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.
The Federal Aviation Administration (FAA) Compliance Program and how it impacts the public safety UAS user
The FAA Compliance Program was borne out of the Federal Aviation Administration Compliance Philosophy, first published June 26, 2015. See FAA Compliance Philosophy Order 8000.373 here: https://www.faa.gov/documentLibrary/media/Order/FAA_Order_8000.373.pdf . For pilots and aircraft operators, the FAA has been viewed as the overarching enforcement body that stands by ready to pounce when a pilot makes a mistake or when there is an aircraft incident. In hangars and pilot lounges across the country, it is not uncommon for aviators to pause in their stories about “there I was” and insert the phrase: “Hi, I’m from the FAA and I’m here to help.”
Some of the criticism has merit and some does not. As with any enforcement agency, there are good experiences and then there are bad experiences. We naturally tend to focus on the latter most likely because we generally don’t like our mistakes pointed out.
The FAA has a significant responsibility to maintain the safety of the National Airspace System (NAS). So naturally, the FAA is seen as the Federal Aviation Regulations (FARs) enforcer that wields mighty power in the form of fines and suspensions when that really isn’t the case. My experience with the FAA and Aviation Safety Inspectors (ASIs) is that they are the utmost professionals in their field. Their intent is to ensure that we, as pilots and operators, are conducting ourselves professionally, in the safest way possible, and operating sound aircraft thereby reducing unnecessary risk to passengers, aircraft, and people on the ground.
The FAA has many Flight District Standards Offices (FSDOs) across the country that are charged with inspecting all phases of aviation operations. FSDOs have ASIs that routinely visit operators and airports to conduct random, unannounced inspections of pilots and aircraft within their respective areas of responsibility.
The FAA as a whole has taken in feedback from pilots and operators who may have had unpleasant experiences and is in the process of trying to change perceptions within the aviation community which they serve. Pilots who have been hesitant to report discrepancies or deviations from FARs in the past out of fear of repercussions of making a mistake are being encouraged to participate in this safety initiative for the benefit of all. Hesitation to report creates a substantial safety risk in itself if operators are reluctant. How are we, as an industry, to learn from mistakes if they are under reported or not reported at all?
NASA (yes, that NASA) in cooperation with the FAA created an Aviation Safety Reporting System (ASRS) to identify issues in the NAS which need to be addressed. The program provides a way for any user of the NAS to report to NASA, a third party intermediary, an actual or potential safety issue involving aviation operations. The Aviation Safety Reporting form (more commonly referred to as a NASA report) is used where a pilot can admit guilt of violating a FAR without fear of enforcement action by the FAA. This process is in effect a “get out of jail free card” for admitting mistakes or deviations; but this self-reporting doesn’t work with intentional violations. Under 14 CFR FAR Section 91.25 the FAA is prohibited from using these reports for enforcement purposes. The FAA would accept this information and conduct an investigation of the incident to understand the details of what occurred to avoid similar mistakes in the future. However, pilots and others have naturally underutilized this process because of the underlying fear of repercussions from an employer or the FAA.
The FAA has refocused its efforts of voluntary compliance with the Federal Aviation Administration Compliance Philosophy by issuing the Federal Aviation Administration Compliance Program Order 8000.373A on October 31, 2018. See the order here: https://www.faa.gov/documentLibrary/media/Order/FAA_Order_8000.373A.pdf.
The FAA sees its role as a guiding hand to incentivize retraining where needed and has graduated the enforcement action process. When deviations from a standard occur, the FAA wants to use the most effective means to return an individual or entity back into full compliance in order to prevent recurrence.
The FAA in their own words, believe that mistakes can most effectively be corrected by understanding the cause and analyzing the deviation for flawed procedures, a lack of understanding, or even a diminished skill set. By focusing on retraining, education, or other improvements to procedures the operator can come back into compliance without penalty. However, reluctance or failure in adopting these recommendations or methods to remediate deviations or instances of repeated deviations might result in enforcement. Read: HAMMER DROP!
This is where Public Safety operators must understand some restrictions. No matter what the mission, no matter how well intended, there is no asking for forgiveness from the FAA if you intentionally violate a FAR. The FAA views intentional deviations from regulatory standards as reckless and an unacceptable risk to safety which poses the highest risk to the NAS and general public. This will result in heavy enforcement action in the form of fines and suspensions of certifications no matter who you work for. Again: HAMMER DROP!
