Drones and Local Government—a COVID Story

Here’s an interesting article from the New York Times about the use of drones to spray a sanitizing cleaning solution over seats at a spring training baseball stadium in Arizona.  Such UAS spraying technology already exists in the agriculture industry and so this is a simple hack for today’s COVID-influenced world.  So long as the drone pilot is licensed, the drone compliant with Remote ID rules, and flight is not over the stadium when occupied, such use complies with federal regulations.  We continue to think that cities and local agencies would do well to adopt clear drone usage policies before implementing a drone program to avoid any public confusion and address in advance any public concerns.  Whether and how a city or local agency could regulate such use by a private company is still very much an open question.

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Update on the (Slowly) Developing Preemption Landscape

As we have discussed in previous posts (Local Drone Regulations and Possible Federal Preemption and Federal Case Declared Local Ordinance Illegal), the law is unclear as to the line which local government may not cross in regulating drone use before being preempted by federal authority. The legal landscape of preemption issues related to local drone regulations continues to slowly expand with a new unreported case from California’s First District Court of Appeal, Foletta v. Ellis

This case arises from a dispute between neighbors and only briefly touches on the issue of preemption. After Foletta reported Ellis to county authorities for engaging in unlicensed commercial activity, it is alleged that Ellis began a series of harassing behaviors including, playing loud music on a daily basis, lurking around the edges of his neighbor’s property, firing an orchard cannon, and flying a drone at Foletta approximately 6-10 feet over his head. Foletta obtained a restraining order against Ellis which, in part, prohibited Ellis from flying drones over Foletta’s property. 

Ellis challenged the order, arguing that it was “invalid to the extent it prohibits him from flying drones . . . over the Foletta property because airspace use is governed by the FAA.”  The court evaluated “whether the federal government’s regulation of airspace generally is intended to preempt the authority of states to regulate harassment that involves airspace” and found that it did not. 

While Foletta v. Ellis is an unreported case and certainly not the end of the preemption question, it is the second case that aligns with FAA guidance that state and local actions related to police power generally are not preempted by federal regulations. 

We will continue to watch this issue as more state and local governments adopt drone regulations, and those regulations are challenged.

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Hoverlaw Returns—Update from Marin County

It has been over a year since we posted to this blog.  We are still here, hovering above quite a bit of legal action in the drone-space.  We are re-engaging in our blogging activities and plan on posting updates in the coming days on legal issues concerning drone use in California, particularly at the local level. 

We inaugurate our return with an interesting story from the town of Tiburon, just north of San Francisco. In July of this year, the Tiburon City Council adopted an ordinance regulating the operation of drones.  The ordinance included a number of non-controversial provisions, and also prohibited drone operation (1) directly above or on the grounds of local public schools without permission, (2) within 400 feet of any “publicly permitted event,” and (3) in a manner that interferes with emergency response activity, in particular within 400 feet of any emergency vehicle that is operating with lights and/or sirens. A few days later, the National Press Photographers Association threatened a lawsuit, claiming that the ordinance’s restrictions concerning publicly permitted events and emergency response activities could not be enforced under principles of federal preemption because only the Federal Aviation Administration (FAA) may regulate the drone airspace. In response, the City has amended the ordinance to remove the prohibition against operating near permitted events, emergency vehicles in operation, or in a manner that interferes with emergency response. In the staff report accompanying the amended ordinance, the City asserted that the original ordinance would not have implicated any preemption issues, but amended the ordinance anyway in order to reduce the likelihood of legal challenge.

The story of Tiburon raises interesting legal issues concerning preemption: 

First, a local agency with police power, like a city, almost assuredly is not preempted when it enacts drone restrictions that implicate areas within its police powers—like zoning, land-use, privacy, and law enforcement operations.  Tiburon’s prohibition of drone use that interfered with emergency response almost certainly was within its police powers, and therefore should raise little risk of preemption. 

Second, prohibitions on drone flight that lie outside traditional police powers may be subject to a preemption challenge. Until there is a larger body of appellate decisions clarifying the preemptive effect of FAA regulations, a city seeking to adopt drone regulations should be prepared for legal challenges. Interestingly, the city did not seek to amend the prohibition on flight over schools—no one threatened litigation. Like the prohibition on flight over permitted events, this prohibition could have been subject to a preemption challenge as being outside a city’s power.  It seems likely that the school district did not issue the restriction itself precisely because it thought the city might have regulatory powers that it (a school district does not have police powers) did not possess—why else would it have asked the city to enact the ordinance instead of doing so itself?  The City could perhaps have established a basis for its regulations by issuing findings that drone flight interfered with the privacy of its residents—in particular students and teachers.  Such a finding would have bolstered the theory that the City was acting within its local powers, not preempted by federal regulations, when it prohibited drone flight over permitted events or schools. 

