It’s a Bird, It’s a Plane…No, it’s a weaponized drone?

September 29, 2015

While most of the debate surrounding drones has been focused on privacy and authorized air space, North Dakota flew under the radar and passed a bill that weaponized drones with “less than lethal” weapons. The use of unmanned aerial vehicles (UAVs) was initially used in warfare, changing how the United States engaged with the enemy. As drones became a domestic reality, civil liberties such as privacy, came to the forefront of the conversation. One example of just how the privacy issue plays out, is when a North Dakota county Sheriff’s department used a drone to find drug smugglers, and instead found a rancher who was wanted for illegally keeping cattle that wandered onto his property.  When a drone is used to simply arrest a party not the originally targeted by the police, the implications are amplified when we consider weaponizing these flying machines. What happens if the police officers on the other side of the drone’s camera mistakenly uses “less than lethal” force against an unintended target? There have been reports of Tasers actually being lethal, and according to a science website, if a Taser is aimed and used on a person’s chest, the person can die from a heart attack. If police officers are aware of this, they have the mental and physical capacity to avoid hitting a person’s chest. But can an unmanned aerial vehicle make the same type of judgment call? House Bill 1328 was originally drafted with privacy issues being addressed, requiring a search warrant before police can use drones to initiate a search. Additionally, the initial draft of the bill would not allow for any weapons on these law enforcement drones, calling attention to the controversial idea of weaponized drones on domestic soil. However, the final bill that was approved includes the language that a “law enforcement agency” may not use “an unmanned aerial vehicle with anylethal weapons.” By replacing any (weapons)with lethal (weapons), the use of “less than lethal” weapons like rubber bullets, pepper spray, tear gas, sound cannons, and Tasers are therefore permitted on police drones.

“Less than lethal” weapons like rubber bullets, pepper spray, tear gas, sound cannons, and Tasers are therefore permitted on police drones.

How does one articulate the concerns for weaponized drones and square that with our current laws? Some legal discourse leads one to examine an existing law known as The Posse Comitatus Act. The Posse Comitatus Act was enacted in 1878and prohibits the military from enforcing civilian law in the United States. There is a “traditional and strong resistance of Americans to any military intrusion into civilian affairs,” which has been codified in the Posse Comitatus Act. However, many exceptions to The Posse Comitatus Act have been articulated by the courts, and Congress has allowed civilian law enforcement to use military equipment without violating the Act.
This Act has been discussed in conjunction with the Privacy Act, to address the issue of the military surveillance of American citizens. In some cases, the courts have concluded that military surveillance does not interfere with the Posse Comitatus Act because the conduct was “incidental to military duties” or, in other cases, the conduct was performed by military personnel acting as civilians, not as a military agent. Since drones have historically been used by the military, now that drones are being weaponized in North Dakota, does that constitute military action on domestic soil? Based on the precedent, courts will likely distinguish weaponized police drones from those used by the military, and Congress has already expressed an intent to authorize the use of military equipment for civilian law enforcement.
There may be another law, however, that could be used to challenge North Dakota’s law allowing drones to be equipped with less than lethal weapons. According to Jim Williams, of the FAA, there are existing rules that would apply to drones. Specifically, Williams points to a federal regulation that prohibits pilots in command of a “civil aircraft” from allowing any “object to be dropped from that aircraft in flight that creates a hazard to persons or property.” But does this apply to law enforcement? With North Dakota blazing the trail for domestic weaponized drones, the issue of privacy is likely to be trumped by the concerns of a police state and safety.