Technology, Unmanned Aircraft Systems (UAS) and the Use of Force: How far is too far using technology to end a volatile situation?

Technology, Unmanned Aircraft Systems (UAS), and the Use of Force: How Far is Too Far Using Technology to End a Volatile Situation?

As military technology advances, the law enforcement community has been able to leverage some of these developments to protect their personnel and the communities they serve. However well-intended the use of these technologies may be in the interest of protecting our military and public safety, we still must guard against their misuse and avoid applications for which they are not intended. This article considers a case study in the use of force delivered remotely, unmanned aerial systems in this context, and the legal and ethical cautions of both.

July 7, 2016, Dallas, Texas: Micah Xavier Johnson stalked, lured, and killed five police officers, injured nine others, and wounded two civilians during a shooting spree that specifically targeted law enforcement in the area of the El Centro College campus in downtown Dallas, Texas. Johnson was a former U.S. Army Reserve veteran who was reportedly angry over police-involved shootings of African American men that had been highlighted in social media. The Dallas shooting happened at the end of a peaceful protest aimed at the police for the recent killings of Alton Sterling in Baton Rouge, Louisiana, and Philando Castile in Falcon Heights, Minnesota, which had occurred days earlier.

Johnson initially fired his weapon, a Saiga AK-74 rifle, indiscriminately in order to initiate the violent episode and draw responding officers to his location. Johnson fired upon each officer he encountered at close range with fatal results. Following the shootings, Johnson fled to a parking garage on the campus where police eventually cornered him and a standoff ensued.

After making no progress in negotiations with Johnson in the early hours of July 8th, police ultimately neutralized him with an explosive device attached to a remotely controlled bomb disposal robot. Experts believe this was the first time in U.S. history a domestic law enforcement agency used this technology to disable a suspect. While the suspect initiated this violent encounter and ultimately left law enforcement officials with limited remaining options to protect lives, the decision of how to end the situation should still be examined for lessons-learned and in the interest of transparency.

This incident represented an unprecedented use of technology to deliver lethal force in the line of duty. According to the Dallas Police Chief David Brown, “We saw no other option but to use our bomb robot and place a device on its extension for it to detonate where the subject was.” The question we now must examine is just how far is too far when considering the use of technology to end a volatile situation by law enforcement.

Technology Background: The use of a robotics in addressing bombs has its roots in military innovation. The first bomb robot was developed by British Army Lt. Col. Robert “Peter” Miller in 1972, and was used to disarm Irish Republican Army explosives left in civilian areas of Northern Ireland. This was a tumultuous time in British history, and there was no technology available at the time other than early versions of bomb suits that would not allow for the British Army or law enforcement to defuse explosive devices from a safe standoff distance. Today, the U.S. Army’s Armament Research, Development, and Engineering Center (ARDEC), based at the Picatinny Arsenal in Rockaway, New Jersey, takes currently available military and commercial technology and tries to improve upon it or find more effective uses for what is currently accessible to operational personnel. Over time ARDEC has developed portable barrier systems, realistic digital battleground simulators, and redesigned current weapons to make them more effective. ARDEC has also developed non-lethal weapons which law enforcement may well adopt as they become more thoroughly understood and commercially available.

Another piece of technology previously only available to the military is the Unmanned Aircraft System (UAS), more commonly referred to as drones. UAS have been used by the military to remotely observe, document, and sometimes neutralize enemies of allied forces in combat environments. Civilian versions of UAS are now being deployed across the country by law enforcement agencies of every size as a low-cost aviation asset. UAS can provide a unique vantage point to document crimes scenes, reconstruct accidents, search for missing persons, and a variety of other functions that previously only a manned aircraft could provide.

Law Enforcement’s Role: In today’s society, information is readily available and can be shared in real-time for those who wish to post their daily events online and broadcast live video streams using mobile apps. By using these apps, people can tell a story with no editorial oversight and sensationalize possibly benign events, often with unintended consequences. When social media and rumors “go viral” concerning a potentially controversial police action before all the pertinent facts are understood, those unintended consequences can be dangerous.

The tremendous amount of responsibility placed upon a law enforcement officer and the hours of training they undergo should not be taken lightly. Police officers are expected to perform without emotional attachment in any situation they are called to. The Dallas incident concluded with a combination of deadly force and the use of a technology whose original purpose was not to end an armed standoff. Utilizing technology in unconventional ways requires careful introspection into the decisions we face and their potential implications prior to integrating these solutions into our law enforcement procedures.