The following was taken directly from the Federal Aviation Administration Compliance Program Order 8000.373A: “Regulatory violations involving law enforcement-related activities may be addressed with enforcement. In addition, legal enforcement will be taken when required by law.” Once again read: HAMMER DROP! In the eyes of the FAA, if you know better, then you know better!
By starting your program understanding what the rules are prior to engaging UAS operations, you’ll be in a better position to avoid deviations from the FARS such as flights that require night time waivers, waivers to operate over crowds, and other restrictions you may not currently be aware of ahead of time.
Public Safety UAS Operations: How to succeed
The availability of unmanned aircraft systems (UAS) has been a game changer in the way public safety and first responders complete their missions. UAS have added a capability that was once financially out of reach for most public safety agencies. The ability to deploy a low cost aerial asset has had an immediate impact on the success of an outcome during searches for a missing person when time was of the essence.
Helicopters and airplanes require a significant maintenance cost associated with every hour of flight. Some of these costs include pilot training (initial and recurrent), insurance, hangar leases, aircraft registrations, and other variables. These costs are prohibitive in that most agencies do not have a budget that can sustain manned aerial assets. Although UAS are not in a position to replace manned aviation, they can play an important role as a force multiplier and gap filler with the right planning and vision of a program.
It’s easy to point out how UAS would be a benefit and there are more scenarios than what just one person can think of. When the boss would ask how UAS could be used, it was easier to point out what they couldn’t do. Prior to engaging in the use of UAS, it is vitally important for public safety and first responders to understand the responsibility that comes with operating a UAS. In the eyes of the FAA, the pilot of a UAS is considered a Remote Pilot and must be operating a registered aircraft.
In the zeal to achieve the goal of saving a life or getting the job done, some members of public safety and first responders have taken the approach of “ask for forgiveness later.” While noble in its intention, the FAA offers forgiveness in the way of fines and heavy handed enforcement. The FAA’s primary mission is to ensure the safety of the National Airspace System. If you’re enforcing laws, you definitely should know better and that’s the position they take.
Getting a UAS operation up and running can be done if there is buy in from management and the public. Establishing a vision and setting goals for how the UAS program should operate sets the path to success. Identifying who will be the pilots, what the deployment guidelines are, how it impacts public perception, and the authorization to conduct the flight are important considerations to a successful program.
The last piece of the puzzle should be identifying a suitable platform for the operation. We know of dozens of public safety agencies who have wasted valuable resources by purchasing a UAS before understanding what the mission is. This is a crucial piece that requires careful consideration.
There are several companies that have been accused of questionable business practices in that they were surreptitiously collecting metadata from the UAS and sending this same information back to servers in a foreign country. In essence, the manufactures were/are spying without the knowledge of the operator. While this may not seem to be a major concern if UAS are used solely to document an accident scene, what happens when the mission is expanded to include critical infrastructure?
The information contained here just scratches the surface of the thought process of engaging in UAS operations. Leach Strategic Partners have been engaged in the industry and has a proven track record of assisting departments in getting their UAS programs up and running. We will gladly sit down and discuss the finer points of establishing a successful UAS operation.
Public Safety UAS Operations: A primer on how we got here
The proliferation of unmanned aircraft systems (UAS) has created the opportunity for public safety and first responders to employ aerial assets that were once left to departments and agencies with large budgets capable of supporting manned aircraft. Helicopters and airplanes incur significant maintenance costs associated with every hour of flight. There’s the cost of pilot training, insurance, hangar leases, registrations, and other variables that bar even the most forward thinking agency from putting an asset in the air. The advent of small UAS has changed that and we’re now seeing more interest by public safety looking to take advantage of this technology.
To explain some of the challenges facing public safety entities wishing to employ UAS, a little walk back in history is needed to develop a meaningful understanding of where this technology is today. Is it drone or UAS? The Federal Aviation Administration (FAA) and the industry sees the terms as interchangeable and perfectly acceptable. I’ll continue to use UAS for consistency.
Small UAS have been around for many years and much of the public don’t realize this. Remote controlled (RC) model aircraft have been used by enthusiasts around the world and enjoyed as a hobby or in competitions for years without any issues impacting manned aircraft. Often times RC aircraft operate in close proximity to airports and because of this, RC pilots operate under a community based set of guidelines that addresses flying neighborly such as: What happens when a manned aircraft approaches? What happens when an operator loses control of the model aircraft?
