Transcript Legal Aspects of WMD Events

October 3, 2002
Michael J. Bowers
R.A.M. & Associates LLC
Legal Aspects of WMD Events
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Background
Jurisdiction
Martial Law
Mutual Aid Agreements
Quarantine
Evacuation
Official Liability
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Weapons of Mass Destruction
“The purpose of terrorism is to
terrorize.”
Mao Tse Tung
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WMD Threat
• Terrorist Goals
– disrupt society
– produce mass panic and terror
– get publicity
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Terrorism Exists Because . . .
• It is cheap
• It is mobile
• It is low tech
• It is deniable
• It is more effective than the political
process
• It is less drastic than total warfare
• and IT WORKS!
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WMD Threat
• Easy to obtain
• Cost-effective
– cost per casualty
• Nuclear $2 million
• Chemical $2 thousand
• Biological $2
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WMD Threat
Unique Features
• Fear
• Lack of Training
• Lack of Equipment
• Potential for Mass Casualties
• Psychological Casualties
• Crime Scene/Evidence Collection
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Militia
Movement
USA
Aryan Movement
USA
Aum Shinrikyo
Japan
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Hamas
Palestinian
U.S. Militant Islamic Groups
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Terrorism - Definitions
“The unlawful use of force or violence
committed by a group or individual against
persons or property to intimidate or coerce
a government, the civilian population, or
any segment thereof, in furtherance of
political or social objectives.”
Federal Bureau of Investigation
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Terrorism - Definitions
“Transnational” terrorism is terrorism that
transcends national boundaries.
Transnational terrorism occurs when the
target group and the victims (both
individually and/or institutionally), the
perpetrators, the terrorist action, the
mechanics of resolution, and other
ramifications transcend national
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Terrorism - Definitions
“State terrorism” is terrorism conducted
by a government against its own citizens
within its own borders.
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Terrorism - Definitions
“International terrorism” is often referred
to as state-sponsored terrorism.
International terrorism is transnational
terrorism that is conducted by individuals
or groups that are controlled by a
sovereign state.
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Terrorism - Definitions
“Domestic terrorism” is terrorism that is
directed against the citizens, government,
or other institutions, of one nation by
terrorists or terrorist groups that inhabit
that same nation.
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WMD Threat
• Chemical
• Biological
• Nuclear
• Conventional Weapons (explosives)
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Illustrative Population at Risk
SMALL POX - 40,000,000
ANTHRAX - 10,000,000
TULAREMIA
PNEUMONIC PLAGUE
1,000,000
CHEMICAL
ORGANOPHOSPHATE
10,000
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TERRORIST THREATS
• Conventional
weapons
 Unconventional
weapons
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CONVENTIONAL
WEAPONS
• Bombs
• Guns
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Chemical Agents
• Nerve
– sarin, tabun, soman
• Pulmonary (choking)
– phosgene, chlorine
• Vesicants (blister)
– lewisite, phosgene oxime
• Blood agents
– hydrogen cyanide, cyanogen chloride
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Biological Agents
• Bacteria
– anthrax, E. coli, salmonella, plague, Qfever, tularemia
• Viruses
– smallpox, influenza, hantavirus
• Toxins
– botulinum, ricin, staph, enterotoxin B
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Biological - Key Points
• Hospital as “First Responder”
• Surveillance - Recognize Event
• Isolation/Quarantine - Decision
• Relationship with Public Health
• Mortuary Services
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…The guy next door?
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Nuclear/Radiological Threats
• Radiation sources in hospitals
• Transportation accidents
• Nuclear power plant accident
• Radiological device
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Conventional Weapons
Explosives
• World Trade Center - 1993
• Oklahoma City Bombing - 1995
• Embassy Bombings (Africa) - 1998
• World Trade Center - Sep 11, 2001
• Pentagon - Sep 11, 2001
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• *Dead - < 2,819
•First Responders:
• 343 (FDNY/NJFD)
• 62 (NYPD/PAPD )
•4
(EMS)
* As of 08/29/02
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TRENDS IN TERRORISM
Groups involved with unconventional
weapons tend to be:
– Single-issue groups
• Abortion
• Animal rights
• Religious Extremists
– Nationalist / separatist groups
– Apocalyptic groups
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TRENDS IN TERRORISM
Targets today are:
– General population
(indiscriminate attacks)
– Symbolic buildings or
organizations
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NEW TRENDS IN
TERRORISM
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TRENDS IN TERRORISM
Overall, terrorist groups will
become:
–
–
–
–
less state-sponsored
more transnational
less accountable
more interested in mass
casualties
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The United States
government estimates
individual states’
unconventional weapons
capabilities as follows:
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Nuclear
Weapons
China, France,
Russia, UK, US,
India, Pakistan
Biological
Weapons
Chemical
Weapons
Declared Current Possessors
India, Russia, US
Suspected Possessors
Israel
Libya?
