BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 170 Hearing Date: April 14, 2015
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|Author: |Gaines |
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|Version: |April 7, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Unmanned Aircraft Systems: Correctional Facilities
HISTORY
Source: Author
Prior Legislation:SB 15 (Padilla) - failed Assembly Public
Safety, 2014
AB 1327 (Gorell) - Vetoed, 2014
Support: California State Sheriffs' Association
Opposition:California Attorneys for Criminal Justice
PURPOSE
The purpose of this bill is to make the intentional operation of
an unmanned aircraft system in airspace over laying a prison or
jail a misdemeanor, and to create an enhancement for using an
unmanned aircraft system to deliver contraband into a prison or
jail.
Existing federal law, the Aviation Administration Modernization
and Reform Act of 2012, requires the Secretary of Transportation
to develop a comprehensive plan to safely accelerate the
integration of civil unmanned aircraft systems into the national
airspace system. The plan is required to provide for safe
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integration of civil unmanned aircraft systems into national
airspace as soon as practicable, not later than September 30,
2015. (112 P.L. 95, 332.)
Existing law prohibits wiretapping or eavesdropping on
confidential communications. (Penal Code § 630.)
Existing law makes it a crime for a person, intentionally, and
without requisite consent, to eavesdrop on a confidential
communication by means of any electronic amplifying or recording
device. (Penal Code § 632.)
Existing law makes a person liable for "physical invasion of
privacy" for knowingly entering onto the land of another person
or otherwise committing a trespass in order to physically invade
the privacy of another person with the intent to capture any
type of visual image, sound recording, or other physical
impression of that person engaging in a personal or familial
activity, and the physical invasion occurs in a manner that is
offensive to a reasonable person. (Civil Code § 1708.8 (a).)
Existing law makes a person liable for "constructive invasion of
privacy" for attempting to capture, in a manner highly offensive
to a reasonable person, any type of visual image, sound
recording, or other physical impression of another person
engaging in a personal or familial activity under circumstances
in which the plaintiff had a reasonable expectation of privacy,
through the use of a visual or auditory enhancing device,
regardless of whether there was a physical trespass, if the
image or recording could not have been achieved without a
trespass unless the visual or auditory enhancing device was
used. (Civil Code § 1708.8 (b).)
Existing law provides that a person who commits an invasion of
privacy for a commercial purpose shall, in addition to any other
damages or remedies provided, be subject to disgorgement to the
plaintiff of any proceeds or other consideration obtained as a
result of the violation of this section. Existing law defines
"commercial purpose" to mean any act done with the expectation
of sale, financial gain, or other consideration. (Civil Code §
1708.8 (d), (k).)
Existing law makes it a felony for smuggling a controlled
substance into prison or jail. (Penal Code §4573.)
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Existing law makes it a felony to bring drugs or alcoholic
beverages into a penal institution. (Penal Code § 4573.5)
Existing law makes it a felony to possess controlled substances
where prisoners are kept. (Penal Code §4573.6)
Existing law makes it a felony to possess drugs or paraphernalia
in prison or jail. (Penal Code § 4573.8)
Existing law makes it a felony to sell or give drugs to a person
in custody in State Prison or Institution. (Penal Code §4573.9)
Existing law makes it a felony for smuggling firearms, deadly
weapons or tear gas into prison or jail. (Penal Code §4574.)
Existing law makes it a misdemeanor to possess a wireless
communication device including a cell phone, pager, etcetera in
a local correctional facility is a misdemeanor. (Penal Code §
4575.(a).)
Existing law makes it an infraction to possess any tobacco
products in a local correctional facility. (Penal Code §
4575.(b).)
Existing law makes it a misdemeanor to possess with the intent
to deliver a wireless communication device in a prison. (Penal
Code §4576)
This bill would add an enhancement of one year on any felony, or
double the fine for any infraction or misdemeanor, if the
contraband is brought into a prison or jail by use of an
unmanned aircraft device.
This bill also makes it a misdemeanor to intentionally operate
an unmanned aircraft system below the navigable airspace
overlying a state prison or jail without prior permission.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
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impact on prison overcrowding. Mindful of the United States
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 February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 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).
While significant gains have been made in reducing the prison
population, the state now 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:
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
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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:
Keeping contraband out of prison is essential to
running a safe and orderly facility. Studies show
that the presence of contraband increases the risk of
violence or disruptive behavior. However, even with
the close monitoring of individuals and mail coming
into prisons, creating contraband-free facilities has
always been a challenge.
With public access to drones increasing, this issue is
escalating. As drones become smaller and easier to
operate, virtually anyone will be able to use the
devise to drop contraband into a prison. Already
there have been instances in South Carolina, George,
and Canada of attempts to use drones to drop
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contraband into prisons. It is imperative that
California's penal code addresses this reality and
creates a penalty for people who commit this action.
Additionally, drones can be used to gather sensitive
information from inside the prison walls. This
information can be used for a variety of dangerous
exploits, including inmate escapes and prison riots.
Placing restrictions on the use of drones over prisons
and the capturing of images helps prevent these
situations.
2. Unmanned Aircraft Systems
This bill would use the term "unmanned aircraft systems," as
defined, to reference what are commonly known as drones. That
term, also used by the Federal Aviation Administration (FAA),
would be defined to include the unmanned aircraft itself (the
drone) and the associated elements (which include the components
that control the aircraft). 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 Boeing 737 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 considerations.
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. Those hobby aircraft may be used for pure
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novelty, surveying one's yard, or even checking to see the
condition of a roof. With respect to the treatment of model
aircraft as an unmanned aircraft system, the FAA has issued the
following clarification:
The current FAA policy for UAS operations is that no
person may operate a UAS in the National Airspace
System without specific authority. For UAS operating
as public aircraft the authority is the [Certificate
of Waiver or Authorization], for UAS operating as
civil aircraft the authority is special airworthiness
certificates, and for model aircraft the authority is
AC 91-57 [(the model aircraft operating standards)].
The FAA recognizes that people and companies other
than modelers might be flying UAS with the mistaken
understanding that they are legally operating under
the authority of AC 91-57. AC 91-57 only applies to
modelers, and thus specifically excludes its use by
persons or companies for business purposes.
3. Misdemeanor for Flying Over a Prison or Jail
This bill makes it a misdemeanor to fly an unmanned aircraft
system (drone) over a prison or jail without permission. The
penalty would be up to six month in jail or by a fine not
exceeding $1,000.
4. Enhancement for Delivering Contraband by Drone
This bill would create an enhancement for delivering contraband
to a prison or jail by drone. If the underlying contraband
provision is a felony then this bill would add one year to the
underlying sentence. If the underlying contraband provision is
an infraction or misdemeanor the fines for those offenses would
be doubled.
Are enhancements an effective means of deterrent? Is an
enhancement appropriate in this circumstance?
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