Legal Issues Before During and After Or “First, let’s kill all the lawyers...” Terrorism Legal...
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LegalLegal Issues Before Issues Before
During and AfterDuring and AfterOr Or
“First, let’s kill all the lawyers . . .”“First, let’s kill all the lawyers . . .”
Terrorism Legal SymposiumTerrorism Legal Symposium
Legal Officers SectionLegal Officers SectionMark H. Newbold, Deputy City Attorney-PoliceMark H. Newbold, Deputy City Attorney-Police
Charlotte-Mecklenburg Police DepartmentCharlotte-Mecklenburg Police Department
Local Government’s RoleLocal Government’s Role
“Local Response is the key to stopping this demon in its tracks”
Bioterrorism and the Role of Local Government By Jill Moore, Institute of Government
Goals of Local Goals of Local GovernmentGovernment
To detect when an act of To detect when an act of bioterrorism occursbioterrorism occurs
To respond effectively to contain the To respond effectively to contain the threat and protect the public.threat and protect the public.
To help the community recover when To help the community recover when the emergency has passedthe emergency has passed
Bioterrorism and the Role of Local Government By Jill Moore, Institute of Government
Need for Legal AnalysisNeed for Legal Analysis Constitutional Issues embedded within Constitutional Issues embedded within
the Goals of Local Government.the Goals of Local Government. ““To detect when an act of bioterrorism To detect when an act of bioterrorism
has occurred”has occurred” 11stst (surveillance, restriction of movement, (surveillance, restriction of movement,
freedom of speech)freedom of speech) 44thth (search and seizure, special needs doctrine) (search and seizure, special needs doctrine) 55thth (just compensation) (just compensation) 1414thth (seizing property with due process) (seizing property with due process)
Need for Legal AnalysisNeed for Legal Analysis ““To respond effectively to contain the To respond effectively to contain the
threat and protect the public.”threat and protect the public.” 55thth Amendment: Just compensation clause Amendment: Just compensation clause Police PowersPolice Powers 44thth Amendment Amendment 1414thth
Equal protection Equal protection Due ProcessDue Process
11stst Amendment Amendment Free trade of ideasFree trade of ideas Restricting speech/associationRestricting speech/association
Need for Legal AnalysisNeed for Legal Analysis
““To help the community recover To help the community recover when the emergency has passed.”when the emergency has passed.” Just compensation for governmental Just compensation for governmental
takingstakings 44thth and 14 and 14thth
Quarantine and isolationQuarantine and isolation Equal ProtectionEqual Protection
Settlement of claims in a fundamentally fair Settlement of claims in a fundamentally fair mannermanner
Profiling IssueProfiling Issue
Need for Legal AnalysisNeed for Legal Analysis
To ensure that the rule of law is To ensure that the rule of law is followed and preserved.followed and preserved.
BeforeBefore
Are mutual aid / interagency Are mutual aid / interagency agreements in place and current?agreements in place and current?
Has authority for the governmental Has authority for the governmental entity to enter into the mutual aid entity to enter into the mutual aid agreement been followed?agreement been followed?
Do you have a regional mutual aid Do you have a regional mutual aid agreement? If not, why not?agreement? If not, why not?
Have you enlisted help from the private Have you enlisted help from the private sector by virtue of informal MOU’ssector by virtue of informal MOU’s
Before – Mutual AidBefore – Mutual Aid
Types of agency cooperation.Types of agency cooperation. Municipality with other MunicipalitiesMunicipality with other Municipalities Municipality with CountyMunicipality with County Municipality with SheriffMunicipality with Sheriff Dual Office Dual Office Municipality with Federal AgenciesMunicipality with Federal Agencies Dual office with U.S. Marshal’s officeDual office with U.S. Marshal’s office Officer acting as a private citizen.Officer acting as a private citizen.
