Attorney says FAA UAS law enforcement guidelines off target

The U.S. Federal Aviation Administration’s guidelines for law enforcement to assist in identifying those flying unmanned aerial systems (UAS) in an unsafe manner or in violation of its regulations might create more problems than they solve.  

James Mackler, a criminal defense attorney with expertise in UAS law, said he believes law enforcement agencies will have little interest in helping the FAA enforce civil violations in which they have no jurisdiction.

“I would guess that if I was a police chief anywhere in the country, this would go at the bottom of my pile of things to do,” said Mackler, a former U.S. Army Blackhawk pilot with the Bone McCallester Norton law firm in Nashville, Tennessee, who also advises a Tennessee National Guard UAS unit.

After reviewing the FAA’s guidelines, Mackler said, “Law enforcement is busy enough investigating crimes, and police should know that they have no authority of any kind to investigate civil violations of administrative regulations.”

The FAA said it’s asking the law enforcement community for help because the increased use of small, inexpensive UAS creates “a challenge in identifying people who don’t follow the rules of the air or who endanger the nation’s airspace.”

“They say that we must exercise caution not to mix criminal law enforcement with the FAA’s administrative safety function, and that’s right,” Mackler said. “And yet they go on to basically ask law enforcement officials to help them with their administrative functions.”

The 12-page guidelines are intended to assist law enforcement agencies in understanding the legal framework for FAA enforcement action against UAS operators. They also provide guidance in “deterring, detecting, and investigating unauthorized and/or unsafe UAS operations.”

For example, if a UAV is spotted violating temporary flight restrictions during a sporting event, the FAA says law enforcement officials should attempt to find the operator. They should provide operators with the language from applicable regulations and advise them that they are subject to safety regulations.

Criminal charges that could be applied include reckless endangerment, operation of a motor vehicle while under the influence, trespass, assault or any relevant local, state or county codes. But Mackler said law enforcement would investigate crimes related to such charges regardless of whether UAS were involved.

He noted that if a state has passed UAS-related laws such as measures to protect privacy or prohibit UAVs for hunting, law enforcement officers would be operating within their jurisdictions to enforce those laws. Mackler also said that if a UAV was involved in an incident such as causing an accident or injuring a person, the FAA guidelines might be helpful in evidence collection procedures.

“The police can only stop someone if they have reasonable suspicion that they’ve created a crime, not a violation of civil regulations,” Mackler explained. “They would have no authority to stop anyone to the violation of FAA regulations. I can’t imagine they would.”   

The guidelines describe how UAS and model aircraft can be operated legally, as well as the options for enforcement actions against unauthorized or unsafe UAS operations. Also discussed is law enforcement’s role in deterring, detecting and investigating unsafe operations.

According to the FAA, state and local police are often in the best position to immediately investigate unauthorized UAS operations and—when appropriate—halt them. The agency said first responders and others can provide invaluable assistance by:

•           Being aware of locations, events or activities subject to airspace restrictions or temporary flight restrictions

•           Identifying potential witnesses and conducting initial interviews

•           Contacting the suspected operators of the UAS or model aircraft

•           Viewing and recording the location of the event

•           Collecting evidence

•           Notifying the FAA regional operations center in their area of the incident

Mackler said the FAA’s guidance might be beneficial in reminding law enforcement authorities to contact the agency when they’re investigating incidents in which UAS are involved.

“One more step to take after investigating an incident involving a drone is to call the FAA to let them know and to preserve evidence related to that as part of the investigation. That would be okay. I don’t have any problem with that,” he said.

The FAA said its goal is to “promote voluntary compliance by educating individual UAS operators about how they can operate safely under current regulations and laws.” However, the agency noted that it has the “authority to pursue legal enforcement action against persons who endanger the safety of the National Airspace System.”

Enforcement tools available to the FAA include warning notices, letters of correction, and civil penalties. The FAA said it can take enforcement action “to protect users of the airspace as well as people and property on the ground.”