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SCOTUS WATCH--If this were not an election year, Merrick Garland would be a surprising choice. He is known as a moderate, he is older (63), he is a white male, and he has been a judge on the D.C. Circuit Court of Appeals for almost 20 years. If this were not  an election year, Senate Republicans would probably be racing to confirm him. 

His nomination remains an interesting choice, though, and may leave many city leaders wondering how this might affect cities. If Judge Garland becomes Justice Garland, how might he rule in cases affecting state and local government? 

State and local government do not consistently benefit more from liberal or conservative Justices. Whether they do or not depends on the issue and the specific case (which sometimes may not matter at all). Two other factors could give us a better sense of how he may view the interests of state and local government in cases. They are: his state and local government experience, and his previous decisions. 

The first factor is, unfortunately, irrelevant in the case of Judge Garland. Before his appointment to the D.C. Circuit Court of Appeals, he worked for the federal government and a big law firm.  

In 2010, Judge Garland was on President Barack Obama’s “short list” to replace Justice Stevens. Tom Goldstein of SCOTUSblog, reviewed Judge Garland’s decisions in depth. His most notorious decisions, then and probably now, are a vote against Guantanamo detainees, subsequently overturned by the Supreme Court, and a vote to rehear a D.C. Circuit’s decision to invalidate the D.C. handgun ban. 

More relevant to state and local government, Goldstein concluded in 2010 that Judge Garland has tended to take a “broader view” of First Amendment rights, which will often not favor state and local government. Goldstein also noted that Garland has “strong views favoring deference to agency decision makers,” which in many cases will not benefit state and local government. 

As challenges to the Clean Power Plan and the Waters of the United States regulations work their way to the Supreme Court, Judge Garland’s record on environmental issues is particularly relevant. Goldstein concluded that, while sometimes Judge Garland has favored the EPA, in this area he has been “most willing to disagree with agency action.” 

As Judge Garland’s lengthy judicial record is sifted through more carefully over the next weeks or months, we will have a better sense of where he may stand generally and in regards to state and local government. 

At this point, while it may be difficult to predict how Judge Garland will vote, the bigger question is: Will he be confirmed?

 

(Lisa Soronen is the Executive Director of the State and Local Legal Center. (SLLC.) This piece was originally posted at Cities Speak.) Prepped for CityWatch by Linda Abrams.

 

AIR SAFETY--A dramatic increase in the use of recreational and hobby drones in California during 2015 led to numerous instances of drones interfering with fixed-wing firefighting aircraft, as well as police and air ambulance helicopters.

The League and the California Police Chiefs Association joined forces in 2015 to co-sponsor a public safety measure, Senate Bill 168 (Gaines-Jackson), that sought to address the hazard posed by unmanned aircraft systems, or drones, operating in flight-restricted airspace during an emergency.

The bill would have provided first-responder aircraft operators with immunity in the event they damaged or destroyed a drone that was interfering with their emergency operations. Although Governor Brown vetoed the bill, citing its creation of a new misdemeanor offense that he believed to be unnecessary, the issue is far from dead.

Reports continue of drone interference with first responders and commercial airliners. A California Highway Patrol helicopter avoided a collision with a drone on Dec. 5, 2015, over Highway 4 in Martinez only by taking evasive action. Law enforcement personnel identified the drone operator and referred his case to federal authorities. Had a collision occurred with the helicopter crashing on the highway, there could have been significant loss of life and extensive injuries. This incident offers a prime example of why tighter regulations on the use of recreational drones are urgently needed.

New Regulations Require Registration for Recreational Drones

On Dec. 14, 2015, the Federal Aviation Administration (FAA) announced a new federal regulation requiring registration of all model aircraft, including recreational drones. The web-based registration process is reportedly user friendly. Under the new federal rule, anyone who operated a drone — also known as an unmanned aircraft system (UAS) — before Dec. 21, 2015, is required to register by Feb. 19, 2016, at www.faa.gov/uas/registration.  Owners of any drone or UAS purchased after Dec. 21, 2015, must register before their first outdoor flight. Owners and operators must pay a registration fee of $5.00. In addition, drones will have to display a unique identifier, which is a registration number issued by the FAA.

