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A proposal that would give local law enforcement immunity when shooting down drones near the southern border passed out of committee Thursday despite concerns that it gives broad immunity to law enforcement.
House Bill 2733 by Rep. David Marshall, R-Snowflake, would give local law enforcement immunity from liability for damage to personal property if they are shooting down a drone they believe is engaged in criminal activity.
The bill comes amid an increase in drug cartel drones flying over the states’ southern border, GOP lawmakers and the Democratic attorney general say that local police should be able to shoot them out of the sky without fear they’ll be sued.
But even if state law is expanded to allow cops to shoot down drones, federal law still bans shooting at any aircraft — including drones.
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Airspace around the borders of the United States is heavily controlled and monitored by the U.S. military and the Federal Aviation Administration. NORAD has previously reported that drone incursions at the southern border have seen a marked increase as inexpensive consumer drones have proliferated.
Rep. Alexander Kolodin, R-Scottsdale, voiced concerns that giving law enforcement immunity and not creating a carve out for larger cities such as Nogales that are on the state’s southern border gave him concern.
“As I read that, all I need is reasonable suspicion…which is fairly easy to establish and I could go skeet shooting,” Kolodin said during a House Public Safety and Law Enforcement Committee hearing on the bill.
In one scenario proposed by Kolodin, a law enforcement officer could shoot down a drone over someone’s residence in Nogales, the drone could cause damage to that person’s house or other property and law enforcement would be shielded from any liability.
“It is an absolute immunity, as long as the conditions are satisfied,” Kolodin said. “It just seems like an oversight to me.”
But Marshall disagreed with Kolodin, saying that the drones law enforcement are looking to take down are closer to the border and not in populated areas. He additionally dismissed concerns that the shooting down of a drone could lead to collateral damage.
“If you’re out there at the border at ten o’clock or midnight, If a bb hits you in the head, put a bandaid on it,” Marshall said, suggesting that law enforcement would only use electronic anti-drone devices or “bird shot” in shotguns to take down the drones. “If you’re out in the desert and you’re flying these drones, you’re probably up to no good.”
The bill initially allowed law enforcement to shoot down drones within 30 miles of the border, but an amendment by Rep. Kevin Volk, D-Tucson, changed that to 15 miles at the behest of the Attorney General’s Office.
“We are literally the transportation superhighway for fentanyl that comes into the country,” Nick Debus, a lobbyist for Attorney General Kris Mayes, told the committee.
Debus, Marshall and Cochise County Sheriff Robert Watkins, whose county is along the border, all said the bill was necessary to combat the ongoing fentanyl crisis, as drug smugglers have been utilizing a variety of drones to bring fentanyl across the border.
Watkins conceded that the drones his deputies have found have not been carrying drugs. And he also dismissed concerns about officers firing weapons into the air.
“If a cop is dumb enough to pull out his 9mm handgun and start capping rounds at a drone…we have a bigger issue,” Watkins said, adding that law enforcement use of force policies would aid in preventing law enforcement from shooting drones out of the sky with rifles or pistols.
Kolodin disagreed, saying that as long as law enforcement acted within the confines of the law having reasonable suspicion, then they’d have complete immunity.
The ACLU of Arizona agreed with Kolodin, noting that journalists and private citizens often fly drones along the border, and that giving law enforcement the power to shoot them down could limit the ability of watchdog groups or journalists from seeing how the Trump administration is conducting border operations.
“You can certainly shoot drones down over Nogales in this bill,” Marilyn Rodriguez, a lobbyist representing the ACLU said to the committee. “How can law enforcement even assess a violation of organized crime?”
Drones have long been a growing concern for both local and federal law enforcement at the border. Customs and Border Protection uses specialized “drone jammers” to disable unmanned aircraft that are flying illegally.
And they have also been spotted at critical facilities, including an incursion involving a “drone swarm” at the Palo Verde Nuclear Power plant in 2019.
Drones have proliferated in the past few years with multiple uses from law enforcement, fire fighting and even land surveying. It is unclear how the measure would account for drones operating legally within the border region.
The bill passed out of committee with bipartisan support, though Kolodin and two Democrats — Reps. Lorena Austin and Quantá Crews — voted present. The bill will head to the full House of Representatives for consideration next.
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