Did North Dakota Just Authorize Pepper-Spraying Police Drones?

The Daily Beast’s Justin Glawe has written an article about a North Dakota law aimed at limiting law enforcement use of unmanned aircraft systems (UAS), or drones. He claims that the law was watered down by police interests and corporate lobbyists, and that the weakened protections now authorize law enforcement’s use of non-lethal UAS-mounted weapons:

With all the concern over the militarization of police in the past year, no one noticed that the state became the first in the union to allow police to equip drones with “less than lethal” weapons. House Bill 1328 wasn’t drafted that way, but then a lobbyist representing law enforcement—tight with a booming drone industry—got his hands on it.

The bill’s stated intent was to require police to obtain a search warrant from a judge in order to use a drone to search for criminal evidence. In fact, the original draft of Representative Rick Becker’s bill would have banned all weapons on police drones.

Then Bruce Burkett of the North Dakota Peace Officer’s Association was allowed by the state house committee to amend HB 1328 and limit the prohibition only to lethal weapons. “Less than lethal” weapons like rubber bullets, pepper spray, tear gas, sound cannons, and Tasers are therefore permitted on police drones.

Scary stuff, right? I certainly don’t want the police to have armed UAS—whether they be deployed with lethal or non-lethal weapons—and requiring warrants is a good first step. But based on a reading of the statute in question, it does not appear to do what Glawe and others claims it does.

Let’s look at the actual statute in question. Section 1 provides definitions, Section 2 spells out the limitations of using UAS for law enforcement surveillance purposes, Section 3 gives the warrant requirements, Section 4 provides exceptions to the limitations imposed, and Section 5 spells out some additional restrictions.

The law is clearly aimed at addressing law enforcement UAS surveillance. But the omission of a non-lethal weapons prohibition has led some to suggest that non-surveillance missions such as crowd control might be able to include drones armed with non-lethal weapons. However, the law is poorly worded, which is what leads to this ambiguity: does “surveillance” include the ability of law enforcement to engage targets with weapons mounted on UAS, in this case non-lethal weapons?

While undefined in the statute, Black’s Law Dictionary (10th ed., 2014) defines “surveillance” as “[c]lose observation or listening of a person or place in the hope of gathering evidence.” It is hard to reason that “surveillance” could include shooting tear gas or pepper spray at people. Under Section 3, in order for the flight data gathered to be used as evidence in a prosecution, law enforcement must either obtain a warrant or operate the drone under the exceptions of Section 4. However, the exceptions contained in Section 4 explicitly pertain to the “use of an unmanned aerial vehicle for surveillance.”

This all appears to suggest, at worst, that law enforcement may be able to fire non-lethal weapons mounted on a “non-surveillance” UAS at targets, but that the information collected during the course of the “non-surveillance” UAS operation could not be used as evidence in a prosecution, as these types of operations are beyond the scope of “surveillance.”

The question then arises: does law enforcement have a practical interest in operating non-lethal, weaponized drones if the information collected by them cannot be used to further a prosecution? I can imagine some scenarios (e.g., a criminal barricades himself in a building and the drone is used to fire tear gas canisters beyond the barricade), but this legal bifurcation of permissible uses seems to limit the practicality of law enforcement use of weaponized drones, and thus the potential for widespread use.

It is also worth noting—and this is something lost in the story—that the law does not create any new authority for law enforcement to use non-lethal weapons on UAS. Even if the law does bar lethal weapons, but does not bar non-lethal weapons (due to the implicit exception in Section 5), it does not follow that the bill confers on law enforcement an affirmative grant of authority to deploy or use non-lethal weapons onboard UAS. And if law enforcement misuses a non-lethal weapon, whether via a drone or a beat cop armed with a stun gun, it is still liable for deprivation of civil rights under color of law (42 U.S.C. § 1983).

Also, Section 5 of the law bars the use of drones for the “[s]urveillance of the lawful exercise of constitutional rights, unless the surveillance is otherwise allowed under this chapter.” So if law enforcement wants to surveil a protest or rally, absent reasonable suspicion to believe unlawful activity is involved, law enforcement cannot use a drone to do so—regardless of whether it bears a non-lethal weapon.

Like many, I too believe the North Dakota law could be stronger (and less poorly written) and that lawmakers should work to close the non-lethal weapons loophole. But given the narrow scope of possible uses, this poorly worded law will not keep me up at night.