MANAGING TERRORISM’S 

CONSEQUENCES:

LEGAL ISSUES

BARRY KELLMAN
National Memorial Institute 

for the Prevention of Terrorism

Post Office Box 889 

204 North Robinson, Suite 1404 

Oklahoma City, Oklahoma 73101 

(405) 232-5121 (voice) 

(405) 232-5132 (fax) 

www.mipt.org 

Funding for MIPT is provided by 

the Office for Domestic Preparedness, 

U.S. Department of Homeland Security. 

Supported under Oklahoma City National Memorial Institute for the Prevention of Terrorism (MIPT) 

Award number MIPT 106-113-2000-C-01 from MIPT and the Office for Domestic Preparedness, 

Department of Homeland Security. 

Points of view in this document are those of the author(s) and do not necessarily represent the official 

position of the U.S. Department of Homeland Security or MIPT. 
MANAGING TERRORISM’S CONSEQUENCES: LEGAL ISSUES 

BARRY KELLMAN 

Professor of Law 

Director, International Weapons Control Center 

DePaul University College of Law∗

 

∗

 Institutional affiliation for reference purposes only. 
MANAGING TERRORISM’S CONSEQUENCES: LEGAL ISSUES 

 PREFACE

Catastrophic terrorism threatened the United States before September 11th. On one 

hand, our extraordinary military strength compels any adversary to consider tactics that do not 

involve direct confrontation. On the other hand, our openness enables adversaries to choose 

among thousands of potential targets, destruction of any could foment the mass panic that is the 

terrorists’ aspiration. 

But before September 11th, terrorism could be a sideline concern for most government 

officials -- a problem that was hypothetically horrible but, as yet, not comparable to the pressing 

demands and crises that leaders must constantly face. Obviously, with the attacks on the World 

Trade Center and the Pentagon, any casual dismissal of the threat of catastrophic terrorism is 

nonsense. These recent tragic events have shown, all too clearly, that catastrophic terrorism is 

not just the stuff of movies. There are people who seek the collapse or our way of life, and they 

are financially and intellectually capable of implementing complex attack schemes to cause 

immeasurable harm. 

The fundamental purpose of catastrophic terrorism is to disrupt social order and to 

display government’s inability to protect people. Terrorism thus projects fear, not only of the 

consequences of violence but from the pervasive sense that devastation may be inflicted 

anywhere at any time and that the foundations of social order are frail and shallow. For this 

reason, enabling officials to prevent most terrorism and to respond to isolated cases serves to 

diminish the reason for the threat and thus acts as a deterrent. If officials from the highest levels 

of the national security community to the local fire chief are ready for catastrophic terrorism, 

not only will lives be saved during a catastrophic event, but the likelihood of that event 

happening is reduced. 

Now, multiples of ten billion dollars are budgeted for terrorism prevention and response, 

and the topic dominates the attention of anyone in a position of responsibility. The terrorism

threat demands the concerted efforts of many professional disciplines: social scientists, 

economists, scientists, engineers, the medical community, etc. In this effort, the legal 

community has a unique role. Terrorism is a crime that poses a deep threat to the rule of law, 

and lawyers are increasingly called upon to ensure that this threat is a dismal failure. Even 

more fundamentally, laws organize the delegation of authority among myriad levels of 

government and agencies with diverse missions; understanding that organization of authority is 

crucial to countering the terrorist threat. 

Terrorism planners have long been concerned that American laws relevant to managing 

the consequences of terrorism are confused or contradictory or gap-ridden. That concern is 

unfounded. The deeper one delves into these issues, the more impressive is the law’s texture 

and nuance, enabling responses that are respectful of myriad policy agendas. The bad news is 

not the law’s condition -- the bad news is that there is no systematic treatment of terrorism

consequence issues that can serve as a guide for emergency planners and responders. 

vii 
It was the realization of a need for a legal guide or manual that led the National 

Commission on Terrorism to recommend: 

The President should direct the preparation of a manual on the implementation 

of existing legal authority necessary to address effectively a catastrophic terrorist threat 

or attack. The manual should be distributed to the appropriate federal, state, and local 

officials and be used in training, exercises, and educational programs. 

The President should determine whether any additional legal authority is needed

to deal with catastrophic terrorism and make recommendations to Congress if necessary. 

The Memorial Institute for the Prevention of Terrorism (MIPT) responded to this 

recommendation by commissioning, in early 2001, preparation of such a manual. This Manual 

on legal issues of consequence management is the product of that initiative. 

Professor Barry Kellman 

Director, International Weapons Control Center 

DePaul University College of Law 

December 2002 

viii 
MANAGING TERRORISM’S CONSEQUENCES: LEGAL ISSUES

INTRODUCTION

Planning for emergencies in order to manage them effectively is a task that most 

communities in the United States perform with considerable sophistication. However, terrorism

demands new and immediate responses to often unpredictable, unknown violence. Until 2001, no 

one could have planned for airplanes as bombs or innocuous letters as carriers of fatal disease. 

When this kind of disaster occurs, government can only respond, amid the horror and fear of what 

could yet occur, through the known set of social, political and legal structures. Thus, the risks of 

catastrophic terrorism present unique problems, and response officials may not be aware of or 

trained to cope with these problems. 

This monograph looks at our country’s federal and legal system and how it has been used in 

other kinds of crises, to offer a framework from which to address new threats. It begins by 

describing the laws Congress has established for dealing with disasters, emergencies and acts of war, 

then looks at the President’s inherent authority for dealing with unanticipated crises, and at state and 

local emergency powers. Finally, it explores what legal liability may attach to those who respond to 

an emergency. The monograph identifies relevant statutory authority and case law, to define the 

limits of what acts government may reasonably initiate and what acts may be found unreasonable by 

the courts. 

A. BRIEF OVERVIEW OF EMERGENCY PLANNING

The Federal Emergency Management Agency (FEMA), now within the Department of 

Homeland Security, has primary federal responsibility for disaster preparedness and response. In 

addition to federal relief efforts, FEMA administers several cooperative federal-state programs and 

provides assistance, oversight, and partial funding for state and local preparedness efforts. Every 

state now has a comprehensive disaster response statute outlining the state’s disaster management 

program. State statutes and regulations define the role of local governments in disaster response. 

Local and state personnel form an interdependent network of resources for responding to emergency 

situations. 

At all levels of government, the first step in emergency management consists of planning. 

Appropriate planning means that resources, trained personnel, and procedures are in place when a 

disaster occurs. Plans usually include an assessment of potential hazards, descriptions of the roles of 

various agencies and organizations command structure, protocols for requesting assistance, and 

treatments of various discrete functions within the total response effort such as public evacuation, 

medical assistance, etc. In addition to planning, most disaster preparedness programs include a 

regular disaster training regimen for response staff and operational tests such as drills and exercises. 

In an actual disaster, a network of responders is activated, each fulfilling a specific role 

according to the response plan. The activities of the various parties involved are coordinated 

through communications and usually a military-like command structure. Major decisions, such as 

evacuations, are made by the legally designated executives. They are implemented through a 

hierarchy of support agencies and personnel, ranging down to “street-level” operations such as 

directing traffic. 

ix 
There are advantages that derive from such plans. They improve the quality of emergency 

preparedness and response and help ensure compliance with regulatory requirements. A particular 

advantage can be gained in speed. Moreover, emergency planning can arrange for specialized 

resources such as specially trained medical services or vehicles and communications equipment. 

And emergency planning institutionalizes coordinated planning, providing a mechanism to prevent 

erosion of coordination over time due to budget cuts, personnel changes, or loss of institutional 

knowledge. 

B. MANAGING CATASTROPHIC TERRORISM AND THE PARADIGM OF EMERGENCY RESPONSE 

Managing catastrophic terrorism entails applications of emergency response that have been 

developed in connection with natural events such as hurricanes or forest fires. Ten specific aspects 

of emergency response to catastrophic terrorism deserve attention. 

1. Potential Relevance of Foreign and Counter Intelligence 

Most emergency planning that focuses on accidents or natural disasters has little if any need

for foreign intelligence. Catastrophic terrorism, uniquely, presents risks of disaster caused by groups 

whose commission of a heinous crime is part of a strategic attack perhaps in support of a foreign 

power. For this reason, virtually every terrorism expert has identified the premium value of advance 

intelligence. Typically, gaining intelligence is the responsibility of the national security community 

and the FBI, agencies that are not usually engaged in emergency response planning. There is, 

therefore, a need to link communities so that crucial information can be rapidly distributed to 

maximize its utility. 

2. Need for Pre-Attack Area-Wide Investigations

Advance planning for catastrophic terrorism response must include discussion of law 

enforcement’s authority to undertake pre-disaster interdiction. Indeed, catastrophic terrorism

response may actually begin before the attack when information indicates that it is imminent. At 

that point, law enforcement capabilities must be mobilized to conduct investigations to detect the 

terrorists and prevent them from carrying out their schemes. Intelligence might be able to pinpoint 

the object of an investigation, but more likely law enforcement officials will have to conduct areawide investigations that might intrude upon the personal liberty of innocent persons. These types of

highly-charged, broadly-applied investigations must be carried out with extreme care, pursuant to a

well-considered plan wherein federal as well as state and local law enforcement officials effectively 

coordinate their responses, in order to minimize the chances that officials will over-react in the name

of preventing terrorism. 

3. Mass Casualties

Catastrophic terrorism threatens casualties in the tens or even hundreds of thousands. For 

example, a chemical attack in an enclosed sports arena could immediately victimize everyone in 

attendance. That level of casualties will place enormous strains on public services, primarily on the 

provision of medical care. Therefore, in connection with planning for catastrophic terrorism, the 

capability of mobilizing extraordinary resources is essential which means that resources outside of

the affected area are likely to be required. 

x 
4. Disease, Perhaps Contagion

An act of biological terrorism presents monumental problems for emergency management. 

Most communities are prepared to cope with the spread of natural disease in connection with an 

accident, and conventional emergency response providers must be ready to address the risk of a 

naturally-occurring epidemic. Yet, bio-terrorism threatens altogether different types of disease with 

far greater virulence. Officials may not even know that their community has been attacked until 

later, well after symptoms become manifest. The pathogen itself is likely to be little known to 

medical service providers (it may even be a bio-engineered new organism); vaccines and antidotes 

are likely to be in short supply, and their efficacy is not assured; and the number of persons needing 

treatment is likely to be overwhelming. If the pathogen is contagious, mechanisms of quarantine 

must be quickly and effectively established -- a social condition that Americans have not 

experienced for decades. 

5. Panic

The objective of catastrophic terrorism, as stated earlier, is to engender widespread panic. 

An attack with a biological or chemical agent having mass casualties is likely to accomplish that 

objective. Even persons wholly unaffected by the event itself are likely to strain society’s capability 

to respond, perhaps by fleeing the area (clogging highways and other routes) and perhaps by turning 

to criminal behavior. It will be essential for community leaders to gain control of the situation; 

however, a clever terrorist might purposely target those leaders in order to increase the widespread 

perception that the government is incapable of governing. The necessity of engaging the media in 

planning for catastrophic terrorism is therefore a crucial aspect of terrorism response planning. 

6. Central Importance of Apprehending the Perpetrators

A catastrophic terrorist event is the consequence of a deliberate act. Finding and 

apprehending the perpetrators is paramount both to reassure the public and to prevent those terrorists 

from repeating the attack (or threatening to do so). The priorities of criminal investigations are not 

always consistent with the priorities of emergency response. For example, emergency responders 

are trained to overturn a site of destruction to save lives; law enforcement officials are trained to 

maintain a crime scene for evidence of how that crime occurred. Determining, in the planning 

process, who has ultimate authority to make sensitive decisions in response to a catastrophic terrorist

event is crucial. 

7. Necessity of Response Measures in Other Locales 

An act of catastrophic terrorism could have a broad and not necessarily contiguous 

geographic scope. If, for example, there is a biological attack, persons from the affected community 

may travel to other places, unwittingly carrying the pathogen with them. Even if the pathogen is not 

transported to another community, officials in that second community will not know that fact and 

must therefore adopt prevention measures. As a result, an attack in one place is likely to have ripple 

effects throughout the nation, especially throughout the transportation industry. Because of the high 

speed and volume of travel, officials in every community must rapidly close (or at least restrict) use 

of airports, trains, highways, etc. once an attack happens, regardless of where it happens. The 

actions taken to shut down aviation throughout the nation on September 11th demonstrate how 

reactions to terrorism are not confined to the attack site. 

xi 
8. Damage to Infrastructure

Any emergency strains the capabilities of essential infrastructure such as medical services, 

water supply systems, electric power, etc. The purpose of planning is to enable those sectors to 

respond to those strains. Terrorists might deliberately choose those sectors as the targets of the 

attack precisely because their collapse would reduce response capabilities and inflate panic levels. 

One variant of catastrophic terrorism -- cyber-terrorism -- has the essential motif of undermining 

critical infrastructures dependent upon computer systems such that an attack on those systems 

(perhaps from thousands of miles away) could cause those systems to cease functioning. This type 

of attack could be a terrorist’s delight as it would cause extraordinary panic without physically 

destroying very much and without posing much risk whatsoever to the terrorist himself. Thus, there 

is a need not only to incorporate critical infrastructure sectors into planning but also to implement 

special means of protection for those sectors. 

9. Civil Rights Considerations

Because of the need to conduct broad investigations, the likelihood of panic and of mass 

casualties, and the reasons for preventing movement or for instituting quarantines, there is a 

profound risk that civil rights will be curtailed. This risk exists during any period of social stress. 

Yet, in connection with catastrophic terrorism, some Americans may believe that the terrorists’ 

ethnic group is broadly responsible. Ironically, infringing on a group’s civil rights would serve 

terrorists’ interests as it would show that the government is the “brutal leviathan” that the terrorists 

allege it to be. There is no underlying justification for subverting civil rights or singling out 

particular groups in the name of counter-terrorism. Yet, virtually every expert agrees that a failure 

to properly plan for responding to catastrophic terrorism raises risks of racial or ethnic 

discrimination. Planning efforts relevant to catastrophic terrorism should be guided by the need for 

judicious responses. 

10. Dealing with Foreign Nationals

A principal difference between response to terrorist acts versus natural disasters is the 

potential involvement of foreign nationals. First responders must have a useable checklist of how to 

deal with such persons so as to limit subsequent legal consequences and foster swift and sure action 

by law enforcement, while preserving fundamental legal principles 

C. ORGANIZATION OF THE VOLUME

This volume is comprised of five chapters, an annex, and a law review bibliography. 

CHAPTER I -- FEDERAL DISASTER AND EMERGENCY ASSISTANCE 

Discussion of the President’s authority under the Stafford Act, the Federal Response Plan, and 

related laws and plans. Sets forth consequence management responsibilities of federal agencies. 

CHAPTER II -- EXTRAORDINARY PRESIDENTIAL AUTHORITY 

Discussion of the President’s authority to invoke martial law and under the Insurrection Statutes; of

the role of the military in domestic activities under the Posse Comitatus Act; of the authority of the 

National Guard. Sets forth statutory grants of and restrictions on special powers in times of 

extraordinary emergencies. 

xii 
CHAPTER III -- STATE AND LOCAL EMERGENCY RESTRICTIONS 

Discussion of state emergency authorities; and judicial evaluation of emergency restrictions 

including quarantines, curfews, restrictions on interstate travel, and commandeering of resources. 

Sets forth the state and local legal authorities that would be called upon to cope with a terrorism

event as well as the primary legal rules concerning the use of those authorities. 

CHAPTER IV -- LIABILITIES OF EMERGENCY RESPONDERS 

Discussion of bases for holding federal and state emergency responders liable for tort and violation 

of constitutional rights. Sets forth the case law that establishes principles of reasonableness in 

connection with emergency response. 

CHAPTER V -- LEGAL CHALLENGES FOR THE PUBLIC HEALTH SECTOR

Discussion of a wide array of unique legal issues concerning the ability of public health planners and 

providers to manage the consequences of a catastrophic terrorist event. Sets forth statutory 

framework relevant to the public health sector as well as principles of potential liability. 

