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Thursday, July 28, 2016

Does California Need a Law Prohibiting Drones Near Wildfires?

Ars Technica reports:

Firefighters working to contain a wildfire in the San Gabriel Mountains of Southern California were temporarily thwarted this weekend when pilots for the Monrovia Fire Department (MFD) spotted a few private drones in their path. For low-flying fire-fighting planes carrying fire retardant and smoke jumpers, an errant drone could mean life or death for the pilot and any crew. As such, the fire department decided to temporarily ground all aircraft on Saturday morning.
ABC News has further coverage on drone interference with efforts to combat wildfires in California.

Additionally, Ars Technica reports on the first arrest in California for flying a drone too close to a wilfire:
Law enforcement officers working for the California Department of Forestry and Fire Protection (Cal Fire) arrested Eric Wamser (PDF), a 57-year-old Placer County man, last Friday [July 19, 2016] for flying his drone too close to a wildfire burning north of Sacramento, California. 
Wamser’s arrest is the first of its kind in the state. 
The incident occurred on the evening of June 28 when the Trailhead Fire broke out. A drone was spotted above the fire, so authorities temporarily grounded firefighting aircraft for about 30 minutes. 
. . .

Wamser was not charged with flying a drone specifically, nor has he been penalized by the Federal Aviation Administration (FAA), but rather he was charged with a more general misdemeanor for “interfering with firefighting efforts.” He was discovered as the drone pilot after he posted some images from the drone on social media. Cal Fire and Placer County law enforcement did not say how they discovered the social media posts, but a Cal Fire spokesperson speaking to Ars suggested Wamser had posted a video and that it had been publicly available. Local news outlet KCRA reports that Wamser had posted a video on Facebook.
One might point to this coverage of drone interference with wildfires as examples of why a law prohibiting drone flight near wildfires is necessary. Utah passed such a law (which also authorizes firefighters to shoot down or otherwise neutralize offending drones). And proposals for this type of law are not new to California. Indeed, I wrote a post about such a law that Governor Jerry Brown vetoed last October. As I noted in that post, Governor Brown's reason to veto that bill, among others, was that it added an unnecessary crime to an already bloated Penal Code.

In light of all the reports of drone interference with firefighting in 2016, was Governor Brown wrong to veto the bill outlawing flying drones near wildfires?

The short answer is no. California Penal Code section 148.2 prohibits the willful interference with the lawful efforts of firefighters in the discharge of their official duties. This is the statute under which Wamser is being prosecuted. Any reasonable drone pilot should know that flying a drone near a wildfire will interfere with firefighters' ability to combat the fire from the air. With all the coverage of drone interference and statements by various agencies regarding obstacles to firefighting, this should be common knowledge. Adding a drone-specific law would be redundant, since section 148.2 is already sufficient to prosecute those whose drones interfere with firefighting efforts.

The best response to this that I can think of is that while a drone-specific law would be redundant, it might draw more attention to the problem of drone interference with firefighting. A drone-specific law would likely attract media coverage -- particularly coverage by outlets directed towards drone users. Drone operators may not be aware of Penal Code section 148.2, but they would likely take notice of a drone-specific criminal law.

Ultimately, I don't think it is worth adding a redundant crime to the Penal Code simply out of hope that it will draw more attention than existing laws. Instead, officials should continue to emphasize that even though there are no laws specifically banning drones near wildfires, flying a drone near a wildfire will likely interfere with firefighting efforts and therefore violate Penal Code section 148.2.

Moreover, governments can act to prevent drone-related offenses before they happen, rendering prosecution unnecessary. Of particular note are efforts toward an alert system warning drone pilots of no-fly zones. Between warning systems and emphasizing existing criminal laws, it hopefully will not take too many more instances of firefighting interference and arrests before drone pilots get the message.

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