China, Egypt, Iran,
Iraq, Israel, N.
Korea, Russia, S.
Korea, Syria,
Taiwan, Vietnam
Suspected of Attempting Acquisition
Iran, Iraq, Libya,
N. Korea
Libya
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China, Cuba, Egypt,
Iran, Iraq, Israel,
Libya, Myanmar, N.
Korea, Pakistan,
Syria, Taiwan,
Yemen, former
Yugoslavia
Capable of Obtaining CBRN
•Former
Soviet military
•Russian mob
•Drug cartels
•Private
companies
•PLO
•IRA
Interested in Mass Casualty
•Ramzi
Yousef
•Bosnian
Serbs
•Hezbollah
•Chechen rebels
•Algerian Islamic
rebels
•Kurdish guerillas
•Timothy McVeigh
•Rwandan militias
•Sendero Luminoso
•Aum
•Bin
Laden
•Suicidal
cults
Interested in
Using CBRN
•Lunatic fringe
•Right-wing
militias
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International Group
Capabilities
- (Events) suggest that the
technical barriers to mass
casualty terrorism are
eroding.”
Jonathan Tucker
Monterey Institute
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World Terrorist Organizations
1.
Abu Nidal Organization (ANO)
2.
Abu Sayyaf Group
3.
Al-Aqsa Martyrs Brigade
4.
Armed Islamic Group
5.
'Asbat al-Ansar
6.
Aum Shinrikyo
7.
Basque Fatherland and Liberty (ETA)
8.
Gama'a al-Islamiyya (Islamic Group)
9.
Hamas (Islamic Resistance Movement)
10. Harakat ul-Mujahidin (HUM)
11. Hizballah (Party of God)
12. Islamic Movement of Uzbekistan (IMU)
13. Jaish-e-Mohammed (JEM) (Army of
Mohammed)
14 . Al-Jihad (Egyptian Islamic Jihad)
15. Kahane Chai (Kach)
16. Kurdistan Workers' Party (PKK)
17. Lashkar-e-Tayyiba (LT) (Army of the
Righteous)
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
Liberation Tigers of Tamil Eelam (LTTE)
Mujahedin-e Khalq Organization (MEK)
National Liberation Army (ELN)
Palestinian Islamic Jihad (PIJ)
Palestine Liberation Front (PLF)
Popular Front for the Liberation of Palestine
(PFLP)
PFLP-General Command (PFLP-GC)
Al-Qaida
Real IRA
Revolutionary Armed Forces of Colombia
(FARC)
Revolutionary Nuclei (formerly ELA)
Revolutionary Organization 17 November
Revolutionary People's Liberation
Army/Front (DHKP/C)
Salafist Group for Call and Combat (GSPC)
Shining Path (Sendero Luminoso, SL)
United Self-Defense Forces of Colombia
(AUC)
Jemaah Islamiyah
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U.S. Militant Islamic Groups
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The Federal Response Plan/
The Federal Terrorism
Conplan
An Overview
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FEMA MISSION
• Reduce the loss of life and property in
disasters
• Protect our Nation’s critical infrastructure
from all hazards
• Lead and support a comprehensive
emergency management program of
mitigation, preparedness, response and
recovery
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STAFFORD ACT
• Applies to natural disasters and other
emergencies
• Supplements resources of State and local
governments and disaster relief
organizations
• Requires a Presidential declaration of a
major disaster or emergency
• Basis for federal funding for disasters and
emergencies
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WHEN IS THE FRP
IMPLEMENTED?
