october 3, 2002 michael j. bowers

R.A.M. & Associates LLC

October 3, 2002October 3, 2002Michael J. BowersMichael J. Bowers


Legal Aspects of WMD Events

• Background

• Jurisdiction

• Martial Law

• Mutual Aid Agreements

• Quarantine

• Evacuation

• Official Liability


““The purpose of terrorism is to The purpose of terrorism is to terrorize.”terrorize.”

““The purpose of terrorism is to The purpose of terrorism is to terrorize.”terrorize.”

Mao Tse TungMao Tse TungMao Tse TungMao Tse Tung

Weapons of Mass Destruction


WMD ThreatWMD Threat

• Terrorist GoalsTerrorist Goals– disrupt societydisrupt society

– produce mass panic and terrorproduce mass panic and terror

– get publicityget publicity


• 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!

Terrorism Exists Because . . .Terrorism Exists Because . . .Terrorism Exists Because . . .Terrorism Exists Because . . .



• Easy to obtainEasy to obtain

• Cost-effectiveCost-effective– cost per casualtycost per casualty

• Nuclear $2 millionNuclear $2 million• Chemical $2 thousandChemical $2 thousand• Biological $2Biological $2


WMD ThreatWMD ThreatUnique FeaturesUnique Features

• FearFear

• Lack of TrainingLack of Training

• Lack of EquipmentLack of Equipment

• Potential for Mass CasualtiesPotential for Mass Casualties

• Psychological CasualtiesPsychological Casualties

• Crime Scene/Evidence CollectionCrime Scene/Evidence Collection


Aum ShinrikyoJapan

Aryan MovementUSA

HamasPalestinian

Militia Movement

USA


U.S. Militant Islamic Groups


Terrorism - DefinitionsTerrorism - Definitions

““The unlawful use of force or violence The unlawful use of force or violence

committed by a group or individual against committed by a group or individual against

persons or property to intimidate or coerce persons or property to intimidate or coerce

a government, the civilian population, or a government, the civilian population, or

any segment thereof, in furtherance of any segment thereof, in furtherance of

political or social objectives.”political or social objectives.”

““The unlawful use of force or violence The unlawful use of force or violence

committed by a group or individual against committed by a group or individual against

persons or property to intimidate or coerce persons or property to intimidate or coerce

a government, the civilian population, or a government, the civilian population, or

any segment thereof, in furtherance of any segment thereof, in furtherance of

political or social objectives.”political or social objectives.”

Federal Bureau of InvestigationFederal Bureau of InvestigationFederal Bureau of InvestigationFederal Bureau of Investigation



“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 boundaries.

“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 boundaries.


Terrorism - Definitions

““State terrorism”State terrorism” is terrorism conducted is terrorism conducted

by a government against its own citizens by a government against its own citizens

within its own borders.within its own borders.



““International terrorism”International terrorism” is often referred to is often referred to

as state-sponsored terrorism. International as state-sponsored terrorism. International

terrorism is transnational terrorism that is terrorism is transnational terrorism that is

conducted by individuals or groups that conducted by individuals or groups that

are are controlledcontrolled by a sovereign state. by a sovereign state.


Terrorism - Definitions

““Domestic terrorism”Domestic terrorism” is terrorism that is is terrorism that is directed against the citizens, government, directed against the citizens, government, or other institutions, of one nation by or other institutions, of one nation by terrorists or terrorist groups that inhabit terrorists or terrorist groups that inhabit that same nation.that same nation.



