On January 8, 2015, the FAA issued an undated Guidance (http://www.faa.gov/uas/regulations_policies/media/FAA_UAS-PO_LEA_Guidance.pdf) to no one in particular entitled “Law Enforcement Guidance for Suspected Unauthorized UAS Operations.” When I saw this item in my Twitter feed I, like most experienced lawyers, laughed. “Hilarious, it’s like the people who wrote the Guidance don’t actually know any real live LEOs,” I was ready to exclaim if asked the right question during my interview with Kiplingers. But then I realized that I might be making legal arguments to these same people one day so I decided to tone it down.
When Kiplingers asked if I would speak to them, I dug into the issue a little deeper. I saw a few news agencies had regurgitated the FAA press release (https://www.faa.gov/news/updates/?newsId=81244) with one exception at http://www.uasmagazine.com/articles/952/attorney-says-faa-uas-law-enforcement-guidelines-off-target. The UAS Magazine article actually provided some sensible analysis – here by a drone lawyer, James Mackler.
In my preparation for Kiplingers, I did some quick research to add some depth to the discussion. One group of people noticeably absent from the discussion are real, live law enforcement officers (LEOs). In fact, one popular news website for LEOs, www.policeone.com, had zero references to the FAA Guidance.
Firstly, anyone who reads or watches the news is aware that 2015 is not the greatest time ever to be an LEO. LEOs in New York City, and in Florida, California, Colorado and Nevada (not an exhaustive list) have been made the targets of violent and sometimes deadly attacks. Law enforcement agencies (LEAs) are living under reduced state and local budgets while at the same time are being asked to police an increasingly unruly populace while wearing video cameras. I recently looked a job ad for a local police officer position which reads as follows:
POSITION TITLE: Police Officer (Certified)
WORK HOURS/DAYS: 40 hours/week including holidays, shifts vary
Protects life by: Responding to calls for service and emergency assistance; rendering aid to the physically injured, handicapped and others requiring assistance, including but not limited to victims of accidents, criminal incidents, natural disasters or other incidents; investigating safety hazards and taking action to correct potential problem areas, including road hazards, defects and environmental hazards.
DESIRED MINIMUM QUALIFICATIONS:
1. Valid driver’s license
2. Graduation from high school education or GED equivalent
3. Law Enforcement Standards and Training Commission (520 hours) certificate
OK, so FAA wants a guy or gal with a H.S. education and 520 hours of police training working for less an hour than a Seattle barista makes to be their ‘boots on the ground’ as far as enforcing FAA drone laws. Oh, and there won’t be any training budget or funds of any kind to go with that.
What does FAA want from LEAs and LEOs? Just gather all the evidence on the ground, please: take reports, take pictures & video, identify violations, document the incident, and call an FAA inspector to find out where to send the file so that person (who is also understaffed and under budgeted) can decide what to do from there. FAA cautions that LEOs should not do any real police work however, so please don’t: arrest, detain, search, or use force. Okie Dokey.
Put yourself in the shoes of the LEO who just got through another round of public relations sensitivity training designed to avoid another Ferguson, and the FAA wants him or her to go hassle some teenager flying a quadcopter they got for the holidays. Something tells me that unless the quadcopter is doing something else illegal (like peeping tom, trespass, harming others – all within the LEOs current non-FAA criminal law enforcement mandates) or is flying over Disney World, inside DC airspace, or over a sporting arena, the LEOs aren’t going to care and will simply ignore the FAA Guidance. In those few cases where an LEO is dealing with possible violations of criminal law using a drone, the LEO will no doubt become aware of the FAA Guidance in his or her work on that case and might contact an FAA investigator. But no, LEOs are not going to have the FAA Guidance riding with them in their cruisers.
Some other thoughts that came up when preparing for Kiplinger:
(1) Is there even legal authority for this? Typically, state and local LEOs are not authorized to enforce federal law in the absent of an express statutory authorization such as what is found in antitrust laws, immigration laws, and drug laws. A quick review of 49 USC and the 2012 FAA Modernization Act did not reveal any such authorization for state enforcement. As a result, the FAA Guidance may not be legally effective.
(2) In the absence of comparable state laws (such as is the case where most states have drug laws that mirror the federal laws – there being some noted exceptions such as in states where cannabis has recently become lawful), the use of state budget resources to enforce federal law is questionable. Such use could be attacked by state taxpayers as being ultra vires – without authority. Further, any ultra vires activities by LEOs gives rise to the specter of potential liability under 42 USC 1983 having to do with lawsuits for deprivation of rights without due process under color of law. Why would any LEO get involved with this FAA stuff after considering all this?
(3) The FAA is an agency that pursues civil remedies that have no criminal element and LEOs are trained to pursue criminal charges and to stay out of civil matters. The burdens of proof are different in criminal versus civil matters. While the FAA Guidance acknowledges this conflict between criminal and civil, it doesn’t suggest any way of resolving the conflict that would make sense for an LEO or LEA.
If the FAA wants LEOs to get trained for this sort of thing, I suggest they offer some training funds. Otherwise, they are attempting to add a serious load to an already overloaded LEA system without any financial support. No wonder we hear crickets from the LEO community concerning the FAA Guidance.
I don’t blame them – after all, they’re not Deputy Dawgs.