These new regulations, while helpful, may not go far enough to adequately address the hazards and potential misuse of drones. For example, registration is largely voluntary, and for drones purchased after Dec. 21, 2015, registration is not required at the time of purchase or point of sale. Though registration is now required prior to operating a drone, it is unclear how such a requirement will be enforced without a point-of-sale registration requirement or a requirement for online registration with the FAA before an online drone sale can be completed. This raises doubts about the effectiveness of the FAA’s response, given the widespread abuse of this technology over the past two years.

Enforcement and Penalties

The Unmanned Aircraft System Registration Task Force, which made a series of recommendations that led to the recent FAA regulations, considered the difficulties posed by enforcement and the limitations of the FAA and local law enforcement agencies. The FAA’s primary enforcement mechanism will be outreach and education, which will likely be web-based (see “What’s Required Under Federal Law” below). The FAA may also employ administrative or legal enforcement action to ensure compliance with the new requirements. Existing federal law already provides civil penalties of up to $27,500 for failure to register a drone and corresponding criminal penalties including fines of up to $250,000 under 18 United States Code (U.S.C.) Section 3571 and/or imprisonment up to three years under 49 U.S.C. Section 46306. However, under the new regulations there is no systematic mechanism to alert authorities about who has registered or to identify those who have not.

Why Tighter Regulations Are Still Urgently Needed

The Consumer Technology Association, a trade group, estimated that 400,000 drones would be sold in the United States during the 2015 holiday season. Given the many safety hazards drones pose and the current lack of comprehensive regulations and enforcement provisions to make such regulations meaningful, a number of states — including California — may take the initiative and pursue enforcement or other legislation, notwithstanding potential conflicts with federal law.

Background and Challenges

Manufacturers have often resisted legislation that would impose requirements such as placing unique identifiers on individual drones, building in “kill switches” that could incapacitate a drone instantly, or including transponders, which are devices that emit a radio signal used to track location. This resistance has frustrated authorities and limited their ability to hold wayward drone operators accountable. Even if state or federal legislative efforts are mounted to impose stiffer fines or even jail time for drone-related accidents, such efforts may not be meaningful if there is no feasible means of readily identifying drones or linking them with specific operators.

Past federal regulations have contributed to the current problem. Congress in 2012 declined to regulate recreational drones and ruled that the FAA could not require members of the public to register their drones, obtain training or fly drones with identifying features. As a result, the steadily growing use of recreational drones has risen to the level of endangering first-responder aircraft as well as commercial jetliners.

Federal law currently may pre-empt many state regulations in this area, and the FAA considers its body of regulations over UASs as “occupying the field” — that is to say, pre-empting state and local law. Federal regulations specifically addressing recreational drones seem to fall short given the extensive illegal activity. A few general guidelines that pre-date drones were initially issued to regulate model airplanes — these guidelines restrict drones’ maximum flight altitude to 400 feet and direct operators to avoid contact with other aircraft, keep the drone in sight and stay at least 5 miles away from commercial airports. Otherwise, federal regulations have not addressed recreational drones at all until very recently.

When it enacted the FAA Reauthorization bill in 2012, Congress decided that recreational drones would be outside the scope of most FAA regulations, which focus primarily on commercially operated unmanned aircraft systems. Another federal law (also enacted prior to the advent of drones) applies to model aircraft generally but also to drones and requires pilot certification if the model aircraft/drone weighs more than 55 pounds.

But the new regulations issued in December 2015 may not adequately address the many instances of less than responsible use of recreational drones. These regulations, which depend on voluntary compliance, may not be a sufficient response to the problem of those intent upon ignoring the law. To complicate matters, most drone flight education programs are privately sponsored, and manufacturers are not required to include in drone packaging the latest FAA regulations governing the use of recreational drones.