• In response to an actual event requiring
Federal assistance under a Presidential
declaration of a major disaster or
emergency
• In anticipation of a significant event
likely to result in a need for Federal
assistance
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CATASTROPHIC DISASTER
RESPONSE
A National team would augment Regional resources during response
phase of a catastrophic disaster.
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United States
Government’s Role in
Support of
Catastrophic Events
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The US Government is
there when needed!
• United States Government responders will be
in a “in support of” role when providing
consequence management support to local
and state governments. This element is key
when providing Federal assistance to civil
authority.
• Federal assets remain under Federal control
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Domestic Emergency Continuum
Probability
Most Likely
Least Likely
-- IND
Greatest
HURRICANE
Impact
Civil Disturbance --
CBNRE
HAZMAT -Severe Storms -Protests --
LOCAL & STATE
MAJOR
FLOODING
FEDERAL
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WHAT HELP IS AVAILABLE?
• Initial response resources, including food, water,
and emergency generators
• Emergency services to clear debris, open critical
transportation routes, restore public utilities, and
provide mass sheltering and feeding
• Specialized teams for rapid damage
assessment, emergency communications,
medical assistance and support, urban search
and rescue, emergency power restoration and
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incident management
EMERGENCY SUPPORT
FUNCTIONS (ESF’s)
• The FRP employs a functional approach that groups
under 12 ESFs the types of direct Federal assistance
that a State is most likely to need
• Each ESF is headed by a primary agency designated on
the basis of its authorities, resources, and capability in
that functional area
• Federal response assistance is provided using some or
all ESFs as necessary
• Federal ESF representatives coordinate with their
counterpart State agencies
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THE 12 ESFs
Transportation
Department of Transportation
Resource Support
Communications
Health and Medical Services
National Communications System
Department of Health and Human Services
Public Works and Engineering
Urban Search and Rescue
General Services Administration
Department of Defense/U.S. Army Corps of Engineers
Firefighting
Department of Agriculture/Forest Service
Federal Emergency Management Agency
Hazardous Materials
Environmental Protection Agency
Information and Planning
Federal Emergency Management Agency
Food
Mass Care
American Red Cross
Energy
Department of Agriculture/Food and Nutrition Service
Department of Energy
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FRP ACTIVATION

Following a declaration, the President may direct any
Federal agency to use its authorities and resources in
support of State and local assistance efforts

This authority has also been delegated to the FEMA
Director; the Associate Director, Response and
Recovery; the FEMA Regional Directors; and the
Federal Coordinating Officer

They may activate some or all of the structures of the
FRP to meet the needs of the situation
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FEMA Regions
1
10
5
8
Area
Office Hawaii
7
9
3
6
USPACOM
2
(US Northern Command)
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4
Area
Office P.R.
USSOUTHCOM
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Tiered Disaster/Emergency Response
Federal Response
President
FEMA
DCO
State Response
State Emergency
Management
Local Response
Incident Commander
Local Emergency
Management
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DISASTER
SITE
NUNN LUGAR DOMENICI
OVERVIEW
NLD Defense Against Weapons of Mass
Destruction Act of 1996 directed DOD as
lead to:
• Train first responders
• Establish a chemical/biological hot line
• Loan equipment
• Use National Guard as State/local asset
for response.
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POLICIES & AUTHORITIES
• Presidential Decision Directive (PDD) #39, U.S.
Policy on Counterterrorism, June 21, 1995
• PDD #62, Protection Against Unconventional
Threats to Homeland and Americans Overseas,
May 22, 1998
• PDD #63, Protecting American’s Critical
Infrastructure, May 22, 1998
• Robert T. Stafford Disaster Relief and
Emergency Assistance Act, PL-93-288
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PDDs # 39 & 62
• Set National policy against terrorism
• Require that Federal agencies cooperate
to detect, prevent, defeat, and manage
consequences of WMD incidents
• Support the Federal Response Plan (FRP)
Terrorism Incident Annex
• Support Federal Terrorism Plan
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CRISIS MANAGEMENT
(Lead Federal Agency - FBI)
Measures to identify, acquire, and plan
the resources needed to:
• Anticipate
• Prevent
• Resolve
a threat or act of terrorism.