Third, a local agency that does not have police powers faces potential difficulties in enforcing any drone restrictions.  This is particularly concerning for special districts in California, which do not have police powers but have responsibilities to protect critical infrastructure like water towers, waste processing facilities, and bridges, the safety and security of all of which are threatened by unfettered drone use. 

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Federal Case Declares Local Drone Ordinance Illegal

As we have previously posted, Senator Feinstein has proposed a bill that would clarify a key legal issue that has stirred up controversy among drone-law practitioners—namely the extent to which FAA regulations preempt efforts by local government to regulate drone use. Senator Feinstein’s measure would free up local government to regulate drone use so long as such regulations did not interfere with the safety and efficiency of the national air-space system. Without this bill, there is a reasonable argument that any and all local safety regulations are preempted.

The need for legislative clarity has now become more significant. For the first time, a federal district court has ruled that the FAA’s jurisdiction over drones has broad preemptive effect on local regulations under the theory of Conflict Preemption, about which we have previously blogged. In Singer v. City of Newton, a federal judge has now struck down a Newton, Massachusetts ordinance that, among other things, required registration of all drones and prohibited flight less than 400 feet above private and City property (under FAA regulations drones may only fly less than 400 feet above the ground). The City argued that such requirements were within its powers to protect the privacy interests of its residents.  But the court ruled that these two provisions in particular impermissibly conflicted with the FAA’s preemptive authority to integrate drones into the national airspace. You can find the opinion here. The judge’s ruling is of course not the last word as the City could appeal, or could modify its ordinance to comply with the court’s ruling.

At a minimum, this case should give local government pause before regulating drone use in their municipalities.

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Contracting with Commercial Drone Operators in a New Legal Landscape

Is your marketing department planning on hiring someone to take aerial photography using a drone?  There used to be no way to protect your business against the unknown risks of commercial drone use in an unregulated environment. That is no longer the case. There are a number of key contractual provisions that you should now include in any contract that will involve the use of a drone. A standard professional services agreement likely will not provide adequate protection against some avoidable risks of increased liability. Your Contractor must have drone-specific licenses and insurance—concepts that one year ago did not exist but that now are standard in the drone industry. You should contractually require your contractor to comply with all federal, state, and local regulations regarding drone operation and safety—again such regulations did not exist a year ago. You should also not ignore Intellectual Property and Privacy issues. Take a look at your standard indemnity clause and expand it to include drone-specific claims or losses.  With a little bit of effort, it is now possible to contract with a drone operator and not expose your business to unnecessary risk.

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California City Bans Drones

The City of Poway, in San Diego County, has passed an urgency ordinance that effectively bans the use of drones in any open space or rural residential area. The stated purpose of the ordinance is to prevent interference with firefighting efforts, though the measure is very broad. The measure was enacted pursuant to Government Code Section 65858, which permits a city to enact an urgency ordinance to “protect the public safety, health, and welfare.” The ordinance will remain in effect only until October 15, 2015, although the City Council can extend the ordinance twice, after public notice and hearing, for almost two additional years.

In order to avoid any issues of federal preemption, the ordinance does not restrict the actual flight of drones. Rather, it prohibits launching, operating (i.e. controlling a drone during its flight), or landing following flight. The City Attorney’s opinion in the staff report accompanying the ordinance concluded that focusing on the use of property within the city by way of implementing zoning regulations, rather than on flight itself, the City would be acting within its constitutional police powers. The ordinance therefore emphasizes that “without stable, well-planned neighborhoods, and urban planning, sections of the City can quickly deteriorate, with tragic consequences to social environmental and economic values.”

The ordinance contains an exemption for drones owned or operated by local, state, or federal law enforcement or emergency response personnel while acting in their official capacities.

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Local Government Innovative Uses of Drones

Use of drones by government for firefighting and surveillance by law enforcement has been well covered in the news. Here are some other possible uses of drones being explored by local government. A full list, including some that are unlikely to get much traction (crowd control by way of drone-delivered pepper spray?) is here. As we have written elsewhere, even the most innocuous proposed use is likely to elicit concerns from the public and from privacy advocates unless local government engages in careful planning and an open public process prior to use of drones.