ANNEX -- MODEL STATE EMERGENCY PUBLIC HEALTH POWERS ACT 

xiii 
TABLE OF CONTENTS 

CHAPTER I - FEDERAL DISASTER AND EMERGENCY ASSISTANCE 

INTRODUCTION............................................................................................................................1 

1. THE STAFFORD ACT.......................................................................................................3 

1.1. Triggers of Federal Assistance and Response..................................................3 

1.1.1. Disaster................................................................................................3 

1.1.2. Emergency...........................................................................................5 

1.2. Determinations................................................................................................6 

1.2.1. Processing Requests for a Declaration of an Emergency.....................6 

1.2.2. Following the President’s Declaration................................................7 

2. THE FEDERAL RESPONSE PLAN: ORGANIZATIONAL RESPONSIBILITIES........................8 

2.1. Headquarters Leadership and Administration.................................................9 

2.2. On-Site Leadership and Administration...........................................................9 

2.3. On-Site Operatives.........................................................................................11

 

3. FUNCTIONS...................................................................................................................11 

3.1. Transportation ESF #1....................................................................................11 

3.2. Communications ESF #2................................................................................12 

3.3. Public Works and Engineering ESF #3..........................................................13 

3.4. Firefighting ESF #4........................................................................................13 

3.5. Information and Planning ESF #5..................................................................14 

3.6. Mass Care ESF #6..........................................................................................14 

3.7. Resource Support ESF #7...............................................................................15 

3.8. Health Care ESF #8........................................................................................15 

3.9. Urban Search and Rescue ESF #9....................................................................15 

3.10. Hazardous Materials Protection ESF #10.......................................................16 

3.11. Food ESF #11...................................................................................................16 

3.12. Energy ESF #12..............................................................................................17 

4. ENVIRONMENTAL PROTECTION AND REMEDIATION.....................................................18 

4.1. The National Contingency Plan (NCP)..........................................................19 

4.2. The Federal Response Plan ESF #10 - Hazardous Materials.........................19 

4.2.1. EPA Response Actions......................................................................20 

4.2.2. Responsibilities of Support Agencies................................................20 

4.3. Radiological Incidents Federal Radiological Emergency Response Plan......20 

4.4. Specialized Support from the EPA...................................................................21 

xiv 
5. SPECIAL RESPONSE TEAMS FORWMDEVENTS...........................................................21 

5.1. Department of Defense...................................................................................21 

5.2. Department of Health and Human Services...................................................22 

5.3. Department of Energy.....................................................................................23 

5.4. Department of Veterans Affairs......................................................................24 

5.5. Federal Emergency Management Agency......................................................24 

5.6. Nuclear Regulatory Commission....................................................................24 

5.7. Federal Bureau of Investigation......................................................................24 

6. VICTIM COMPENSATION FUND OF 2001........................................................................24 

CHAPTER II - EXTRAORDINARY PRESIDENTIAL AUTHORITY 

INTRODUCTION..........................................................................................................................26 

1. THE PRESIDENT’S RESIDUAL AUTHORITY....................................................................27 

1.1. Martial Law....................................................................................................27 

1.2. World War II Internment Cases......................................................................28 

2. USE OF THE MILITARY..................................................................................................29 

2.1. Posse Comitatus Act.......................................................................................30 

2.1.1. Background and Enactment...............................................................30 

2.1.2. Subsequent Enactments......................................................................31 

2.1.2.1. 1981..................................................................................31 

2.1.2.2. 1988..................................................................................32 

2.1.3. Judicial Tests and Exceptions............................................................32 

2.2. Insurrection Statutes.......................................................................................35 

2.2.1. What is an Insurrection?.....................................................................36 

2.2.2. How Can the President Use the Power of Insurrection?....................36 

2.3. Military Assistance in Civilian Emergencies..................................................36 

2.3.1. Immediate Response Authority..........................................................37 

2.3.2. Military Support to Civilian Authorities (MSCA).............................38 

2.3.3. DOD Military Assistance to Civilian Authorities..............................39 

2.3.4. Military Assistance for Civil Disturbances (MACDIS).....................39 

2.3.5. Phases of Military Disaster Response Operations..............................40 

2.3.6. Assistance to Civilian Law Enforcement Authorities........................41 

2.4. Military Response Involving Weapons of Mass Destruction.........................42 

2.4.1. Nuclear Weapons...............................................................................42 

2.4.2. Chemical or Biological Weapons.......................................................43 

xv 
3. THE NATIONAL GUARD................................................................................................44 

3.1. Legal Foundation............................................................................................45 

3.2. The Dual-Component Status..........................................................................45 

3.3. Application of the PCA to the National Guard...............................................47 

3.4. State Authority and Responsibility.................................................................48 

3.4.1. The State Adjutant General and Supporting Officials.......................48 

3.4.2. Liaison Officers..................................................................................48 

3.5. Federal Administration and Coordination......................................................49 

3.5.1. National Guard Bureau.......................................................................49 

3.5.2. WMD Civil Support Teams (WMD CST’s) formerly RAID Teams.49 

4. LEGISLATED PRESIDENTIAL AUTHORITIES....................................................................49 

4.1. Communications.............................................................................................49 

4.2. Energy.............................................................................................................50 

4.3. Resource Use..................................................................................................50 

4.4. Prevention of Hoarding...................................................................................52 

4.5. Electronic Surveillance...................................................................................53 

4.6. Public Health..................................................................................................53 

4.7. Transportation.................................................................................................53 

4.8. Emergency Preparation...................................................................................53 

CHAPTER III - STATE AND LOCAL EMERGENCY RESTRICTIONS 

INTRODUCTION..........................................................................................................................55 

1. STATE EMERGENCY AUTHORITIES...............................................................................57 

1.1. Federal Support for State Emergency Planning..............................................57 

1.2. The Governor’s Authority..............................................................................58 

1.2.1. Declarations and Orders.....................................................................60 

1.2.2. Mitigation Measures...........................................................................60 

1.2.3. Training Programs..............................................................................61 

1.2.4. Funding..............................................................................................61 

1.2.5. Quarantines and Travel Restrictions..................................................61 

2. JUDICIAL EVALUATION OF EMERGENCY RESTRICTIONS...............................................62 

2.1. Governor’s Martial Law Authority.................................................................63 

2.2. Quarantines and Evacuations..........................................................................65 

2.2.1. Geographic Quarantines.....................................................................65 

2.2.2. Ethnic or Oppressive Quarantines......................................................66 

2.3. Municipally-Imposed Restrictions: Curfews..................................................66 

2.3.1. Questionable Authority......................................................................67 

2.3.2. Vagueness..........................................................................................68 

xvi 
2.3.3. Impermissibility of Exceptions..........................................................68 

2.4. Restrictions on Interstate Movement..............................................................68 

2.4.1. Products and Goods............................................................................69 

2.4.2. Hazardous Materials...........................................................................69 

2.5. States’ Authority To Commandeer Resources................................................70 

CHAPTER IV - LIABILITIES OF EMERGENCY RESPONDERS 

INTRODUCTION..........................................................................................................................73 

1. IMPLICATIONS OF POTENTIAL LIABILITY.......................................................................73 

2. THE LAW’S COMPLEXITY..............................................................................................74 

3. TORT LIABILITY...........................................................................................................74 

3.1. Introduction To Principles of Government Liability in Tort............................74 

3.1.1. Federal tort Claims...............................................................................74 

3.1.2 State Tort Claims...............................................................................77 

3.2. Failure To Prepare or Warn............................................................................79 

3.2.1. Absence or Inadequacy of a Plan.......................................................79 

3.2.2. Failure to Warn of Potential Danger..................................................80 

3.2.3. Failure to Keep Emergency Systems (911) Working.........................82 

3.2.4. Failure to Enter into a Mutual Aid Agreement..................................82 

3.3. Tort Liability for Damage to Private Property................................................83 

3.3.1. Federal Liability.................................................................................83 

3.3.2. State Liability.....................................................................................85 

4. LIABILITY UNDER SECTION 1983 FOR RIGHTS VIOLATIONS.........................................87 

4.1. State and Local Responders’ Liability for Creating or Increasing Danger.....88 

4.2. Liability for Failure to Properly Attend to Detainees’ Needs.........................91 

4.3. Liability for Use of Excessive Force..............................................................93 

4.4. Liability for Failure to Protect Against Private Violence and Mob Actions..94 

4.4.1. Liability under 1983 for Injuries from Private Violence....................95 

4.4.2. Mob Action Statutes...........................................................................95 

4.4.2.1. What Constitutes a Mob?.................................................96 

4.4.2.2. Municipality’s Knowledge or Notice...............................97 

4.4.2.3. Liability for What Damages?...........................................97 

CHAPTER V -- LEGAL CHALLENGES FOR THE PUBLIC HEALTH SECTOR 

INTRODUCTION: PUBLIC HEALTH AND CATASTROPHIC TERRORISM.........................................98 

1. PUBLIC HEALTH,CATASTROPHIC TERRORISM AND FEDERALISM.................................99 

1.1. Public Health and Federalism Generally........................................................99 

xvii 
1.2. Federalism’s Effect on the Public Health Functions in the 

Context of Catastrophic Terrorism...............................................................100 

2. PUBLIC HEALTH AND DETERRENCE OF CATASTROPHIC TERRORISM..........................101 

2.1. Assistance to Law Enforcement...................................................................101 

2.2. Regulating the Use and Transfer of Weapons Materiel................................102 

3. PUBLICHEALTH AND PREPAREDNESS FOR CATASTROPHIC TERRORISM.....................103 

3.1. Preparedness and Detection of WMD Events..............................................104 

3.2. Preparedness for Containment and Mitigation.............................................106 

4. PUBLIC HEALTH AND RESPONSES TO CATASTROPHIC TERRORISM.............................111 

4.1. Accessing Federal Public Health Assistance................................................112 

4.2. Public Health Powers Needed in Responses to Catastrophic Terrorism......113 

4.2.1. Management of Property..................................................................114 

4.2.2. Management of People.....................................................................116 

4.2.3. Management of Information.............................................................118 

4.2.4. Implementation of Public Health Response Powers.......................119 

4.3. Disciplines to Protect Civil Liberties............................................................120 

4.3.1. The Threat to Individual Rights.......................................................120 

4.3.2. A Framework for Public Health Responses to WMD 

Terrorism and Respect for Individual Rights...................................122 

5. LIABILITY OFMEDICAL CARE PROVIDERS AND PUBLIC HEALTH OFFICIALS................125 

5.1. Liability for Refusal to Treat.........................................................................125 

5.2. Liability for Improper Disclosure of Private Health Care Information..........127 

5.3. Liability for Failure to Protect Staff...............................................................130 

5.3.1. Occupational Health and Safety Act of 1970...................................130 

5.3.2. Worker Compensation Statutes........................................................132 

5.4. Liability Concerns for Public Health Officials.............................................132 

5.4.1. Liability for Voluntary Administration of Preventive Measures.......133 

5.4.2. Liability for Compulsory Measures: Preventive 

or Therapeutic Treatment.................................................................136 

5.4.3. Liability for Compulsory Measures: Isolation and Quarantines......138 

6. CONCLUSION..............................................................................................................139 

ANNEX 1--CDC LIST OF PUBLIC HEALTH POWERS NEEDED BY A HEALTH 

OFFICER IN A BIOTERRORISM EVENT...................................................................................................140 

ANNEX 2--THE MODEL STATE EMERGENCY HEALTH POWERS ACT...................................................142 

ANNEX 3--MIPT BOARD OF DIRECTORS.............................................................................................177 

xviii 
CHAPTER I -- FEDERAL DISASTER AND EMERGENCY ASSISTANCE

INTRODUCTION

State officials have primary legal responsibility for coping with emergencies, including 

terrorist events. The federal government provides supplementary assistance if the emergency poses 

challenges that cannot be successfully met with state resources exclusively. The initial responders 

will most likely be local personnel: police, fire, and other emergency services. Issues within the 

scope of their authority are theirs to address without recourse to federal approval. Moreover, the 

Governor executes overall consequence management leadership, especially when extraordinary 

measures such as quarantines are appropriate. Yet, for numerous reasons, responsibility for 

managing a terrorist event’s consequences is more complicated; to characterize the federal role as 

“supplementary,” while legally accurate does not portray the situation. 

A terrorist event is, of course, a national security challenge that threatens every American, 

even those who are geographically remote from the attack site. The consequences are likely to strain 

any single state’s resources. Only the federal government has the depth of money, equipment, and 

personnel to meet the demands of a truly catastrophic attack. Other factors support an enlarged 

federal role. Unlike a natural calamity, law enforcement has a paramount mission; the FBI has 

unquestioned authority over that facet of terrorism response. Although law enforcement and 

consequence management are designed to operate in parallel, the overlap, integration, and confusion 

of obligations might blur this distinction. 

Perhaps the most important reason for starting a discussion of consequence management with 

federal response authorities and capabilities is that federal agencies have developed plans, 

accumulated resources, and focused attention on relevant tasks to a far greater extent than any state.

Thus, while there is widespread respect for state prerogatives, there is also widespread deference to 

the sophistication and assets of the federal response system. 

This chapter describes the responsible federal authorities for performing functions associated 

with reducing vulnerabilities to terrorist attacks and managing an attack’s consequences. This 

material is complicated: many agencies are responsible for many tasks. Yet, some complexity is 

inevitable: terrorism can involve different weapons in different places with varying effects, and the 

specialized capabilities for responding to those implications are located throughout government. 

Moreover, while efficiency and organization are virtues well worth achieving, some amount of 

duplication and overlap may be preferable to a patchy response capability that lacks depth and 

flexibility in time of need.

This chapter contains six sections. Section 1 describes Stafford Act authorities and 

obligations that are the legal foundation for declaration of a disaster or emergency. Section 2 

describes the organizational responsibilities established by the Federal Response Plan. Section 3 

focuses on the Federal Response Plan’s assignment of functional tasks. Section 4 discusses the 

specific allocation of environmental responsibilities after a disaster or emergency. Section 5 lists 

many of the federal teams and support groups that could have relevant responsibilities. Section 6 

discusses federal disaster assistance directed at victims of the September 11, 2001 attacks.

[As this volume was completed, Congress passed and the President signed legislation establishing 

the Department of Homeland Security (DHS). Many specific questions concerning authority for 

1 
specific response functions remain to be resolved. The following discussion highlights the new 

Department’s major responsibilities in connection with response to terrorism.] 

DHS, the second largest Federal department with a budget of $37 billion, consolidates 

various agencies, offices, and selected functions of other departments into four primary areas: border 

and transportation security; emergency preparedness; countermeasures against chemical, biological 

and radiological and nuclear weapons; and information analysis and infrastructure protection. The 

Emergency Preparedness and Response directorate will oversee domestic disaster preparedness 

training and coordinate government disaster response. It will bring together FEMA, chemical, 

biological, radiological and nuclear response assets of Health and Human Services (HHS), The 

Nuclear Incident Response Team of the Department of Energy, Domestic Emergency Support Teams 

of the Justice Department, and the National Domestic Preparedness Office of the FBI. 

A special office of the DHS Secretary, devoted solely to state and local concerns, has been 

created to streamline intergovernmental activities related to domestic security. Also, there is an 

intergovernmental affairs office for coordinating federal homeland security programs with local 

officials; it gives state and local officials one primary contact instead of many and provides an 

additional primary contact for training, equipment, planning, and emergency response. This office 

also manages federal grant programs for firefighters, police, and emergency medical personnel, and 

sets standards for state and local preparedness activities and equipment to ensure that funds are used 

appropriately. 

 DHS coordinates several other elements of state and local governments' domestic 

preparedness and emergency response: 

Communication -- DHS is responsible for all federal communications related to terrorist 

threats. It coordinates the provision of specific threat information to local law enforcement, 

sets the national threat level, and maintains a central repository of critical information on 

potential terrorist threats that to be shared with state and local authorities. 

Incident Management -- DHS establishes a comprehensive national incident management 

system to work with federal, state, and local public safety organizations for terrorist incident 

response. Existing federal emergency response plans are consolidated into one all-hazard 

plan and manage and coordinate federal entities supporting local response efforts. 

Critical Infrastructure Protection -- DHS assumes responsibility of coordinating a national 

effort to secure the nation's infrastructure. The department gives state, local, and private 

agencies one primary contact for coordinating protection activities. 

Grants Administration -- DHS administers all domestic disaster preparedness grant programs 

for first responders that had been managed by the Justice Department, Health and Human 

Services, and the Federal Emergency Management Agency. A comprehensive federal 

emergency response plan has been developed to encompass state and local government plans 

for domestic preparedness. 

Pharmaceutical stockpile -- Custody of the national pharmaceutical stockpile has been 

moved to DHS, although Health and Human Service continues to determine the contents and 

HHS scientists decide which vaccines and antibiotics are placed into the stockpile. 

