State laws impact UAS use by law enforcement

Are states going too far in passing legislation restricting the conditions under which law enforcement agencies can operate unmanned aerial systems (UAS)? These legal and law enforcement experts weigh in.
By UAS Magazine Staff | April 23, 2015

Are states going too far in passing legislation restricting the conditions under which law enforcement agencies can operate unmanned aerial systems (UAS)?

A panel of legal and law enforcement experts believes so. The four-member panel gave presentations during the UAS Magazine’s March webinar “Aerial Assets: UAS In Law Enforcement.”

James Mackler, a Nashville criminal defense attorney with the Bone McAllester Norton law firm, specializes in UAS law. He notes that at least 20 states have enacted legislation that requires law enforcement agencies to obtain a warrant

“What they do is really limit it far more than it would otherwise be limited by traditional case law or statutes dealing with law enforcement,” Mackler explained. “The typical model that the states use is to say that evidence obtained using an unmanned system cannot be used in court if it was obtained without a warrant.”

Imposing a warrant requirement on UAS use by law enforcement agencies is contrary to well-developed case law, which generally allows evidence in plain view to be gathered by a police officer and used in court, said Mackler.

“Now, if that same officer or UAS pilot gathers evidence of something in plain view using an unmanned system, by law in many states, it won’t be allowed,” he said.

Alan Frazier, a deputy with the Grand Forks (North Dakota) Sheriff’s Department and an associate professor of aviation at the University of North Dakota School of Aerospace Sciences, says that to protect privacy, laws should be “technology agnostic,”

“My fear with these pieces of legislation that focus like a laser beam on unmanned aircraft systems is that they tend to have contradictory language in them,” he explained. “They’re all over the board as to what can be done in one state but can’t be done in another state. That becomes very complex.”

Dean Attridge, co-owner of Sentinel Air in New Mexico, said the hybrid Sky Arrow airplane he flies is an easier sell with law enforcement because it can be operated as a manned aircraft and converted to an unmanned aircraft.

“A number of sheriffs have said to me that they’re very scared of bringing UAVs or drones into their establishment because a lot of them are elected officials and it could make life very difficult for them,” he said. “I think it’s fear of the unknown; that’s all it is.”

Anthony Galante, a UAS instructor in Florida with the Unmanned Safety Institute and Embry Riddle Aeronautical University, said law enforcement agencies considering incorporating UAS into their operations should be proactive and transparent with their community.

“The second that it looks like you’re hiding something, that’s when you can have the community turn on you,” he noted.

Galante encourages law enforcement agencies to hold public meetings with local leaders, answer their questions and demonstrate the capabilities of UAS. The community needs to provide direct input and be involved in UAS policy making, he says.

Frazier agreed with the approach, and added, “If your community does not want you to have these, the ultimate answer is: You shouldn’t have them.”

Mackler expects that with time, the courts will help settle the question of appropriate use of UAS for law enforcement.

“We’re all going to benefit from case law as the courts interpret these statutes or form some sort of model or uniform state code so every state can create similar statutes,” he said.