• ChemicalChemical

• BiologicalBiological

• NuclearNuclear

• Conventional Weapons (explosives)Conventional Weapons (explosives)


SMALL POX - 40,000,000

ANTHRAX - 10,000,000

TULAREMIAPNEUMONIC PLAGUE

1,000,000

CHEMICALORGANOPHOSPHATE

10,000

Illustrative Population at Risk


TERRORISTTERRORIST THREATSTHREATS

• Conventional weapons

Unconventional weapons


CONVENTIONAL CONVENTIONAL WEAPONSWEAPONS

• Bombs

• Guns


Chemical AgentsChemical Agents

• NerveNerve– sarin, tabun, somansarin, tabun, soman

• Pulmonary Pulmonary (choking)(choking)– phosgene, chlorinephosgene, chlorine

• Vesicants Vesicants (blister)(blister)– lewisite, phosgene oximelewisite, phosgene oxime

• Blood agentsBlood agents– hydrogen cyanide, cyanogen chloridehydrogen cyanide, cyanogen chloride


Biological AgentsBiological Agents

• BacteriaBacteria– anthrax, E. coli, salmonella, plague, Q-anthrax, E. coli, salmonella, plague, Q-

fever, tularemiafever, tularemia

• VirusesViruses– smallpox, influenza, hantavirussmallpox, influenza, hantavirus

• ToxinsToxins– botulinum, ricin, staph, enterotoxin Bbotulinum, ricin, staph, enterotoxin B


Biological - Key PointsBiological - Key Points

• Hospital as “First Responder”Hospital as “First Responder”

• Surveillance - Recognize EventSurveillance - Recognize Event

• Isolation/Quarantine - Isolation/Quarantine - DecisionDecision

• Relationship with Public HealthRelationship with Public Health

• Mortuary ServicesMortuary Services


…The guy next door?


Nuclear/Radiological ThreatsNuclear/Radiological Threats

• Radiation sources in hospitalsRadiation sources in hospitals

• Transportation accidentsTransportation accidents

• Nuclear power plant accidentNuclear power plant accident

• Radiological deviceRadiological device


Conventional WeaponsConventional WeaponsExplosivesExplosives

• World Trade Center - 1993 World Trade Center - 1993

• Oklahoma City Bombing - 1995Oklahoma City Bombing - 1995

• Embassy Bombings (Africa) - 1998Embassy Bombings (Africa) - 1998

• World Trade Center - Sep 11, 2001World Trade Center - Sep 11, 2001

• Pentagon - Sep 11, 2001Pentagon - Sep 11, 2001


• *Dead - < 2,819

•First Responders:First Responders:

• 343 (FDNY/NJFD)

• 62 (NYPD/PAPD )

• 4 (EMS)

* As of 08/29/02


TRENDS IN TERRORISMTRENDS IN TERRORISM Groups involved with unconventional weapons tend to be:

– Single-issue groups• Abortion

• Animal rights

• Religious Extremists

– Nationalist / separatist groups

– Apocalyptic groups


TRENDS IN TERRORISMTRENDS IN TERRORISM

Targets today are:

– General population

(indiscriminate attacks)

– Symbolic buildings or

organizations


NEW TRENDS IN NEW TRENDS IN TERRORISMTERRORISM


TRENDS IN TERRORISMTRENDS IN TERRORISM

Overall, terrorist groups will become:

– less state-sponsored

– more transnational

– less accountable

– more interested in mass casualties


The United States The United States

government estimates government estimates

individual states’ individual states’

unconventional weapons unconventional weapons

capabilities as follows:capabilities as follows:


LibyaLibyaIran, Iraq, Libya, Iran, Iraq, Libya, N. KoreaN. Korea

China, Cuba, Egypt, China, Cuba, Egypt, Iran, Iraq, Israel, Iran, Iraq, Israel, Libya, Myanmar, N. Libya, Myanmar, N. Korea, Pakistan, Korea, Pakistan, Syria, Taiwan, Syria, Taiwan, Yemen, former Yemen, former YugoslaviaYugoslavia

China, Egypt, Iran, China, Egypt, Iran, Iraq, Israel, N. Iraq, Israel, N. Korea, Russia, S. Korea, Russia, S. Korea, Syria, Korea, Syria, Taiwan, VietnamTaiwan, Vietnam

IsraelIsrael

Libya?Libya?