2 
1. THE STAFFORD ACT

The federal government has long had a role in disaster relief and civil defense.1

 The

Disaster Relief Act of 1950, authorized the federal government’s disaster relief efforts under the 

President’s coordination. Passed at the same time, the Federal Civil Defense Act of 1950 recognized 

civil defense as a distinct policy principle.2

 The Robert T. Stafford Disaster Relief and Emergency 

Assistance Act,3

 (the Stafford Act) amended the Disaster Relief Act to revise and broaden the scope 

of relief programs. Congress intended to provide an orderly and continuous means of federal 

assistance to state and local governments by encouraging and providing support for coordinated 

preparedness and hazard mitigation measures. The Stafford Act authorizes restoration of essential 

government services and provision of emergency relief to affected governments, businesses, and 

individuals. The Federal Emergency Management Agency (FEMA), since its creation in the late 

1970s, is responsible for coordinating both disaster and civil defense preparedness across federal 

agencies.4

 When the Civil Defense Act was repealed in 1993, most of its provisions were 

incorporated as Title VI of the Stafford Act.5

 

1.1. Triggers of Federal Assistance and Response 

Under the Stafford Act, federal assistance is triggered by a Presidential declaration of a major 

disaster or an emergency. The type of available federal assistance depends on whether the situation 

is an emergency or major disaster. Both types of assistance generally require a request from the 

Governor. The President’s determination to grant assistance is discretionary, not mandatory. 

• Disaster assistance is typically broad in scope and includes long-term recovery programs and 

federal assistance to supplement state and local efforts and resources. It could be available 

in response to a terrorist attack involving a fire, flood, or explosion.6

 A biological or 

chemical attack would be less likely to qualify as a major disaster because, except for fire, 

flood, or explosion, the definition focuses on natural catastrophes. 

• Emergency assistance -- typically (but not necessarily) narrower in scope -- may be provided 

in response to: “any occasion or instance for which, in the determination of the President, 

federal assistance is needed to supplement state and local efforts and capabilities to save 

lives and to protect property and public health and safety, or to lessen or avert the threat of a 

catastrophe.”7

 A terrorist attack using WMD would likely be an “emergency.”

1.1.1. Disaster 

The Stafford Act authorizes the President, upon a Governor’s request, to declare a major 

 1

 As early as 1941, President Franklin Roosevelt urged citizens to become informed about civil defense. 

Proclamation No. 2519, 55 Stat. 1693 (1941). 

2

 Ch. 1228, 64 Stat. 1245 (1951). 

3

 42 U.S.C. § 5121 et seq. (2000). 

4

 Reorg. Plan. No. 3 of 1978, 5 U.S.C. app. § 1, reprinted in 92 Stat. 3788 (1978); see also 42 U.S.C.A. § 68 (West); 

Exec. Order No. 12148, 44 Fed. Reg. 43,239 (1979); Exec. Order No. 12656, 53 Fed. Reg. 47,491 (1988). 

5

 108 Stat. 3111. 

6 Id. § 5122(2). Explosions that the President determines to be sufficiently severe to warrant assistance are explicitly 

within the statutory definition of “major disaster.” 

7 Id. § 5122(1). 

3 
disaster.8

 The Governor’s request must be based on a finding that the disaster is too severe and 

sizeable for state and local response capabilities to be effective -- federal assistance is therefore 

necessary. Moreover, the Governor must have taken appropriate action under state law and directed 

execution of the state’s emergency plan. State emergency officials should: 

• survey the extent of private and public damage in the affected areas; 

• with FEMA officials, conduct a Preliminary Damage Assessment (PDA), to be included in 

the Governor’s request, that estimates the extent of the disaster and its impact on individuals; 

(Normally the PDA is completed prior to the submission of the Governor’s request; 

however, if the event is obviously severe or catastrophic, the request may be submitted prior 

to the PDA.) 

• estimate the types and extent of federal disaster assistance required; 

• consult with the FEMA Regional Director on eligibility for federal disaster assistance; and 

• advise the FEMA regional office that the Governor intends to request a Presidential 

declaration. 

Once the President declares a major disaster, the FEMA Director has broad authority to 

“direct any Federal agency, with or without reimbursement, to utilize its authorities and the 

resources granted to it under Federal law in support of state and local assistance efforts.”9

 

Moreover, at the President’s direction, federal agencies may provide work or services essential to 

meeting immediate threats to life, property, or public health and safety, including using, lending, or 

donating federal equipment, supplies, facilities and personnel to state and local governments. In 

addition, the President may implement specific longer-term assistance programs after the declaration 

of a major disaster, including: 

• repair, reconstruction, restoration, or replacement of federal facilities;10 

• contribution of funds to repair, restore, reconstruct, or replace state and local public 

facilities;11 

• debris removal and wreckage assistance;12 

• temporary housing assistance;13 

• unemployment assistance;14 

• grants to individuals and families to meet disaster-related expenses;15 

• food coupons to low-income households;16 

 8 Id. § 5170. 

9 Id. § 5170(a)(1). 

10 Id. § 5171. 

11Id. § 5172. 

12Id. § 5173. 

13Id. § 5174. 

14Id. § 5177. 

15 Id. § 5178. 

4 
• legal services to low-income households;17 

• crisis counseling assistance and training;18 and 

• temporary public transportation.19 

The federal government may pay for all assistance and no less than 75% of the costs under the major 

disaster relief provisions. 

1.1.2. Emergency

The federal government can provide relief when, upon request of a Governor, the President 

declares an emergency. The procedure to request for federal assistance in dealing with an 

emergency is basically the same as that for assistance in responding to a major disaster, with one 

addition: a request for assistance in an emergency must also define the type and extent of Federal 

aid required.20

To be considered for aid, the request for emergency declarations must be submitted to the 

President within five days after the need for assistance is apparent, but no longer than thirty days 

after the incident. The period may be extended provided a written request, submitted within the 

thirty-day period, stipulates the reasons for the delay.21 In addition to the Governor’s findings that 

the situation is of such severity and magnitude that effective response to save lives or lessen the 

threat is beyond the capability of the State and requires supplementary federal assistance, the request

must include confirmation of appropriate action taken, information describing resources already 

employed, information describing agency efforts, and identification of the type and extent of aid 

required.22

As with disasters, FEMA has broad authority upon a Presidential declaration of emergency: 

to coordinate federal relief efforts; provide technical and advisory assistance, and health and safety 

measures; and assist in distributing medicine, food, and consumable supplies. It also may authorize 

debris removal and provide temporary housing assistance.23 The federal government may pay for up 

to all, but no less than 75% of costs for assistance rendered under the emergency relief provisions. 

However, total assistance for one emergency may exceed $5 million only if the President determines 

that: (1) continued assistance is immediately required; (2) there is a continuing risk to lives, 

property, or public health or safety; and (3) needed assistance will not otherwise be provided on a 

timely basis.24

The President may unilaterally exercise any of the emergency assistance authorities when he 

determines that an emergency involves a subject area for which the United States exercises exclusive 

 16 Id. § 5179. 

17 Id. § 5182. 

18 Id. § 5183. 

19 Id. § 5186. 

20 Id. § 5191(a). 

21 44 C.F.R. § 206.35 (2003). 

22 Id. § 206.35(c) (2003); 44 C.F.R. § 206.36(a) (2003). 

23 42 U.S.C. § 5192(a) (2000). 

24 Id. § 5193(b). 

5 
or preeminent responsibility and authority.25 He need not consult a Governor prior to a 

determination if an immediate response is necessary. The President declared an emergency under 

this provision in response to the bombing of the Federal Building in Oklahoma City, Oklahoma in 

April 1995. 

Immediately after an incident that may ultimately qualify for Stafford Act assistance but 

before the President’s declaration of an emergency, a Governor may ask that the President determine 

that the requested emergency work is essential to preserve life and property and direct the Secretary 

of Defense to use Defense Department (DoD) resources for “any emergency work which is made 

necessary by such incident and which is essential for the preservation of life and property.”26 The 

request must be submitted within 48 hours of the incident’s occurrence.27 The emergency work, for 

no more than ten days, may include debris and wreckage removal and temporary restoration of 

essential public facilities and services.28 During its work, DoD must advise the FEMA Regional 

Director and the State of its progress in order to assure continuity at the end of the ten-day period.29 

When the emergency is declared, both the Federal and State Coordinating Officers must cooperate to 

maintain this continuity.30

The request for DoD resources includes: 

• information describing the types and amount of DoD emergency assistance being requested; 

• confirmation that the Governor has taken appropriate action under state law and directed the 

execution of the state emergency plan; 

• a finding that the situation is of such severity and magnitude that effective response is 

beyond the capabilities of the state and local government for the preservation of life and 

property; 

• a certification by the Governor that the state and local government will reimburse FEMA for 

the non-Federal share of costs, which may range from nothing to 25%; and 

• an agreement facilitating the work by freeing the federal government from damages and 

providing assistance in local jurisdictional matters.31 

• The cost of any DOD assistance may be reimbursed by FEMA out of disaster relief funds 

under the Stafford Act, to the extent funds are available.32 This authority is rarely employed. 

1.2. Determinations 

1.2.1. Processing Requests for a Declaration of an Emergency 

A Governor sends a request for a Presidential declaration of disaster or emergency to the 

 25 Id. § 5191(b). 

26 Id. § 5170(b)(c)(1). 

27 44 C.F.R. 206.34 (2003). 

28 42 U.S.C. § 5170b(3)-(4) (2000). 

29 44 C.F.R. § 206.34(g) (2001). 

30 Id. § 206.42. 

31 Id. § 206.34 (b)(5). 

32 42 U.S.C. § 5197(e) (2000). 

6 
FEMA Regional Director who must acknowledge it in writing. The information obtained during 

assessment and consultations with federal and state officials concerning local capabilities and 

resources is analyzed and submitted with a recommendation to the Assistant Director. The FEMA 

Director thereupon recommends a course of action to the President33 in light of the Public Assistance 

Program and the Individual Assistance Program. Under the Public Assistance Program, the 

Regional Director considers: 

• the estimated cost of the assistance (measured against the statewide population to give a 

measure of the per capita impact within the state); 

• localized impacts ( impact of the disaster is evaluated at the county and local level as well as 

the Tribal and American Indian levels because sometimes there are high concentrations of 

damages that might warrant federal assistance even if the statewide per capita is low); 

• insurance coverage in force or that legally should be in force; 

• amount of hazard mitigation already accomplished by the state or local government; 

• disaster history within the last twelve months; and 

• other programs of federal assistance.

34

In evaluating the need for assistance under the Individual Assistance Program, the severity, 

magnitude and impact of the disaster must be determined according to: 

• the concentration of damages (a high concentration of damages generally indicates a greater 

need for federal assistance than widespread and scattered damages); 

• trauma (the number of injuries or deaths, the disruption of normal community functions and 

services and emergency needs such as loss of power or water); 

• special populations (such as low-income, elderly or the unemployed); 

• voluntary agency assistance; 

• insurance; and 

• average amount of individual assistance by state.35 

The Regional Director also considers the timeliness of the Governor’s request and reasons 

for delays in submitting the request. Courts have upheld FEMA’s refusal of a request not submitted 

within thirty days of the incident’s occurrence.36

1.2.2. Following the President’s Declaration

The Regional Director notifies the Governor and other federal agencies of a declaration or its

denial. If the President declares an emergency, the declaration must be published in the Federal 

Register.37 Thereupon, the Regional Director notifies the Governor of the designations of assistance 

 33 44 C.F.R. § 206.37(b) (2003). 

34 Id. § 206.48(a); 42 U.S.C. §5170(c)(4) (2000). 

35 44 C.F.R. § 206.48(b) (2003). 

36 Kan. v. Fed. Emerg. Mgmt. Agency, 751 F. Supp. 1495 (D.C. Kan. 1990). 

37 National Emergencies Act, Transferred to 18 U.S.C.S. § 4122 (1996). 

7 
and eligible areas. Within thirty days of the incident’s end, the Governor may submit a written 

request justifying authorization for additional areas or types of federal assistance.38

The President may direct federal agencies to support state and local assistance efforts so long 

as that support does not conflict with other emergency missions.39 The President has designated 

FEMA as the lead federal agency for the coordination and direction of Federal assistance, 40 and 

delegated his authority to the FEMA Director and subordinate officials, including the Federal 

Coordinating Officer (FCO).41 FEMA also has primary responsibility for establishing Federal 

disaster assistance policy and coordinating Federal emergency preparedness, planning, management, 

and disaster assistance functions. 

Upon declaration of either a disaster or emergency by the President, the FEMA Director 

appoints an FCO to initiate federal assistance. The Regional Director designates a Disaster Recovery

Manager (DRM) to exercise the authority of the Regional Director in a major disaster or emergency. 

The Governor designates a State Coordinating Officer (SCO) who coordinates all state and local 

assistance efforts with those of the federal government. The Governor also designates a Governor’s 

Authorized Representative (GAR) who administers federal assistance programs on behalf of state 

and local governments. The GAR is responsible for the state compliance with the FEMA-State 

Agreement.42

2. THE FEDERAL RESPONSE PLAN: ORGANIZATIONAL RESPONSIBILITIES

FEMA has coordinated development of the Federal Response Plan (FRP), a signed 

agreement among twenty-seven Federal departments and agencies including the American Red 

Cross, which: 

• outlines how the Federal Government plans to assist state and local governments; 

• describes the policies, planning assumptions, concept of operations, response and recovery 

actions, and responsibilities that guide Federal operations; and 

• provides the mechanisms to coordinate delivery of Federal resources. 

The types of direct federal assistance are grouped into twelve Emergency Support Functions

(ESFs). Each ESF is headed by a primary agency designated on the basis of its authorities, 

resources, and capabilities in that functional area. ESF primary agencies identify requirements in 

order to supply goods and services to help the State respond effectively. Other agencies are 

designated as support agencies for one or more ESFs. In cases where required assistance is outside 

the scope of an ESF, FEMA may directly task any federal agency to bring its resources to bear in the 

 38 44 C.F.R. § 206.40 (2003). 

39 42 U.S.C. § 5170(a)(1) (2000). 

40 Stafford Act 42 U.S.C. § 5121 et. seq.; Federal Emergency Management, Exec. Order No. 12148, 44 F.R. 43239 

(July 20, 1979); Assignment of Emergency Preparedness Responsibilities, Exec. Order No. 12656, 53 F.R. 47491 

(Nov. 18, 1988). 

41 See also Nondiscrimination, Exec. Order No. 13160; Floodplain Management, Exec. Order No. 11988; Protection of 

Wetlands, Exec. Order No. 11990; Federal Emergency Management Agency, Exec. Order No. 12127; Federal 

Emergency Management, Exec. Order No. 12148; Assignment Of Emergency Preparedness Responsibilities, Exec. 

Order No. 12656; Federal Emergency Management Agency Assistance In Emergency Preparedness Planning At 

Commercial Nuclear Power Plants, Exec. Order No. 12657; National Defense Industrial Resources Preparedness, Exec. 

Order No. 12919, available at http://www.fema.gov/library/eo.htm 42 44 C.F.R. § 206.41 (2003). 

8 
disaster operation. 

The ESFs are: Lead Agency: 

ESF 1: Transportation. Department of Transportation 

ESF 2: Communications. National Communications System

ESF 3: Public Works and Engineering. U.S. Army Corps of Engineers 

ESF 4: Fire Fighting. U.S. Forest Service, Department of Agriculture 

ESF 5: Information and Planning. Federal Emergency Management Agency 

ESF 6: Mass Care. American Red Cross 

ESF 7: Resource Support. General Services Administration 

ESF 8: Health and Medical Services. Department of Health and Human Services 

ESF 9: Urban Search and Rescue. Federal Emergency Management Agency 

ESF 10: Hazardous Materials. Environmental Protection Agency 

ESF 11: Food. Food and Nutrition Service, Department of Agriculture 

ESF 12: Energy. Department of Energy 

The FRP includes a Terrorism Incident Annex, describing crisis response and consequence 

management in the context of a terrorist attack involving WMD and defining the policies and 

structures to coordinate functions under the Plan. The FRP also includes procedures specifically 

addressing hazardous materials, including chemical, biological, and other WMD. 

For peacetime radiological emergencies, including acts of sabotage and terrorism, that have

perceived radiological consequences within the U.S., FEMA has prepared the Federal Radiological 

Emergency Response Plan (FRERP) which establishes an organized and integrated capability for 

timely, coordinated response.43 The lead federal agency and the level of response will vary 

depending on the type and/or amount of radioactive material involved, the location of the 

emergency, the actual or potential impact on the public and environment, and the size of the affected 

area. 

2.1. Headquarters Leadership and Administration

The Director of FEMA has discretion to convene senior administrators from all FRP 

departments and agencies, upon declaration of an emergency or disaster or otherwise, to provide 

guidance and policy direction on response coordination and operational issues. An Emergency 

Support Team (EST) may be formed, including representatives sent from each Emergency Support 

Function (ESF) as well as FEMA support staff. Operating from the FEMA National Interagency 

Operations Center (NIEOC) in Washington, DC, the EST carries out initial operations, provides 

overall resource coordination for other responders in the field, and is the central source of 

information regarding disaster operations. The EST attempts to resolve policy issues and resource 

support conflicts forwarded from the ERT. 

