North Dakota’s groundbreaking drones law may be changed

Lawmakers say concerns over weaponization are overblown

Recently many North Dakota citizens were surprised to learn that the North Dakota Legislature passed a law which allowed local law enforcement departments to arm drones with non-lethal weapons, as a part of larger bill designed to provide 4th amendment protections for citizens on drone use. The law made national news as the first of its kind to become law.

The author of the bill HB 1328, ND State Representative Rick Becker (R- Bismarck), said it initially included a ban on non-lethal weapons with drones used by law enforcement, but that it was taken out with amendments during committee work due to law enforcement opposition. He said the bill would not have passed if law enforcement opposed it. He said some of the national uproar over the bill is overblown because nothing changed.

“What we got was a requirement for a search warrant and a ban on lethal weapons. Because of the actual process where people were actually speaking about weaponizing drones and whether to do it or not and the fact that the bill that the original bill as introduced did include a provision of non-lethal use and then that was removed. It was interpreted for the purposes of spin in my opinion to suggest that this was then legislation to legalize weaponizing drones which it did not. There’s nothing in the bill that’s permissive, it’s only restrictive, but it came out less restrictive than it went in,” Becker told HPR.

ND Senate Minority Leader Mac Schneider (D- Grand Forks) said that before the bill had passed, law enforcement could use non-lethal weapons on drones and that didn’t change after it had passed. Both he and Becker will seek to pass a ban on drones with non-lethal weapons in the 2017 Legislative session. Schneider voted against the bill not because of the weaponization portion of the bill but because of economic development concerns about provisions concerning civilian use of drones. He also feels that the 4th amendment will protect North Dakota citizens concerned about privacy erosion.

“The 4th amendment is going to be there to protect people from unreasonable searches and seizures regardless of developments in technology, and so with that assurance the constitutional rights would be protected, I voted against the bill,” Schneider said.

The ACLU of North Dakota supported the bill until it was amended to no longer include a ban on non-lethal weapon use of drones. Jennifer Cook, policy director for the ACLU of ND, said it doesn’t matter that law enforcement could use non-lethal weapons on drones before the law had passed -- what matters is the precedent it sets.

“The difference here is now you actually have something in the North Dakota Century Code that specifically does not include a ban on non-lethal weapon for drones. And if you look at the bill as it was initially drafted, it does includes a prohibition on all weaponization of drones, so the intent was to prohibit any type of weaponization. So now you have clear language that is codified that says lethal weapons are prohibited, so it’s a stamp of approval by the Legislature that drones can be weaponized with non-lethal weapons and that’s a position that we do not agree it,” Cook replied.

Rep. Becker doesn’t think many law enforcement departments will be in a rush to use non-lethal weapons on drones despite their efforts to lobby to get a ban excluded. He also feels that because of the uproar this law has caused, their opposition to ban in the 2017 Legislative session may fade.

“I don’t see a lot of police departments or county sheriff’s offices lining up to use non-lethal weapons on drones. I don’t see that. Maybe that will change, it can be re-evaluated. There’s different branches of governments that are going to take a look at this. The court system obviously in the 4th amendment context and the Legislators in the policy-making context,” Becker said.

As to why this provision of the bill didn’t get more attention during the Legislative session, opinions vary. Schneider remembers voting on the bill but doesn’t remember any debate over weaponization of drones by law enforcement. The ACLU’s Cook testified on the bill in the Senate Judiciary Committee and said there was discussion in that committee which was open to the public.

“While there was some debate during the Senate Judiciary Committee about whether weaponization of drones was a good idea, it was limited debate. Frankly, while I am not going to say there wasn’t enough debate because certainly the hearings were public, there was an opportunity for the public to be aware of what changes had been made in the bill and that’s what’s legally required, but I think that in general when you look at bills like this or any others that come through the Legislature that contemplate civil liberties, I think there needs to be more of a conscious effort to consider whether a certain piece of Legislation compromises our civil liberties,” Cook told HPR.

One concerned citizen is taking matters into his own hands. Chuck Johnson, an NDSU pre-law student, plans to soon begin collecting signatures to present to the Legislature of those opposed to the non-lethal weaponizations of our police departments.

“My main problem is that if you read what the Legislature put, it doesn’t limit enough use on the use of these drones, like if you are going to arm robotic machines with tasers, rubber bullets, mace. That’s some pretty heavy-grade equipment to be throwing on a robot, a machine. I just feel like it’s a violation of the 4th amendment. It makes the job of a cop less humanistic and just more machine-based and it’s not something our country needs to go to at all,” Johnson said, “I think that’s extremely problematic in the long run because I think that’s going to escalate. It’s a slippery slope.”

Rep. Becker who is considering a run for Governor in North Dakota in 2016, said he thinks the bill overall was still a good one and is hopeful for getting the “15%” bad content changed in the next session.

“Do you want to fight for every word in the bill as you introduced it, in which case, you will get nothing? Or do you want to take the 85% that you can get and you can come back in 2 years and fight for the 15%? For those that are concerned about civil liberties, this is a huge gain. There’s no significant concession, there’s no awkward compromise, we made huge strides and put ourselves in position to get everything else we want in 2 years,” Becker remarked.

A year and a half is a long time in politics, considering that, the 2017 Legislative session is quite a ways away. What happens between now and then will likely determine the future of non-lethal weaponization of drones by law enforcement in North Dakota.