India, Russia, USIndia, Russia, US

China, France, China, France, Russia, UK, US, Russia, UK, US, India, PakistanIndia, Pakistan

Chemical Chemical WeaponsWeapons

Biological Biological WeaponsWeapons

Nuclear Nuclear WeaponsWeapons

Declared Current PossessorsDeclared Current Possessors

Suspected PossessorsSuspected Possessors

Suspected of Attempting AcquisitionSuspected of Attempting Acquisition


•Former Soviet military •Russian mob•Drug cartels•Private companies•PLO•IRA

•Hezbollah•Chechen rebels•Algerian Islamic rebels•Kurdish guerillas•Timothy McVeigh•Rwandan militias•Sendero Luminoso

•Ramzi Yousef

•Bosnian Serbs

•SuicidalSuicidal cultscults

•AumAum•Bin Bin

LadenLaden

•Lunatic fringeLunatic fringe•Right-wing Right-wing militiasmilitiasInterested in

Using CBRN

Capable of Obtaining CBRN Interested in Mass Casualty

International Group International Group CapabilitiesCapabilities


- (Events) suggest that the - (Events) suggest that the technical barriers to mass technical barriers to mass

casualty terrorism are casualty terrorism are eroding.”eroding.”

Jonathan TuckerJonathan TuckerMonterey InstituteMonterey Institute


1. Abu Nidal Organization (ANO)1. Abu Nidal Organization (ANO)2. Abu Sayyaf Group2. Abu Sayyaf Group3. Al-Aqsa Martyrs Brigade3. Al-Aqsa Martyrs Brigade4. Armed Islamic Group4. Armed Islamic Group5. 'Asbat al-Ansar5. 'Asbat al-Ansar6. Aum Shinrikyo6. Aum Shinrikyo7. Basque Fatherland and Liberty (ETA)7. Basque Fatherland and Liberty (ETA)8. Gama'a al-Islamiyya (Islamic Group)8. Gama'a al-Islamiyya (Islamic Group)9. Hamas (Islamic Resistance Movement)9. Hamas (Islamic Resistance Movement)10. Harakat ul-Mujahidin (HUM)10. Harakat ul-Mujahidin (HUM)11. Hizballah (Party of God)11. Hizballah (Party of God)12. Islamic Movement of Uzbekistan (IMU)12. Islamic Movement of Uzbekistan (IMU)13. Jaish-e-Mohammed (JEM) (Army of 13. Jaish-e-Mohammed (JEM) (Army of Mohammed)Mohammed)14 . Al-Jihad (Egyptian Islamic Jihad) 14 . Al-Jihad (Egyptian Islamic Jihad) 15. Kahane Chai (Kach)15. Kahane Chai (Kach)16. Kurdistan Workers' Party (PKK)16. Kurdistan Workers' Party (PKK)17. Lashkar-e-Tayyiba (LT) (Army of the 17. Lashkar-e-Tayyiba (LT) (Army of the Righteous)Righteous)

18. Liberation Tigers of Tamil Eelam (LTTE)18. Liberation Tigers of Tamil Eelam (LTTE)19. Mujahedin-e Khalq Organization (MEK)19. Mujahedin-e Khalq Organization (MEK)20. National Liberation Army (ELN)20. National Liberation Army (ELN)21. Palestinian Islamic Jihad (PIJ)21. Palestinian Islamic Jihad (PIJ)22. Palestine Liberation Front (PLF)22. Palestine Liberation Front (PLF)23. Popular Front for the Liberation of Palestine23. Popular Front for the Liberation of Palestine (PFLP)(PFLP)24. PFLP-General Command (PFLP-GC)24. PFLP-General Command (PFLP-GC)25. Al-Qaida25. Al-Qaida26. Real IRA26. Real IRA27. Revolutionary Armed Forces of Colombia27. Revolutionary Armed Forces of Colombia

(FARC)(FARC)28. Revolutionary Nuclei (formerly ELA)28. Revolutionary Nuclei (formerly ELA)29. Revolutionary Organization 17 November29. Revolutionary Organization 17 November30. Revolutionary People's Liberation 30. Revolutionary People's Liberation