 43 Federal Radiological Emergency Response Plan, 61 Fed. Reg. 20,944 (1996). 

9 
2.2. On-Site Leadership and Administration

A Federal Coordinating Officer (FCO), appointed by the FEMA Director, is the senior 

federal official for coordinating consequence management response and recovery activities as well 

as timely delivery of federal disaster assistance.44 The FCO works closely with the State 

Coordinating Officer (SCO), appointed by the Governor to oversee state disaster operations, as well 

as the Governor’s Authorized Representative (GAR), who executes all necessary documents for 

disaster assistance. 

The FCO heads the interagency Emergency Response Team (ERT) that FEMA activates and 

deploys to the disaster area to oversee execution of on-site operations. The ERT is the principal 

group that supports the FCO to coordinate the federal disaster operation. It ensures that federal 

resources are available to meet state requirements identified by the SCO. The Emergency Response 

Team - Advance Element (ERT-A) assesses the event’s impact, gauges immediate state needs, and 

arranges for operational field facilities. The ERT for terrorist incidents has been pre-designated as 

the ERT-Blue Team with members of all the Emergency Support Functions (ESFs). The ERT 

organizational structure encompasses the Federal Coordinating Officer's support staff plus four main 

sections (Operations, Information and Planning, Logistics, and Administration). 

Elements of the Emergency Response Team: 

1. FCO Support Staff, including a Deputy FCO and/or Deputy FCO for Mitigation as well as 

representatives providing assistance in: equal rights, safety, environment, legal, emergency 

information and media affairs, congressional and legislative affairs, community relations, 

Office of the Inspector General, and Comptroller. A Defense Coordinating Officer assists in 

orchestrating military support. 

2. Operations Section -- This section, comprising four branches -- Operations Support, Human 

Services, Infrastructure Support, and Emergency Services -- under which the twelve ESFs 

are organized, coordinates the delivery of federal assistance and manages the activities of

emergency teams. Immediate support staff functions include Mission Assignment 

Coordination, Action Tracking, Defense Coordinating Element, and Mobile Emergency 

Response Support. 

3. Information and Planning Section -- This section has two major tasks: collection, analysis, 

and dissemination of information about disaster operations to support planning and execution 

at both the field operations and headquarters levels; and coordination of short- and long-term

planning at the field operations level. (See ESF #5 - Information and Planning Annex for 

additional information.) 

4. Logistics Section -- This section plans and directs logistics operations, including control of 

supplies and equipment; resource ordering; delivery of supplies, equipment, and services to 

the DFO and other field locations; resource tracking; facility location, setup, space 

management, building services, and general facility operations; transportation coordination

and fleet management services; information and technology systems services; administrative 

services such as mail management; and customer assistance. (See the Logistics Management 

Support Annex for additional information.) 

5. Administration Section -- This section is responsible for personnel functions and employee 

services. Personnel functions cover tracking FEMA staff and disaster reserves deployment, 

 44 Exec. Order No. 12148 (July 20, 1979) (outlining delegated responsibilities for the FICO). 

10 
hiring locals, arranging housing, and processing payroll. Employee services include 

providing for personnel health and safety, overseeing access to medical services, and 

ensuring personnel and facility security. 

2.3. On-Site Operations

FEMA may activate the Regional Operations Center (ROC) to coordinate initial regional and 

field activities until an ERT is established and the FCO assumes coordination responsibilities. The 

ROC establishes communications with the affected state emergency management agency and the 

EST; coordinates deployment of the Emergency Response Team - Advance Element (ERT-A) to 

field locations; assesses damage information and develops situation reports (under ESF #5 - 

Information and Planning); and issues initial mission assignments. The ROC comprises a Director 

and FEMA staff and Emergency Support Function (ESF) representatives, as well as a Regional 

Emergency Preparedness Liaison Officer (REPLO) who coordinates requests for military support. 

Financial management activity at the ROC is monitored and reported by the Comptroller. 

The Disaster Field Office (DFO) is the primary field location in each affected state to 

coordinate federal response and recovery operations. The FCO and SCO (State Coordinating 

Officer) collocate at the DFO, along with federal agency regional representatives and state and local 

liaison officers. Once the DFO is ready for use, the ERT-A and/or ERT-N is augmented by FEMA 

and other federal agency staff to form a full ERT. The CONPLAN adds: The DFO office is 

established in or near the designated area to support federal and state response and recovery 

operations. 

Requests for assistance from local jurisdictions are channeled to the SCO through the 

designated state agencies in accordance with the state emergency operations plan and then to the 

FCO. ESFs coordinate with their counterpart state or local agencies to provide assistance. Federal 

fire, rescue, and emergency medical responders arriving on scene are integrated into the local ICS 

structure. 

3. FUNCTIONS

3.1. Transportation ESF #1

The Transportation Department (DoT) supervises assessment of damage to the transportation 

infrastructure and implements emergency-related response and recovery functions, including 

allocation of civil transportation capacity, air and marine traffic control, search and rescue, 

emergency highway funding, and hazardous material containment response. The DoT also 

determines viable transportation networks to move people and goods to, from, and within the 

disaster area. 

The Regional Emergency Transportation Coordinator (RETCO) sets up emergency reporting 

systems and communications with the federal and state coordinating officers. To coordinate 

movement of people and goods, the RETCO administers regional transportation operations, manages 

financial transactions, and provides assistance for air traffic control, search and rescue, recovery of 

transportation infrastructure, and mitigation efforts. When normal channels of procurement cannot 

provide services, ESF #1 acquires transportation services, using General Services Administration 

(GSA) standing schedules, as part of a contract for acquisition of goods. To coordinate acquisition 

of transportation capacity, the DoT manages the Movement Coordination Center (MCC) at either 

FEMA headquarters or in the field. In the event of capacity shortages, the DoT Crisis Management 

11 
Center (CMC) identifies sources and allocates priorities if the Defense Production Act has been 

implemented. 

Many agencies have support duties. The Defense Department helps restore the transportation 

infrastructure and supports emergency operation of inland waterways, ports, and harbors. DoD 

provides military transportation capacity from the U.S. Transportation Command (USTRANSCOM),

and it develops and executes Time-Phased Force and Deployment Lists (TPFDLs) to manage rapid, 

early movement of personnel, equipment and critical relief supplies. The Customs Service provides 

airlift and marine transportation capability. The State Department coordinates requests for and 

offers of transportation assistance from foreign governments.

3.2. Communications ESF #2

The National Communications System (NCS) is an inter-agency task force made up of 

representatives of twenty-five agencies. The NCS Manager coordinates response activities, 

including monitoring the status of situations and recovery efforts, and coordinates provision of 

telecommunications needed by the federal government. The NCS Manager appoints an NCS 

Disaster Area Liaison Officer to coordinate national-level telecommunications support in the 

disaster area, and activates Individual Mobilization Augmenters (IMAs) to support disaster 

responses at the DFO, regional, and national levels. 

A Federal Emergency Communications Coordinator (FECC) from the GSA deploys to the 

scene of a disaster to survey the status of telecommunications: the extent of damage and residual 

capabilities. The FECC is the telecommunications industry point of contact who coordinates 

industry’s response and advises the FCO on telecommunications activities. In that capacity, the 

FECC prioritizes federal telecommunications support to responding government agencies and 

voluntary relief organizations and ensures that required services are provided for the response and 

recovery effort. Moreover, the FECC may release federal telecommunications resources, coordinate 

distribution of cellular phone assets, and maintain an audit trail of all telecommunications support 

provided. In the disaster area, the FECC also coordinates use of military telecommunications assets 

as well as frequencies used by those assets. 

A National Communications Center (NCC) develops information collection procedures to 

enhance coordination of telecommunications assets. The NCC Manager gathers damage assessment 

data in order to ensure that adequate services are provided to support response operations. This 

responsibility includes identifying the telecommunication assets available within the affected area or

might be brought for support, and activities of private telecommunications companies to recover and

reconstruct their facilities. The NCC coordinates restoration and/or rerouting of telecommunications

services and provision of new services with: telecommunications service providers when 

requirements cannot be fully satisfied; NCS member organizations to obtain additional 

telecommunications specialists; federal agencies to respond to special industry requests for 

assistance; and appropriate government and industry representatives to meet user requirements for 

cellular phone assets. 

Virtually every federal support agency is charged with providing communications resources 

and technical personnel to assist the NCS Manager. All federal agencies must notify the FECC 

promptly of all telecommunications requirements and available assets and coordinate any requests 

for resources with the FECC. For the entire communications system, the General Services 

Administration (GSA) and the Federal Telecommunications Service (FTS) provide national-level 

12 
guidance; GSA regional managers supervise the training of potential FECC’s within the region. 

Three support agencies have significant responsibilities. FEMA installs computers and local 

area networks at the DFO, and it assists state and local officials to disseminate public warnings. The 

Department of Commerce -- National Telecommunications and Information Administration -- 

develops plans and procedures to assign radio frequencies. The Federal Communications 

Commission (FCC) reviews policies of regulated entities to provide emergency telecommunications 

services in order to ensure consistency with the public interest. Accordingly, the FCC also controls 

common-carrier facilities, services, and rates, and it assigns radio frequencies to licensees. 

Significantly, the FCC will investigate violations of law and initiate appropriate enforcement 

actions.

3.3. Public Works and Engineering ESF #3

To save lives, mitigate damage, and assist recovery activities after a major disaster or 

emergency, the U.S. Army Corps of Engineers (Corps) provides technical advice and engineering 

services, and it contracts for construction and emergency repair of water and power facilities. The 

Corps activates the Emergency Operations Center (EOC) and other support agencies’ regional 

offices, and it designates personnel to staff the Regional Operations Center (ROC). 

To establish communications with FEMA headquarters (HQ), the Corps sends Emergency 

Support Team (EST) representatives to HQ and liaison with both FEMA’s Congressional Relations 

Officer and its Joint Information Center. The Corps also establishes communications with DoD 

Director of Military Support (DOMS) through the Army Operations Center (AOC). The Corps’ 

regional office identifies requirements for remote sensing and imagery, and works with state and 

local officials to maximize the use of regional assets and to locate needed resources from outside the 

region. 

Various support agencies have significant responsibilities. The Department of Agriculture 

(with supplemental assistance of the Department of Labor) provides engineering personnel and 

equipment to assist in emergency removal of debris, demolition, repair of roads and bridges, and 

temporary repair of essential public facilities including water supply. The National Resources 

Conservation Service is the regional contact for evaluating damage to water control facilities. The 

Department of the Interior also provides engineering support to evaluate damage to water control 

systems such as dams, levees, and water delivery facilities, and it will provide technical assistance 

on contracting, procurement, construction inspection, and environmental assessments. The 

Environmental Protection Agency (EPA), along with the Department of Health and Human Services, 

determines the portability of local water supplies and identifies hazardous materials that might affect 

those supplies. Also, EPA locates disposal sites for debris clearance and provides guidance to ensure 

cleanup of areas affected by hazardous materials. 

3.4. Firefighting ESF #4

To detect and suppress wild land, rural, and urban fires, the Assistant Director for 

Operations, Fire & Aviation Management, Forest Service coordinates requests and provides 

assistance for local fire chiefs. The Disaster & Emergency Operation Specialist serves as the 

National Fire Suppression Liaison Officer, located at FEMA Headquarters, who tasks support 

agencies to fulfill responsibilities. FEMA establishes communications with State Fire Marshals in 

adjoining states. 

13 
In general, responsibilities are allocated on the basis of the location and type of fire. The 

Forest Service is responsible for suppression of wildfires on or threatening National Forest System

lands. The Department of Interior has responsibility for fires on lands within its jurisdiction. The 

Department of Commerce supports suppression of urban and industrial fires as well as provides 

fire/weather forecasting. The Department of Defense is responsible for firefighting activities on 

U.S. military installations; for fires on nonmilitary lands, DoD provides agreed-upon personnel, 

equipment, supplies and, through the Army Corps of Engineers, contracts for heavy equipment 

and/or demolition services. 

3.5. Information and Planning ESF #5

FEMA collects, analyzes, and disseminates information to provide disaster assistance. 

Primary responsibilities include remote sensing and reconnaissance operations, activation and 

deployment of assessment personnel, and GIS support to operating disaster entities. All agencies 

identify a point of contact to provide data and situation assessment activities that fall within their 

domain. 

Upon declaration of a disaster or emergency, the Headquarters Information and Planning 

Section establishes initial liaison with the ROC where regional activities for Information Planning 

activities begin. State information processing operations should commence simultaneously at the 

State EOC. When the ERT-A, including key Information and Planning staff, deploys to the disaster 

response location, some of the regional staff will begin situation assessment activities at the EOC. 

As the tempo of disaster operations slows, the staff is reduced, and the focus shifts to the 

economic impact of the disaster, the efficacy of program delivery, and identification of recovery 

issues. During the recovery phase, emphasis shifts from the daily action plan to long-range 

management plans; Information and Planning staff collates the information and facilitates the 

process. At least one Information and Planning staff member, normally a reports specialist, should 

remain on the FCO’s staff until the DFO is closed in order to prepare after-action reports, daily 

briefings, and talking points. 

3.6. Mass Care ESF #6

Mass care services include delivering shelter, food, and emergency first aid, setting up 

systems to provide bulk distribution of emergency relief supplies to disaster victims, and collecting 

information to operate a Disaster Welfare Information (DWI) system for reporting victims status and

assisting in family reunification. Mass Disaster staff are directed by the American Red Cross 

(ARC) Senior Vice President, Chapter Services at National Headquarters in DC. The ARC 

establishes a temporary field headquarters with a reporting link at National Headquarters. Requests 

for support of state and local efforts to meet the mass needs of victims of a disaster are channeled 

from local jurisdictions through a designated state liaison to the FCO and then to the ARC which 

coordinates federal assistance. 

The ARC manages the fiscal and logistical aspects of distributing emergency relief items, 

and it coordinates other federal agencies. FEMA prioritizes and coordinates mass care operations 

with other recovery activities, provides resources and logistical support, and assists in releasing 

casualty information to notify relatives. HHS provides medical supplies as well as technical 

assistance for shelter operations related to food, vectors, water supply, and waste disposal. The 

DoA, Forest Service and FEMA provide cots, blankets, sleeping bags, and personnel. The DoD 

Corps of Engineers inspects mass care shelter sites to ensure their safety for sheltering disaster 

14 
victims; if necessary, it helps construct temporary shelter facilities. The DoD Director of Military 

Support provides personnel, equipment, and supplies in the absence of other national disaster system

resource capabilities.

3.7. Resource Support ESF #7

Within two hours after notification by FEMA of a disaster, the GSA Emergency Coordinator 

supports federal agencies until the regional ESF is operational; at that time, the Regional Emergency 

Coordinator (REC) assumes responsibility for obtaining and distributing resources. The REC 

establishes a mobilization center and deploys Federal Emergency Support Coordinator (s) to the 

DFO or regional Emergency Operations Center (EOC) as part of the Advance Element of the 

Emergency Response Team (ERT-A). The REC must ensure that a suitable DFO facility is acquired 

and ready to occupy, and it must determine the availability of suitable space in federal buildings. If 

space is not available or acceptable, the FEMA Regional Director or FCO arranges for suitable space

elsewhere. The REC must help acquire communications, furniture, equipment and supplies to equip 

the DFO; all furniture and equipment is provided from small businesses in the affected area. 

FEMA provides an Accountable Property Officer to ensure compliance with property 

management regulations and assume responsibility for federal property management. In the 

absence of other national disaster system capabilities, the Defense Department provides resources 

when provision does not conflict with the DoD’s primary mission or its ability to respond to 

operational contingencies. FEMA also provides a Law Enforcement Liaison Officer to operate an 

information clearinghouse and coordinate federal law enforcement organizations to respond to 

disaster-related activities. Moreover, FEMA coordinates security requirements to protect federal 

personnel and assets. Federal police support FEMA, and contract guard services augment federal 

security activities. 

3.8. Health Care ESF # 8 

 [see Chapter V Legal Challenges for the Public Health Sector]

3.9. Urban Search and Rescue ESF #9

To locate, extricate, and provide initial medical treatment to disaster victims, FEMA 

establishes and manages the National US&R Response System, to assist in pre-disaster training, 

equipment purchase, and evaluation of operational readiness. It develops procedures to effectively 

use and coordinate US&R assets; manages US&R task force deployment to, employment in, and 

redeployment from the affected area; and coordinates logistical support for US&R assets during field 

operations. 

