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In September, the San Diego County Sheriff’s Department began a one-year pilot program that includes four camera-equipped drones. Despite urging from the ACLU that the Sheriff’s Department first seek input from the public and the County Board of Supervisors, it did neither.
The San Diego County Sheriff’s Department had a new eye in the sky during an Oct. 13 standoff.
A man who poured gasoline on himself refused to leave his truck after leading law enforcement on a chase through North County. Deputies surrounded the suspect not far from Pala Casino, guns drawn. Several hours passed.
Looking for a closer view, the Sheriff’s Department debuted its new drone, which it acquired as part of a one-year pilot program that quietly began in September. The live footage aided a SWAT team in developing a tactical plan before approaching, and then apprehending the suspect, a Sheriff’s Department spokesman said.
But the pilot program, which includes four camera-equipped drones, has flown under the public’s radar.
It didn’t go before an elected body and community meetings weren’t held, flying in the face of earlier advice from the local ACLU chapter.
The Sheriff’s Department in February informed the ACLU that it was considering a pilot drone program. The ACLU urged the agency to seek input from the public and the San Diego County Board of Supervisors, which controls the Sheriff’s Department budget.
“As the experiences of other communities show, purchasing without adequate transparency and debate both undermines democratic principles and risks harm to public trust in law enforcement,” wrote Norma Chavez-Peterson, executive director of the ACLU of San Diego & Imperial Counties, in a Feb. 10 letter to the Sheriff’s Department that the ACLU provided to Voice of San Diego.
Lt. Jason Vickery said last week the Sheriff’s Department took privacy concerns into account when crafting its unmanned aerial vehicle policy, which states the department “will not conduct random surveillance activities.”
“Any footage that’s not of evidentiary value would be destroyed,” he said.
The policy, Vickery said, restricts its drones to tactical operations, like getting an up-close view of a hostage situation. They’re also allowed to assess wildfires, document crime scenes and conduct search and rescue missions.
The Sheriff’s Department is the largest police agency in the county, and to Vickery’s knowledge, the first local law enforcement organization to deploy drones. So far, there have been four drone missions through the pilot program.
Their lightweight drones can be found on the shelves of many retailers and aren’t armed.
“This is going to make it safer for deputies, and it’s going to make it safer for the public, too. This is not an Orwellian tool,” said Vickery.
The ACLU isn’t so sure.
ACLU Senior Policy Strategist Christie Hill said the Sheriff’s Department’s policy lacks concrete language that protects civil liberties and rights — specifically in sections of the policy addressing high-risk tactical operations, the collection of data and privacy.
“Another authorized mission is ‘video/photographs [of] crime scenes.’ However, there is no information provided about how this information will be shared with third parties and if the public can use this information, including criminal defendants,” Hill told me in an email. “Clear language is needed so that the public understands when and how these devices will be used.”
The Sheriff’s Department budget allocates $125,000 for the one-year pilot program, with personnel and pilot training representing the bulk of costs thus far, Vickery said. Because funding came from the existing Sheriff’s Department budget, the San Diego County Board of Supervisors didn’t have to sign off on the pilot program.
While not required, Hill said the matter should have been placed on a Board of Supervisors agenda given public backlash in other counties over police drone transparency.
“By having the conversation beforehand you can avoid that and ensure that privacy safeguards are in place,” Hill said.
San Diego County Sheriff Bill Gore, who approved the drone pilot program, said through a spokesman that he wasn’t available for an interview, as did Board of Supervisors Chairman Ron Roberts.
Board of Supervisors Vice Chairwoman Dianne Jacob declined an interview through a spokesman, but said in a statement: “I welcome the Sheriff’s Department pilot program and believe it’s a smart use of existing funds. It could give us another critical tool in missing person cases and make the difference between life and death for seniors with dementia, who are prone to wandering.”
Vickery said the Sheriff’s Department notified the board’s staffers prior to the program’s launch.
Community meetings, Vickery said, weren’t held because feedback this summer from Sheriff’s citizen advisory groups was largely positive, and that the department “wasn’t hit with opposition” following news articles this spring noting that the Sheriff’s Department was exploring the possibility of a drone program.
Vickery said that the Sheriff’s Department will consider holding community forums if the agency pursues a long-term drone program.
Police agencies across the county have turned to drones as a cost-effective alternative to helicopters. The total cost of the Sheriff’s four drones — two DJI Inspires drones and two Phantom 4 drones — was roughly $6,800.
Vickery said its drones are only meant to supplement Sheriff’s helicopters, particularly if they’re up against stormy weather and tight quarters.
Sheriff’s drone missions could potentially take place across a large territory. The Sheriff’s Department is responsible for patrolling 4,200 square miles, encompassing unincorporated areas, as well as Del Mar, Encinitas, Imperial Beach, Lemon Grove, Poway, San Marcos, Santee, Solana Beach and Vista.
And police drones could take to the sky elsewhere in the county.
The Carlsbad and Oceanside police departments are exploring unmanned aircraft, officials from each agency confirmed. Vickery said additional local law enforcement agencies are researching drones.
“I’m a firm believer that this is going to be mainstream in a relatively short amount of time,” said Vickery, who is part of a Sheriff’s panel that began researching drones in July 2015, more than a year after the department said it wasn’t interested in them.
The Sheriff’s Department on Aug. 16 received a Certificate of Authorization from the Federal Aviation Administration to operate drones. Like hobbyist drones, their unmanned aircraft can’t fly higher than 400 feet, must stay within the eyesight of pilots and can’t weigh more than 55 pounds.
The Certificate of Authorization, however, does allow the agency to ask the FAA for permission during emergencies to fly in some situations that are normally prohibited, such as at night.
In an FAQ obtained by Voice of San Diego that the Sheriff’s Department plans to post on its website, the agency pledges that it won’t use drones to “circumvent well-established 4th Amendment protections.” The local ACLU chapter believes this language, too, is vague.
Some states and local governments have adopted laws restricting drones. The county hasn’t passed rules regulating the use of police drones, while state legislation attempting to do so has failed. That includes a 2014 bill that would have required police to obtain warrants for surveillance by drone, which was vetoed by Gov. Jerry Brown.
For now it’s the “Wild West of unknown drone law,” said attorney Steven Miller, who specializes in drone matters at the Northern California law firm Hanson Bridgett.
“It will be up the courts to decide whether a particular use of a drone constitutes an unreasonable search, in which a warrant is required. I think it will depend upon the specifics of whether the drone is capturing information that someone would have a reasonable expectation of privacy to,” Miller said.