makes it a misdemeanor 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.
5) Makes a violation of the above prohibition on
interference with firefighting efforts punishable by
imprisonment in a county jail not to exceed six months, a
fine not to exceed $5,000, or both.
6) Defines the term "unmanned aircraft" to mean an aircraft
that is operated without the possibility of direct human
intervention from within or on the aircraft.
7) Defines the term "unmanned aircraft system" to mean an
unmanned aircraft and all of the associated elements,
including, but not limited to, communication links and the
components that control the unmanned aircraft that are
required for the pilot in command to operate safely and
efficiently in the national airspace system.
8) Defines the term "recklessly" to mean 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
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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.
9) Declares that no reimbursement is required because the
only costs that may be incurred by a local agency or school
district will be incurred because this bill creates a new
crime or infraction, eliminates a crime or infraction,
changes the penalty for a crime or infraction, or changes
the definition of a crime.
10) Declares that this bill is an urgency measure and shall
go into effect immediately to address the interference of
UAS with efforts to fight fires and to keep fires from
raging out of control during this historic drought, and to
protect public and private emergency responders who are
providing specific critical emergency services from
potential civil liability relating to the new and
increasing proliferation of UAS that disrupt the provision
of those emergency services.
EXISTING LAW:
1)Makes it a misdemeanor to willfully commit any of the
following acts at the burning of a building or anywhere
firefighters or emergency responders are operating:
a) Resist or interfere with the efforts of firefighters or
emergency rescue personnel;
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b) Disobey the lawful orders of any firefighter or public
officer;
c) Engage in any disorderly conduct which delays or
prevents a fire from being timely extinguished; or
d) Forbid, prevent, or dissuade others from assisting in
extinguishing a fire. (Penal Code (PC) Section 148.2)
2)Makes it a misdemeanor punishable by a fine of $100 to $1,000
to do any of the following at a forest fire:
a) Resist or interfere with the efforts of firefighters;
b) Disobey the lawful orders of any firefighter or public
officer;
c) Engage in any disorderly conduct which is calculated to
prevent the fire from being extinguished;
d) Forbid, prevent, or dissuade others from assisting in
extinguishing a fire; or
e) Ride, drive, or propel a vehicle over or across any
firehose or chemical hose in use by a firefighter. (Public
Resource Code Sections 4165, 4166)
3)Makes it a misdemeanor to go to the scene of an emergency or
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stop at the scene of an emergency to watch the scene or the
activities of first responders or military personnel if doing
so impedes their efforts, unless it is part of the duties of
the person's employment to view the scene or activities. (PC
402(a))
4)Defines an "emergency" as 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, explosion,
airplane crash, flooding, windstorm damage, rail accident,
traffic accident, power plant accident, toxic chemical or
biological spill, or any other natural or human-caused event.
(PC 402(c))
5)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. (Civil Code (CC)
Section 1708)
6)Makes a person responsible, not only for the result of a
willful act, but also for an injury to another caused by lack
of ordinary care or skill in the management of a person's
property or person. (CC 1714(a))
7)Establishes, under the Government Tort Claims Act (Act), rules
of civil liability that apply to public entities and public
employees in California. (Government Code (GC) Section 810 et
seq.)
8)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
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State, and makes all public entities, state and local, liable
in tort to the extent declared by statute, subject to stated
immunities and defenses. (GC 811.2 and 815 et seq.)
9)Defines a "public employee" as an employee of a public entity
and makes public employees liable to the same extent as
private persons, subject to various immunities and defenses.
(GC 811.4 and 820 et seq.)
10)Generally exempts a public agency, or public employee acting
in the scope of his employment, from liability for injury
resulting from the condition of fire protection or
firefighting equipment or facilities, and for any injury
caused fighting fires. (GC 850.4)
11)Requires, under the Federal Aviation Administration (FAA)
Modernization and Reform Act of 2012, the FAA to integrate UAS
into the national airspace system by September 30, 2015, and
to develop and implement certification requirements for the
operation of UAS in the national airspace system by December
31, 2015. (Public Law Number 112-095)
FISCAL EFFECT: This bill passed the Senate Appropriations
Committee pursuant to Senate Rule 28.8.