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CONSEQUENCE
MANAGEMENT
Lead Federal Agency - FEMA)
Measures to:
• Protect public health and safety
• Restore essential government services
• Provide emergency relief to governments,
businesses, and individuals affected by
the consequences of terrorism.
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Responsibilities
Crisis Mgm’t
- FBI
Consequence
Mgm’t FEMA
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WMD VS. DISASTER
RESPONSE
Similarities:
• Mass casualties
• Damage to buildings
• Evacuation
• Mass sheltering
• Effect the economy
• Public reaction
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WMD VS. DISASTER
RESPONSE
Differences:
• Deliberate act
• Crime scene
• May not be recognizable
as terrorist act
• Mass contamination
• Public reaction - fear
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SHARPENING THE RESPONSE TO WMD
The Federal Terrorism Plan
CRISIS
Coordinating the
Interface
CONSEQUENCE
Management
Management
FBI LEAD
On Scene Cdr. (OSC)
FEMA LEAD
(Focus on Effects)
Law Enforcement
Starts Here
Federal,
State,
Local /
Private
Sectors
Federal,
State,
Local /
Private
Sectors
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Consequence
Starts Here
THE FEDERAL TEAM (BIG 6)
• Department of Justice
– Federal Bureau of Investigation
• Federal Emergency Management Agency
• Department of Defense
• Department of Energy
• Department of Health and Human Services
• Environmental Protection Agency
• Other supporting agencies
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The Federal Response - To A Terrorist
Incident (Federal Terrorism Plan)
The President
NSC
Groups
FEMA Director
Attorney General
FBI Director
CDRG
EST
SIOC
ROC
OSC Command
Post/JOC
ERT
State EOC
Local EOC
UC*
Coordination Relationships
Scene
*Unified Command
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The Federal Response - To A Terrorist
Incident (Federal Terrorism Plan)
FBI
OSC Command
Post/JOC/JIC
FCO
SCO
(FEMA)
DOE
State & Local
Agencies
EPA/USCG
HHS
DoD
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Federal
Agencies
WHERE ARE WE NOW?
• NLD transfer from
DOD to DOJ (ODP)
• DOD and DOJ
equipment grant
programs
• FEMA grants for
planning and
training
• Office of Homeland
Security
• Office of National
Programs (ONP) FEMA
• Homeland Security
Agency (Pending)
• Hospital
administration
(JCAHO 1.4, 2.4)
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Jurisdictions
Considerations and
Implications
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Jurisdiction, Federal
• Presidential Decision Directive 39 (PDD-39):
– Threat or use of WMD considered an act of terrorism
– FBI as lead federal agency to coordinate all aspects of the
Federal response to WMD incident
• Other federal agencies with significant
responsibilities:
–
–
–
–
–
Department of Defense (DoD)
Department of Energy (DoE)
Federal Emergency Management Agency (FEMA)
Public Health Service (USPHS)
Environmental Protection Agency (EPA)
• Posse Comitatus Act (PCA) prohibits use of military
in civilian law enforcement
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Jurisdiction, States
• Primarily responsible for exercise of both law
enforcement and public health powers
• Activation of National Guard into state service or
federal service can be assumed
– Use of National Guard in state service does not
violate PCA
• Particularly in biological or chemical attack, state
agencies will likely identify WMD event and be
burdened early
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Jurisdiction, Local
• Results of WMD event will overwhelm
local resources
– Number of casualties
– Nature of casualties (victims of bio/chem
agent requires decontamination and
extraordinary care)
• Local authorities will have best access to
early useful information
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Jurisdiction, General
• WMD events have federal, state and local
jurisdictional implications
• USC Title 10
• Insurrection
• Mobilization
• USC Title 42
• Quarantine
• Interstate Commerce
• “Home Rule”
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Jurisdiction, General
Considerations
• Consideration involves:
• Area immediately impacted by WMD event
• Areas remote to site of WMD event
Example: May (should) Governor of Florida activate
National Guard in event of mass anthrax attack in
state of Minnesota?
•Can this be federally mandated?
•Can this be federally prohibited?
• Existing federal statutes that govern bioterrorism incidents?
