BILL ANALYSIS Ó
SB 807
Page 1
Date of Hearing: June 28, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
807 (Gaines) - As Amended June 21, 2016
PROPOSED CONSENT
SENATE VOTE: 37-0
SUBJECT: Unmanned aircraft systems
KEY ISSUE: Should Emergency responders be immune from civil
liability for damages that they might cause to a drone that is
interfering with an emergency response?
SYNOPSIS
This bill would provide express immunity to emergency responders
who damage or destroy an unmanned aerial vehicle (UAV or
"drone") that is interfering with the responders' efforts to
render emergency services. The bill was introduced in response
to recent reports of unauthorized drones interfering with the
efforts of firefighting aircraft. According to the author and
sponsor, this bill would allow emergency responders to damage or
destroy a drone that is interfering with their work without fear
of being sued by the drone's owner for any damage done to the
drone. It is unclear whether emergency responders have ever
SB 807
Page 2
found it necessary to destroy a drone that was interfering with
their work or, if they have, if any person has sued an emergency
responder for damaging that drone. Nonetheless, the author and
sponsor maintain that emergency responders are unsure as to what
they may or may not do in such a situation, and that this bill
would allow them to "do their job of protecting the public
without worrying about frivolous lawsuits."
The bill creates immunity for both public and private
responders, insofar as the latter are acting within the
authority granted by a public entity or public employee.
Arguably, public entities are already immune from liability
under the Government Tort Claims Act for any damages caused when
acting within the scope of their authority; indeed, firefighters
are already expressly exempted from liability for any injury
that they cause when fighting fires. This bill would provide
express immunity to other emergency responders (medical and
search and rescue) if they destroy a meddling drone. More
novel, this bill would extend immunity from liability to private
entities acting under the authority of a public entity, a
reasonable recognition that emergency services are sometimes
contracted out to private entities. The bill is supported by
local governments, law enforcement groups, and associations
representing emergency response personnel. There is no
opposition to this measure.
SUMMARY: Grants civil immunity to public entities, public
employees, and unpaid volunteers and private entities acting
within the scope of delegated authority that damage an unmanned
aerial vehicle (UAV) in the course of providing emergency
services. Specifically, this bill:
1)Specifies that an emergency responder is not liable for damage
to a UAV if the damage was caused while the emergency
responder was providing, and the UAV was interfering with, the
operation, support, or enabling of any of the following
SB 807
Page 3
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
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 immunity 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 that a public entity or public employee is not
liable for any damage to a UAV if the damage was caused while
the public entity or public employee was providing, and the
UAV was interfering with, the operation or support of any of
the following emergency services:
a) Emergency medical services or ambulance transport
services, including, but not limited to, air ambulance
SB 807
Page 4
services;
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.
4)Specifies that the immunity granted to a public entity or
public employee is in addition to any other immunity provided
to a public entity or public employee under law.
5)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.
6)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.
EXISTING LAW:
1)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 in fighting fires. (Government Code Section 850.4.)
SB 807
Page 5
2)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, and makes all public entities, state and local, liable
in tort to the extent declared by statute, subject to stated
immunities and defenses. (Government Code Section 811.2 and
815 et seq.)
3)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.
(Government Code Sections 811.4 and 820 et seq.)
4)Makes it a misdemeanor to go to the scene of an emergency or
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.
(Penal Code Section 402 (a).)
5)Requires, under the Federal Aviation Administration (FAA)
Modernization and Reform Act of 2012, the FAA to integrate UAV
into the national airspace system by September 30, 2015, and
to develop and implement certification requirements for the
operation of UAV in the national airspace system by December
31, 2015. (Public Law Number 112-095.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill is one of several that this Committee has
heard in recent years addressing the anticipated consequences of
SB 807
Page 6
the proliferation of unmanned aerial vehicles (UAV), or as they
are more commonly known, "drones." While almost everyone agrees
on the potential public and commercial benefits of drones, most
also recognize that unrestricted drone use creates potential
risks to public safety and personal privacy. Much of the
ambiguity surrounding state legislative efforts to regulate
drones - whether to protect privacy or public safety - stems
from the fact that federal policy is still evolving. The
Federal Aviation Administration (FAA) regulates all national
airspace from the ground up, and as such drones occupy the
national airspace according to rules set forth by the FAA.
(There is a common misperception that the FAA does not regulate
recreational drone use below 400 feet. This is not, in fact,
the case. Several years ago the FAA did indeed authorize
recreational use of drones below 400 feet, so long as the person
flying the drone stayed clear of certain restricted spaces, did
not fly the drone recklessly, and kept the drone within sight.
But in doing so it did not concede its power to regulate the
national airspace from the ground up.)
