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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