By Oscar Porter.
February 2022: Phoenix Police ambushed and shot.
Several law enforcement officers were ambushed in South Phoenix last month, continuing a trend of violence against police that stretches back almost two years. The ambush occurred during an attempt to rescue a young woman and her one-month-old baby. A total of five officers were shot and nine officers were wounded. The gunman barricaded himself inside a home, and shot at the officers when they came close to the house. Police said the woman died of her wounds, and the shooter committed suicide after a standoff.
While none of those officers were killed in the ambush, six officers have been fatally shot in the line of duty since the beginning of this year. Mayor Kate Gallego couldn’t “recall an incident in city history where so many officers were injured.”
Could drones have prevented the incident?
At the time of the shooting, the approaching officers didn’t realize that the suspect was still inside the house. Phoenix police say that if they had been able to scout the house with a drone, some of the officers may not have been put in the line of fire. Commander Derick Elmore said that knowledge might have slowed down their approach, and Phoenix Police Department believes drones could bring more knowledge in situations like the shooting.
During the standoff Phoenix police did, however, eventually deploy a drone that they borrowed from the Glendale Police Department. According to a Phoenix Police spokesperson, they used it to “help look inside the house and see where [the suspect] was, without putting any officers in unnecessary danger.”
Aftermath: Approval of Drones Program
Following the shooting, Mayor Kate Gallego and several City Council members put pressure on the city to approve the purchase of drones for the police department and fast-track the agency’s plans to implement the technology. The Phoenix City Council then voted on a measure to allow the Phoenix Police Department to purchase drones. After a lengthy and heated debate, the Council approved the drone program in a 6–3 vote. This measure permits the police department to spend up to $516,400 on drones, personnel training, and other costs associated with the program.
Councilwoman O’Brien, who spearheaded the program, believes the city will be able to protect privacy while giving law enforcement tools to protect the public. The Phoenix Law Enforcement Association also thinks the drone program will prove useful to officers by allowing police to monitor situations without exposing themselves to danger. According to Assistant Chief Kurtenbach, drones would prevent events like the ambush in February from occurring again.
Pushback and Fourth Amendment Privacy Concerns
The vote of the City Council was not unanimous, however. Councilmembers Guardado, Garcia, and DiCiccio all voted against the measure, citing concerns about privacy, costs, and potential misuse of the technology. Councilman Sal DiCiccio, a fiscal conservative who is a vocal supporter of the police, expressed concerns about the plan’s potential to infringe on the rights of protesters and citizens. DiCiccio stated, “A strong, specific policy needs to be implemented first” before the drone program is implemented.
Privacy is the most significant concern associated with the use of drones for law enforcement. Under the Fourth Amendment of the United States Constitution, citizens are protected from unreasonable searches and seizures by the government. Generally, to determine whether a Fourth Amendment search has occurred, the Supreme Court asks whether the government has violated a defendant’s “reasonable expectation of privacy.” The issue is thus whether the Fourth Amendment protects citizens against warrantless police surveillance using drones.
The Supreme Court has never directly addressed the use of drones by police and Court precedent does not adequately address the issues the pose. The Court has, however, upheld police use of planes and helicopters to spot evidence on private property without a warrant. In these holdings, the Court concluded that private citizens do not have a reasonable expectation of privacy from aerial observation made in publicly navigable airspace.
The legal community is divided over whether this precedent should also apply to drones as well. Drone technology, with its inherent maneuverability and ability to enter places inaccessible by manned aircraft, might be subject to more scrutiny than traditional aerial surveillance. A drone can capture information that goes beyond what police are targeting or what is publicly available. Additionally, drones can easily inspect backyards and private property in a way that is difficult, if not impossible, with traditional police equipment. For example, one survey drone can enter buildings and move from room to room without the assistance of a human operator. Drones like this were developed for military operations in Afghanistan, but are now being used in civilian contexts.
Drone video footage can be used in court as evidence, just like body camera footage, but it raises questions about excessive police oversight and unnecessary surveillance. According to a strategist from the ACLU of Arizona, “[D]rones are capable of, for example, listening in on private conversations, tracking where vehicles are moving”. Drones have been described as “sensors that can generate offenses” by civil liberties advocates. Their concern is that rather than merely investigating known crimes, drones will by used to persistently patrolled communities that they feel are overpoliced. Drones would record minor offenses, further increasing incarceration rates.
Policies and Procedures
Many of the critics, including DiCiccio, are mainly concerned with proper community input on the drone program and putting specific policies in place to regulate police use of drones. As the ACLU strategist put it, “[I]t’s important there be regulations that are transparent and developed by lawmakers and not by police departments.”
The six council members who approved the plan argued that the process of procuring the drones, which is expected to take about six months, will give the council time to hear from the public and shape drone policy. The City Council approved the drones conditionally, and they will look at the policies and procedures that the police will use when they get them. Over the next several months, the city will develop policies and hold community engagement sessions that will govern how drones are used by the department.
Phoenix police also told the City Council Wednesday that they are working on policies and procedures regarding the drone program. Those guidelines are being reviewed by an outside lawyer who specializes in civil liberties, according to a police representative. While there is generally no warrant requirement for police to use a drone, some police departments across the country have made it a policy to apply for warrants anyway. In January of 2022, when the City Council approved the use of drones for the fire department, they contracted with Wieneke Law Group to ensure privacy provisions were implemented into the program. There are several ways for the City to implement its drone program in a manner that respects privacy concerns while allowing the police to utilize the technology.
Drones on the horizon
Increasingly complex legal issues are an inevitable result of the technological advancements brought about by the 21st century. As police departments implement tools like drones, the law must consider how the Fourth Amendment applies to technology that is far beyond what the Founders could have imagined. Whether these issues will be implicated by the new drone program, and how the law will respond, remains to be seen.