Consider the following scenario:

A man robs a liquor store at gunpoint, but as he flees he is confronted by an armed police unmanned aerial vehicle (UAV). He points his gun at the hovering aircraft and fires several bullets. An officer remotely operating the UAV sees the robber shoot on his monitor and presses a button that activates a firearm on the UAV, shooting the robber.

This scenario may seem like science fiction, but it is not. Although this situation has yet to occur, it will surely be played out soon in some U.S. city. In fact, it nearly happened in 2012, in North Dakota, when a man confronted a sheriff. The sheriff was later able to determine that the man was not armed by using a camera-equipped UAV lent by the U.S. Department of Homeland Security.¹

The UAV used to help the sheriff had a camera, but police UAVs can be rigged to fire rubber bullets, tear gas canisters, and electronic stun darts. Police chiefs planning to use UAVs only for surveillance may decide they want to take advantage of all the options available if they are aware of them. “It might be advantageous to have…[a] less lethal weapons platform on the UAV,” observed one police official in Texas, expressing sentiments likely shared by many of his peers who would prefer to fully utilize UAVs rather than underutilize expensive technology.² It may be only a matter of time, then, before the police, who may already use UAVs for monitoring vehicle traffic or looking for lost children, begin using them for patrol.

This could lead to arming police UAVs in the same manner as human patrol officers, with all the force options available including deadly physical force to UAV operators. Some UAVs, for instance, look like a weekend hobbyist’s remote-controlled helicopter and is small enough to fit on top of a table, but it can carry a grenade launcher and a shotgun.³

It follows, then, that UAVs equipped to use force would raise many of the same concerns that arise regarding officers’ use of force. While no one has yet filed a Title 42 U.S.C § 1983 claim against a police officer or department alleging the improper use of force via police UAV, police officials should not assume that such allegations will never be made.⁴ Current police training guidelines, state law and federal law, or court decisions have only begun considering the myriad issues posed by police UAV use. However, it is possible to make some important observations concerning the constitutionality of the remote use of force via police UAV.

Use-of-Force Concerns

As a sophisticated technology, UAVs may supplement or outperform existing surveillance equipment already possessed by police departments. They may be less expensive to purchase, maintain, and operate than cruisers, helicopters, and fixed-wing aircraft, and their ability to stay aloft for long periods may make them a valuable force multiplier for smaller departments that need to replace old equipment or augment existing patrol forces. Thus, UAVs may be a welcome addition to smaller departments operating on a tight budget. As departments may begin operating UAVs equipped with cameras and an array of weaponry and send them aloft on patrol, now is the time for police officials to draw up operational protocols that reflect limitations on the remote use of force.

At present, many police departments train their officers to react to threats on a force continuum. The training is a reflection of department guidelines written in response to U.S. state and federal law and court decisions assuming an officer’s physical presence at the scene of a confrontation.

Anytime the police use physical force against a person it is considered a “seizure” of that person.⁵ The legality of the force used is measured against the Fourth Amendment’s guarantee of a person’s right “to be secure in their persons…against unreasonable…seizures.”⁶ The U.S. Supreme Court decided, in Graham v. Connor, that, in order to be a lawful exercise of police authority, an officer’s use of force must be “objectively reasonable” under the circumstances.⁷

The assessment of what force is reasonable is judged from the officer’s perspective, taking into account that he or she may have had to make a quick decision concerning the use of force.⁸ The legal justification supporting the use of physical force rests on officers’ reasonable assessment of the threat they are encountering. This is something a remote UAV operator cannot, under current law, do. A remote officer cannot (reasonably) feel threatened when they are not actually present at the scene. Thus, a police officer present with a combative suspect has an array of options available that a remote officer watching through a UAV camera lacks.