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Martial Law
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The Posse Comitatus Act (PCA)
(18 USC 1385)
• Prohibits U.S. military personnel from performing
law enforcement functions such as:
• search and seizure
• surveillance and pursuit
• being informants, undercover agents or
investigators
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Martial Law
• PCA effectively precludes federal martial law
• State Martial Law, examples:
– Missouri
– Georgia
• Usage is extremely rare. Since civil war only
time statute has been invoked in court cases in
either state involved claims by members of
National Guard to workers’ compensation
benefits while on state active duty.
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Martial Law, Cont.
• “The Governor may, when in his opinion the
circumstances so warrant, call out the organized
militia or any portion thereof to execute the laws,
suppress actual, and prevent threatened,
insurrection and repel invasion. The governor, if
in his judgment the maintenance of law and
order will thereby be promoted, may by
proclamation declare martial law throughout the
state or any part thereof.” Missouri R.S. Mo.
§41.480(1)
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Martial Law, Cont.
• “The Governor shall have the power, in case of invasion, disaster,
insurrection, riot, breach of the peace, combination to oppose the
enforcement of the law by force or violence, or imminent danger
thereof, to order all or any part of the organized militia into the active
service of the state…” Georgia O.C.G.A. § 38-2-6(a).
• “Whenever any judge of a superior, city, or state court, sheriff or
mayor of a municipality shall apprehend the outbreak of insurrection,
riot, breach of the peace, combination to oppose the enforcement of
the law by force or violence within the jurisdiction of which said
officer is the conservator of the peace, it shall be [their duty], when it
appears that the unlawful combination or disaster has progressed
beyond the control of the civil authorities to notify the Governor; and
the Governor may then, in his discretion” order the organized militia
into the service of the State. Georgia O.C.G.A. § 38-2-6(b).
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Mutual Aid Agreements
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Mutual Aid Agreements
•Local Mutual Aid Agreements
•Emergency Management Assistance Compacts
(EMAC)
•Interstate Civil Defense and Disaster Compacts
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Mutual Aid Agreements
•Local Mutual Aid
Agreements:
• City/Country All-hazards
• Law Enforcement
• Medical
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Mutual Aid Agreements
Emergency Management Assistance Compacts (EMAC)
“The Emergency Management Assistance Compact (EMAC) has
has been adopted by 41 states and 2 territories with additional states
planning to join. EMAC is an interstate mutual aid agreement ratified
by Congress, passed by state Legislatures and signed into law by the
Governors, and is well coordinated with the Federal Response Plan.
…Interstate and intrastate mutual aid assistance must be recognized
and supported by the federal government as an expedient,
cost-effective approach to disaster response and recovery…”
White Paper on Domestic Preparedness National Emergency Managers Association- October 1, 2001
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Mutual Aid Agreements
Interstate Civil Defense and Disaster Compacts
•NY/NJ Civil Assistance Compact - 1954
•Western Governor’s Compact
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Quarantine
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Quarantine
• “Compulsory physical separation, including
restriction of movement, of populations or
groups of healthy people who have been
exposed to contagious disease, or efforts to
segregate these persons within specified
geographic areas”
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Quarantine, cont.
•Distinct from “isolation” – separation and
confinement of individuals known or
suspected (via signs, symptoms or
laboratory criteria) to be infected with a
contagious disease to prevent them from
transmitting disease to others
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Quarantine, cont.
• Response to biological attack
• Outside the experience of police authorities
• Federal quarantine authority cannot be used
in a situation that is confined to a single
state
• Some states and localities do not have
statutory quarantine authority
• Level of force acceptable to enforce
quarantine
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Quarantine, cont.
• Response to Biological Attack
•Most commonly discussed “first option”,
followed by “vaccination rings”
•When is quarantine most commonly used
today?
•Do federal, state or local plans exist for
quarantine?
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Quarantine, cont.
•Outside the experience of police authorities
•When was the last act of quarantine in the United
States?
•What common events today most closely resemble
“quarantine law enforcement operations”?
•What differences would exist or be implied?
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Quarantine, cont.
•Federal quarantine authority cannot be
used in a situation that is confined to a
single state
•USC Title 42 - Interstate Commerce
“...the Surgeon General under 42 USC 266 only has the authority to
exercise quarantine powers if there is a declaration of war, the National
Advisory Health Council (NAHC) recommends it, and there is an
executive order specifying the communicable disease. “
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Quarantine, cont.