Before - State of Before - State of EmergencyEmergency
Declaring a State of EmergencyDeclaring a State of Emergency Review and understand how and who Review and understand how and who
can declare a state of emergency.can declare a state of emergency. Understand the relationship between Understand the relationship between
Federal, State and Local proceduresFederal, State and Local procedures If local what is the threshold necessary to If local what is the threshold necessary to
establish a state of emergencyestablish a state of emergency Have you prepared a Legal Operational Manuel Have you prepared a Legal Operational Manuel
with draft proclamations and trained command with draft proclamations and trained command staff on how to obtain a declaration of staff on how to obtain a declaration of emergency.emergency.
State of EmergencyState of Emergency
Review and understandReview and understand Authority of the Governor to declare a state Authority of the Governor to declare a state
of emergencyof emergency Understand the threshold of when the Understand the threshold of when the
power to declare a state of emergency power to declare a state of emergency exists.exists.
Threshold? Threshold? For example under North Carolina law the For example under North Carolina law the
“Governor may exercise all powers “Governor may exercise all powers conferred by this section if he further finds conferred by this section if he further finds
that that local controllocal control of the emergency is of the emergency is insufficient to assure adequate protection insufficient to assure adequate protection for lives and property ”for lives and property ”
What is the relationship of the local plan to What is the relationship of the local plan to the National Response Plan. the National Response Plan.
Local Declaration State of Local Declaration State of Emergency - exampleEmergency - example
A state of emergency shall be deemed to exist A state of emergency shall be deemed to exist whenever, during times of great public crisis, disaster, whenever, during times of great public crisis, disaster, rioting, catastrophe, or similar public emergency, for rioting, catastrophe, or similar public emergency, for any reason, municipal public safety authorities are any reason, municipal public safety authorities are unable to maintain public order or afford adequate unable to maintain public order or afford adequate protection for lives, safety or property.protection for lives, safety or property.
In the event of an In the event of an existingexisting or or threatenedthreatened state of state of emergency endangering the lives, safety, health, and emergency endangering the lives, safety, health, and welfare of the people within the city, or threatening welfare of the people within the city, or threatening damage to or destruction of property, the mayor of the damage to or destruction of property, the mayor of the city is hereby authorized and empowered to issue a city is hereby authorized and empowered to issue a public proclamation declaring a state of emergency, public proclamation declaring a state of emergency, and to place into effect any or all restrictions and to place into effect any or all restrictions authorized, including the authority to define and authorized, including the authority to define and impose a curfew. impose a curfew.
State of EmergencyState of Emergency What are the specific grants of power to law What are the specific grants of power to law
enforcement during a state of emergency.enforcement during a state of emergency. CurfewsCurfews Detentions/searchesDetentions/searches
Constitutionally permissible?Constitutionally permissible? Special Needs doctrineSpecial Needs doctrine
Restricting access to a scene.Restricting access to a scene. Forced evacuation.Forced evacuation. Forced vaccinations for employees and public.Forced vaccinations for employees and public. Enforcement of suspension of sales of certain Enforcement of suspension of sales of certain
items/liquor/firearms.items/liquor/firearms. Restriction of movement of people in public places. Restriction of movement of people in public places. Restriction of operation of certain business.Restriction of operation of certain business. Restriction of sale of certain items.Restriction of sale of certain items.
e.g. Any substances which by itself or in any combination e.g. Any substances which by itself or in any combination could be used to make an explosive device or weapon of could be used to make an explosive device or weapon of mass destruction. mass destruction.
Transportation, sale, possession of alcoholic beverages?Transportation, sale, possession of alcoholic beverages?
Before – Emergency Before – Emergency ProclamationProclamation
Prohibit Excessive Pricing during state of Prohibit Excessive Pricing during state of emergency? emergency?
If a major metropolitan area in a large county.If a major metropolitan area in a large county. Ordinance/Resolution automatically adopting Ordinance/Resolution automatically adopting
state of emergency declared by major state of emergency declared by major metropolitan area.metropolitan area.
Suspension of bidding requirements for purchasing Suspension of bidding requirements for purchasing and the granting the ability to award of contracts. and the granting the ability to award of contracts.
