Legal Check List for Issues Surrounding Incidents

Related to Terrorism

Presented at the

International Association of Chiefs of Police

Annual Conference, Philadelphia 2003

by Mark Newbold

Deputy City Attorney,

Charlotte-Mecklenburg Police Department

Every county and state now has an Emergency Operation Plan in place to deal with the possible occurrence of a significant NBC event. Likewise, the Federal Government has recently released an interim National Response Plan. These plans are by their very nature operational and few, if any, contain legal checklists. Although segments of the legal system are by definition reactionary, it is incumbent upon our profession to look forward and ensure that an operational response is in accordance with basis statutory requirements and core constitutional principles. This checklist suggests certain basic review steps be taken by counsel for law enforcement agencies and is divided into “before” and “after” segments. I recently participated in a mock exercise conducted by our agency that greatly contributed to my perspective on issues that I, as a lawyer, needed to further pursue. In addition, I reviewed numerous sources including materials provided by the American Bar Association and the Office of Domestic Preparedness. Although it is impossible for us to prepare for all contingencies, we must ensure that emergency operations are supported by the rule of law.

1) Are mutual aid/interagency agreements in place and current?

Incidents can and will occur across jurisdictional lines. Obviously, mutual aid agreements foster cooperation between local agencies by sharing personnel and equipment. However, failure to have a legally sufficient mutual aid agreement in place prior to an event may expose the agency to assertions that an agency lacked jurisdiction. In addition, in the event an officer is hurt or killed outside of his or her jurisdiction, the officer(s) may be denied benefits on the grounds that they had no authority to act as an agent for the requesting agency.

a) Types of agency cooperation.

i) Municipality with other Municipalities

ii) Municipality with County

iii) Municipality with Sheriff

iv) Dual Office

v) Municipality with Federal Agencies

(1) Dual office with U.S. Marshal’s office

vi) Officer acting as a private citizen.

b) Has authority for the governmental entity to enter into the mutual aid agreement been followed?

Many state statutory schemes require that the agency providing the assistance must be granted authority from the governing body. Failure to have the proper authority may negate the agreement. You should review your statutory and be certain that the required resolution and ordinance is current and in place.

i) Review agreements on a regular basis with each Executive Chain of Command. This will allow immediate deployment of personnel and equipment without delay and ensure that the contact person for each agency is in place.

c) Do you have a regional mutual aid agreement? If not, why not?

2) Declaring a State of Emergency

How is a state of emergency established in your jurisdiction? In some jurisdictions it can be declared by state, county or local officials and the process for each may differ as well as the legal threshold for declaring the emergency.

a) Review and understand.

i) Authority of the Governor to declare a state of emergency

(1) Understand the threshold of when the power to declare a state of emergency exists.

(a) Threshold?

(i) For example, under North Carolina law, the “Governor may exercise all powers conferred by this section if he further finds that local control of the emergency is insufficient to assure adequate protection for lives and property.”

(b) What is the relationship of the local plan to the National Response Plan?

(2) What is the authority for Local Government to declare a state of emergency?

(a) Threshold?

(i) “In the event of an existing or threatened state of emergency endangering the lives, safety, health and welfare of the people within the city, or threatening damage to or destruction of property, the mayor of the city is hereby authorized and empowered to issue a public proclamation declaring to all persons, the existence of such a state of emergency.”

(3) Is there a formal channel in place from the local level to the Governor to ensure efficient transfer of information?

b) Have you prepared a Legal Emergency Operation Manuel with essential statutes, ordinances and proclamations?

i) Ensure that legal staff is sufficiently trained and that they are prepared to go on to shifts.

c) What are the specific grants of power to law enforcement during a state of emergency?

i) Curfews

ii) Detentions/searches

(1) Constitutionally permissible?

(a) Special Needs doctrine

iii) Restricting access to a scene.

iv) Enforced evacuation.

v) Forced vaccinations for employees and public.

vi) Enforcement of suspension of sales of certain items/liquor/firearms.

vii) Restriction of movement of people in public places.

viii) Restriction of operation of certain business.

ix) Restriction of sale of certain items.

