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

ConclusionConclusion

Contingency Planning Contingency Planning Secure a place-link in the command Secure a place-link in the command

centercenter Legal Operation ManualLegal Operation Manual Legal Staffing 24 hour basisLegal Staffing 24 hour basis