The ability to pass emergency ordinances? The ability to pass emergency ordinances? Penalty provisions?Penalty provisions? Specific grants of powers should be reviewed Specific grants of powers should be reviewed
under the 1under the 1stst, 4, 4thth, 5, 5thth and 14 and 14thth. .
Joint Implementation Joint Implementation Plans Plans
Involuntary Isolation and QuarantineInvoluntary Isolation and Quarantine Authority to declare need Authority to declare need Threshold requirementThreshold requirement EnforcementEnforcement Due ProcessDue Process
Preparation for class challengePreparation for class challenge Additional counsel to assist with appealsAdditional counsel to assist with appeals
Assistance from local barAssistance from local bar
QuarantinesQuarantines
Identify the legal requirements surrounding Identify the legal requirements surrounding Quarantines and Isolation. For example.Quarantines and Isolation. For example.
QuarantineQuarantine The limiting of “freedom of movement or action of The limiting of “freedom of movement or action of
persons of animals which have been persons of animals which have been exposed toexposed to or are or are reasonably suspectedreasonably suspected of having been exposed to a of having been exposed to a communicable disease or communicable condition for a communicable disease or communicable condition for a period of time as may be necessary to prevent the period of time as may be necessary to prevent the spread of disease.” spread of disease.”
This definition incorporates a reasonable suspicion This definition incorporates a reasonable suspicion standard to those exposed to a communicable standard to those exposed to a communicable condition.condition.
Isolation.Isolation. The limiting the freedom of movement of action of a The limiting the freedom of movement of action of a
person or animal person or animal with a communicable diseasewith a communicable disease for a for a period of communicability to prevent the direct or period of communicability to prevent the direct or indirect conveyance of the infectious agent from the indirect conveyance of the infectious agent from the person who are susceptible or who may spread the person who are susceptible or who may spread the agent to others.agent to others.
Person must be diagnosed with the condition before Person must be diagnosed with the condition before restriction is in place.restriction is in place.
QuarantinesQuarantines
Are there any additional legal Are there any additional legal requirements that must be met before requirements that must be met before quarantine is declared?quarantine is declared?
““The State Health Director and a local health The State Health Director and a local health director are empowered to exercise quarantine director are empowered to exercise quarantine and isolation authority. Quarantine and isolation and isolation authority. Quarantine and isolation authority shall be exercised only when and so long authority shall be exercised only when and so long as the public health is endangered, all other as the public health is endangered, all other reasonable meansreasonable means for correcting the problem have for correcting the problem have been been exhaustedexhausted and and no less restrictive no less restrictive alternative exitsalternative exits””
Reasonable suspicion + all other means for Reasonable suspicion + all other means for correcting the problem have been exhausted + correcting the problem have been exhausted + no less restrictive alternative exists”no less restrictive alternative exists”
QuarantineQuarantine Can the quarantine be appealed? Process to Can the quarantine be appealed? Process to
handle widespread appeals?handle widespread appeals? ““When quarantine or isolation limits the freedom When quarantine or isolation limits the freedom
of movement of a person . . . the period of limited of movement of a person . . . the period of limited freedom of movement or access shall freedom of movement or access shall not not exceed 10exceed 10 calendar days. Any person calendar days. Any person substantially affected by that limitation may substantially affected by that limitation may institute in superior court in ---- County or in the institute in superior court in ---- County or in the County in which the limitation is imposed an County in which the limitation is imposed an action to review that limitation. If the person action to review that limitation. If the person requests a hearing, a hearing shall be held within requests a hearing, a hearing shall be held within 72 hours72 hours of the filing of that request excluding of the filing of that request excluding Saturdays and Sundays. The court shall reduce Saturdays and Sundays. The court shall reduce the limitation if it determines, by a preponderance the limitation if it determines, by a preponderance of the evidence, that the limitation is not of the evidence, that the limitation is not reasonably necessary to prevent or limit the reasonably necessary to prevent or limit the conveyance of a communicable disease.”conveyance of a communicable disease.”