During the initial stages of the disaster or emergency, FEMA dispatches one or more ESTs to

the affected area(s). EST staff collects assessment information from damage assessment teams, 

EST-A members, FEMA regional officials, and state and local officials in order to make decisions 

regarding the need for US&R resources. If the disaster requires use of all national-level US&R 

assets, the EST will develop strategies for providing additional US&R support, including use of 

international US&R assets, deployment of other task forces from existing sponsoring organizations 

(without equipment), and employment of US&R resources of unaffected states. 

At the onset of the disaster, FEMA officials from the affected region designate a contact 

point, usually a part of the ERT, who may be represented on the ERT-A. The regional ESF #9 

Leader ensures that all US&R activities are incorporated into the region’s ERT structure. The 

15 
regional ESF #9 Leader coordinates deployed US&R resources and has the lead role in processing 

State requests for federal US&R assistance. The ESF #9 Leader establishes contact with the local 

Incident Commander and develops a plan to integrate national US&R resources into the local 

incident command structure. Based on recommendations developed by the ESF #9 Leader, 

decisions are made at the national level to deploy additional US&R resources. The ESF #9 Leader 

works with regional ESFs to obtain required equipment and supplies and passes unmet or competing 

requirements to the EST for further action. 

The EST acts on unmet requirements for equipment and supplies and prepares Requests for 

Federal Assistance (RFAs) that generate mission assignments for air transport of task forces from

their pre-designated airfields to Base Support Installations, mobilization centers, or other 

debarkation ports designated by the ERT. These RFAs are coordinated with ESF #1 Transportation 

and the Movement Coordination Center at FEMA Headquarters. If state and local emergency 

medical services resources are overwhelmed, the ESF #9 Leader on the ERT coordinates with field 

representatives of ESF #8 Health and Medical Services to develop procedures to transfer victims to 

Disaster Medical Assistance Teams (DMATs) for stabilization and transport to medical care 

locations. 

Various agencies provide support. HHS provides liaisons; medical supplies, equipment, and 

pharmaceuticals; supporting personnel; and veterinary support. HHS also provides patient 

evacuation and continuing care when state and local emergency medical services are overwhelmed. 

HHS ensures that non-federal medical team personnel have appropriate and valid licenses to 

practice in the State and that they are provided federal tort claims liability coverage for the practice 

of medicine. Medical teams will be registered as specialized teams under the National Disaster 

Medical System (NDMS). 

The Department of Labor (DoL) develops workers’ compensation programs for US&R task 

force personnel as well as claimsresolution services for US&R field deployments. In addition, DoL 

guides and assists on compliance with Occupational Safety and Health Administration regulations 

before and during field deployments. The Department of Justice develops tort liability claims

coverage as well as Federal Tort Claims Act claims resolution services for US&R task force and IST 

personnel. 

The Department of Defense is the primary source for fixed-wing and rotary-wing 

transportation of US&R task forces. DoD is the secondary source for ground transportation, mobile 

feeding units, and portable shelter (i.e., tents). The Army Corps of Engineers provides pre-disaster 

training for US&R task force. Notably, NASA provides technical experts and training sites as well 

as temporary use of facilities for mobilization centers and staging areas. NASA also assists FEMA 

in identifying research and development of new technologies for technical search. 

3.10. Hazardous Materials Protection ESF #10 

[see section 4 below]

3.11. Food ESF #11 

The DoA, Food and Nutrition Service (FNS) Disaster Task Force must identify, secure, and 

arrange for transportation of food to affected areas. The FNS Regional Disaster Coordinator is the 

point of contact within the Regional Office. The FNS ensures that the officials establish and 

maintain an information flow so that requirements for food assistance are known and accomplished. 

16 
The FNS coordinates with state officials to determine critical needs for food supplies, 

numbers and location of people, and usable facilities for congregate feeding. Priority for movement 

of critical food supplies is based on how acute is the need. The American Red Cross assesses the 

critical emergency requirements for food as well as longer- term sustained needs after the emergency 

phase is over. FEMA provides demographic information about the disaster area to help determine 

types and quantities of food that FNS should provide, and FEMA provides information on food 

sources. The DoD assesses of its food supplies and facilities capable of storing dry, chilled, and 

frozen food. The GSA supports the FNS for procurement efforts to meet the needs of the affected 

population. 

The FNS determines the availability of USDA foods fit for human consumption, including 

raw agricultural commodities (wheat, corn, oats, rice, etc.), and locates food, equipment, and storage 

facilities. The FNS, with EPA assistance, ensures that all identified USDA food is fit for human 

consumption. The HHS identifies potential problems of contaminated foods (e.g., radiation, 

chemical, bacterial, and viral) and offers health education as to food preparation and storage. 

Transportation and distribution of food supplies is arranged by federal, state, local, and 

voluntary organizations. Congregate feeding arrangements are the primary outlet for disaster food 

supplies. The FNS ensures timely distribution of food in good condition to the proper location; 

establishes logistical links with organizations providing services for congregate meals; and 

coordinates shipment of USDA food to staging areas within the disaster area. The DoD arranges for 

delivery and distribution of food and distribution resources. The American Red Cross coordinates 

food distribution efforts of other voluntary organizations and assesses the requirements for 

distribution services. 

The USDA, at the Secretary of Agriculture’s discretion and request by the State, may 

approve emergency issuance of food stamps for up to thirty days to qualifying households within the 

affected area. The Disaster Task Force coordinates efforts to authorize disaster food stamps and 

expedites requests, if any, for emergency issuance of food stamps after access to commercial food 

channels has been restored. At the discretion of the Secretary of Agriculture, USDA may make 

emergency food supplies available to households for take-home consumption in lieu of food stamps 

for qualifying households.

3.12. Energy ESF #12

To restore the nation’s energy systems, the Department of Energy (DoE) identifies support 

resources needed to restore energy systems; deploys response teams to affected areas to aid 

restoration efforts; and monitors energy system damage and repairs. Decisions relating to energy are 

coordinated with DoE which collects, assesses, and provides information on energy supply, demand 

and prices. 

The Departments of Interior (DoI) and Agriculture (DoA) have significant responsibilities. 

The DoI Bureau of Land Management assesses damage to production and transmission systems as 

well as provides technical support on energy production and supply on federal lands. The DoI 

Bureau of Reclamation assesses hydroelectric facilities and flood control actions that affect energy 

production; repairs damaged hydropower generation facilities; and increases power generation at 

hydroelectric plants to replace losses in damaged areas. The DoA Rural Utilities Service advises on 

the restoration of its electrical power systems and identifies surplus power available for delivery to 

areas of need. 

17 
4. ENVIRONMENTAL PROTECTION AND REMEDIATION

The Environmental Protection Agency (EPA) is responsible for minimizing harm to the 

environment and for remedying damage from a terrorist incident. EPA’s authority derives from

three plans: (1) the National Oil and Hazardous Substance Pollution Contingency Plan (NCP); (2) 

the Federal Response Plan (FRP); and (3) the Federal Radiological Emergency Response Plan 

(FRERP). Additional authority derives from various PDDs including PDD 67, Continuity of 

Operations Planning, as well as environmental and counter-terrorism statutes. The nature of the 

environmental threat determines which plan has primacy. Generally, the EPA operates under the 

NCP when an incident has not yet been identified as terrorism-related (in which case, the EPA is the 

lead federal agency) or under the FRP and its terrorism incident annex if it is a terrorist incident. If 

the event is a terrorist incident involving nuclear materials, the EPA along with the Department of 

Energy operate under the FRP and the FRERP. 

EPA’s Office of the Emergency and Deputy Emergency Coordinator coordinates counterterrorism preparedness and response efforts with other agencies. This office leads EPA’s 

Emergency Response Program that provides quick response to emergency releases of hazardous 

substances, including both elimination of immediate dangers to the environment and communication 

with the public about the release and response activities. Implementation of EPA’s Emergency 

Response Program is a coordinated effort involving EPA’s ten regional offices and state and local 

government agencies (altogether, the National Response System (NRS)). The NRS is run through 

the National Response Team (NRT) which is co-chaired by EPA and Coast Guard personnel and 

comprises other agencies’ representatives. Thirteen Regional Response Teams (RRT’s), 

representatives from each federal agency participating in the NRT as well as state and local 

governments, are responsible for regional planning and preparedness activities. The NRT is 

responsible for distributing information and for planning and training for emergencies. Five EPA 

organizations have primary roles in the NRS: 

Chemical Emergency Preparedness and Prevention Office (CEPPO) has primary 

responsibility for planning for chemical emergencies through a network of state and local 

emergency planning organizations, and oversees EPA international emergency response 

support and coordination of National Security Response issues and key agency leadership 

roles as part of the NRS and the FRP. 

The Office of Prevention, Pesticides, and Toxic Substances has primary responsibility for 

community involvement and community-right-to-know. 

The Office of Radiation and Indoor Air (ORIA) has primary responsibility for the FRERP

and radiological expertise under the NRS. ORIA responds to emergencies ranging from

accidents at nuclear power plants to transportation accidents involving shipments of 

radioactive materials; it will also respond to deliberate acts of nuclear terrorism. 

The Office of Underground Storage Tanks is responsible for preventing petroleum

releases from underground storage tanks. 

The Office of Emergency and Remedial Response oversees implementation of domestic 

emergency response including the two major components of the National Response System

program, the Superfund Removal Program and the Oil Spill Prevention, Preparedness, and 

Response Program, as well as disaster response under the FRP. 

18 
4.1. The National Contingency Plan (NCP)

The NCP requires four levels of contingency planning: national, regional, area and local, and 

site-specific industry. When a release occurs, local emergency response personnel are the first line 

of response; state agencies provide support if an incident exceeds local capabilities. The EPA’s 

Local Governments Reimbursement Program may assume the costs of that response if beyond 

budgeted emergency funds, up to $25,000 per incident. To encourage local responders to respond 

immediately, the reimbursement process is straightforward: local governments complete an LGR 

application form that requires information about the incident, documentation of its response costs, 

and certification that program requirements have been met. 

If the hazardous release is large, the National Response Center (NRC) must be notified. The 

NRC maintains reports of all releases and spills in a national database, the Emergency Response 

Notification System. Reports to the NRC activate the federal government’s response capabilities 

under the NCP. The NRC staff must notify the pre-designated EPA or Coast Guard on-scene 

coordinator (OSC) assigned to the area of the incident and to collect available information on the 

size and nature of the release, the facility or vessel involved, and the parties responsible for the 

release. 

Approximately 200 OSCs direct and coordinate the EPA’s containment, removal, and 

disposal efforts. The OSCs initially evaluate the size and type of the released substance and its 

potential hazards. Moreover, OSCs assess the local response and determine the need for federal 

involvement. The OSCs must ensure that the cleanup is appropriate, timely, and minimizes human 

and environmental damage. Activities can include control and stabilization of the agent, on-site 

treatment, and off-site disposal. Although in most situations local action is sufficient, the OSC can 

take command of the response if: 

• The party responsible for the release is unknown or uncooperative; 

• The OSC concludes that the release exceeds the capacity of private or non-federal officials; 

or 

• The incident presents a substantial threat to public health or welfare. 

In a terrorism situation, the OSC must notify the FBI Special Agent in Charge for the 

affected district. The FBI assumes the lead, and the FRP is invoked, including the EPA’s 

responsibilities under FRP emergency support function #10. If a public health emergency exists, the 

OSC should notify the Department of Health and Human Services (HHS) to help respond to those 

conditions, and to the Occupational Safety and Health Administration (OSHA) for assistance on 

worker health and safety. 

 4.2. The Federal Response Plan ESF #10 Hazardous Materials

EPA manages the overall Federal effort to identify, contain, clean up, and dispose of 

hazardous releases, or prevent potential releases. EPA provides personnel, including on-scene 

coordinators and provide technical and administrative support and personnel, facilities, and 

communications for this ESF, and resolves conflicting demands for hazardous materials response 

resources. 

19 
4.2.1. EPA Response Actions

Within two hours of notification, the EPA and appropriate agency representatives plan for 

providing technical support. Communications are established with EPA regions; backup may be 

requested from other regions. Thereupon, the EPA assesses the environmental condition, including 

pathways to human and environmental exposure and priorities for protecting human health; receives 

damage information from reconnaissance teams, and other agencies; establishes support 

requirements and response priorities; works with other agencies to maximize use of available 

regional assets and identify resources required from outside the region; and moves resources into the 

disaster area. 

4.2.2. Responsibilities of Support Agencies

The Coast Guard (USCG) is the lead agency within its jurisdiction. It manages the National 

Strike Force, consisting of three teams on the Pacific, Atlantic, and Gulf coasts that support actions 

to chemical responses, especially those occurring in the marine environment. It offers expertise in 

port safety and security, maritime law enforcement, ship navigation, and the manning, operation, and 

safety of vessels and marine facilities. The Departments of Defense and Energy are responsible for 

responding to hazardous releases from their respective vessels, facilities, and vehicles. The DoD 

also provides personnel and equipment as required, if consistent with DoD operational requirements. 

The Department of Agriculture helps develop protective measures and damage assessments; 

predict the effects of pollutants on soil and their movements over and through soil; ensure the purity 

of food products; and address problems of livestock and poultry affected by radiation. 

The Department of the Interior and the Department of Commerce, NOAA provide assistance 

and expertise on natural resources and hazards, as to appropriate cleanup and restoration 

alternatives, and on geological and meteorological conditions. Health and Human Services assesses

health hazards to protect both response workers and the public health; determines if illnesses, 

diseases, or complaints may be attributable to exposure to a hazardous substance; establishes 

disease/exposure registries and conducts appropriate testing; and provides information on the health 

effects of toxic substances. The Department of Labor, OSHA, provides advice regarding hazards to 

persons engaged in response activities. OSHA may take other necessary actions to ensure that 

employees are protected. 

4.3. Radiological Incidents Federal Radiological Emergency Response Plan 

The FRERP integrates EPA’s commitments pursuant to the CONPLAN, the FRP, and the 

NCP; organizes management of radiological incidents and emergencies; and coordinates the EPA 

OSCs, regional radiation programs, and relevant EPA Offices. Each EPA region has a regional 

radiation program to provide support, including Protective Action Guidances, to state and local 

officials. In addition to the EPA, the Nuclear Regulatory Commission and the Department of 

Energy advise and help coordinate the federal effort to mitigate the radiological consequences of an

emergency. 

If a nuclear emergency occurs, EPA’s staff, equipment, and laboratories provide scientific 

and technical support to state and local governments and other federal agencies. EPA also measures 

exposure to radioactivity in the environment. The EPA has established guidelines for protecting the 

public from radiation exposure, such as when to evacuate or relocate citizens. The Radiological 

Emergency Response Team (RERT), a special response force, is the primary nuclear emergency 

20 
response mechanism. RERT capabilities include conducting environmental monitoring, performing

laboratory analyses, and providing guidance on measures to protect the public. The RERT can 

provide on-site monitoring and mobile laboratories for field analyses of samples as well as technical 

expertise in radiation monitoring, radiation health physics, radionuclide analysis and risk 

assessment. 

The National Air and Radiation Environmental Laboratory (NAREL), on the Gunter Annex 

of Maxwell Air Force Base in Montgomery, Alabama, is a comprehensive environmental laboratory 

for measuring environmental radioactivity and evaluating its risk. The NAREL emergency response 

teams support EPA’s emergency preparedness with a mobile radioanalytical laboratory and radiation 

survey and communications equipment. The Environmental Radiation Ambient Monitoring System

(ERAMS) measures radioactivity and other contaminants, employing 260 sampling stations in North 

America. 

4.4. Specialized Support from the EPA

EPA’s Environmental Response Team (ERT) provides technical support for assessing, 

managing and disposing of hazardous waste. The ERT also provides twenty-four hour access to 

special decontamination equipment for chemical releases as well as risk assessment, multimedia 

sample, on-site safety, clean-up techniques, water supply decontamination, and disposal of 

contaminated material. In response to a nuclear, chemical, or biological incident, the ERT can 

provide portable instrumentation capable of radiation detection and identification as well as various 

entry capabilities to assist at the scene. These capabilities include: monitoring instruments, 

analytical instruments, and personal protective equipment. 

EPA’s National Enforcement Investigations Center (NEIC) is the technical support center for 

enforcement and compliance assurance programs. NEIC teams perform inspections and technical 

evaluations of facilities that manufacture or handle hazardous substances. NEIC support for sitespecific environmental forensic evidence handling can be requested through the Criminal 

Investigations Division Regional Office. The EPA has twelve research laboratories with programs 

in field monitoring and analytical and technical support for quality assurance programs related to air,

water, and solid waste. Five labs can deploy mobile units to a contaminated site for chemical and 

biological analysis. 

5. SPECIAL RESPONSE TEAMS FOR WMD EVENTS

5.1. Department of Defense 

Joint Task Force Civil Support -- Provides military assistance to civil authorities by supporting 

FEMA and establishing command and control of designated DoD forces. Commands all federal 

military forces on site for consequence management. 

