Author: The Office of Justice Programs’ National Institute of Justice (NIJ)
By Michele Coppola TechBeat Magazine
As use of unmanned aircraft systems (UAS), also referred to as drones or unmanned aerial vehicles, gains popularity in the U.S., law enforcement agencies need to know how to assess UAS operations and options for dealing with suspected illegal actions.
The Federal Aviation Administration (FAA) is responsible for enforcing its regulations applicable to UAS, but the agency notes that state and local law enforcement officers are often the first to discover unauthorized or unsafe UAS operations and often are in the best position to immediately intervene, possibly through their already existing authorities.
A challenge for law enforcement officers is how to distinguish between lawful, authorized use of UAS and under what authority to intervene when encountering suspected unauthorized or dangerous UAS operation.
A number of states and local governments have passed laws directly related to UAS. According to the National Conference of State Legislatures (NCSL), as of July 2017, 40 states had enacted laws addressing UAS issues, and an additional three states have adopted resolutions. Common issues addressed in the state legislation include defining what a UAS, UAV or drone is; how they can be used by law enforcement or other state agencies; how they can be used by the general public; and regulations for their use in hunting game, according to NCSL. State and local jurisdictions considering adopting UAS-specific laws should consult with the FAA about the intersection of federal, state and local regulation of aviation, generally, and UAS operations, specifically.
Law Enforcement Response
Local law enforcement cannot enforce FAA regulations, but law enforcement can possibly use a number of existing state and local laws to help address suspected illegal or improper UAS operations, depending on the situation. For example, reckless endangerment, criminal mischief, voyeurism, inciting violence, trespassing, obstruction of police emergency services duties, and nuisance/noise laws might apply. (See sidebar, Laws Used to Deal With Suspicious UAS Operations). Law enforcement should take appropriate action based on the facts and circumstances of the incident and site/area-specific laws and rules.
The FAA has civil enforcement authority, and has responsibility for enforcing its own regulations. The FAA may take enforcement action against anyone who conducts unauthorized UAS operations or flies in a way that endangers the safety of the National Airspace System. The agency’s enforcement tools include warning notices, letters of correction, certificate actions and civil penalties. The Department of Transportation Office of Inspector General may, in some instances, pursue criminal penalties against illegal drone operations.
The FAA wants to enlist the assistance of local law enforcement. To assist the FAA in gathering information about suspected unauthorized UAS activities, law enforcement can provide invaluable assistance by:
Identifying and interviewing potential witnesses. Identifying the UAS operator. Viewing and recording the location of the event for follow-up FAA investigation. Identifying sensitive locations, events or activities subject to temporary flight restrictions or other prohibitions on flight operations. Notifying one of the FAA Regional Operation Centers of the incident as soon as possible when the event poses an imminent danger to other aircraft or has resulted in accident/injury. Collecting and preserving evidence the FAA can use in its investigation. FAA Regulations
In summer 2016, the FAA issued regulations, (known as Part 107), that apply to small UAS, including commercial operations. (This rule may also be used by hobbyists if they choose.) The basic operating requirements include:
Pilot must have a remote pilot airman certificate. UAS must weigh less than 55 pounds, travel less than 100 mph and fly no higher than 400 feet above the ground.* UAS must be operated within visual line of sight of the remote pilot or a designated observer.* UAS cannot operate directly over people who are not involved in the UAS operation.* UAS must fly during the day.* The weather must be at least three miles visibility. Air Traffic Control authorization is needed prior to operations within certain airspace. No careless or reckless operations.
*Operators can request a waiver from certain regulatory requirements.
UAS must be registered with the FAA and display the registration number. See https://www.faa.gov/uas/getting_started/fly_for_work_business/.
Recreational or Hobby UAS
There are two options for recreation or hobby UAS fliers to operate in the National Airspace System:
Option #1. Fly in accordance with the Special Rule for Model Aircraft (Public Law 112-95 Section 336). Under this rule, operators must:
Fly for hobby or recreational purposes only. Follow a community-based set of safety guidelines. Fly the UAS within visual line-of-sight. Give way to manned aircraft. Provide prior notification to the airport and air traffic control tower, if one is present, when flying within five miles of an airport. Fly UAS that weigh no more than 55 lbs. unless otherwise certified by a community-based organization.
Safety guidelines (best practices):
Fly at or below 400 feet. Keep UAS within sight. Never fly near other aircraft, especially near airports. Never fly over groups of people. Never fly over stadiums or sports events. Never fly near emergency response efforts such as fires. Never fly under the influence. Be aware of airspace requirements.
Note: In May 2017, the U.S. Court of Appeals for the District of Columbia Circuit ruled that an FAA regulation, which required owners of model aircraft operated pursuant to Public Law 112-95 Section 336 to register their model aircraft with the FAA, does not apply to those specific aircraft. Consequently, model aircraft will not have a registration to show if they are only being flown for recreational purposes.
Option 2: Fly in accordance with the FAA Small UAS rule (Part 107), which requires operators to:
Obtain a remote pilot certificate or be under the direct supervision or a person who holds a certificate. Register the aircraft as a non-modeler. Follow the operating rules in accordance with the Part 107 regulation.
See http://www.faa.gov/uas/getting_started/fly_for_fun/ and https://www.faa.gov/uas/faqs/#ffr.
For more detailed discussion and guidance, see the FAA’s Law Enforcement Guidance for Suspected Unauthorized UAS Operations, August 2016, at https://www.faa.gov/uas/resources/law_enforcement/media/FAA_UAS-PO_LEA_Guidance.pdf and www.faa.gov/uas/resources/law_enforcement/ for general information.
A basic law enforcement response quick reference card from the FAA is available at https://www.faa.gov/uas/resources/law_enforcement/media/FAA-UAS-DRONE-LE-ReferenceCard.pdf.
To help educate the public, the FAA developed a smartphone app called B4UFLY, which helps unmanned aircraft operators determine whether there are any restrictions or requirements in effect at the location where they want to fly. For download instructions, go to https://www.faa.gov/uas/where_to_fly/b4ufly/.
Laws Used to Deal With Suspicious UAS Operation
In some states, law enforcement actions can be taken under the state’s transportation regulations concerning the unsafe operation of an aircraft. In general, state and local laws can help address suspected illegal or improper UAS operations, depending on the circumstances. For example:
In Seattle, a jury found a man guilty of reckless endangerment stemming from a 2015 incident in which a woman was knocked unconscious when she was struck by a small drone during the Pride Parade in downtown Seattle. (http://www.seattletimes.com/seattle-news/crime/pilot-of-drone-that-struck-woman-at-pride-parade-sentenced-to-30-days-in-jail/) In January 2017, in Pacifica, Calif., police cited a man for flying a UAS close to a California Highway Patrol helicopter during a rescue mission. Police located the drone pilot and cited him on a misdemeanor charge of suspicion of impeding first responders at the scene of an emergency. (http://www.latimes.com/local/lanow/la-me-ln-pacifica-drone-rescue-20170130-story.html) In 2016, the operator who lost control of his UAS near the University of Kentucky Stadium was charged with wanton endangerment and criminal trespassing. The wanton endangerment charge was dismissed as part of a plea agreement. He pled guilty to criminal trespassing and paid a $100 fine. (http://www.kentucky.com/news/local/counties/fayette-county/article53915475.html).