COMMENTS:
1)Purpose of this bill . This bill is intended to stop civilian
UAS from interfering with firefighting and other emergency
response activities by increasing the fines for drone
interference with firefighting activities and granting civil
immunity to public entities, public employees, and unpaid
volunteers and private entities acting within the scope of
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delegated authority who damage a drone in the line of duty
(such as conducting firefighting, air ambulance, and
search-and-rescue operations). This bill is sponsored by the
League of California Cities and the California Police Chiefs
Association.
2)Author's statement . 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. Disruption by drones at all fires-wildfire
or otherwise-can have grave consequences and must be severely
dealt with in California's code."
"[This bill] will also 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 images for YouTube and
the like. It is the author's hope and intent that the advent
of effective 'jamming' technology could keep drones away from
emergency response areas and flight paths, and that warnings
and public education efforts could ensure that the safest,
least-damaging methods for avoiding or disabling unauthorized
drones will be the primary methods used in these crises.
[This bill] is a critical piece of legislation to keep rogue
drones from interfering with the most effective response to
time-sensitive crises."
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3)Growth in commercial and recreational uses of UAS . Commercial
applications for UAS are growing exponentially. UAS give the
news media economical and environmentally-friendly access to
aerial views of traffic, storms, and other events when
compared to the current use of helicopters and other manned
aircraft. UAS is used in the agricultural industry to observe
and measure crops while conserving resources and avoiding the
use of heavy equipment. And UAS may be the future delivery
system for mail order and Internet companies.
In fact, Amazon, the largest Internet-based retailer in the
United States, has previously said that it plans to seek FAA
approval for "PrimeAir" - a new delivery system that would use
small UAS to deliver packages instead of mail trucks.
According to the Amazon.com website, the company has UAS
delivery development and testing centers in the United States,
the United Kingdom and Israel, but has no immediate plans for
roll out.
UAS are widely available to the public for recreational use.
Retail UAS devices outfitted with cameras now range from
roughly $300 to $1,500. A July 2015 report by the Consumer
Electronics Association estimates that hobbyists in the United
States will buy 700,000 drones in 2015 alone.
4)FAA's forthcoming regulation of UAS . In 2012, Congress passed
the FAA Modernization and Reform Act of 2012 (Act). The Act
required the FAA to establish a framework for safely
integrating UAS into the national airspace no later than
September 30, 2015, and authorized the FAA establish interim
requirements for the commercial operation of UAS. Under the
interim rules, UAS operators must meet certain standards and
apply for a commercial use exemption and an FAA Certificate of
Authorization (COA) to operate in in "navigable airspace,"
which is generally above 500 feet and within five miles of
airports.
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Under a 1981 FAA advisory circular (AC 91-57), the FAA
authorized the use of small UAS for recreational purposes
without a COA as long as the UAS is operated below 400 feet
and at least five miles from an airport. However, on February
15, 2015, the FAA proposed a new framework of regulations to
allow the use of "small" UAS (under 55 pounds) from the ground
up to 500 feet. If enacted, the proposed rules would limit
flights to non-recreational, daylight uses and would require
the UAS pilot to maintain a visual line of sight with the UAS.
The FAA has stated it may also create a less strict
regulatory framework for "micro" UAS (under 4.4 pounds). Of
course, such regulations, once enacted, may be found to
preempt state statutes governing drone use.
5)Recent drone incidents near wildfires . In July 2015, several
hobby UAS operators disrupted firefighting efforts during the
initial stage of the North Fire near Cajon Pass. According to
the California Department of Forestry and Fire Protection (Cal
Fire), as the fire burned toward Interstate 15, which links
Southern California to Las Vegas, fire officials were forced
to ground firefighting aircraft - efforts that could otherwise
have held back the blaze that ultimately destroyed 20 vehicles
and forced motorists to flee on foot from oncoming flames.
The North Fire is just one of many recent incidents in which
hobby drones have caused disruptions in the suppression of
California's major wildfires. On July 22, 2015, a drone
grounded Cal Fire air support crews that were fighting a
grassfire near Auburn in Placer County. Drone operators also
interfered with emergency crews at the Mill 2 Fire in Yucaipa
on July 12, 2015, and the Lake Fire near Barton Flats on June
17, 2015.