QuarantineQuarantine If there is a significant incident in the If there is a significant incident in the
County Attorney’s office, is the local court County Attorney’s office, is the local court equipped to handle numerous appeals.equipped to handle numerous appeals.
Can additional counsel be brought in to Can additional counsel be brought in to assist with appeals? Local Bar?assist with appeals? Local Bar?
Statutory Authority allowing appointment of Statutory Authority allowing appointment of special attorney?special attorney?
Joint Implementation Joint Implementation PlansPlans
Isolation and QuarantineIsolation and Quarantine Location and structure necessary to Location and structure necessary to
secure personssecure persons Authority to seize property in the event Authority to seize property in the event
voluntary compliance is not obtained.voluntary compliance is not obtained. Enforcement of the quarantine/isolationEnforcement of the quarantine/isolation
Keeping people out Keeping people out Keeping people inKeeping people in Use of force protocolUse of force protocol
Graham (force to effect a seizure)Graham (force to effect a seizure) Sacramento (force to disperse ) Sacramento (force to disperse )
BeforeBefore
Quarantine/IsolationQuarantine/Isolation Education of public prior to an eventEducation of public prior to an event Voluntary compliance crucialVoluntary compliance crucial Implementation plan in place in Implementation plan in place in
advanceadvance
DuringDuring
Have you secured a chair for Legal Have you secured a chair for Legal in the command center?in the command center? Direct line of communication between Direct line of communication between
legal and command centerlegal and command center Sufficient Legal Staff to accommodate Sufficient Legal Staff to accommodate
extended eventextended event Assignment L.O. to same shiftAssignment L.O. to same shift Assistance from local bar if necessaryAssistance from local bar if necessary
DuringDuring
Commandeering Resources Commandeering Resources Police Powers usually initiated when Police Powers usually initiated when
state of emergency is proclaimed.state of emergency is proclaimed. Limitation Limitation
Cannot be arbitrary and capricious.Cannot be arbitrary and capricious. Quarantine/IsolationQuarantine/Isolation Restriction of movementRestriction of movement
Curfew/limited restriction to areasCurfew/limited restriction to areas Multi-jurisdiction responseMulti-jurisdiction response
AfterAfter
Preservation of “The Record”Preservation of “The Record” Facts/Evidence that were used to Facts/Evidence that were used to
support the decision to:support the decision to: Declare a state of emergencyDeclare a state of emergency Quarantine/IsolationQuarantine/Isolation Requisition / Commandeer PropertyRequisition / Commandeer Property Seize or destroy propertySeize or destroy property Declare curfewDeclare curfew
After After
Potential Legal ChallengesPotential Legal Challenges 44th:th: Seizure (detention/arrest) Seizure (detention/arrest)
SOSSOS 55th:th: Just Compensation Just Compensation
If commandeering/requisitionIf commandeering/requisition If not really an emergency; may not within police If not really an emergency; may not within police
powers.powers.
11stst: Deprived or chilled “free exchange of : Deprived or chilled “free exchange of ideas”; “association” right to “petition ideas”; “association” right to “petition grievances”.grievances”.
Illegal curfewIllegal curfew Insufficient thresholdInsufficient threshold
After After
Potential Legal ChallengesPotential Legal Challenges 1414thth
If “state of emergency” did not existIf “state of emergency” did not exist Substantive due processSubstantive due process
Arbitrary / shocks the conscienceArbitrary / shocks the conscience Failure to act. Created special relationship or Failure to act. Created special relationship or
created the dangercreated the danger
AfterAfter
Procedural Due Process Procedural Due Process Deprivation of liberty or propertyDeprivation of liberty or property
Equal ProtectionEqual Protection Profiling issueProfiling issue Settlement of claimsSettlement of claims
AfterAfter
Potential Legal ChallengesPotential Legal Challenges Internal personnel issuesInternal personnel issues
Worker’s compensation claimsWorker’s compensation claims Vaccination issueVaccination issue
AWOLAWOL Termination/ civil serviceTermination/ civil service
Injured volunteersInjured volunteers