Chemical/Biological Response Team (C/B-RRT) -- Controlled by the U.S. Army ChemicalBiological Defense Command (CBDCOM). Coordinates and integrates DoD’s technical assistance 

for the neutralization, containment, dismantlement, and disposal of chemical or biological materials, 

and assists first responders in dealing with consequence management. Provides specialized technical 

advice to the Joint Task Force for Civil Support; offers links to U.S. Army experts in various 

disciplines, including agent detection and disposal and assistance from medical authorities. 

U.S. Army Technical Escort Unit (TEU) -- Provides chemical/biological advice, assessment, 

sampling, detection, field verification, packaging, escort, and render safe for chemical/biological 

21 
devices or hazards. Samples, detects, and identifies chemical agents; renders safe, packages, and 

escorts chemical munitions or devices. 

U.S. Army Special Medical Augmentation Response Team -- Nuclear/Biological/Chemical --

Provides world-wide technical advice in detecting, neutralizing, and containing chemical, biological 

or radiological hazardous materials in a terrorist event, including: (1) advice to medical treatment 

facilities on handling contaminated patients; and (2) authorities on determining follow-on medical 

resources, supplies, and equipment to resolve the incident. 

U.S. Army Special Medical Augmentation Response Team B Aero Medical Isolation -- Provides a 

rapid response evacuation unit to transport and provide patient care under conditions of biological 

containment to service members or U.S. citizens exposed to certain contagious and highly dangerous 

diseases; provides highly specialized patient care during evacuation to medical facilities. 

U.S. Marine Corps Chemical-Biological Incident Response Force (CBIRF) -- Furnishes a trained 

rapid response force to support consequence management, including force protection or mitigation in 

the event of a terrorist incident, domestically or overseas. Samples, detects, and identifies chemical 

agents as well as four biological agents. Performs casualty search, extraction, and decontamination; 

triage and emergency medical treatment in contaminated zone; first aid, advanced cardiac life 

support, and trauma support initially for 250 patients. Administers 1,500 nerve agent antidotes. 

U.S. Army Radiological Advisory Medical Team -- Assists and furnishes radiological health hazard 

guidance to the OSC at an incident site and the installation medical authority. Monitors 

contaminated medical facilities and equipment. Provides guidance about health hazards from

radiological contamination. Provides advice for appropriate medical treatment, and treats victims. 

5.2. Department of Health and Human Services 

Management Support Teams -- Established by National Security Decision Directive 47, 1982; 

Federal Response Plan; and Presidential Decision Directives 39 and 62. Six to eight personnel at 

Rockville, Maryland, plus eighteen to twenty collateral duty Department of Veterans Affairs 

personnel. Manages federal medical teams and assets deployed for accident response; coordinates 

federal civilian medical teams. 

National Medical Response Teams (NMRT) -- Established by Federal Response Plan and President 

Decision Directives 39 and 62. Four teams at Washington, DC (non-deployable); Winston-Salem,

North Carolina; Denver, Colorado; and Los Angeles, California, with thirty-six collateral duty 

members per team. Decontaminates casualties from a hazardous materials incident, provides medical 

care, and deploys with antidotes and medical equipment; collects and secures contaminated material, 

e.g., victims’ clothing; provides decontamination capability and casualty triage; provides extensive 

medical care; and administers antidotes and other medications. Each team has a supply of 

pharmaceuticals to treat 5,000 people. 

Disaster Medical Assistance Teams -- Established by National Security Decision Directive 47; 

Public Health Service Memorandum of Understanding with each team and team sponsor; Federal 

Response Plan; Presidential Decision Directives 39 and 62. Forty-four teams at locations 

nationwide with thirty-four collateral duty members per team. Provides emergency medical care, 

patient stabilization, and triage during a disaster; assists in transport of victims from incident site to 

medical facilities such as hospitals. 

Disaster Mortuary Operational Response Teams -- Established by Federal Response Plan; 

22 
Presidential Decision Directives 39 and 62; Public Health Service/National Association for Search 

and Rescue memorandum of understanding. Ten teams at locations nationwide with twenty-five to 

thirty-one collateral duty members per team. Provides identification and mortuary services, 

including decontamination of fatalities and advice on effects of decomposing fatalities, to state and 

local health officials in the event of major disasters and emergencies; performs recovery, 

identification, and processing of fatalities. 

5.3. Department of Energy

Radiological Assistance Program Teams (RAP) -- Provides the initial DoE radiological emergency 

response; assists federal agencies, state and local governments, private business, or individuals in 

incidents involving radiological materials; conducts initial site assessments; advises decision-makers 

on steps that can be taken to evaluate and minimize the hazards of a radiological emergency. 

Several regionally based Radiological Assistance Teams (RATS) provide quick response capability 

to calls for radiological assistance by identifying the presence of radioactive contamination at the 

incident scene. 

Accident Response Group (ARG) -- Technical response group for nuclear accidents. Provides 

equipment and technical assistance for weapon damage, risk assessment, safe recovery, packaging, 

transportation and disposal of damaged weapons. 

Nuclear Emergency Search Team (NEST) -- Provides technical response to resolve incidents 

involving improvised nuclear and radiological dispersal devices. The team can search, locate, and 

identify devices or material; move, render safe, or disable devices; and mitigate damages. 

Federal Radiological Monitoring and Assessment Center -- Collects, evaluates, and distributes offsite radiological data for the lead federal agency, state and local governments. Coordinates federal 

resources for off-site monitoring needs at the site of a radiological emergency. Acts as the control 

point for federal assets that assess off-site radiological conditions. Gathers radiological data from

multiple sources, including Radiological Assistance Program teams and the Aerial Measuring 

System. 

Atmospheric Release Advisory Capability (ARAC) -- A computer-based atmospheric dispersion 

modeling capability operated by Lawrence Livermore National Laboratory (LLNL). When a 

nuclear, chemical, or other hazardous material is or may be released into the atmosphere, ARAC’s 

capability consists of meteorologists and other technical staff using 3-D computer models and realtime weather data to project the dispersion and disposition of radioactive material in the 

environment. 

Aerial Measuring System (AMS) -- Measures, and tracks ground and airborne radioactivity using 

fixed-wing and rotary-wing aircraft; detects and surveys where radioactive material is deposited on 

the ground or the path of radioactive plume; provides quick surveys over a large area to determine 

the severity of the incident. Rotary-wing aircraft provide more detailed measurements of 

contamination. 

Radiation Emergency Assistance Center/Training Site -- Provides medical advice and on-site 

assistance in triage, diagnosis, and treatment of all types of radiation exposure events; provides 

medical consultation and on-site assistance for the treatment of all types of radiation exposure 

incidents. 

23 
5.4. Department of Veterans Affairs 

Medical Emergency Radiological Response Team -- Provides technical advice, radiological 

monitoring, decontamination expertise, and medical care for institutional health care providers; 

monitors radioactivity beyond the contaminated site; decontaminates victims; provides specialized 

medical care for radiation trauma. 

5.5. Federal Emergency Management Agency

Emergency Response Team -- Established by the Stafford Disaster Relief and Emergency 

Assistance Act, 42 U.S.C. 5121 et. seq. Size depends on the severity and magnitude of the incident. 

Collateral duty team members are geographically dispersed at FEMA headquarters and 10 regional 

offices. Coordinates federal response and recovery activities within a state; establishes field office if

required; provides disaster assessment coordination and expertise to States and FEMA regions. 

5.6. Nuclear Regulatory Commission

Regional Incident Response Teams -- Executes responsibilities of the lead federal agency during 

incidents at licensed nuclear power plants; leads and coordinates federal actions related to the 

radiological technical response at incident site; reviews actions the regulated entity is taking to 

correct problems; provides analysis and consultation for actions taken to protect public health and 

safety. 

5.7. Federal Bureau of Investigation

Joint-Terrorism Task Force -- Multi-agency task force in most major metropolitan areas, comprised 

of local, state, and federal law enforcement representatives dedicated to investigating acts of

terrorism. 

Hazardous Materials Response Unit (HMRU) -- Offers sampling, detection, and identification 

capabilities of NBC agents. Equipped with a variety of personal protective and rescue equipment. 

Evidence Response Teams (ERTs) -- Provides crime scene documentation and evidence collection 

in support of criminal investigations.

6. VICTIM COMPENSATION FUND OF 2001

To assist victims of the September 11, 2001, terrorist attacks, Congress established the 

September 11 Victim Compensation Fund of 2001 (Victim Fund), enacted as part of the Air 

Transportation Safety and System Stabilization Act45 (Act). The Federal government, not the 

airlines, will finance the Victim Fund and thus assumes liability for injuries that could be attributable 

to a private company. This fund: 

• limits an airline’s liability related to the September 11 crashes to the amount of its insurance 

coverage; 

• gives crash victims or their survivors an alternative (the Victim Fund) to litigation. In return, 

a Victim Fund claimant gives up all rights to sue the airline (but not other entities). 

The Victim Fund replaces civil litigation with a binding no-fault compensation program, 

administered by a Special Master appointed by the Attorney General.46 There is no cap on Victim

 45 Air Transportation Safety and System Stabilization Act, Pub. L. 107-42, 115 Stat. 231 (2001). 

46 Id. § 404(a); see also regulations defining the administration of the Victim Fund were published December 12, 2001. 

24 
25 

Fund payouts, but punitive damages are not allowed. The Special Master determines appropriate 

due process rights for claimants.47 The Act disallows judicial review of the Special Master’s 

determinations, although a claimant may make one appeal to the Special Master. Under the Act, a 

victim must show the Special Master: 

1. that a Sept. 11 crash caused physical injury or death to a passenger or someone at a crash 

site; 

2. the compensation sought, based on lost earnings, pain and suffering; 

3. any collateral sources of compensation arising for the crashes, such as life insurance, pension 

funds, death benefits, and payments by government entities. 

 Claimants must file with the Victim Fund within two years after regulations have been 

published, or by December 12, 2003.48 The Special Master must make a determination on a claim 

within 120 days of receipt.49 The claim will be reduced by payments from collateral sources.50 The 

Special Master must issue payment within 20 days of making his determination.51 

 

Id. § 407. 

47 Id. § 405(b). 

48 Id. § 405(a)(3). 

49 Id. § 405(b)(3). 

50 Id. § 405(b)(6). 

51 Id. § 406(a). 
CHAPTER II -- EXTRAORDINARY PRESIDENTIAL AUTHORITY

INTRODUCTION

The September 11th attack was a grave national security crisis for the United States. An 

attack involving weapons of mass destruction could have far more devastating consequences. It is 

not difficult to envision a severe crisis scenario that overwhelms civilian agencies and relief

capabilities. Clearly, the consequence management system including the Federal Response Plan, 

discussed in the previous chapter, does not provide for this type of disruption. Events of this 

magnitude inevitably focus the nation’s eyes on the President, upon whom lies the ultimate 

responsibility to restore order. 

Yet, the President’s authority, like all governmental authority in this nation, is 

constitutionally delegated and therefore limited. The President may not exercise unbounded power 

merely because there is a crisis.1

 There is an inherent tension here between the nation’s need to 

survive an extreme crisis with the nation’s need to preserve its system of constitutional governance. 

Neither value is inherently predominant over the other. Rather than attempt to prioritize the need for 

security as more or less important than upholding the Constitution, it should be understood that the 

President’s authority to deal with crises may be legislatively specified. According to the Supreme 

Court, the President’s authority is greatest when acting pursuant to an explicit congressional 

authorization. 

First, when the President acts pursuant to an express or implied authorization of 

Congress, his authority is at its maximum. Second, when the President acts in 

absence of either a congressional grant or denial of authority, he can only rely upon 

his own independent powers, but there is a zone of twilight in which he and Congress 

may have concurrent authority, or in which its distribution is uncertain. Finally, 

when the President takes measures incompatible with the expressed or implied will 

of Congress, his power is at its lowest ebb, for then he can rely only upon his own 

constitutional powers minus any constitutional powers of Congress over the matter.2

 

Thus, in a domestic emergency situation, the powers of the President and Congress are 

interdependent and reciprocal.3

This chapter begins with a discussion of the President’s constitutionally-unarticulated 

extraordinary powers during a crisis, specifically his power to declare martial law. But as the latter 

sections of this chapter reveal, questions as to the limits of that power are virtually moot in view of 

the extensive legislated grants of authority relevant to coping with a terrorism crisis. Section 2 

considers restrictions on domestic use of the military, including the Posse Comitatus Act. Section 3

 1

 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (rejecting President Truman's Executive 

Order directing the Commerce Secretary to take control of the nation's steel mills and to keep them running. Despite 

Truman's concern that a steel industry strike during the Korean War would weaken national defense and endanger 

the nations well-being and safety, the Court held that the Constitution did not give the President such broad 

authority). 

2 Id. at 637 (Douglas, J., concurring). 3

 Paul Stevens, U.S. ARMED FORCES AND HOMELAND DEFENSE: THE LEGAL FRAMEWORK, CSIS 13 (2001). 

26 
describes the National Guard’s status and potential uses. Section 4 identifies statutory provisions 

that could, in an emergency, broaden Presidential authority. 

1. THE PRESIDENT’S RESIDUAL AUTHORITY

A scholar has argued that, despite the Youngstown holding, most of the Court would agree 

that: 

the President does possess ‘residual’ or ‘resultant’ powers over and above, or in 

consequence of, his specifically granted powers to take at least temporary actions in 

the case of a serious national emergency; and second, that the Court would defer to 

the President’s reasonable finding of such an emergency as a question for the 

“political” departments of government.4

 

The oath of office requires the President to affirm that he will execute his office and do his 

best to preserve, protect and defend the Constitution of the United States, which requires the 

President to ensure that the laws are faithfully executed. Accordingly, “the President should have the 

inherent authority, in fact the responsibility, to preserve the nation, even if it means taking extreme 

actions not specified in the Constitution.”5

 Support for this ‘residual’ authority can be found in 

Cunnigham v. Neagle, where the Court stated that the President’s powers are not simply “limited to 

the enforcement of Acts of Congress,” but include “rights, duties and obligations growing out of the 

Constitution itself, our international relations, and all the protection implied by the nature of the 

government under the Constitution.”6 The Neagle Court recognized the President's inherent 

authority to take measures to protect a Supreme Court Justice who had been threatened with personal 

attack while discharging his duties. The Court interpreted Article II, Section 3 as charging the 

President with the duty to “take care that the Laws be faithfully executed.”7

1.1. Martial Law

Martial law has been described as “the rule which is established when civilian authority in 

the community is made subordinate to military, either in repelling invasions or when the ordinary 

administration of the laws fail to secure the proper objects of the government.”8

 It is the law of

military necessity administered by the General of the Army.

9

 Declaration of martial law authorizes 

the military to perform all acts that are reasonably necessary to maintain and restore public order. 

Notably, never in U.S. history, including the Civil War, has a President declared nation-wide martial 

law nor ordered such drastic steps as cessation of interstate commerce. 

Most of the judicial decisions involving a Presidential use of martial law are pre-1900, and 

none of those decisions held that martial law is per se unconstitutional, nor impeded the Executive’s 

power to address severe crises.10 The few Supreme Court decisions concerning martial law reveal 

that the necessity of safeguarding the public against insurrection, riot and disorder both justifies and 

 4 Id.

5

 Major Kirk L. Davies, The Imposition of Martial Law in the United States, 49 A.F. L. Rev. 67, 88 (2000). 6

 Cunnigham v. Neagle, 135 U.S. 1, 64 (1890). 7 Id. at 64. 8

 Major William E. Birkhimer, MILITARY GOVERNMENT AND MARTIAL LAW, 357, 371 (3rd ed. Revised, Franklin 

Hudson Publishing Co., 1914). 

9

 United States v. Diekelman, 92 U.S. 520, 526 (1876). 10 Davies, supra note 5, at 90; Stevens, supra note 3, at 14. 

27 
limits martial law. 