The FAA had traditionally left these RC users alone until quadcopters and similar aircraft started to appear. In 1981, the FAA issued an Advisory Circular (AC) 91-57 which noted the following: “Modelers, generally, are concerned about safety and do exercise good judgement when flying model aircraft. However, model aircraft can at times pose a hazard to full-scale aircraft in flight and to persons and property on the surface.” This all changed however, with the explosive proliferation of quad copters appearing under Christmas trees and low costs to consumers around 2014.
The FAA was caught off guard by how quickly the popularity of these new aircraft began to emerge and attempted to put regulations on something that they had clearly stated fell outside of their purview. The issue came to a head when Ralph Pirker came to the attention of the FAA while selling his video services collected during a UAS flight (see Huerta V. Pirker). The FAA attempted to fine Pirker for operating an aircraft “for compensation or hire” without the proper certification. In the end, the case was settled for a small fine unrelated to the offence implied by the FAA. This case caused the FAA to have to finally address the issue of UAS and the potential impact on the National Airspace System (NAS).
Congress realized the economic potential of small UAS on the US economy and mandated the FAA to integrate these “aircraft” into the NAS by September 2015 or they would fail to receive further funding. The leverage used was issued through the FAA Modernization and Reauthorization Act of 2012 (FMRA). With this specific language, it began to emerge that the FAA would identify UAS as aircraft for the first time and outlined the size, scope and areas where these new systems could be used.
Section 333 of this act outlined the procedures for operators wishing to conduct business using UAS. The operator had to demonstrate they could fly safely under specific conditions prior to engaging in any for profit operations. Once this was achieved, the operator would be free to conduct his business within the pre-established parameters.
Section 334 of the FMRA covered public use operators and provided for certain exemptions if operated safely, and narrowly defining how the aircraft could be used. The exemption allows for public safety entities to petition the FAA for relief from certain regulations in order to conduct flights directly associated with life and safety missions. The FAA would evaluate the request for a Certification of Authorization or Waiver (COA) and clearly define how a UAS would be used. The application process to obtain a COA has significantly improved from when it was first implemented.
Section 336 stated that hobbyists would remain free from FAA oversight provided they would adhere to community based rules for safety such as those listed by the Academy of Model Aeronautics (AMA). These rules which have been in place for many years are what most RC pilots follow.
In August of 2016, the FAA finally released the Federal Aviation Regulation (FAR) Part 107 (almost a year after the mandate) which was a first step in moving away from the COA process and fully integrating UAS into the NAS. Part 107 allows for commercial and public use operations that are similarly covered for manned aircraft without the burden of applying for a COA. Some restrictions still currently apply such as no night flights, flights over people, and no UAS operations near major airports like Philadelphia, Newark-Liberty, or others which are classified as Class B airspace. However, there is a process to get waivers for these restrictions if a request is made stating the need for these types of operations.
Last year, the FAA announced the launching of the UAS Integration Pilot Program (IPP) which was intended to partner state, and local governments with public and private sector operators, commercial operators and manufacturers to accelerate the safe integration of UAS into the NAS by identifying current roadblocks. The program’s intention is to help the FAA develop new rules that allow more complex low-altitude operations by identifying ways to balance local and national interests, improving communications with local, state and federal jurisdictions, addressing security and privacy risks, and accelerating the approval of operations that currently require special authorizations.
The May 10, 2018 announcement that identified ten test sights that were awarded with the FAA UAS Integration Pilot Program designation. It is expected that the developments achieved within these test sights will be instrumental in breaking down some of the barriers that currently exist restricting commercial and public safety operations by making UAS common in the NAS and not requiring special permissions, waivers and eventually the phasing out of COAs.
By understanding the beginnings of the UAS integration process, and as UAS become more frequent in use, air traffic controllers will become more comfortable with operations conducted inside of the airspace they are responsible for. What is important to remember, when conducting any UAS operation, even under emergency or exigent circumstances, there is no asking for forgiveness. Having knowledge of the rules ahead of time saves the agency from lot of potential headaches. No one wants to hear: “Hi, I’m from the FAA and I’m here to help”. If an agency wants to push the limits, it usually ends badly for the errant operator.