Military vs. Law Enforcement Actions: The military engages in warfare to neutralize an opposing hostile adversary with force. Domestic law enforcement in the United States is in the business of policing not warfighting. There are tens of millions of police contacts with the public every year in the U.S., most ending with no enforcement. When deadly force is used—in a statistically low proportion of encounters—social media posts without the benefit of context or complete facts can sensationalize the event and inflame tensions. Law enforcement officers are trained in a court-tested Use-of-Force-Continuum provided by the U.S. Department of Justice (DOJ) Office of Justice Programs and the National Institute of Justice (NIJ).

Examples of Use-of-Force Include:

  • A uniformed presence: An officer in uniform, recognized by the public as such, and maintaining order by his/her mere presence.
  • Verbal commands: Commands given by an officer that are reasonable to a particular situation such as asking for driving credentials or stopping of an unlawful or disruptive behavior.
  • Physical force: Force used by an officer to remove a suspect or stopping an action by pushing, blocking, using arm locks and holds or other hands-on means to effect compliance.
  • Mechanical force: Force that includes Oleoresin Capsicum (OC) spray, baton, and less-than-lethal ammunition such as rubber bullets.
  • Deadly force: Force used which an officer knows may result in, or has a high likelihood of resulting in, death. Examples include use of a firearm, head strikes, or other force that the officer is trained in deploying. The Use-of-Force Continuum may be found here.

While participating in the 2017 Justice Technology Information Center (JTIC) program under the National Institute of Justice (NIJ), a UAS Law Enforcement Focus Group addressed use-of-force deployed from a UAS and considered how best to address the issue before it occurs. Such action, however, is already prohibited by the Federal Aviation Administration (FAA) and a regulation outlining the dropping of objects from an aircraft which may cause injury or damage already exists.

Federal Aviation Regulation 91.15 reads: “No pilot in command of a civil aircraft may allow any object to be dropped from that aircraft, in flight, that creates a hazard to persons or property.” While legal experts would need to render an interpretation, it is almost certain that this covers the delivery of lethal payloads. Further, anything non-lethal that stings, irritates, or incapacitates a person would be construed as causing a hazard to persons through injury even if only temporary. See Federal Aviation Regulation 91.15 Dropping Objects here.

As a result of the focus group findings, the JTIC/NIJ eventually published “A Template for a Standard Operating Policy (SOP) Guidance for Law Enforcement Use of Small Unmanned Aircraft Systems (sUAS)” in October 2017. Contained within this publication is a short paragraph under Section V which states: “Equipping the aircraft with weapons of any type is strictly PROHIBITED. Further, public acceptance of airborne use of force is likewise doubtful and could result in unnecessary community resistance to the program.”

The JTIC/NIJ publication makes clear that “agencies are encouraged to use the template as a starting point from which to promulgate their own UAS program management.” While it is considered guidance, any deviations from identified best practices within the law enforcement would likely complicate an agency’s ability to defend those actions and possibly expose them to litigation and/or and sanctions. The JTIC/NIJ guidance makes this point more explicit by spelling out that the public would most likely reject this type of activity.

Summary: Public safety often requires rapid decision-making to stop, slow, or mitigate an incident. When traditional approaches are not yielding the results needed, operational and command personnel are sometimes compelled to take unconventional actions that may not be covered by established policy; this grey area can lead an agency into uncertain legal territory. Where UAS are concerned, deviating from established rules and best practices is inadvisable due to the various explicit regulations and laws governing aircraft and policing. An agency’s decision to deploy military-style force from an aerial asset can be a dangerous one with significant repercussions, both at the scene and in the larger context of public trust in law enforcement.

The general public already has an understandably suspicious view of government and the militarization of law enforcement. By adopting military tactics and gear while carrying out our legal mandate, the citizens will see law enforcement as an occupying force and not a public service. That is not what we, or they, understand the United States to be. In the case of deploying force remotely from the air, no matter how bad the scenario, law enforcement will lose in the court of public opinion, and the odds of prevailing in a legal context are no better.

Contact Leach Strategic Partners for further discussion on this topic or for other questions your agency may have regarding the use of UAS and your mission.