Until recently, the FAA permitted recreational drone use but
restricted the commercial use of drones to a handful of entities
using drones for largely experimental purposes. As the
technology evolved, and as the many commercial uses of drones
became apparent, the FAA came under increasing pressure to
permit commercial uses. These pressures eventually led to
passage of the FAA Modernization and Reform Act of 2012, which
required the FAA to develop rules and regulations that would
allow the integration of "unmanned aerial systems" (UAS) into
the national airspace by September, 2015. As this analysis was
being prepared, the FAA finally issued its long-awaited rules on
commercial drone use, although these rules appear to stop short
of what many businesses had wanted - for example
package-delivery plans by businesses like Amazon are still not
authorized under the new rules, although they will possibly be
added at some future point. (See "FAA Issue Commercial Drone
Rules," New York Times, June 21, 2016.)
SB 807
Page 7
Private and Commercial Drone Use and Public Safety: One of the
uses often touted by advocates of a more permissive set of FAA
rules involved the potential benefits of drones to firefighters
and emergency responders. Drones, it was maintained, could be
used to track the progress and development of fires or conduct
search and rescue operations without putting human pilots and
crews at risk. Ironically, it is precisely in these kinds of
situations that drones can also create a potential risk to
firefighters and emergency responders. As noted in the author's
background material, the primary impetus for this bill grew from
reports of private drone operators attempting to gather images
of a wildfire and thereby interfering with the work of
firefighting aircraft, which must necessarily fly at relatively
low altitudes. To note the most cited example, in 2015 -as the
drought made the fire season more dangerous than ever - several
private (presumably recreational) drone operators disrupted
firefighting efforts near Cajon Pass. According to the
California Department of Forestry and Fire Protection (Cal
Fire), the firefighters were forced to ground their aircraft for
about thirty minutes, fearing possible danger to firefighting
crews in the event of a collision or of drones being drawn into
the aircraft's engines, thus causing the aircraft to stall and
possibly crash, causing further damage to persons or property on
the ground. Cal Fire reasoned that during the time those
firefighters were grounded, the fire spread and became more
difficult to control. Drones also reportedly interfered with
firefighters battling blazes in Placer County, Yucaipa, and
Barton Flats during the 2015 fire season. According to the
sponsors, the U.S. Forest Service reported 13 instances where
drones interfered, to one degree or another, with firefighting
aircraft.
Existing Immunity for Emergency Responders: According to the
author and sponsor, as drone use becomes more widespread and
open to both recreational and commercial uses, the possibilities
of disastrous drone interference with the work of airborne
emergency responders will become greater. As such, the author
SB 807
Page 8
believes, if emergency responders must intentionally destroy a
drone that is interfering with their efforts, they should not
fear the prospect that they could be sued for doing so by the
owner for the damage done. Just how likely such a lawsuit would
result is highly uncertain. Although some supporters of this
bill have communicated to the Committee that such suits have
been filed, the Committee could not find evidence that any
emergency responders have intentionally destroyed a drone, much
less that anyone has sued responders for doing so. (This is not
to say that such lawsuits have not been filed, but only that the
Committee has not found or been provided with evidence of any
such suit.) To the extent that such a lawsuit has or could be
filed, it should be noted that existing law arguably protects
responders from liability. To begin with, as for public
emergency responders, the Government Tort Claims Act (Government
Code Section 810 et seq.), which codifies the common law
principle of sovereign immunity, immunizes public entities from
liability unless a statute expressly creates liability. Public
employees are similarly immune from liability so long as they
are acting within the scope of their employment and authority.
More to the point, Government Code Section 850.4 expressly
exempts a public agency, or a public employee acting within the
scope of her employment, from liability for injury resulting
from the condition of fire protection or firefighting equipment,
"and for any injury caused in fighting fires."
In addition to the general civil immunities provided to public
agencies and public employees, Penal Code Section 402 (a) makes
it crime to go to the scene of an emergency to watch the scene
if doing so impedes the efforts of first responders, unless it
is part of the duty of the person's employment (e.g. a news
reporter) to view the scene or activities. While this section
does not grant emergency responders any immunity from liability,
it seems unlikely that a court would find the emergency
responders liable if the plaintiff's injury occurred while
committing an unlawful act. At the very least, the unlawful act
would constitute contributory negligence. Finally, even in the
case of a private entity, an emergency responder that destroyed
SB 807
Page 9
or damaged a drone would only be liable if the responder acted
unreasonably under the circumstances. In the context of a
life-or-death emergency, where a drone is preventing the
responder from carrying out a duty to respond to that emergency,
it is difficult to imagine that any court would find that an
emergency responder was unreasonable in damaging, even
intentionally, a drone that was impeding emergency response
efforts - especially given that if the drone was in fact
impeding those efforts, its operator was, by definition,
committing a misdemeanor.