(1) E.g. any substances which by itself, or in any combination, could be used to make an explosive device or weapon of mass destruction.

x) Transportation, sale, possession of alcoholic beverages.

xi) Prohibit Excessive Pricing during state of emergency.

xii) If a major metropolitan area in a large county -

(1) Ordinance/Resolution automatically adopting state of emergency declared by major metropolitan area.

xiii) Suspension of bidding requirements for purchasing and the granting of the ability to award contracts.

xiv) The ability to pass emergency ordinances

xv) Penalty provisions

d) Specific grants of powers should be reviewed under the 1^st, 4^th, and 14^th Amendments to identify over breath and vagueness.

3) Joint Implementation Plan for Quarantine/Isolation/Public Health Functions

a) Implementation plan with local LEO.

i) If the quarantine is not voluntary, then who is authorized to enforce quarantine?

ii) Do public health officials have sufficient personnel to enforce large scale quarantine? If not, is there a need for contingency implementation plan with local law enforcement and other agencies?

b) Quarantine authority.

i) The authority to quarantine usually lies with local and federal public health officials. In the event of a significant incident, implementation and enforcement of the quarantine will only be successful with assistance from local law enforcement officials. Determine who has the authority to order quarantine. In most states it is highest ranking officer in the Health Department or his/her delegate and/or local Health Director.

c) Identify the legal requirements surrounding Quarantines and Isolation. For example.

i) Quarantine

(1) The limiting of “freedom of movement or action of persons or animals which have been exposed to or are reasonably suspected of having been exposed to a communicable disease or communicable condition for a period of time as may be necessary to prevent the spread of disease.”

(a) This definition incorporates a reasonable suspicion standard to those exposed to a communicable condition.

ii) Isolation.

(1) The limiting the freedom of movement of action of a person or animal with a communicable disease for a period of communicability to prevent the direct or indirect conveyance of the infectious agent from the persons who are susceptible or who may spread the agent to others.

(a) Person must be diagnosed with the condition before restriction is in place.

d) Are there any additional legal requirements that must be met before quarantine is declared?

i) “The State Health Director and a local health director are empowered to exercise quarantine and isolation authority. Quarantine and isolation authority shall be exercised only when, and so long as, the public health is endangered, all other reasonable means for correcting the problem have been exhausted and no less restrictive alternative exits.”

ii) “Reasonable suspicion + all other means for correcting the problem have been exhausted + no less restrictive alternative exists.”

e) Can the quarantine be appealed? Process to handle widespread appeals?

i) “When quarantine or isolation limits the freedom of movement of a person . . . the period of limited freedom of movement or access shall not exceed 10 calendar days. Any person substantially affected by that limitation may institute, in superior court in ….. County or in the County in which the limitation is imposed, an action to review that limitation. If the person requests a hearing, a hearing shall be held within 72 hours of the filing of that request excluding Saturdays and Sundays. The court shall reduce the limitation if it determines, by a preponderance of the evidence, that the limitation is not reasonably necessary to prevent or limit the conveyance of a communicable disease.”

(a) If there is a significant incident is the County Attorney’s office and local court equipped to handle numerous appeals.

(b) Can additional counsel be brought in to assist with appeals? Local Bar?

(i) Statutory Authority allowing appointment of special attorney.

f) Location of Quarantine

i) What is the authority to seize property or place to enforce quarantine?

(1) Owner of property consents

(2) Potential Challenges

ii) Getting information from the LEO to the Public Health Director.

g) Use of Force to enforce quarantine.

i) Consider having protocol or directive in place

ii) Amount of force

(1) Severity of the crime

(2) Imminent threat

(3) Actively resisting arrest escape

(4) Is there legal authority for LEO to detain someone on articulable suspicion of communicable disease? (Not N.C., it is health director.)

(a) The ability to detain will be based on the likelihood of the threat or the ability to detain will be based on the whether the threat is imminent.

h) Duty to provide care/quarantine.

i) The state has a duty to protect a citizen “when the state by an affirmative exercise of power so restrains an individual’s liberty that it renders him so unable to care for himself, and at the same time fails to provide for his basic human needs.” Deshanny v. Winnebago, 109 S.Ct 998 (6^th Cir.)

ii) The relationship only arises when the state restrains an individual or takes a person into custody.

i) Federal Authority to enforce a quarantine.

i) 42 U.S.C Section 264

j) Has your organization educated the public about the need for voluntary compliance and the ability to enforce quarantine/isolation orders?