In both Luther v. Borden11 and the Prize Cases,

12 the Supreme Court upheld the President’s 

mobilization of the militia and blockade of seaports as authorized by the Commander-in-Chief’s 

duty to faithfully execute the laws of the land during extreme domestic emergencies. In Luther, the 

Court upheld President Tyler's mobilization of Massachusetts and Connecticut militia. In the Prize 

Cases, the Court deferred to President Lincoln who defended his blockading the ports of southern 

states during the Civil War under his own constitutional war-power authority without congressional 

authorization. Similarly, the Supreme Court in In re Debs upheld the authority of President 

Cleveland to send federal troops to Chicago to enforce an injunction against Eugene Debs and the 

American Railway Union. “If the emergency arises, the army of the nation, and all its militia, are at 

the service of the nation to compel obedience to its laws.”13

In Re Ex parte Milligan14 suggests limits on Presidential authority. In 1862, President 

Lincoln’s Secretary of War suspended the writ of habeas corpus for persons arrested for disloyal 

practices. Milligan, a confederate sympathizer, was convicted of treason by a military commission 

and sentenced to hang. The Supreme Court overturned Milligan’s conviction because the civil 

courts remained open despite the proclamation of martial law. Congress had established procedures 

for suspension of the writ; Milligan’s conviction by military commission was contrary to overt 

congressional intent. The military’s action exceeded mere control of the civilian population, 

inserting itself into the judicial realm where there was no need for it to operate. The Court ruled that 

martial law is allowed only: (1) during dire conditions of necessity or war; (2) when the courts are 

closed; and (3) only in the actual war area.15 

These decisions suggest that the extent of Presidential authority to invoke martial law 

depends on what action Congress has taken and on how extreme are the circumstances. His 

authority is greatest in an active theater of military operations where the civilian courts cannot act 

and where the only substitute for civilian authority to preserve safety is the temporary and local 

imposition of martial law.16

1.2. World War II Internment Cases

Following the attack on Pearl Harbor, President Roosevelt issued Executive Order 9066, 

which authorized military personnel to detain and relocate Japanese-Americans. In a series of 

decisions, the Supreme Court deferred to the Executive’s determination of the appropriateness of 

this behavior. The Court’s analysis in these cases was that, in war, the Court should not substitute 

its judgment for those who have constitutional authority to make such decisions. In Hirabayashi v. 

United States, the Court emphasized that decision-makers have wide discretion in the area of war 

powers, noting that the Court’s inquiry does not go beyond whether the decision-makers had 

reasonable bases for their decision.17 If the decision-makers know of circumstances that afford a 

 11 Luther v. Borden, 48 U.S. 1 (1849). 

12 In re Amy Warwick, 67 U.S. 635 (1862) [hereinafter Prize Cases]. 13 In re Debs, 158 U.S. 564, 582 (1895). 

14 Ex Parte Milligan, 71 U.S. 2 (1866). 

15 See Davies, supra note 5, at 106-107 (according to Davies, “[p]erhaps the most important point from Milligan is 

that any exercise of emergency power by the President must be viewed in conjunction with congressional will”). 16 See Stevens, supra note 3. 17 Hirabayashi v. United States, 320 U.S. 81, 93 (1943).

28 
rational basis for the decision, it should be upheld. 

The Court’s decision in Korematsu v. United States suggested that the principle of necessity 

proves that conditions can justify otherwise unacceptable actions.18 But in Ex Parte Endo,

19 Ms. 

Endo, a loyal citizen, was forcefully relocated because of her Japanese ancestry. The Court held she 

was entitled to a habeas corpus for release from detention because the Japanese relocation orders did 

not authorize continued and indefinite detention beyond an initial evaluation and loyalty 

determination. 

It should be noted that these decisions are without precedent and have not been cited 

favorably since. Moreover, there is widespread consensus among commentators that these decisions 

are more of a warning about the implications of over-reacting to a crisis than a sound measure of 

legal authority.20

2. USE OF THE MILITARY

During or after a terrorist event, military forces could be used to enforce a quarantine or 

curfew or provide logistical support to assure adequate supplies and housing. Americans have long 

resisted military involvement in civilian affairs. The Declaration of Independence specifically 

objects to the military’s interference in citizens’ lives.21 Yet, in the aftermath of a grave terrorist 

event, there may be a call for the military to respond. One reason for this call is that, at least at first, 

it is unclear whether the attack is a single event or the beginning of an onslaught. Second, the 

military has unparalleled resources – logistical, medical, equipment, and personnel. Third, the 

combination of destruction and panic raises concerns that police abilities for maintaining order could

be overwhelmed. 

The Defense Department has been apprehensive to being involved in domestic terrorism

response that could drain resources from its core mission of defending the United States from

external threat. Moreover, there is concern that domestic deployment could undercut public support 

for the military, especially if troops undertake actions that restrain Americans’ liberty. More 

generally, the military is designed for the extremely deadly and destructive business of warfare; that

undertaking is mismatched to the types of tasks it might have to perform as part of a domestic 

response to a terrorist event. 

Two points deserve attention at the outset of a legal discussion of the military’s domestic 

role. First, nothing in the Constitution prohibits such use. 22 Congress has enacted prohibitions in 

this area, and Congress can (and has) created exceptions to those prohibitions. Second, the legal 

rules concerning domestic use of the military apply to the use of the military for law enforcement 

purposes. With regard to the subject of this volume -- consequence management -- there have never 

 18 Korematsu v. United States, 323 U.S. 214, 216 (1944) (dissenting Justice Roberts suggested that the military 

acting under the President would be authorized to remove people from where pestilence has broken out). 19 Ex Parte Endo 323 U.S. 283 (1944). 

20 See Barry Kellman, Judicial Abdication of Military Tort Accountability: But Who Is To Guard The Guards 

Themselves, 1989 DUKE L. J. 1597 (1990). 21 Laird v. Tatum, 408 U.S. 1, 20 (1972). 22 Several constitutional provisions show the framers’ intention that the armed forces be subject to tight civilian 

control. Congress is authorized to raise and support armies, to declare war, and to make rules for the government 

and regulation of land and naval forces. U.S. CONST. art. I, § 8. Additionally, the President is Commander in Chief of 

the military. Id. art. II. 

29 
been significant limitations on what the military may be ordered to do. 

This section looks at the basis for ordering a military presence in our own country and 

distinguishes between the military and the National Guard. First is a discussion of the primary 

prohibition against the domestic use of the military -- the Posse Comitatus Act. Second, the 

discussion turns to the primary exceptions to that prohibition contained in the Insurrection Statutes. 

Third, the discussion describes the kinds of military assistance available to civilian authorities and 

the return of responsibilities to civilians. 

2.1. Posse Comitatus Act

2.1.1. Background and Enactment 

From 1789 through the Civil War, United States marshals called upon the military as a posse 

comitatus.23 In 1867, the Reconstruction Act established military government rule in the southern 

states, dividing them into districts governed by military commanders. The Army was often called 

upon to suppress civil disturbances and enforce laws, even after the confederate states were rejoined 

to the union and civil authority restored. Enactment of the Ku Klux Klan Act in 1871 authorized 

the President to use the military to suppress insurrection and domestic violence.24 In the Presidential 

election of 1876, President Grant ordered soldiers to the polls to guard canvassers and to deter 

harassment against newly freed slaves.25 Acting in response to alleged abuses of military 

authority,26 Congress precluded the Army from assisting local law enforcement officers in enforcing 

the nations’ laws and carrying out their duties.27 

A compromise version of the Posse Comitatus Act (PCA)28 was included in the Army

Appropriations Act of 1878.29 The PCA prohibits the use of “any part of the Army or Air Force as a 

posse comitatus or otherwise to execute the laws” unless expressly authorized by the Constitution or 

act of Congress. A violation of the PCA is a felony punishable by a $10,000 fine or two years 

imprisonment or both. Congress has expressly permitted various forms of military assistance to law

 23 Authority to do so derived from the Judiciary Act of 1789, Act of Sept. 24, 1789, ch. 20 §27, 1 Stat. 73. “Posse 

comitatus” is the power or force of the country. “A group of citizens who are called together to assist the sheriff in 

keeping the peace.” BLACK’S LAW DICTIONARY 1183 (7th ed. 1999). 24 The freed slaves were mistreated by the state military forces. Senator Trumbull stated, in debates over the 

Freedmen's Bureau Bill, that “nearly all the dissatisfaction that now exists among the freedmen is caused by the 

abusive conduct of [the Mississippi] militia ....” Cong. Globe, 39th Cong., 1st Sess. 941 (1866) (cited by Sayoko 

Blodgett-Ford, The Changing Meaning of the Right to Bear Arms, 6 SETON HALL CONST. L.J. 103, 145 n.201 

(1995)). 

25 During Reconstruction, former slaves were subject to violence and intimidation when attempting to vote. See

United States v. Cruikshank, 92 U.S. 542 (1875). In the 1876 election, Rutherford B. Hayes, the Republican 

candidate, won with the disputed electoral votes of South Carolina, Louisiana, and Florida, by only one electoral 

vote. See M.C. Hammond, The Posse Comitatus Act: A Principle In Need of Renewal, 75 WASH. U.L.Q. 953, 960 

(1997). 

26 Moon v. State, 785 P.2d 45, 46 (Alaska Ct. App. 1990). 

27 United States v. Allred, 867 F.2d 856, 870 (5th Cir. 1989); Gillars v. United States, 182 F.2d 935, 972 (D.C. App. 

1950); United States v. Hartley, 796 F.2d 112 (5th Cir. 1986); State v. Sanders, 281 S.E.2d 7 (N.C.) 28 18 U.S.C § 1385 (2000). 

29 See Maj. Clarence I. Meeks III, USMC, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the 

Posse Comitatus Act, 70 MIL. L. REV. 83, n.27 (1975). For congressional debates of the Army’s role in civil 

matters, see 7 Cong. Rec. 3538, 3579-86, 3845-50, 4239-48, 4295-4304, 4684-86 (1878) (text of congressional 

debate). 

30 
enforcement, subject to regulatory restrictions that prohibit “direct participation” by members of the 

armed services in “a search, seizure, arrest, or other similar activity” unless “otherwise authorized by

law.”30 

Since the PCA’s enactment, the military has occasionally been used for domestic purposes 

that do not conform to its traditional role. The PCA proscribes use of the army in civilian law 

enforcement, but it has not prevented military assistance in so-called national emergencies such as 

strike replacements and disaster relief. Presidents Nixon and Reagan used the military to replace 

striking federal employees. In 1970, President Nixon sent 30,000 federal troops to replace striking 

postal workers in New York; in 1981, President Reagan replaced striking air traffic controllers. 

Disaster relief, another common use of the military, does not violate the PCA because it is not a 

mission executing the laws. In the 1906 San Francisco earthquake, the Army led the effort to put out 

fires and restore order. Hurricane Hugo in Florida evoked a large military presence during the relief

effort. The military also provided election facilities in Florida - a situation similar to what 

precipitated the passage of the PCA in 1876.31

Notably for a discussion of managing consequences of terrorism, no PCA exception exists 

for military activity in connection with the Stafford Act or Federal Response Plan -- the military may

not perform any law enforcement functions in support of civilian authorities in an emergency. This 

raises an unresolved issue as to the military’s role if a disaster situation deteriorates into a civil 

disturbance. 

2.1.2. Subsequent Enactments 

2.1.2.1. 1981 

In 1981, seeking to clarify legal principles regarding cooperation between the military and 

civilian law enforcers, Congress codified military-civilian cooperation practices that were already 

permissible and authorized more cooperation with civilian officials while adding specific 

prohibitions on the military’s own law enforcement powers.32 The enactment enables the military to 

provide intelligence and information,33 facilities,34 training and expert advice,35 and assistance in 

operating and maintaining equipment.36 Direct participation in interdiction, search, seizure, arrest, 

and similar activities is prohibited unless otherwise authorized by law.37 Nor may assistance be 

provided to civilian law enforcement agencies if to do so would adversely affect military 

preparedness.38 Also, assistance to civilian law enforcers may be conditioned on their reimbursing 

the federal government for the military’s incurred costs.39 

 30 Stevens, supra note 3, at 26. 31 See M.C. Hammond, The Posse Comitatus Act: A Principle In Need of Renewal, 75 WASH. U.L.Q. 953, 960 

(1997). 

32 H.R. REP. NO. 97-71, pt. 2, at 3 (1981), reprinted in 1981 U.S.C.C.A.N. 1781, 1785 [hereinafter H.R. Report No. 

71]. 

33 10 U.S.C. § 371 (1982). 

34 Id. § 372. 35 Id. § 373. 36 Id. § 374(b) (authorizing military personnel to operate equipment only to monitor movement of air and sea traffic). 37 Id. § 375. 38 Id. § 376. 39 Id. § 377; The Secretary of Defense must issue regulations to make this effective. 

31 
Notably, Congress clarified that these prohibitions do not preempt military assistance to 

civilian law enforcement that other laws -- including the original PCA -- might authorize.40 “The

1981 amendments to the PCA, therefore, apparently manifested Congress's attempt to confront the 

‘American dilemma’ by balancing two competing interests: (1) promoting the efficacy of civilian 

law enforcement agencies by allowing the armed forces to lend them certain military resources; and 

(2) controlling military involvement in civilian affairs by placing specific prohibitions on military 

law enforcement activities.”41 

2.1.2.2. 1988 

 

Seven years later, Congress established an air and sea surveillance mission and designated 

the DoD as the agency responsible for orchestrating the operations necessary to assist in drug 

interdiction. Congress perceived the mission as “a major new military requirement” that would 

enhance the nation's drug interdiction efforts substantially. The 1988 enactment, which effectively 

re-enacted the 1981 amendments, revised the law governing military assistance to civilian law 

enforcement officials.42

2.1.3. Judicial Tests and Exceptions 

In its 125-year history, no one has been prosecuted for violating the PCA. Yet, courts have 

considered the Act’s application in private causes of actions against military officials participating in

or authorizing particular actions.43 Other cases have been based on arguments that the actions of the 

military improperly assisted in prosecuting defendants.44 Also, the United States has used the PCA 

to shield itself from liability based on the Federal Tort Claims Act.45 

The courts have held that the PCA applies only where “there is direct, active use of military 

personnel that pervades the activities of civilian law enforcement, and subjects civilians to the 

exercise of military power that is regulatory, proscriptive, or compulsory in nature.”

46 Courts apply 

three tests to determine if a use of military personnel has violated the PCA. First, was their action 

“active” or “passive”?47 Second, did the use of the military pervade the activities of civilian law 

enforcement officials or amount to active involvement in executing the laws?48 Third, did military 

40 Id. § 378. 41 Major Leroy C. Bryant, The Posse Comitatus Act, the Military, and Drug Interdiction: Just How Far Can We 

Go? 1990 ARMY LAW. 3 (1990). 42 The 1988 Amendments reaffirmed and broadened the military's authority with respect to providing intelligence, 

equipment and facilities, and training to civilians; see 10 U.S.C. §§ 371-73 (1988). Congress also revised § 380 to 

emphasize that DOD had the lead role in advising civilian law enforcement officials of the types of military 

assistance available. See id. § 380. 43 Bissonette v. Haig, 776 F.2d 1384 (8th Cir. 1985); aff'd en banc, 800 F.2d 812 (8th Cir.1986), aff'd, 485 U.S. 264, 

108 S. Ct. 1253, 99 L. Ed. 2d 288 (1988). 

44 See, e.g., United States v. Walden, 490 F.2d 372, 375 (4th Cir. 1974), cert. denied, 416 U.S. 983 (1974); United 

States v. Cotten, 471 F.2d 744, 747-48 (9th Cir. 1973), cert. denied, 411 U.S. 936 (1973); United States v. Casper, 

541 F.2d 1275, 1276 (8th Cir. 1976), cert. denied, 430 U.S. 970 (1977); Gilbert v. United States, 165 F.3d 470, 471-

472 (6th Cir. 1999). 

45 Wrynn v. United States, 200 F. Supp. 457, 463-465 (E.D. N.Y. 1961). 46 Stevens, supra note 3, at 26. 47 United States v. Red Feather, 392 F. Supp. 916, 921 (W.D.S.D. 1975); United States v. Yunis, 681 F. Supp. 891, 

892 (D.D.C. 1988); United States v. Rasheed, 802 F. Supp. 312, 319 (D. Hawaii 1992). 

48 United States v. Hartley, 678 F.2d 961, 978 (11th Cir. 1982); United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 

1986); United States v. Bacon, 851 F.2d 1312, 1313 (11th Cir. 1988); Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir. 

32 
personnel regulate, prohibit, or coerce civilians?49 The military is not restricted from providing 

equipment to civilian law enforcement: “the prevention of the use of military supplies and 

equipment was never mentioned in the debates, nor can it reasonably be read into the words of the 

Act.”50

Courts have generally held that limited military involvement in law enforcement for an 

independent military purpose -- e.g., preventing the flow of drugs -- will not violate the PCA: “In 

the majority of cases in which no violation has been found, the independent military purpose that 

justified the military conduct was the prevention of illicit drug transactions involving active duty 

military personnel regardless of whether such conduct took place on military installations.”51 

Exceptions include: 

1. The military, upon the request of the Secret Service, may assist in protecting 

governmental officials and major political candidates from physical harm.

52 The military 

may also respond to crimes against foreign officials and other foreign guests,53 members

of Congress, the Cabinet, and Supreme Court,54 and the Vice-President and President.55 

Also, the military has a role in enforcing neutrality laws,56 customs laws,57 and executing 

certain civil rights warrants. 