Does this bill address the potential public safety problems
presented by unrestricted drone use? While drone interference
with emergency responders is clearly a problem, as recent
reports on firefighting attest, it is less clear that the most
pressing part of the problem is the lack of immunity for
emergency responders. It should be noted, for example, that,
based on the news reports examined by the Committee, Cal Fire
did not ground its firefighters out of any fear of liability; it
grounded its firefighters out of fear for the safety of the
firefighters and innocent persons on the ground in the event of
a collision. Supporters of this legislation have subsequently
raised the prospect that emergency responders were immobilized
by fears of liability, but reports and stories covering these
events at the time did not indicate that fear of liability was
the reason for grounding the aircraft.
Nevertheless, despite the lack of evidence that any lawsuit has
been filed against emergency responders for destroying a drone
that was interfering with an emergency response, and despite the
broad general immunities that existing law already affords to
government entities, the author and sponsor do make a case that
a drone operator could conceivably bring a lawsuit against a
public or private emergency responder if it became necessary for
the emergency responders to destroy or damage the drone.
Existing government immunity, after all, does not apply to the
private emergency responders that act under the authority of a
SB 807
Page 10
public entity. And the broad immunity afforded to public
entities by the Government Tort Claims Act may have been
unintentionally weakened by the express provision in Government
Code Section 850.4 that creates immunity for firefighters; for
by singling out firefighters that provision creates an
unintended assumption that other emergency responders may not
enjoy such immunity, otherwise the Legislature would have
mentioned them. In sum, to the extent that even the remote
possibility of a lawsuit might cause emergency responders to
hesitate if it became necessary to destroy a drone in order to
protect public safety, then perhaps there is a case to be made
for providing express immunity in the very limited way that this
bill does.
This bill would provide immunity to public emergency responders,
as well as to private emergency responders acting under the
authority of a public entity or public employee. The bill's
proposed new Civil Code section would provide immunity to any
"emergency responder" for any damage to a drone, if that damage
was caused while the emergency responder was providing emergency
services and the drone was impeding those services. This
section of the bill defines "emergency responders" to include a
private entity, whether using paid employees or unpaid
volunteers, providing emergency services while acting within the
scope of authority provided by a public entity or public
employee. The second section of the bill adds a new section to
the Government Code that grants immunity to a public entity or
public employee that damages a drone while providing emergency
services. This section defines "emergency services" so that the
term only applies to emergency medical and ambulance transport
services, firefighting services, and search and rescue services.
The added Civil Code section granting immunity to private
responders adopts, by reference, this same limited definition of
"emergency services." It is not entirely clear why the author
has chosen to restrict the definition of "emergency services" to
only those enumerated in the bill. Elsewhere in existing law,
an "emergency" is defined more broadly than medical emergencies,
fires, and search and rescue. For example, Penal Code Section
SB 807
Page 11
402 - which makes it a misdemeanor to interfere with first
responders - defines an emergency as any 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.
Governor's Veto of SB 168: The immunity provisions in this bill
are substantially similar to those provided in last year's SB
168 (Gaines and Jackson). Despite receiving unanimous approval
from the Legislature, SB 168 was vetoed by Governor Brown along
with several other bills that created new crimes. Governor
Brown's veto message 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.
The author notes that the criminal penalties contained in SB
168, which were clearly the primary reason for the veto, are not
included in this bill.
ARGUMENTS IN SUPPORT: According to the bill's sponsors, the
SB 807
Page 12
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?[I]n 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 last year. In
fact, this increasingly frequent hazard is causing local
jurisdiction to offer rewards ranging from $25,000 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. SB 807 will allow first responders to
continue their operations and keep Californians safe."
According to the Civil Justice Association of California, this
bill "protects emergency responders whether paid or unpaid,
private or public employees, performing a list of emergency
services including firefighting, search and rescue, ambulance
and air ambulance. These essential roles are inherently
dangerous. We should not add to the risks associated with these
roles by exposing the people who fill them to lawsuits over
damage to drones interfering with emergency response."
REGISTERED SUPPORT / OPPOSITION:
Support
SB 807
Page 13
California Police Chiefs Association (co-sponsor)
League of California Cities (co-sponsor)
Association for Los Angeles Deputy Sheriffs
California Ambulance Association
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Fire Chiefs Association
California Forestry Association
California Justice Association of California
California Narcotic Officers Association
California Professional Firefighters
California Special Districts Association
California State Association of Counties
SB 807
Page 14
California State Sheriffs' Association
California Statewide Law Enforcement Association
City of Ontario
City of Thousand Oaks
Civil Justice Association of California
CSAC Excess Insurance Authority
DJI Technology
Fire Districts Association of California
LIUNA Local 792
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Orange County Board of Supervisors
Orange County Professional Firefighters Association, Local 3631
SB 807
Page 15
Riverside Sheriffs Association
San Bernardino County
Ventura Council of Governments
Opposition
None on file
Analysis Prepared by:Thomas Clark / JUD. / (916)
319-2334