4) Investigation of suspect and/or obtaining medical information of a carrier as part of a criminal investigation

a) Do you have a consensus between police and medical facilities on when medical information can be released?

i) Review HIPAA and state confidentiality laws before need arises

(1) Exception under 45 C.F.R. 164.512(b) “authorizes disclosures to public health officials for the purpose of preventing or controlling diseases.”

(a) Will public health release to law enforcement?

(2) Exception under 45 C.F.R. 164.512(f)

(a) When can law enforcement review medical information?

(i) What diseases must be reported?

(ii) What diseases/conditions require confidentiality?

(iii) The need for a warrant.

5) Authority to seize property to place persons who are involuntarily quarantined

a) Declaration of an emergency required.

i) Building

ii) Fairground

iii) Stadium

6) Has Legal secured a position in the command center?

a) Are legal personnel assigned shifts that correspond to Emergency Personnel?

b) Are they equipped to respond to legal challenges/needs if computer research systems are down?

c) Have legal personnel developed an emergency operation manual.

d) Can legal communicate with Emergency Personnel if systems go down?

Case Law

• Authority to Quarantine/Isolation

• Jew Ho v. Williamson, 103 F. 10 C.C. N.D.Cal.,1900
  In a suit to enjoin the enforcement of quarantine regulations adopted because of the supposed existence of a contagious disease in the locality quarantined, the court will not, under ordinary circumstances, undertake to review the finding of the proper health authorities that the disease exists and the quarantine is necessary.

• Sumner v. Philadelphia, 23 F.Cas. 392 C.C.E.D.Pa. ,1873
  Where quarantine officers detain an entirely innocent ship for fear of a panic should she be permitted to enter the harbor, the municipality would be bound to compensation.

• Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. of Health, 186 U.S. 380, 22 S.Ct. 811, 46 L.Ed. 1209 (1902) (permitting involuntary quarantine of persons suffering from communicable diseases.)

• School Board Nassau v. Arline 107 S.Ct. 1123(1987) School teacher afflicted with contagious disease of tuberculosis was a “handicapped individual” within meaning of Rehabilitation Act section prohibiting federally funded state program from discriminating against handicapped individual solely by reason of handicap.

• City of Philadelphia v. New Jersey, 98 S.Ct. 2531 (1978). States can prohibit the importation of items “ ‘which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed or otherwise, from their condition and quality, unfit for human use or consumption.’ “

• Jacobson v. Commonwealth of Mass., 25 S.Ct 358 (1905) “The authority of the state to enact this statute is to be referred to what is commonly called the police power,--a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”

• Curfew

• Smith v. Avino, 91 F.3d 105 (11^th Cir. 1996) While we would agree with plaintiffs that in a normal situation, the proclamation should be as informative as possible, under the emergency circumstances present in this case, the proclamation was not constitutionally flawed because it did not include exceptions. In an emergency situation, fundamental rights such as the right of travel and free speech may be temporarily limited or suspended. See Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

• Authority for Commandeering

• U.S. v. Russell 80 U.S. 623 (1871). “Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner . . . Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.

• Failure to Train/Plan

• Canton v. Harris, 489 U.S. 378 (1989) Deliberate indifference to an obvious training need sufficient to establish custom or policy for purposes of Section 1983.
• Autrey v. U.S., 992 F.2d 1523 (11^th Cir. 1993)

• Use of Force

• Seizure by detention or arrest. Graham v. Connor 490 U.S. 386 (1989)
• Other uses of Force. County of Sacramento v. Lewis, 523 U.S. 833(1998)

• Disperse

• Governments Duty to Protect / Danger creation

• DeShaney v. Winnebago County Social Service, 489 U.S. 189(1988)

Sources reviewed for this Checklist

• Response to Bioterrorism, Office of Domestic Preparedness Exercise in conjunction with North Carolina Bar Association

• Legal Handbook for Catastrophic Terrorism, Professor Barry Kellman, Director , International Weapons and Control Center, DePaul University and John and John Menichetti

• Draft Checklist for State and Local Government Attorneys to Prepare for Possible Disasters, American Bar Association, Earnest B Abbott, Esq., Chair

• Local Response to Terrorism, Jill Moore, North Carolina Institute of Government