Multiple Incidents Highlight a Danger to Public Safety

Drones interfered with aircraft attempting to battle wildfires on at least 13 separate occasions in 2015, compared with only four such incidents during 2014, according to the U.S. Forest Service. In many instances, firefighting aircraft had to be grounded for safety reasons due to drones operating in flight-restricted airspace. The result of grounding these aircraft was never more dramatic than in July 2015 at the Cajon Pass in San Bernardino County where a 3,500-acre wildfire destroyed four homes and 20 vehicles as the blaze jumped Interstate 15. A month later, an air ambulance narrowly avoided a collision with a drone in the skies over Fresno.

Some have voiced doubts about whether what are essentially hobby drones pose much of a threat and speculate that authorities may have overreacted in deciding to ground their aircraft for safety reasons. But in an Aug. 11, 2015, CBS news broadcast, California Department of Forestry and Fire Protection helicopter pilot Jason Thrasher underscored the danger drones pose to firefighting aircraft, when he made it clear that a collision with even a relatively small drone can bring an aircraft down. “If a drone … were to go into a tail rotor or a main rotor system, it could have catastrophic consequences,” Thrasher said.

A Growing Threat to Commercial Aviation

The federal government has tightened its grip on recreational drone regulation since 2012, but arguably not quickly enough. In June 2014, the FAA banned the use of hobby drones within 5 miles of airports, unless the drone operator has secured permission to fly in that airspace from the airport and its control tower. Despite this regulation, violations near airports continue to occur with increasing frequency.

According to a nationwide study (Drone Sightings and Close Encounters: An Analysis, December 2015) conducted by the Center for the Study of the Drone at Bard College, over 90 percent of incidents involving drones and commercial aircraft from Dec. 17, 2013, to Sept. 12, 2015, occurred above 400 feet, the maximum altitude at which drones are allowed to fly under FAA regulations. The study reported:

  • 51 incidents in which a drone was sighted 50 feet or less from an airliner; and
  • 28 incidents in which pilots had to take evasive maneuvers to avoid a collision.

Often the drones were large enough to cause significant — possibly catastrophic — damage in the event of a collision; among the 340 drones identified in the study, 246 were multirotor and 76 were fixed-wing.

Bard’s study also included reported incidents at Los Angeles International Airport over a one-year period beginning Dec. 8, 2014. The study found 17 incidents of drone sightings in proximity to the airport. Eleven of the incidents, or 64 percent, were within the federally prohibited 5-mile radius. Ten of them were above 400 feet, ranging from altitudes of 500 to 4,000 feet.

In June 2015, a Southwest Airlines pilot reported sighting a drone at between 2,000 and 3,000 feet just prior to landing at Oakland International Airport. Such incidents are increasingly common in other parts of the country. The Denver Post reported on Sept. 20, 2015, that since June 2015, unauthorized drones have been spotted near Denver International Airport seven times, flying within 500 feet of approaching aircraft at altitudes as high as 3,600 feet, well above the maximum altitude of 400 feet for drones.

What’s Required Under Federal Law

In an effort to help the public understand what is required of not only recreational drone operators, but also commercial and public agency users of unmanned aircraft systems, the FAA has launched a website containing information on the federal requirements, including the many safety guidelines listed below, at http://knowbeforeyoufly.org.