Army/Front (DHKP/C)Army/Front (DHKP/C)31. Salafist Group for Call and Combat (GSPC)31. Salafist Group for Call and Combat (GSPC)32. Shining Path (Sendero Luminoso, SL)32. Shining Path (Sendero Luminoso, SL)33. United Self-Defense Forces of Colombia 33. United Self-Defense Forces of Colombia

(AUC)(AUC)34. Jemaah Islamiyah34. Jemaah Islamiyah

World Terrorist Organizations


U.S. Militant Islamic Groups


The Federal Response Plan/

The Federal Terrorism

Conplan

The Federal Response Plan/

The Federal Terrorism

ConplanAn Overview


• 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

FEMA MISSIONFEMA MISSION


• 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

STAFFORD ACTSTAFFORD ACT


• 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

WHEN IS THE FRP IMPLEMENTED?

WHEN IS THE FRP IMPLEMENTED?


A National team would augment Regional resources during response A National team would augment Regional resources during response phase of a catastrophic disaster.phase of a catastrophic disaster.

CATASTROPHIC DISASTER RESPONSE

CATASTROPHIC DISASTER RESPONSE


United States Government’s Role in

Support of Catastrophic Events


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


Most Likely Most Likely Least LikelyLeast Likely

GreatestGreatest

LeastLeast

ProbabilityProbability

HAZMAT --

MAJOR FLOODING

LOCAL & STATE LOCAL & STATE FEDERALFEDERAL

HURRICANE

-- IND

CBNRECBNRE

Protests --

Severe Storms --

Civil Disturbance --

ImpactImpact

Domestic Emergency Continuum


• 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 incident management

WHAT HELP IS AVAILABLE?WHAT HELP IS AVAILABLE?


• 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

EMERGENCY SUPPORT FUNCTIONS (ESF’s)

EMERGENCY SUPPORT FUNCTIONS (ESF’s)


THE 12 ESFsTHE 12 ESFs

Transportation

Department of Transportation

CommunicationsNational Communications System

Public Works and EngineeringDepartment of Defense/U.S. Army Corps of Engineers

FirefightingDepartment of Agriculture/Forest Service

Information and PlanningFederal Emergency Management Agency

Mass CareAmerican Red Cross

Resource Support

General Services Administration

Health and Medical Services

Department of Health and Human Services

Urban Search and Rescue

Federal Emergency Management Agency

Hazardous Materials

Environmental Protection Agency

Food

Department of Agriculture/Food and Nutrition Service

Energy

Department of Energy


Following a declaration, the President may direct any Following a declaration, the President may direct any

Federal agency to use its authorities and resources in Federal agency to use its authorities and resources in

support of State and local assistance effortssupport of State and local assistance efforts

This authority has also been delegated to the FEMA This authority has also been delegated to the FEMA

Director; the Associate Director, Response and Director; the Associate Director, Response and

Recovery; the FEMA Regional Directors; and the Recovery; the FEMA Regional Directors; and the

Federal Coordinating OfficerFederal Coordinating Officer

They may activate some or all of the structures of the They may activate some or all of the structures of the

FRP to meet the needs of the situationFRP to meet the needs of the situation

FRP ACTIVATIONFRP ACTIVATION


FEMA RegionsFEMA Regions

99

1010

88

66

77

55 22

33

44

11

USPACOM

USSOUTHCOM

(US Northern Command)

Area Office - Hawaii

Area Office -

P.R.


Local ResponseIncident Commander

FEMA

President

State Emergency

Management

State Response

Local Emergency

Management

Federal Response

DISASTERDISASTERSITESITE

Tiered Disaster/Emergency Response

DCO


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.

NUNN LUGAR DOMENICI OVERVIEW

NUNN LUGAR DOMENICI OVERVIEW


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


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


CRISIS MANAGEMENT(Lead Federal Agency - FBI)

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.


