Legal Corner: Updates on Drones and Police Body Cameras

Christina Estes-Werther, League General Counsel

Over the past year the Legal Corner highlighted the emerging technology of drones and police body cameras and its impact on cities and towns. Significant changes have occurred in these two issue areas within the past six months and this article provides an update on the recent changes and the current status of the law relating to the operation of drones and the use of policy body cameras in Arizona.

In January 2016, the Legal Corner article discussed the increased sale of drones and the recently enacted registration requirements by the Federal Aviation Administration ("FAA"). At the time, there was minimal federal regulation aside from small model aircraft registration that weighs less than 55lbs. In April 2016, the FAA published a report from an advisory committee about Micro Unmanned Aircraft Systems and is considering rulemaking that would allow for the operation of small drones directly over people based on their size and the risk of injury.

At the state level, Senate Bill 1449, sponsored by Senator John Kavanagh (R-Fountain Hills), was passed this year and preempts a city or town from regulating the ownership or operation of an unmanned aircraft or drone, except as authorized by law, and voids any city or town ordinance that violates this law. The bill's definition of "unmanned aircraft" is similar to the FAA definition and "means an aircraft, including an aircraft commonly known as a drone, that is operated without the possibility of direct human intervention from within or on the aircraft." See S.B. 1449 (Laws 2016, Ch. 170, Section 1). The bill relies on the federal definition of "model aircraft," which means an unmanned aircraft that is capable of sustained flight in the atmosphere; flown within visual line of sight of the other person operating the aircraft; and flown for hobby of recreational purposes. FAA Modernization and Reform Act of 2012, PL 112-95, February 14, 2012, 126 Stat 11. A model aircraft is a type of unmanned aircraft or drone that is not used for a commercial purpose.

A city or town is not restricted from adopting ordinances or rules for the operation of a drone owned by the municipality but cannot regulate other drones, except for model aircraft. A city or town may regulate the takeoff or landing of model aircraft in a city or town-owned park or preserve if 1) there are other parks or preserves that are within the city or town that are available for model aircraft operation, or 2) the city or town only has one park or preserve that is within its boundaries.

In addition to the preemption language, the new A.R.S. § 13-3729 in S.B. 1449 makes it unlawful for a person to: 1) operate a model aircraft or unmanned aircraft if the operation is prohibited by federal aviation law; 2) interfere with law enforcement, firefighter or emergency services; or 3) operate or use an unmanned aircraft or unmanned aircraft system to intentionally photograph or loiter over or near a critical facility in the furtherance of any criminal offense. Examples of a critical facility include a water or wastewater treatment facility, an electric generation facility, or a jail, prison or military installation. The current misdemeanor violation for careless or reckless aircraft operation in A.R.S. § 28-8280 was also expanded to include model aircraft and unmanned aircraft operated for commercial, business or media uses and cities and towns may continue to enforce its provisions.

If your city or town has adopted or is considering adoption of an ordinance to regulate drone use it is important to be aware of the provisions of S.B. 1449, which has preempted municipalities from regulating most types of drone activity. The bill does not become effective until August 6, 2016, but it includes a provision that voids any local regulation that is preempted by the bill. While Arizona has restricted drone regulation except under certain circumstances, the FAA recently issued new regulations for commercial drones weighing less than 55 pounds. The FAA rules do not address privacy concerns but the FAA encourages drone users to be familiar with state and local privacy laws and provides all drone users with recommended privacy guidelines as part of the registration process. As this technology continues to develop and drone use increases, the FAA may issue additional regulations that balance commercial interests with individual privacy and safety concerns.

Police Body Cameras
The purchase and use of police body cameras continues to be a source of discussion for police departments, elected officials, and the public. The June 2015 Legal Corner article focused on the public records and retention aspects of maintaining body camera footage and highlighted the challenges of adapting new technology into current regulations and practices.

Retention Schedule
In 2015, a workgroup was formed by the Arizona State Library, Archives and Public Records ("State Library") to discuss and propose a retention schedule for this new technology since the existing retention schedule did not contemplate these types of recordings. The final 99-page summary report was distributed in March 2016 and provides an overview of the various issues that all jurisdictions face when considering the use of police body cameras.

The workgroup's primary task was to assist the State Library in the development of a retention schedule that includes a category for a continuous law enforcement video recording in various settings and multiple situations. The new retention schedule assigns a retention period based on whether the recording is evidentiary or non-evidentiary. This categorization provides police departments with the flexibility to no longer retain body camera footage after 185 days if the recording is not tied to a specific case, there is no pending civil or criminal violation, and the department hasn't been served with a notice of claim. Police departments can modify their own retention schedules to mirror the State's 185-day retention period or choose to adopt a longer retention schedule. Any footage relating to an investigation or prosecution is an evidentiary record and must be retained until the disposition of the case, which is determined by a separate retention schedule known as the Criminal Reports and Investigation Records. Any revision of a municipal retention schedule should be done in consultation with the city or town attorney.

Law Enforcement Officer Body Camera Study Committee
Last year the Law Enforcement Officer Body Camera Study Committee ("Study Committee") was formed at the Legislature to recommend policies and laws on the use of body cameras. The members included a prosecutor, attorney and police officer from the cities of Phoenix, Scottsdale and Surprise. The Study Committee held four hearings in 2015 during November and December and heard from various presenters, including police officers from the Phoenix and Lake Havasu Police Departments. The Study Committee did not pass any recommendations but the hearings generated discussions on a number of topics including privacy and confidentiality concerns, especially involving victims of crimes; the application of current retention and public records laws; emerging technology and storage costs; current practices and existing policies; and the use of body camera technology by prosecution and defense attorneys. The Legislature did not pass any bills this session related to body cameras.

The use of police body cameras is an issue that remains prevalent among cities and towns, especially those who are considering its implementation in their community. The 2016 League Annual Conference will include two sessions on this topic to provide an opportunity for cities and towns to learn from the experiences of other municipalities that utilize body cameras and to weigh the policy and legal ramifications of this technology.

For more information about the issues related to drones and police body cameras and to read the recommendations and reports mentioned in this article, please see the following resources:

S.B. 1449 prohibited operations; unmanned aircraft (Laws 2016, Ch. 170)

Federal Aviation Administration Releases Drone Registration Location Data

Determine How Many Drones Are Registered In Your Area

Federal Aviation Administration Small Unmanned Aircraft Regulations - Issued June 21, 2016)

Police Body Cameras

Law Enforcement Officer Body Camera Study Committee Minutes
State Library Summary Report for the Arizona Law Enforcement Recordings Work Group

General Records Retention Schedule: Law Enforcement Records

League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ  85007
Phone: 602-258-5786
Fax: 602-253-3874

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