Consider the following scenario:
A uniformed patrol supervisor for a police department is confronted with several important issues simultaneously: a possible toxic waste spill; a missing teenager; and a large, angry crowd marching toward city hall demanding a meeting with the mayor. The supervisor considers employing the police department’s new UAV and consults the operations manual but, as it offers no guidance, the supervisor is left to determine how best to use the UAV.
Some law enforcement agencies are already using unmanned aerial vehicles (UAVs) while numerous others, both large and small, urban and rural, are presently considering acquiring a UAV.1 The temptation to purchase UAVs is significant, as their potential uses might seem almost limitless and they are much less costly than cruisers and helicopters to purchase and operate. Their use, however, is fraught with potential problems that might negate their advantages over traditional law enforcement equipment and methods. Failing to consider the potential legal pitfalls and litigation emanating from UAV use can result in numerous citizen complaints and involve an agency and its officials in costly litigation that could have been prevented.
UAVs on Patrol
Recent changes by the Federal Aviation Administration (FAA) have eased the requirements for UAV use. UAV pilots no longer need to be licensed pilots as was once required, which also means that the expensive and time-consuming process of training a police officer to become licensed to pilot a UAV is no longer necessary. Now, the FAA has determined that anyone over 16 years of age who pays the $150 fee and passes a basic test can pilot a UAV.2
An added attraction of UAVs is that they can be sent into situations that would otherwise require sending police officers into harm’s way, such as toxic waste spill sites, flooded areas, forest fires, active shooter situations, and searches for wanted criminals. This capability alone can tip the balance in favor of purchasing one. Agencies already use unmanned ground vehicles for bomb disposal and entering barricaded felon situations.3 Given all that UAVs can do, the question for law enforcement leaders becomes, why wouldn’t you immediately purchase one?
Though law enforcement UAV use is still in its infancy and the potential civil liability is far from certain, it is imperative that prior to acquiring and using UAVs on patrol, leaders invest in legal research. A good place to start is with the office of the civil legal representative for the government entity sponsoring the law enforcement agency, such as a city or county attorney’s office. A cautionary note to law enforcement leaders is that these attorneys invariably “drive defensively,” with opinions focusing on the possible pitfalls of new law enforcement strategies. This might discourage new and innovative techniques, but, however frustrating this defensive posture may be, employing UAVs without prior legal consultation is imprudent and can leave their operator and agency open to civil liability.
Potential UAV Issues
Use of Force
A sensible first step before using UAVs on patrol would be to request a legal opinion on the reasonableness of the use of force, including deadly physical force, via UAV. The officials must be cognizant of any state and federal limitations on the remote use of force. Many agencies’ use-of-force guidelines reflect U.S. Supreme Court decisions and present state and federal law.4 The issue of the remote use of force via UAV is new ground and is yet unsettled, but law enforcement leaders should still request a legal opinion concerning this issue.
A second step for law enforcement officials contemplating the use of UAVs is to request a legal opinion as to the outlook in their state regarding UAVs and privacy concerns. It is imperative that leaders understand the potential extent of law enforcement’s liability for errant UAV use based on existing individual privacy tort claims.5
Though several U.S. Supreme Court cases from the late 1980s can be instructive, they involved fixed-wing aircraft and helicopters, not UAVs.6 Although the U.S. Supreme Court upheld the police actions in those situations, the cases are decades old and many states have since enacted laws strictly regulating UAV use. This could potentially change the way state and federal courts view police use of this technology.7 Thus, law enforcement officials should be well versed in their states’ UAV laws, if any, and state tort law concerning the invasion of personal privacy. To rely on old case law and routine warrantless behavior such as the “plain view” exception to the Fourth Amendment without first examining how UAV use may change the legal landscape for law enforcement agencies is unwise.
If, after reviewing legal opinions, agencies still wish to purchase or use a UAV, they need to take the next step on the road to incorporating UAVs into their procedures. Just as important to understanding the legal environment in which UAVs operate is creating protocols for the integration of UAVs on patrol.