CONSEQUENCE MANAGEMENT

Lead Federal Agency - FEMA)

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.


Responsibilities

Crisis Mgm’t - FBI

Consequence

Mgm’t -

FEMA


WMD VS. DISASTER RESPONSE


Similarities:

• Mass casualties

• Damage to buildings

• Evacuation

• Mass sheltering

• Effect the economy

• Public reaction


Differences:

• Deliberate act

• Crime scene

• May not be recognizable

as terrorist act

• Mass contamination

• Public reaction - fear




FBI LEADOn Scene Cdr. (OSC)

Federal,State,Local /Private Sectors

Federal, State, Local /Private Sectors

CRISIS CONSEQUENCE

Law EnforcementStarts Here

FEMA LEAD(Focus on Effects)

ConsequenceStarts Here

Management

SHARPENING THE RESPONSE TO WMDSHARPENING THE RESPONSE TO WMD

Management

Coordinating the Interface

The Federal Terrorism PlanThe Federal Terrorism Plan


THE FEDERAL TEAM (BIG 6)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


The Federal Response - To A Terrorist Incident (Federal Terrorism Plan)

The President

NSC Groups

Attorney GeneralFBI Director

SIOC

OSC Command Post/JOC

CDRGEST

ROC ERT

State EOC

Local EOC

UC*

FEMA Director

Scene

*Unified Command

Coordination Relationships


The Federal Response - To A Terrorist Incident (Federal Terrorism Plan)

OSC Command Post/JOC/JIC

FCO SCO

DOE

EPA/USCG

HHS

DoD

State & Local Agencies

Federal Agencies

(FEMA)

FBI


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)


JurisdictionsJurisdictions

Considerations and Considerations and ImplicationsImplications


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


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


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


Jurisdiction, General

• WMD events have federal, state and local jurisdictional implications• USC Title 10

• Insurrection• Mobilization

• USC Title 42• Quarantine• Interstate Commerce

• “Home Rule”


Jurisdiction, General

• 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 bio-terrorism incidents?

Considerations


Martial LawMartial Law


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


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.


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)


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).


Mutual Aid AgreementsMutual Aid Agreements


Mutual Aid Agreements

•Local Mutual Aid Agreements

•Emergency Management Assistance Compacts

(EMAC)

•Interstate Civil Defense and Disaster Compacts



•Local Mutual Aid Agreements:

• City/Country All-hazards

• Law Enforcement

• Medical


Mutual Aid AgreementsEmergency 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 theGovernors, and is well coordinated with the Federal Response Plan.

…Interstate and intrastate mutual aid assistance must be recognizedand 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



Interstate Civil Defense and Disaster Compacts

•NY/NJ Civil Assistance Compact - 1954

•Western Governor’s Compact


QuarantineQuarantine


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”


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


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


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?


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?


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. “


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."


•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

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)

Quarantine, cont.


EvacuationEvacuation


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


Evacuation, cont.

Issues:

•Lack of police experience

•More recent similar events

•Hurricane evacuations

•Tornado aftermath

•Mandatory/Non-mandatory


Evacuation, cont.

•Use of force

•“Rules of Engagement”

•Forcible Removal

•Use of “deadly force”

•Confiscation of property

•etc.


Evacuation, cont.

•Safety of responders

•Exposure to contagious/infectious disease

•Self-defense (force protection)

•Workman’s compensation

•Tort liability

•Under Mutual aid agreements


Evacuation, cont.

•Liability for personal property

•Security of premises

•Liability for losses/damage


LIABILITYLIABILITY


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 ….”



•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.”



•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.”



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.


Official Liability, Missouri

• Official Immunity - Public employees not personally

liable for negligent acts related to discretionary duties

performed within scope of authority



• 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)



• 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



•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).

october 3, 2002 michael j. bowers

Documents

associates llcr

associates llcu

associates llcwmd threateasy

associates llcsmall

statesponsored terrorism

terrorist groups

national boundaries

sovereign state