Recreational drone operators are required to observe these safety guidelines:

  • Follow community-based safety guidelines, as developed by organizations such as the Academy of Model Aeronautics (AMA);
  • Fly no higher than 400 feet and remain below any surrounding obstacles when possible;
  • Keep the drone/UAS in eyesight at all times, and use an observer to assist if needed;
  • Remain well clear of and do not interfere with manned aircraft operations — see and avoid other aircraft and obstacles at all times;
  • Do not intentionally fly over unprotected persons or moving vehicles, and remain at least 25 feet away from individuals and vulnerable property;
  • Contact the airport or control tower before flying within 5 miles of an airport;
  • Fly no closer than 2 nautical miles from a heliport with a published instrument flight procedure;
  • Do not fly in adverse weather conditions, such as in high winds or reduced visibility;
  • Do not fly under the influence of alcohol or drugs;
  • Ensure the operating environment is safe and that the operator is competent and proficient in operating the drone/UAS;
  • Do not fly near or over sensitive infrastructure or property, such as power stations, water treatment facilities, correctional facilities, heavily traveled roadways and government facilities;
  • Check and follow all local laws and ordinances before flying over private property; and
  • Do not conduct surveillance or photograph people in areas where there is an expectation of privacy without the individual’s permission (see the AMA’s privacy policy).

In addition, operators of commercial and recreational drones/UASs should be aware that in remote, rural and agricultural areas, manned aircraft — including fixed-wing aircraft and helicopters — may be operating very close to ground level. Pilots conducting agricultural, firefighting, law enforcement, emergency medical and wildlife survey operations (and a variety of other services) legally and routinely work in low-level airspace. Operators controlling drones/UASs in these areas should maintain situational awareness, give way to and remain a safe distance from these low-level, manned airplanes and helicopters.

Recent Attempts at Regulation in California

Gov. Jerry Brown’s administration has taken a mixed approach in terms of drone policy. The governor signed a bill in October 2015 banning the use of drones to record audio or video of events occurring on private property without the property owner’s permission. This legislation is intended in part to provide celebrities some protection from paparazzi and protect the general public from illicit, unauthorized surveillance.

But Gov. Brown vetoed a broader measure, SB 142 by Senator Hannah-Beth Jackson (D-Santa Barbara), that would have placed a blanket ban on drones flying over private property without the owner’s permission and made such activity trespassing. He vetoed two more bills, both by Senator Ted Gaines (R-El Dorado), that would have made it a criminal infraction to fly over a public school without permission (SB 271) and that would have created misdemeanor penalties for drone flights over prisons or county jails (SB 170). Gov. Brown also vetoed SB 168, which addressed first-responder immunity for damaging or destroying drones. In each case, the governor cited a policy objection to defining new crimes. However, his veto messages did not criticize the attempt to provide additional regulation in this area at the state level, which could encourage the Legislature to try again with a slightly different approach.

A New Approach From Japan: The Anti-Drone

On Dec. 11, 2015, Forbes.com reported that the Tokyo Metropolitan Police Department had recently released a video of a special net-wielding drone it will use to intercept rogue drones flying over the city. The issue of drones penetrating government security garnered attention in Japan in April 2015, when a drone dropped a small amount of radioactive soil from the Fukushima Prefecture onto the roof of the prime minister’s office.

The new police drone has six propellers and a 3-meter by 2-meter net, according to the Asahi Shimbun, a local newspaper. It will be deployed by the unit within the Tokyo Metropolitan Police responsible for patrolling critical governmental locations.

What’s Coming

The FAA released a list of recommendations in November 2015 to facilitate improved monitoring of recreational drones. A key recommendation required that most drone operators register their machine with the FAA, which will place the information into a national database. In addition to the new regulations that took effect in December 2015, discussed earlier in this article, the FAA has slated additional regulations for potential adoption as soon as March 2016, but possibly as late as June.

Regardless of the impact of the new rules, a larger difficulty remains: Many drone operators are ignoring a number of the existing rules with increasing frequency, under circumstances that clearly pose an imminent danger to public safety. Will drone operators comply with a registration requirement that appears to be largely voluntary?

Given the ongoing dramatic increase in drone sales, state legislatures throughout the nation are certain to revisit this issue in 2016, particularly if the latest wave of federal regulations do not seem strong enough. Areas of potential legislation include first-responder immunity, mandatory registration with local law enforcement, unique identifier requirements for individual drones and “kill switch” technology that can immediately disable a drone.

