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Considerations for Drone Use in Law Enforcement and Other Departments Within a Public Entity

Posted by James Robb on October 11, 2016 at 9:01 AM

You get a call from the chief of police about using a drone in his department. They are excited about the many uses in law enforcement, such as surveillance on rooftops where snipers may be or have been, traffic accident investigations where there is a big traffic jam, and various other things. He asks what they need to do to start operating; they can buy one online with fancy cameras for only a few hundred dollars.

Naturally you contact your legal department about this. It is doubtful whether any of the attorneys within the department are involved with aviation law, but they can search on Google and the Federal Aviation Authority (FAA) website (www.faa.gov) to find information. The attorney shares that since this drone (classified by the FAA as a “small unmanned aircraft system (sUAS)” is considered a public aircraft, the new FAA Part 107 regulations that have been publicized in the media do not apply to your city or any government. Therefore, you have to seek what is known as a Certificate of Waiver or Authorization (COW) to operate the drone, which exempts you from the Federal Aviation Regulations (FAR) for operation of an aircraft.  Note that the drone is defined as an “aircraft” under recent interpretations by the National Transportation Safety Board (NTSB) and FAA.

The application process begins with a “declaration letter” from your solicitor, which certifies that you are in fact a public entity, as defined by federal law. This is sent to the FAA, and you must be accepted by the FAA as a public entity before proceeding further. The letter must highlight that the drone will not be used for commercial purposes, such as monitoring a public works construction project.

Next, you must register the drone with the FAA, with the necessary application, purchase documentation, and manufacturer, model and serial number information. This can be done online or by mail to the FAA. After this is complete, there is an online process of applying for the COA with the FAA. Details are required concerning the maintenance of the sUAS, its area of operations, its mission, safety and risk control details, such as recovery due to battery failure or communication failures.

Additionally, the person who will serve as pilot of the drone needs training and certification as a remote pilot, which involves classroom or online training and completion of a test. If the individual is already a private pilot, recreational pilot or sport pilot that will suffice. In a later blog, I will explore the tort liability and insurance issues associated with operation of a drone.