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Aerial firefighting aircraft, such as air tankers and
helicopters, must fly at very low altitudes in order to be
effective. Hobbyists who fly UAS near fires create the
potential for a mid-air collision that could injure or kill
aerial and ground firefighters as well as innocent bystanders
on the ground below. Because of this risk, when firefighters
detect a UAS flying over or near a wildfire, air operations
must be suspended until all drones flying in a fire area are
removed. This delay allows wildfires to grow, and in some
cases like the North Fire, such a delay can pose an immediate
threat to human lives and property.
6)Penalties for interference with firefighting operations . This
bill proposes making it a misdemeanor, carrying a penalty of
up to six months jail time and up to $5,000 in fines, to use a
UAS in a way that interferes with firefighting. The author
contends that the enhanced criminal fines comport with the
seriousness of the risk posed by irresponsible UAS use and
will discourage hobbyists from using UAS to capture photos of
wildfires for social media websites.
7)Civil immunity for damage to drones that interfere with
emergency services . This bill also proposes creating immunity
from civil liability for damage caused to drones that
interfere with emergency services more broadly, including
ambulance services, services related to firefighting, and
search and rescue operations - whether air, land or
water-based - and whether public or private sector emergency
responders are involved.
Generally speaking, under the Government Tort Claims Act,
public entities and public employees already enjoy immunity
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from civil liability for injury caused fighting fires. This
bill would provide specific immunity from civil liability to
public and private sector emergency responders for any damage
to a UAS, if the damage was caused while the responder was
providing, and the UAS was interfering with, the emergency
services. For example, if an emergency responder collided with
a drone, or if a drone had to be purposely damaged or
destroyed in order to begin emergency operations, then the
immunity would apply, but only for damage to drone itself and
not any secondary effects.
Note that, for purposes of the civil immunity, the bill
applies to forms of emergency response beyond firefighting,
including ambulance services and search and rescue services.
SB 168 also defines "emergency responder" to include not just
public entities and public employees, but also unpaid
volunteers and private entities 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.
8)Consumer education and other UAS mitigation tools are
insufficient . Theoretically, law enforcement agencies can use
a number of tools, such as consumer education, communications
jamming, and geofencing technology to help mitigate UAS
interference in wildfires and other emergencies. But those
efforts may not be sufficient to fully address the problem.
Cal Fire and other agencies have already begun an extensive
public education campaign under the motto, "If You Fly, We
Can't!" to inform the public of the dangers of flying UAS near
emergencies and to discourage hobbyists from flying UAS near
wildfires. Cal Fire has also established a hotline
(1-844-DRONE11) for reporting information about irresponsible
UAS operators flying close to disasters and emergencies.
Private sector smart phone applications, like Hover, can also
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help users avoid restricted areas.
In certain cases, law enforcement agencies can jam
communication frequencies to stop drones from approaching
danger zones. However, untargeted jamming technologies can
inadvertently interfere with first-responder and civilian
communications, and could disable drones in use by legitimate
first responders.
Some experts have proposed requiring UAS to have so-called
"geofencing" chips that could one day automatically prevent a
UAS from flying near an area designated by authorities as a
danger zone. However, most recreational drones on the market
today do not contain geofencing technology, and those that do
can be disabled by drone operators.
9)Arguments in support . According to the California Police
Chiefs Association and the League of California Cities,
"Privately operated drones pose a serious threat to our
state's first responders battling wildfires, transporting
critically ill individuals and searching for missing persons.
Earlier this month in Fresno we witnessed a civilian's drone
nearly collide with an air ambulance. At the Cajon Pass, we
witnessed a tragedy as dozens of cars combusted. The cause? A
civilian drone forced firefighting operations to land,
allowing for the fire to grow and jump the freeway. The U.S.
Forest Services has tallied thirteen wildfires in which
suspected drones interfered with firefighting aircraft this
year. In fact, this increasingly frequent hazard is causing
local jurisdiction to offer rewards ranging from $25 to 75,000
for information on interrupting drone-operators. The
distractions, delays, and heightened threat to public safety
caused by the irresponsible use of civilian drones pose an
unacceptable and growing risk for both our first responders
and members of the public. [This bill] will allow first
responders to continue their operations and keep Californians
safe."
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The California State Firefighters' Association states, "We are
amidst a fire intensive season during this drought. At the
same time, drones have become more accessible to the public.
Consequently, many of these drones have gotten in the way of
many firefighting efforts; [this bill] will ensure that these
emergency responders can serve the needs of the public without
interference and worry of frivolous lawsuits from these drone
operators.'
