BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 807 (Gaines)
Version: March 17, 2016
Hearing Date: March 29, 2016
Fiscal: Yes
Urgency: No
RD
SUBJECT
Unmanned aircraft systems
DESCRIPTION
This bill would provide public entities and public employees
with immunity from civil liability for any damage to an unmanned
aircraft or unmanned aircraft system, 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 specified emergency services.
"Emergency services" for these purposes would include:
" 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 apply the same immunity protection for public
entities and employees, above, to emergency responders who are
private entities or paid or unpaid volunteers, if those
emergency responders are acting within the scope of authority
implicitly or expressly provided by a public entity or a public
employee.
BACKGROUND
As with most new technologies, the possibility of having
potentially thousands of commercial and private unmanned aerial
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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 commercial use of drones in the skies over
California is fairly restricted; however, the recreational or
hobbyist use of drones remains largely unregulated.
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 in the last year have
focused 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 August:
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
scourge: drones, CNN (Jul. 19, 2015)
[as of Mar. 15, 2016].)
Further, in a joint oversight hearing conducted by this
Committee and the Joint 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)
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[as of Mar. 15, 2016].)
Consequently, last year, this Committee heard and approved SB
168 (Gaines and Jackson, 2015) which would have made 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, as heard and
approved in this Committee, SB 168 would have expressly provided
emergency responders (including public entities, public
employees, and specified unpaid volunteers) with immunity from
civil liability for any damage to an unmanned aircraft system if
that unmanned aircraft system interfered with emergency
services, as specified. SB 168 was ultimately vetoed by
Governor Jerry Brown due to concern that the bill criminalizes
conduct that is already proscribed, thereby complicating matters
without any commensurate benefit. Notably, this bill does not
contain the Penal Code provisions of SB 168 that appear to have
been of concern to the Governor.
This bill would now provide public entities, public employees,
as well as other emergency responders (including private
entities, as well as paid and unpaid volunteers) with immunity
from civil liability for any damage to an unmanned aircraft
system, if the damage was caused while the public entity, public
employee, or other emergency responder was providing certain
emergency services and the unmanned aircraft system interfered
with, the operation, support, or enabling of those emergency
services.
CHANGES TO EXISTING LAW
Existing law provides that besides the personal rights mentioned
or recognized in the Government Code, every person has, subject
to the qualifications and restrictions provided by law, the
right of protection from bodily restraint or harm, from personal
insult, from defamation, and from injury to his personal
relations. (Civ. Code Sec. 43.)
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
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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).)
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.)
This bill would add to the Act to provide that a public entity
or public employee shall not be liable for any damage to an
unmanned aircraft or 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
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search and rescue services.
This bill would separately add to the Civil Code that an
emergency responder shall not be liable for any damage to an
unmanned aircraft or 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 emergency services listed
above. This bill would define "emergency responder" for these
purposes to include either of the following, if acting within
the scope of authority implicitly or expressly provided by a
public entity or a public employee, as specified, to provide
emergency services:
a paid or unpaid volunteer; or
a private entity.
This bill would also define:
"unmanned aircraft" to mean an aircraft that is operated
without the possibility of direct human intervention from
within or on the aircraft.
"unmanned aircraft system" to mean an unmanned aircraft and
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.
COMMENT
1. Stated need for the bill
According to the author:
Throughout last year's drought-heightened fire season,
private- unauthorized drones repeatedly halted firefighting
efforts. The simple presence of these drones forced
firefighters to ground mission-critical tanker aircraft,
unnecessarily putting pilots, firefighters, civilians and
property at risk. Additionally, these rogue drones have
interfered with other lifesaving missions, such as air
ambulance services.
Senate Bill 807 will help ensure that emergency responders can
do their job of protecting the public without worrying about
frivolous lawsuits. As drones become more accessible to the
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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.
[Specifically, c]urrent law does not provide explicit immunity
for emergency responders 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 807 is a critical
piece of legislation to keep rogue drones from interfering
with the most effective response to time-sensitive crises.
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
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
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of his or her 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 public entities and public
employees with express immunity from civil liability for any
damage to an unmanned aircraft system, if the damage was caused
while the public entity or employee 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). The bill would also provide for
the same liability protection for emergency responders that are
not public entities or employees, but are, rather, paid or
unpaid volunteers and private entities, as long as those
volunteers or private entities 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
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
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only immunity from damages caused to the unmanned aircraft or
unmanned aircraft system (which includes the unmanned aircraft
and its associated elements) 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. Governor Brown's veto of SB 168
This bill, like SB 168 (Gaines and Jackson, 2015) from last
year, provides limited civil liability protection to public
entities, public employees, and private entities and paid and
unpaid volunteers acting within the scope of authority
implicitly or expressly provided by a public entity or a public
employee to provide emergency services, for any damage to a
drone, if the damage was caused during the provision of
emergency services and the drone interfered with the provision
of those services. SB 168, unlike this bill, however, also
would have made 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. In vetoing SB 168, along with eight other bills,
Governor Brown stated:
Each of these bills creates a new crime - usually by finding a
novel way to characterize and criminalize conduct that is
already proscribed. This multiplication and particularization
of criminal behavior creates increasing complexity without
commensurate benefit.
Over the last several decades, California's criminal code has
grown to more than 5,000 separate provisions, covering almost
every conceivable form of human misbehavior. During the same
period, our jail and prison populations have exploded.
Before we keep going down this road, I think we should pause
and reflect on how our system of criminal justice could be
made more human, more just and more cost-effective.
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Support : California Association of Code Enforcement Officers;
California College and University Police Chief Association;
California Fire Chiefs Association; California Narcotic Officers
Association; California Professional Firefighters; California
Special Districts Association; California State Association of
Counties (CSAC); CSAC Excess Insurance Authority; California
State Sheriffs' Association; California Statewide Law
Enforcement Association; Civil Justice Association of
California; County of San Bernardino Fire Districts Association
of California; LIUNA Local 792; Los Angeles County Professional
Peace Officers Association; Los Angeles Deputy Sheriffs; Los
Angeles Police Protective League; Orange County Professional
Firefighters Association, Local 3631; Riverside Sheriffs
Association
Opposition : None Known
HISTORY
Source : California Police Chiefs Association; League of
California Cities
Related Pending Legislation : None Known
Prior Legislation :
SB 168 (Gaines and Jackson, 2015) See Background and Comment 3.
SB 167 (Gaines and Jackson, 2015) was substantially similar to
the Penal Code provisions of SB 168. This bill died in Senate
Public Safety without a hearing.
SB 271 (Gaines, 2015) would have made 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 was vetoed.
SB 170 (Gaines, 2015) would have provided 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
have also provided, 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 was vetoed.
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AB 14 (Waldron, 2015) would have created the Unmanned Aircraft
Systems Task Force, which would be required to research,
develop, and formulate a comprehensive policy for unmanned
aircraft systems in California. The task force would have been
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.
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