Deadly Physical Force

An officer’s use of deadly physical force is limited by the U.S. Supreme Court decision in Tennessee v. Garner.⁹ In Garner, the court ruled that police cannot use deadly physical force against a fleeing suspect pos[ing] no immediate threat to the officer…or others…”¹⁰ The court’s ruling limits the police to using deadly force in situations where the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or a third party.”¹¹

The question of what is a reasonable is, therefore, intensely fact-specific. Differing perpetrators in differing situations with differing weapons present varying threat levels to an officer and the public, offering officers differing response options that may be considered reasonable under the circumstances. A man firing a handgun at a police officer, for instance, presents a vastly different threat than a teenager wielding a crowbar or a stick. In the first instance, the officer may be justified in shooting the suspect, whereas in the second or third instance, it might be reasonable, depending on the proximity of the teenager to the officer, to expect the officer to back away, issue a command to the suspect to drop their weapon, or use pepper spray or an electric control device, such as a Taser, before firing their weapon.

The Graham and Garner decisions shed light on the most troubling aspect of the remote use of force: the in-presence requirement. This is almost always an absolute prerequisite for police justifying the use of force. An armed criminal firing a weapon at a police UAV is destroying police property, not threatening the controller’s life. Thus, in the scenario at the beginning of the article, the remote officer would probably not be justified in firing at the perpetrator under almost any circumstance unless the fleeing perpetrator posed a significant risk of death to members of the public.

The remote operator, then, is in a situation analogous to a police sniper. As they are usually far removed from an armed adversary, they are very limited in employing deadly force against a suspect. The case Long v. Honolulu clarifies this point.¹² A police sharpshooter shot Long at the end of a lengthy standoff. In clearing the officer and city of any civil liability under §1983, the court noted that Long had earlier shot several men, brandished a rifle during the entire standoff, repeatedly threatened to shoot the police surrounding his home, and was not shot by the sniper until he pointed his rifle at several officers.¹³ Once Long pointed his rifle at the officers, the court felt the sniper was justified in using deadly force against him.

Conclusion

At present the only justification for a remote officer to use force against a criminal suspect is when a third party’s life being threatened. Until the U.S. Supreme Court decides to change or adapt the restrictions on officers’ use of force, UAV operators’ remoteness severely hampers their ability to justify using any kind of force. Police chiefs should consider limiting the roles in which they use UAVs and the manner in which they are equipped until such time as U.S. laws and court decisions make some allowance for UAV use on patrol. This will limit officers’ legal exposure to both state tort law and federal lawsuits involving allegations of excessive use of force under Title 42 U.S.C § 1983.♦

Notes:
¹ Jason Koebler, “North Dakota Man Sentenced to Jail in Controversial Drone-Arrest Case,” U.S. News and World Report, January 15, 2014, http://www.usnews.com/news/articles/2014/01/15/north-dakota-man-sentenced-to-jail-in-controversial-drone-arrest-case (accessed January 10, 2015).
² Randy McDaniel (chief deputy Montgomery County, TX, Sheriff’s Department), interview by Elliot Freeman, “Death from Above: US Police Drone May Fire Tasers, Rubber Bullets,” Digital Journal, May 24, 2012, http://www.digitaljournal.com/article/325402 (accessed January 18, 2014).
3 Ibid.
⁴ Title 42 U.S.C § 1983 reads in part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State…subjects…any citizen of the United States or other person…to the deprivation of any rights, privileges, or immunities secured by the Constitution…shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…” http://www.gpo.gov/fdsys/pkg/USCODE-2009-title42/pdf/USCODE-2009-title42-chap21-subchapI-sec1983.pdf (accessed January 6, 2015).
⁵ Tennessee v. Garner, 471 U.S. 1 (1985).
⁶ The Fourth Amendment of the U.S. Constitution states in part, “The right of the people to be secure in their person, houses, papers and effects, against unreasonable searches and seizures, shall not be violated…” http://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf (accessed January 6, 2014).
⁷ Graham v. Connor, 490 U.S. 386 (1989).
⁸ Id., 396–397.
⁹ Id.
¹⁰ Garner, 471 U.S. at 3.
¹¹ John C. Hall, “Use of Deadly Physical Force to Prevent Escape,” The FBI Law Enforcement Bulletin (March 1994)
¹² Long v. Honolulu, 511 F.3d 901 (9th Cir. 2007).
¹³ Id.

Please cite as:

Michael T. Geary, “Considering the Remote Use of Force via Unmanned Aerial Vehicles,” The Police Chief 82 (February 2015): web only.