10)Recent amendments remove concerns . The California Ambulance
Association (CAA) and the Orange County Professional
Firefighters Association (OCPFA) raised concerns that the bill
did not cover other types of emergency response services that
may be provided in a fire. For example, the previous version
of the bill did not specifically reference private ambulance
companies or emergency medical service employees or providers.
The author recently accepted amendments addressing the
concerns raised by CAA and OCPFA that not all types of
emergency responders were included. Specifically, the recent
amendments:
a) Clarify that the immunity provisions of the bill
apply to emergency medical services more broadly, in
addition to ambulance, firefighting, and search and
rescue operations; and
b) Add a new section to the Civil Code to create
immunity from civil liability for damage to a drone
caused by a private entity emergency responder acting
within the scope of authority provided by a public
entity; and
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c) Add co-authors.
11)Urgency clause . SB 168 is an urgency measure intended to
address interference with current firefighting efforts during
a period of unusually severe fire danger caused by
California's historic drought. As such, this bill will
require a 2/3 vote on the Assembly Floor.
12)Related legislation . AB 14 (Waldron) would have created the
Unmanned Aircraft Systems Task Force, comprised of 10 members.
AB 14 failed passage in the Assembly Transportation Committee
on a 5-9 vote.
AB 56 (Quirk) regulates the use of UAS by public agencies,
including law enforcement. AB 56 passed the Assembly on a
61-12 vote and is currently pending on the Senate Floor.
AB 856 (Calderon) expands the scope of the cause of action in
existing law for physical invasion of privacy by making a
person liable for physical invasion of privacy when the person
knowingly enters "into the airspace" above the land of another
person without permission. AB 856 passed the Assembly on a
78-0 vote, passed the Senate 40-0, and is currently awaiting
action by the Governor.
SB 142 (Jackson) extends liability for wrongful occupation of
real property and damages to a person who without permission
operates a UAS below 350 feet over the real property. SB 142
passed the Senate on a 24-9 vote, passed the Assembly on a
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56-13 vote but was vetoed the Governor.
SB 167 (Gaines) increases fines for UAS interference with
firefighting activities. SB 167 is currently pending in the
Senate Public Safety Committee.
SB 170 (Gaines) creates a felony crime for the use of a UAS to
deliver contraband into a prison or county jail and creates a
misdemeanor crime for the use of UAS over a prison or capture
images of a prison. SB 170 passed the Senate on a 39-0 vote,
passed the Assembly 80-0 and is currently awaiting action by
the Governor.
SB 271 (Gaines) prohibits the use of a UAS at or less than 350
feet above a public school campus or to use a UAS to capture
images of school campus during school hours without the
written permission of the school principal. SB 271 passed the
Senate on a 40-0 vote, passed the Assembly 80-0, and is
currently awaiting action by the Governor.
SB 262 (Galgiani) would have authorized a law enforcement
agency to use a UAS if it complies with the U.S. Constitution
and the California Constitution, federal law applicable to the
use of UAS by a law enforcement agency, state law applicable
to a law enforcement agency's use of surveillance technology
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that can be attached to a UAS, and if the local governing
board approves the use. SB 262 was held in the Senate
Judiciary Committee.
SJR 18 (Wolk) urges the President of the United States and the
United States Secretary of Transportation to allow for the
operation of small unmanned aircraft systems (UAS) by farmers
and rangeland managers pursuant to emergency rules adopted by
the administration using its emergency powers. SJR 18 passed
the Senate 39-0 and is currently pending in the Assembly
Privacy and Consumer Protection Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Police Chiefs Association (co-sponsor)
League of California Cities (co-sponsor)
The Honorable Dan Kalb, Oakland City Councilmember
Air and Surface Transport Nurses Association
California Fire Chiefs Association
California Professional Firefighters
California State Association of Counties
California State Firefighters' Association
California State Lodge, Fraternal Order of Police
City of Dublin
City of Redding
County of Riverside
County of San Bernardino
County of San Diego
Emergency Nurses Association
Long Beach Police Officers Association
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Los Angeles County Professional Peace Officers Association
Orange County Professional Firefighters, Local 3631
Sacramento County Deputy Sheriffs' Association
Opposition
None on file.
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200