(This article was posted originally at Western City magazine and most recently at Public CEO

-cw

AT LENGTH-The 2016 race for president seems to be spinning out in ever more curious and historical proportions without there being clear winners on either the Democratic or Republican sides. 

Clearly the Trumpers’ revolt on the conservative side is causing real teeth-gnashing among the Republican Party leadership. But even with his collection of primary “wins”, he still hasn’t garnered more than half the delegates he needs to win at the convention. 

Similarly, Hillary Clinton, the odds-on-presumptive candidate, is in the same position of not having broken the halfway mark to the goal of 2,383 delegates. What this means is that the downstream primaries of California and New York, where the bulk of voters reside, may still hold sway in both parties late in the season. That means that both the insurgent campaigns of Bernie Sanders and that of Ted Cruz could win enough votes to force a brokered convention in the two parties. 

Upsetting as this disruption is for the party elites and the Washington establishment, it does make for an entertaining political process that has historical precedent and is embedded in the DNA of American political culture. 

Think about the very birth of the Republican Party and the demise of its conservative predecessor the Whig Party -- founded in 1833 and dissolved in 1854. Political parties rise and fall based upon the politics of the day, but the democratic process continues. The only question is whether the Republican Party can survive Donald Trump’s candidacy? 

The fear of his nomination has to do with whether the republic could endure his presidency. This, I believe, would be America “making a great mistake.” Trump’s use of widespread fear mongering and race baiting would so drastically divide this nation, that his elevation to the Oval Office would make the current dysfunction in Congress appear slight by comparison. And, he wouldn’t even have the full backing of the Republican Party that nominated him. The July convention in Ohio should really be something to witness. 

What is really curious is how the Sanders campaign is serving as the counterpoint to Trump’s. It is a political uprising of the like we haven’t seen since presidential races of Sens. Eugene McCarthy in 1968 or George McGovern in 1972. 

The Sanders revolt is addressing the very core issues of inequality to which Trump supporters are reacting. The difference is that Sanders’ supporters are more educated and that Sanders’ attacks are specifically directed at the Wall Street banks, the big pharmaceutical corporations and the resulting decline of the American middle class. 

Sanders does this without demonizing Mexican immigrants and everybody else Trump has accused of making this nation less than great. 

Sadly, this is not the first time this country has faced off with its own nativist form of fascism. The American author Sinclair Lewis (1885-1951) wrote It Can’t Happen Here in 1935, a novel about the election of a fascist to the American presidency. This was a controversial book at the time of its printing and was a cautionary tale in light of what was rising up in Germany and Italy at the time. It was a thinly veiled critique of American politics of the Depression era. It should be used today by history and English professors to explain Trump’s rise as a populist. 

Sanders’ win in Michigan comes as no surprise. His fortunes in Wisconsin on April 5 could go the same way considering the strong Robert LaFollette progressive tradition there. 

However, if the California primary still holds sway come June 7, one might want to revisit the campaign of the other Sinclair -- Upton Sinclair, whose End Poverty In California campaign set the historical precedent in 1934. Like Sanders, Sinclair was also a socialist turned Democrat and he ran on a platform that is almost uncanny in similarity to this one. 

The battle lines have been drawn. The best contest would be one that gives the American people the choice of Democratic Socialism or national Corporate Capitalism. 

I fear that Clinton, with all of her baggage, will pull off the Democratic nomination and take the middle path, leaving loyal Republicans with the choice of voting for their party and a candidate who would do more harm than good or voting for the one person (Clinton) they’d rather indict in lieu of not voting at all. 

In the end the battle between Sanders and Trump would most clearly define the issues and the sides of the current political debate. That would be one debate worth watching.