USC Title 42 - Interstate Commerce - cont.
Section 106(a), 42 USC 9606a ...control population movement.
"In addition to any other action taken by a State or local government,
when the President determines that there may be an imminent and
substantial endangerment to the public health or welfare or the
environment because of an actual or threatened release of a
hazardous substance..., he may require the Attorney General of the
U.S. to secure such relief as may be necessary to abate such danger
or threat, and the district court of the U.S. in the district in which the
threat occurs shall have jurisdiction to grant such relief as the public
interest and the equities of the case may require. The President may
also, after notice to the affected State, take other action under this
section, including, but not limited to, issuing such orders as may be
necessary to protect public health and welfare and the environment."
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Quarantine, cont.
•Some states and localities do not have
statutory quarantine authority
•“Model State Emergency Health Powers Act - Oct, 2001”
• Center for Disease Control (Georgetown & Johns Hopkins Universities)
• NGA
• National Conference of State Legislatures
• Association of State and Territorial Health Officials
• National Association of City and County Health Officers
• National Association of Attorneys General
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Quarantine, cont.
•Level of force acceptable to enforce
quarantine
•“Rules of Engagement”
•Ingress/egress
•Use of “deadly force”
•Newer non-lethal “weapons” being developed and
might be considered (example: non-lethal acoustic
weapons for area denial, establishing cordons, crowd
direction)
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Evacuation
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Evacuation
• Evacuation in a chemical attack is
theoretical equivalent to quarantine in a
biological attack
• Similar issues to quarantine
– Lack of police experience
– Use of force
– Safety of responders
– Liability for personal property
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Evacuation, cont.
Issues:
•Lack of police experience
•More recent similar events
•Hurricane evacuations
•Tornado aftermath
•Mandatory/Non-mandatory
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Evacuation, cont.
•Use of force
•“Rules of Engagement”
•Forcible Removal
•Use of “deadly force”
•Confiscation of property
•etc.
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Evacuation, cont.
•Safety of responders
•Exposure to contagious/infectious disease
•Self-defense (force protection)
•Workman’s compensation
•Tort liability
•Under Mutual aid agreements
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Evacuation, cont.
•Liability for personal property
•Security of premises
•Liability for losses/damage
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LIABILITY
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Official Liability, State Law
•Old System – Sovereign Immunity
“Exposure of municipalities and public
officials to lawsuits has evolved over time
from almost complete protection under
the doctrine of sovereign immunity to ….”
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Official Liability, State Law
•Current System – Liability for Wrongful Acts
and Omissions
“With specific immunities, exceptions, and limits
– municipalities and public officials are subject to
liability for their wrongful acts and omissions in
the same way that people and private
corporations are liable.”
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Official Liability, State Law
•Wrongful Acts and Omissions
“Municipalities are generally responsible for
the wrongful acts and omissions of their
agents, employees, and elected and
appointed officials when those people are
acting within the scope of their authority.”
R.A.M. & Associates LLC
Official Liability, State Law
Public officials can be sued personally for their
activities on behalf of the municipality. Generally,
public officials are indemnified for their official
activities by state law. The municipality is
required to defend and pay any claims brought
against the public official, unless the public
official commits an act that is outside the scope
of official responsibilities or where the activities
are committed intentionally, with knowledge of
wrongdoing.
R.A.M. & Associates LLC
Official Liability, Missouri
• Official Immunity - Public employees not
personally liable for negligent acts related to
discretionary duties performed within scope
of authority
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Official Liability, Missouri
• Public employees are liable for negligently
performing ministerial acts. Ministerial
acts are acts that individual performs
without exercising opinion or judgment (see
Green vs Clayton [TAB A] and Sherer Law Review TAB B)
R.A.M. & Associates LLC
Official Liability, Missouri
• Public employees personally responsible
for actions which are not within the scope of
their official responsibilities and where
employee’s activities are committed
intentionally, with knowledge of wrongdoing
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Official Liability, Missouri
•Specific statutory exemption for state
employees acting in their official
capacity in connection with hazardous
waste cleanup activities (see R.S. Mo. §
260-500) and activities connected to
emergency response commission and
committees (see R.S. Mo. § 260-600).
R.A.M. & Associates LLC
R.A.M. & Associates LLC