Drawing Up Use Guidelines
Law enforcement leaders should establish policies and write operational guidelines that are supported by current state law and investigate possible potential future areas of concern. The policies should explicitly acknowledge the state of the local law on UAVs, while procedures explicitly detail who can determine when to deploy the UAV and when it is appropriate to use the UAV. While agency leadership might be knowledgeable of the legal use of the UAV, subordinates will be using the asset more frequently and must receive the proper training to safely and effectively use the UAV.
Law enforcement leaders need to determine who will have access to UAVs, prioritize their use, and determine what must be done when conflicts between units arise. UAVs should always be accessible—even if they are not needed on routine patrol. Circumstances can change in an instant, and UAVs need to be immediately accessible. A sufficient number of personnel in the units to which UAVs are assigned should have proper operational and legal training.
It is imperative for leaders to decide at what supervisory level the decision to first employ a UAV is made. It is recommended that individual officers on patrol not have that authority—a patrol supervisor or other senior officer in charge should have ready access in case of emergency. Though a decision to allow only supervisors to initiate UAV use might seem at odds with the need for quick action, it prevents errant UAV use, especially as the laws surrounding the use of UAVs are new.
Reporting on UAV Use
Reporting UAV use should be a timely procedure. The reports should be submitted to the records division along with any other related reports. The supervisor approving UAV use should report (a) the original request for the UAV, (b) the reason for the decision to use or not use a UAV, and if used, (c) any results obtained. This will allow agency leaders to assess UAV use over time and determine future uses. As the reports are considered routine business records, they will assist a department and its officers in defending themselves in future litigation against allegations of improper UAV use by demonstrating a prudent pattern of use and proper supervisory tactics.
Least Litigious Use
It is advisable that law enforcement leaders make all of their officers aware of the areas wherein UAVs may be most useful and pose the least risk of litigation. Ideal uses include dangerous situations such as toxic waste spill sites, flooded areas, forest fires, active shooter situations, searches for wanted criminals, lost children and adults, and traffic accidents. Their use in these types of situations pose little danger of litigation as these are considered emergency situations—just the kind of situation UAVs are ideally suited for.
Agencies considering acquiring a UAV for patrol should first invest resources into researching applicable state laws and invest time in writing strict operational guidelines for their use. The upfront investment in resources and time might end up saving agencies from much greater costs later on.
Referring back to the opening scenario, the uniformed patrol supervisor could, without a moment’s hesitation, send the UAV to those situations involving a threat to life and property—the toxic spill and the missing teenager. The other situation, involving the crowd marching toward city hall poses multiple dilemmas for the supervisor involving free speech rights and the possibility of remote use of force. In that case, prior legal research, training, and well-written operational protocols could guide the supervisor in making the prudent decision as to whether to employ the UAV and, if so, in what manner. ♦
Michael T. Geary, JD, is a retired New York City police sergeant and is currently the coordinator of the Criminal Justice Program at Albertus Magnus College, in Connecticut. He is the author of National Security and Civil Liberty: A Chronological Perspective (2014, Carolina Academic Press) and several articles concerning national security.
Ryan Mihalyak, MS, is a member of the adjunct faculty, Albertus Magnus College and a police officer with the Connecticut State Environmental Conservation Police Department. He is the co-author of “US Presidential Authority and Domestic Drone Missile Strikes,” The Homeland Security Review 8, no. 3 (Fall 2014).
1 Matt Spillane, “Drones Take Police Capabilities to New Heights,” September 1, 2016, Journal News.
2 Alan Levin, “Would-be Drone Pilots Racing to Get Licensed,” September 13, 2016, Daily Herald.
3 In fact, the 2016 ambush attack in Dallas, Texas, was ended when police used a robot armed with explosives to kill the attacker who had killed five police officers. More police bloodshed would have occurred had the police physically confronted the terrorist and a shootout ensue. See Joel Achenbach, William Wan, Mark Berman, and Moriah Balingit, “Five Dallas Police Officers Were Killed by a Lone Attacker, Authorities Say,” July 8, 2016, Washington Post.
5 Privacy can be “invaded” in several ways: intrusion of personal solitude, the malicious public disclosure of private facts, portraying someone in a false light, or the appropriation of someone’s likeness for personal gain. “What Is Invasion of Privacy?” Findlaw.com.
7 “California Updates Invasion of Privacy Law to Ban the Use of Camera Drones,” October 14, 2014, Dronelife News.