1. Somerville, MA is exploring use of drones to examine snow covered houses in order to make sure that roofs don’t collapse.
2. Greensboro, NC is considering use of drones to respond immediately and preliminarily to a 911 call to give first responders a preview of the scene.
3. Ann Arbor, MI is exploring using drones to map unpaved roads, discover potholes, and determine other road repair needs.
4. Duxbury, MA is considering using drones for purposes of building inspection and storm damage assessment.

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Local Government Update from the Wild West of Drone Regulation

Three bills are wending their way through the State legislature that may have particular relevance to drone use relating to local government in California.

AB 56 would require a local agency to develop use policies and provide public notice prior to use of a drone for any purpose.   It also places warrant requirements on law enforcement use.  Rather than earlier attempts at crafting specific warrant requirements, AB 56 relies on existing 4th amendment jurisprudence and requires that any use of drones 56 also by law enforcement complies with protections against unreasonable searches and seizures. AB 56 also places some restrictions on the use of drones by local agencies outside their jurisdictional boundaries—for instance use by law enforcement in an adjacent city. If enacted, this would be the first time legal authority has been expressly granted to local government to use drones for government purposes.

SB 142 expands trespass law to include trespass by a drone over another’s land without the consent of the landowner or without legal authority.  This bill may provide a helpful mechanism for public agencies looking to restrict drone use over public land.  It may also create problems for a public agency that flies a drone over private property without a warrant.

SB 271 criminalizes operation of a drone above the grounds of a public school without permission by the school principal.  It contains an exception for journalistic use, and attempts to define mainstream journalistic use by a “publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, a radio or television station, or by a press association or wire service.” This definition may be a controversial one given the widespread posting on the internet of videos taken by drones.

All three of these bills are worth tracking.

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City of Walnut Creek Passes on Use of Drones to Monitor ‘Rowdy’ Behavior

At its meeting on May 5, 2015, the City of Walnut Creek considered whether its police force should use drones to monitor late night rowdy behavior on weekends.  Its police chief, Thomas Chaplin, told the City Council that he had “no desire to embark on [the] journey” of exploring use of drones.  He expressed particular concerns regarding privacy issues arising from possible appearance of any drone video on YouTube.  Interestingly, the skepticism over the use of drones was contrasted with more enthusiastic support for use of body cameras.

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City of Berkeley Passes First-In-California Drone Regulation

On Tuesday, February 25, the Berkeley City Council enacted a one-year moratorium on City use of drones—in particular use by law enforcement for any purpose.  The original proposal was for a more significant, and longer, prohibition.  But the Council adopted a more limited proposal that extends for only one year and includes an exemption that allows the Fire Department to use drones for disaster response purposes.  The Council made clear that the moratorium would not affect private use, but any limitation on use by local government has the potential to affect the market for commercial drones.  In addition, privacy concerns expressed by the Council could inform broader legislation to be considered in the future.  To that end,  the Council also voted to  continue to study and draft more comprehensive drone policy for consideration a year from now.  The City has not yet posted the minutes of the meeting or published a version of the resolution as adopted by the City Council. But here is a link to the Council agenda which includes a video of the discussion of the item.

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Questions for Cities Seeking to Regulate Commercial Drone Use

In the absence of federal and State legislation, local municipalities in California may seek to regulate commercial drone use in the months ahead.  There are numerous questions a City seeking to regulate drone use will have to answer and there are as yet no firm answers.   Especially given the uncertainty regarding the preemptive nature of any federal regulation (or as-yet enacted State law), it is unclear the extent to which a City will be able to regulate the manner in which drones are used within their jurisdictions.  To what extent may a City rely on safety or aesthetic concerns to limit the time and location where commercial drones may be used?  Will a City be able to require a business license from anyone seeking to operate a drone for commercial purposes?  Will a City be able to regulate the media’s use of drones as a replacement, or addition, to helicopters?  May a City enact privacy protections beyond those included in any State law?

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Berkeley on Drones

The City of Berkeley is likely to be a hotspot for legal issues concerning commercial drone use in California.

On the one hand, the University of California, Berkeley is home to the Center for Collaborative Control of Unmanned Vehicles, which is poised to become a cutting edge center on both policy and technology related to commercial drone use.

On the other hand, the City of Berkeley has been discussing for over two years enacting severe restrictions on drone use within the City.  The city has so far held workshops and considered draft ordinances on the topic, but has not taken any action. Here’s a copy of an April 2014 policy that the City Council considered, and heard impassioned arguments for and against, but decided not to act on.

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