The California Senate has sent a bill to Governor Brown that, if signed, would create trespass liability for those flying unmanned aircraft systems (“UAS”), more commonly known as drones, lower than 350 feet above private property. 

California Senate Bill 142 (SB 142) passed the California Assembly on August 24, 2015 on a 56-13 vote and passed the California Senate on August 27, 2015 on a 21-10 vote.  The bill was introduced by California State Senator Hannah-Beth Jackson (D, 19th District). 

The bill creates liability for trespass for those flying UAS below 350 feet on private property without permission: “A person wrongfully occupies real property and is liable for damages pursuant to Section 3334 if, without express permission of the person or entity with the legal authority to grant access or without legal authority, he or she operates an unmanned aircraft or unmanned aircraft system less than 350 feet above ground level within the airspace overlaying the real property.”  See SB 142, Sec. 1708.83(a). 

Liability for violating SB 142 would most likely be limited to nominal damages and injunctions or restraining orders unless such violation were continued or egregious.  According to an analysis of the bill performed by the California Senate Judiciary Committee, “a drone operator who flies their aircraft without permission less than 350 feet over the property of another could incur liability ranging from nominal damages to the equivalent of unpaid rent that the landowner would otherwise charge for entry onto his or her land with an aerial vehicle.  Additionally, an aggrieved landowner could, in some circumstances, petition a court for an injunction or a restraining order to prevent a drone operator from repeatedly trespassing within the landowner’s airspace.”

In her press release announcing the passage of the bill by the California Senate, Senator Jackson stated, “Drones are a new and exciting technology with many potentially beneficial uses.  But they should not be able to invade the privacy of our backyards and our private property without our permission. . . .  This bill establishes clear rules so that we can properly balance privacy and innovation.”

The reaction from pro-UAS groups has been nearly unanimous in their opposition to the bill.  Leaders of two UAS industry groups, Brian Wynne, CEO of the Association for Unmanned Vehicle Systems International, and Gary Shapiro, CEO of the Consumer Electronics Association, issued a joint statement stating: “California SB 142 is an unnecessary, innovation-stifling and job-killing proposal.”

Although it is unclear whether Governor Brown will veto the bill, he has vetoed UAS-related legislation in the past.  On September 28 2014, Governor Brown vetoed Assembly Bill 1327 (AB 1327), which would have prohibited law enforcement from using a drone without obtaining a search warrant except in limited circumstances.  In doing so, the Governor stated: “The bill’s exceptions [. . . ] appear to be too narrow.” 

However, the bills may be sufficiently different in approach and scope to reveal much about Governor Brown’s inclination to veto SB 142.  For example, SB 142 creates a private cause of action for trespass by UAS, while AB 1327 would have regulated UAS use by law enforcement.  In California, the governor must sign or veto legislation within 12 days of the day of transmittal of a bill, or it becomes law without his/her signature. In addition, the governor has until September 30 to sign or veto legislation in his/her possession on the day the legislature adjourns (usually August 31), or it becomes law without being signed. 

California Senate Bill 142 can be found here.  The analysis of the bill performed by the California Senate Judiciary Committee can be found here. 

Reporter, Stephen Abreu, San Francisco, CA, +1 415 318 1219, sabreu@kslaw.com.