(James Preston Allen is the Publisher of Random Lengths News, the Los Angeles Harbor Area's only independent newspaper. He is also a guest columnist for the California Courts Monitor and is the author of "Silence Is Not Democracy - Don't listen to that man with the white cap - he might say something that you agree with!" He was elected to the presidency of the Central San Pedro Neighborhood Council in 2014 and has been engaged in the civic affairs of CD 15 for more than 35 years. More of Allen … and other views and news at: randomlengthsnews.com.)  Photo: Chicago Tribune. Prepped for CityWatch by Linda Abrams.

PRICE PAIN--Big Pharma remains in the headlines, and those headlines have centered around the Golden State lately. After all, the California Drug Price Relief Act did earn itself a ballot measure next November with well over 500,000 signatures (only 366,880 were needed), and according to recent polling research by the Kaiser Family Foundation, over 70% of Americans think something should be done about the cost of pharmaceuticals. 

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EDITOR’S PICK-Hamilton is the hottest show on Broadway, filled with hip-hop songs, R&B rhythms, and tri-cornered hats. Its multi-racial cast portrays the pantheon of Revolutionary greats, and for many a starry-eyed critic this sing-along with the founders offers “a factually rigorous historical drama.” Those are the words of Jody Rosen in The New York Times, and he is not alone. As an academic who spent years studying Aaron Burr before producing a scholarly biography, I can say emphatically that rules of historical rigor do not apply to Hamilton.

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GELFAND’S WORLD--California is joining the states that allow physician assisted suicide. As of June 9, the right to die using legally prescribed pharmaceuticals will be the law. It is, admittedly, a limited sort of access to this form of chemistry, in that being terminally ill is the essential requirement. Society will still try to rescue people whose suicidal thoughts come from psychological turmoil. Still, the passage of this law signals a long term cultural trend. 

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EDITOR’S PICK--The neoliberal ideology that is the engine of corporate capitalism spews its poison around the globe. Constitutions are rewritten by judicial fiat in a mockery of democracy. Laws and regulations that impede corporate exploitation are abolished. Corporations orchestrate legally sanctioned tax boycotts. Free-trade deals destroy small farmers and businesses along with labor unions and government agencies designed to protect the public from contaminated air, water and food and from usurious creditors and lenders.

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POLITICS--Fury in the GOP as the two leading candidates are two iconoclastic outsiders (Trump and Cruz), and fury in the Democratic Party as the Bernie Sanders folks decry a fair shake against the candidate who is "supposed to win" (even if she is the first potential female President). 

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TRANSITION POLITICS--Dear Caitlyn: Much as I'm reluctant to further any infighting within the transgender and gender nonconforming community, I also have a responsibility to speak truth to power. Your visibility has gone from mildly annoying, to problematic, to atrocious, to outright detrimental, and so I ask you, politely: 

Stop trying to help though the media and public appearances. Please. Stop. 

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GELFAND’S WORLD--Americans are justly puzzled at the behavior of Donald Trump and his crowds of followers. Episodes of people being expelled from Trump rallies just for looking or dressing differently are common. References to violence, or at least threats of violence, appear with regularity.

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GUEST COMMENTARY--Apologies to those of you understandably all Trumped out. But Holy Mother of God, this shall not pass. At a snarling, jabbing, invective-laden "rally" in Louisville, a mob of Trump supporters - following The Donald's vicious lead - jostled and heaved a black college student out of the building, calling her "nigger" and "cunt" as she passed. 

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EDITOR’S PICK--It all began with a college football game, a well-known, talented female sportscaster and a costly lapse of judgment on the part of the Nashville Marriott staff. You see, none of the emotional and psychological wounds that Erin Andrews has suffered over the past 80 or so months had to have happened. All she did was check into a generic chain hotel for a work event. 

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EDITOR’S PICK--In my experience, good public policy is best shaped by the dispassionate analysis of what in practice has worked, or not. Policy based on common assumptions and popular sentiments can become a recipe for mistaken prescriptions and misguided interventions.

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