2. Military forces may provide logistical and technical support to civilian law enforcement 

agencies by sharing information,58 loaning equipment,59 and providing expert advice and 

training.60

 

1990).

49 See United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994); United States v. Casper, 541 F.2d 1275, 1278 (8th

Cir. 1976); United States v. Yunis, 681 F. Supp. 891, 895-6 (D.D.C. 1988).“It is the nature of their primary mission 

that military personnel must be trained to operate under circumstances where the protection of constitutional 

freedoms cannot receive the consideration needed in order to assure their preservation. The posse comitatus statute 

is intended to meet that danger. The feared use [of military personnel] which is prohibited by the posse comitatus 

statute is that which is regulatory, proscriptive or compulsory in nature, and causes the citizens to be presently or 

prospectively subject to regulations, proscriptions, or compulsions imposed by military authority.” United States v. 

McArthur, 419 F. Supp. 186, 193-94 (D. N.D. 1975), aff'd sub nom United States v. Casper, 541 F.2d 1275, 1276 

(8th Cir. 1976). 

50 United States v. Red Feather, 392 F. Supp. 916, 922 (1974). Applying these tests, the Eighth Circuit has held that 

the use of Air Force personnel to fly surveillance, the advice of military officers, and the furnishing of equipment 

and supplies did not constitute a violation of posse comitatus. United States v. Casper 541 F.2d 1275 (8th Cir. 1976); 

Bissonette v. Haig, 776 F.2d 1384 (8th Cir. 1985). 

51 Harker v. State, 663 P.2d 932, 936 (Alaska 1983). 

52 32 C.F.R. § 215.4(c)(2)(i)(d); this exception is taken from House Joint Resolution 1292, June 6, 1968. Although 

this resolution has been placed in the Statutes at Large as Public Law 90-331, 82 Stat. 170, it has not been codified; 

it is set out in the notes to 18 U.S.C. § 3056; see also 18 U.S.C. § 3056 (stating the protective duties of the Secret 

Service). 

53 18 U.S.C. § 112(f) (2000), (b)(3)(c). 

54 Id. § 351(g). 55 Id. § 1751(i), 3056. 56 22 U.S.C. § 408, 461-62 (2000). 

57 50 U.S.C. § 220 (2000). 

58 10 U.S.C. § 371 (2000). 

59 Id. § 372. 60 Id. § 373. 

33 
3. The military may respond to events involving chemical or biological weapons of mass 

destruction.61 

4. Military forces are authorized for direct participation in arrest, search and seizure, and in

intelligence collection when necessary to save human life and civilian authorities are 

unable to take the required action, as long as the action is otherwise authorized by law.

62

5. Two recognized exceptions derive from the President’s inherent right to preserve public 

order and to carry out government operations. In an emergency situation that requires 

prompt and vigorous action to prevent loss of life, or warrants destruction of property 

when sudden and unexpected disasters disrupt normal governmental functions such that 

duly constituted local authorities are unable to control the situation, the President may 

use the military to prevent loss of life, to prevent wanton destruction of property, and to 

restore governmental functions and public order.63 The Office of Legal Counsel of the 

Department of Justice has recognized the U.S. government's power to protect federal 

functions.64 Second, the President may use the military “to protect Federal property and

Federal governmental operations when . . . local authorities are unable or decline to 

provide adequate protection.”65

6. There are also two common law exceptions: 

• No violation occurs when a service member assists civil law enforcement on his 

own initiative as a private citizen.66

• According to the Military Purpose Doctrine, no violation occurs when military 

personnel, to achieve a military purpose, only incidentally benefit civilian law 

enforcement authorities.67

Section 2.3. below, “Military Assistance in Civilian Emergencies,” discusses other 

limitations. 

 61 See Id. § 382; 18 U.S.C. § 175a and § 2332e (2000). 62 Section 1416 of the 1997 National Defense Authorization Act (codified at 10 U.S.C. §382); National Defense 

Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, §1416, 110 Stat. 186 (1996). 63 Employment of Military Resources in the Event of Civil Disturbances, 32 C.F.R. §215.4c(1) (2001). The Supreme 

Court in In re Neagle, 135 U.S. 1 (1890), held that the President had the authority to use the military in emergency 

situations. 

64 See M.C. Hammond, The Posse Comitatus Act: A Principle In Need of Renewal, 75 WASH. U.L.Q. 953, 968 

(1997). 

65 32 C.F.R. § 215.4(c)(1)(ii) (1986). 

66 See Brian L. Porto, Annotation, Construction and Application of Posse Comitatus Act, and Similar Predecessor 

Provisions, Restricting Use of United States Army and Air Force to Execute Laws, 141 A.L.R. FED. 271, 298-99 

(1997) (listing cases where soldiers acted on their own initiative and in their private capacities to help civil 

authorities). 

67 See id. at 299-305 (listing cases where the Military Purpose Doctrine was applied). 

34 
2.2. Insurrection Statutes

The President can use military troops for law enforcement during a national emergency 

involving civil disturbances or insurrections. In contrast to martial law whereby an executive 

suspends normal operation of lawful authorities as well as of constitutional rights, the insurrection 

statutes authorize the President to use the military to enforce the laws in times of domestic 

emergency so as to better protect the nation and the government.68 Typically, the President must 

first receive a request from a Governor and, second, issue a proclamation to disperse the 

wrongdoers. 69 If they do not stop their malfeasance, the President can use federal troops to restore 

civil order. The President is authorized to call into federal service the state militia at the State’s 

request “whenever there is an insurrection in any state against its government.”70 

Without the Governor’s request, the militia and armed forces may be used to enforce federal 

authority and laws.71 To suppress an insurrection, the President may use the militia or armed forces

to provide for the execution of state or federal laws.72 Thus, during an insurrection, the President 

may hold in custody persons for whom there is probable cause of criminal complicity.73 The

President can use this power if persons are deprived of a constitutional right or a right secured by 

U.S. law. Also, the right to interstate travel is within this section’s protection.74 Under 10 U.S.C. 

§2383, persons engaged in or inciting insurrection against the United States are punishable by death 

or imprisonment for at least five years, fined at least $10,000, and may not hold public office. 

 68 In re Charge to Grand Jury, 62 F. 828, 829-30 (1894). 69 32 C.F.R. § 215.4(c)(2)(i)(2002); 10 U.S.C.A. § 334 (2001). 70 10 U.S.C.A. § 331 (1998) (stating “[w]henever there is an insurrection in any State against its government, the 

President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into 

federal service such of the militia of the other States, in the number requested by the State, and use such of the armed 

forces, as he considers necessary to suppress the insurrection.” This section is described as implementing Article IV, 

Section 4, of the Constitution. 32 C.F.R. §215.4 (c)(2)(i)(a) (2002). 71 10 U.S.C.A. § 332 (1998) (reading “[w]henever the President considers that unlawful obstructions, combinations, 

or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of 

the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal 

service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those 

laws or to suppress the rebellion.” This section implements Article II, Section 3, of the Constitution. 32 C.F.R. § 

215.4 (c)(2)(i)(b) (2002). This law was used to federalize the Arkansas National Guard to enforce federal court 

orders relating to integration in 1957. Exec. Order No. 10730, 22 Fed. Reg. 7628 (1957). And to federalize the 

Mississippi National Guard in 1962 and Alabama National Guard in 1963 for similar purposes. Id. The Insurrection 

Statutes also helped to quell urban rioting after the 1992 jury verdict involving Rodney King. Proclamation No. 

6427, 57 Fed. Reg. 19,359 (May 1, 1992); Exec. Order No. 12,804, 57 Fed. Reg. 19,361 (May 5, 1992). 72 10 U.S.C.A § 333 (1998) (providing “[t]he President, by using the militia or the armed forces, or both, or by any 

other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic 

violence, unlawful combination or conspiracy if it: 

(1) so hinders the execution of the laws of the State, and of the United States within the State, that any part or class 

of its people is deprived of a right, privilege, immunity or protection named in the Constitution and secured by law, 

and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or 

to give that protection; or 

(2) opposes or obstructs the execution of the laws of the United states or impeded the course if justice under those 

laws. 

This section is described as implementing Article II, Section 3, and the 14th Amendment of the Constitution.” 32 

C.F.R. § 215.4 (c)(2)(i)(c) (2002). 

73 10 Op. Att’y. Gen.74 (1861). 

74 Bergman v. United States, 565 F. Supp. 1353, 1396 (W.D. Mich. 1983). 

35 
2.2.1. What is an insurrection?

An “insurrection” is a form of rebellion against an established government when there is an 

intent to overthrow a lawfully constituted regime.

75 For example, the County of Philadelphia 

declared a state of insurrection when a mob forcibly took possession of the Philadelphia railroad and 

destroyed private property during rioting.76 Though an insurrection usually does not require armed 

opposition or resistance, it does involve persons acting in concert, rising against civil or political 

authority -- open and active opposition of a number of persons to the execution of law in a city or 

state.77 

The insurrection statutes empower the President to grant the armed forces a significant role 

in responding to situations, including terrorist attacks. Any acts of terrorism would likely fall under 

the umbrella terms “unlawful obstructions, combinations or rebellion against the authority of the 

United States” in Section 332. Additionally, the broad terms of Section 333, “insurrection, domestic 

violence, unlawful combination or conspiracy” could be applied against terrorist activity. 

2.2.2. How can the President use the power of insurrection?

The President of the United States may formally proclaim that an insurrection exists; that 

proclamation continues until the President decides otherwise.78 The President has exclusive 

discretion to use troops or militia in quelling a civil disorder or insurrection.79 Thus, President 

Johnson’s decision to use the military to control the civil disturbances following the assassination of

Dr. Martin Luther King was upheld on the grounds that the courts may not question the President’s 

exercise of this authority.80 Nevertheless, this military power must be in strict subordination to civil 

authority.81 

2.3. Military Assistance in Civilian Emergencies 

The Department of Defense (DoD) has a series of policies directing the military to assist 

FEMA and local authorities in the event of a “civil emergency,” which DoD defines as “any natural 

or manmade disaster or emergency that causes or could cause substantial harm to the population or 

infrastructure [including] major disaster or emergency, as those terms are defined in the Stafford Act 

... as well as consequences of an attack or a national security emergency.”82 The nature and urgency 

of the emergency determines which official must authorize the assistance and what the assistance 

may comprise. This section examines the DoD’s Immediate Response Authority, Military Support to 

Civil Authorities (MSCA), Military Assistance to Civil Authorities (MACA) and Military 

Assistance for Civil Disturbances (MACDIS). 

 75 Pan Am World Airways, Inc. v. Aetna Casualty & Surety Co., 505 F.2d 989, 1017 (1974). 76 Allegheny County v. Gibson, 90 Pa. 397, 399 (1849). 

77 In re Charge to Grand Jury, 62 F. 828, 832 (N.D. Ill. 1894). State decisions are to similar effect; the State of Iowa 

declared an insurrection when the defendant was the principal leader in a prison riot causing damages to be done 

against both hostages and the Iowa penitentiary. State v. Wagner, 410 N.W.2d 207, 214 (1987). 78 Lapeyre v. United States, 84 U.S. 191, 195 (1872); see also United States v. One Hundred and Twenty Nine 

Packages, 27 F. Cas. 284, 289 (1862). 

79 Martin v. Mott, 25 U.S. 19, 31 (1827). 

80 Monarch Ins. Co. of Ohio v. District of Columbia, 353 F. Supp. 1249, 1255 (D.C.D.C. 1973). 81 9 Op. Att’y. Gen. 517 (1860). 

82 U.S. Dept. of Defense Dir. 3025.12, Military Assistance for Civil Disturbances (MACDIS), para. E.2.1.5 (Feb. 4, 

1994).

36 
2.3.1. Immediate Response Authority 

Department of Defense personnel may act in non-military settings under the “Immediate 

Response Authority”83 which is set forth in two Department of Defense Directives to support 

civilian authorities during civil disturbances and disaster relief.

84 In a sudden emergency, a military 

commander or other DoD official can act, at the request of civilian authorities, before a declaration 

of emergency or major disaster. 85 

Imminently serious conditions resulting from any civil emergency or attack may require immediate 

action by military commanders, or by responsible officials of other DoD Agencies, to save lives, 

prevent human suffering, or mitigate great property damage. When such conditions exist and time 

does not permit prior approval from higher headquarters, local military commanders and responsible 

officials of other DoD Components are authorized by this Directive, subject to any supplemental 

direction that may be provided by their DoD Component, to take necessary action to respond to 

requests of civil authorities.86

The types of Immediate Response support by the DoD to civil bodies, include: 

• rescue, evacuation, and emergency medical treatment of casualties, maintenance or 

restoration of emergency medical capabilities, and safeguarding the public health; 

• emergency restoration of essential public services (including fire-fighting, water, 

communications, transportation, power, and fuel); 

• emergency clearance of debris, rubble, and explosive ordnance [sic] from public facilities 

and other areas to permit rescue or movement of people and restoration of essential services; 

• recovery, identification, registration, and disposal of the dead; 

• decontaminating radiological, chemical, and biological effects; controlling contaminated 

areas; and reporting through national warning and hazard control systems; 

• roadway movement control and planning; 

• safeguarding, collecting, and distributing food, essential supplies, and materiel on the basis 

of critical priorities; 

 83 The “most commonly cited rationale to support Immediate Response actions is the common law principle of 

necessity.” See Commander Jim Winthrop, The Oklahoma City Bombing: Immediate Response Authority and Other 

Military Assistance to Civil Authority (MACA), 1997 ARMY LAW. 3, 9-11. 84 U.S. Dept. of Defense Dir. 3025.1, Military Support to Civil Authorities (MSCA), para. D(5)(a), (Jan. 15, 1993) 

[hereinafter DoD Dir. 3025.1] (requires a request from civilian authorities before the military can provide emergency 

support); U.S. Dept. of Defense Directive 3025.12, para. D(2)(b), Military Assistance for Civil Disturbances 

(MACDIS) (4 Feb. 1994) [hereinafter DoD Dir. 3025.12] (does not requires a such a request before the military can 

provide assistance). 

85 Local commanders in the United States may “undertake immediate, unilateral, emergency response actions that 

involve measures to save lives, prevent human suffering, or mitigate great property damage, only when time does not 

permit approval by higher headquarters.” Memorandum from the Deputy Secretary of Defense, to The Secretaries of 

the Military Departments, DOD Year 2000 (Y2K) Support to Civil Authorities (22 Feb. 1999),at

http://www.army.mil/army-y2k/desecdef_dod_civil_support.htm. 86 DoD Dir. 3025.1, supra note 87 at 4.5.1. Discussions of reimbursement for DoD’s expenses may be delayed. The 

DoD commander may not refuse to assist if the agency requesting assistance is unable to agree about reimbursement. 

 DoD Dir. 3025.1, supra note 87 at 5.b. 

37 
• damage assessment; 

• interim emergency communications; and 

• facilitating the re-establishment of civil government functions.87 

The directives guide military commanders on acceptable actions, including limiting them to 

providing support, including emergency medical care, clearance of debris, and recovery and 

identification of the dead.

88 Congress has not limited or clarified a commander’s authority to action. 

After the bombing of the Murrah federal building in Oklahoma City, military personnel from Fort 

Sill and Tinker Air Force Base supported local responders under the Immediate Response Authority 

by supplying ambulances, bomb sniffing dogs, medivac aircraft, and military personnel. 

2.3.2. Military Support to Civilian Authorities (MSCA) 

MSCA is, in general, DoD’s statement of how it will comply with applicable Stafford Act 

provisions and, with FEMA, prepare for and respond to emergencies through Regional Military 

Emergency Coordinating (RMEC) teams. DoD provides MSCA in an emergency upon FEMA’s 

request and determination that the situation exceeds civilian capabilities. The support may include 

the activities listed as immediate responses, but may also go further, using all DoD resources except 

that: 

• the military cannot provide assistance to civilian law enforcement; 

• civil resources should be used before military resources; and 

• the military’s non-MSCA operations take priority, unless the Secretary of Defense 

determines otherwise.89

According to the national policy section of DoD Directive 3025.1, Military Support to Civil 

Authorities (MSCA), “[p]lanning and preparedness by the Federal Government for civil emergencies

and attacks are important due to the severity of the consequences of emergencies for the Nation and 

the population, and to the sophistication of means of attack on the United States and its territories.”90

MSCA Policy includes, inter alia, support in either civil emergencies or attacks, during any period 

of peace, war, or transition to war. It includes response to civil defense agencies but does not 

include military assistance for civil law enforcement operations. 

MSCA provides “a mechanism to facilitate continuous and cooperative civil and military 

planning and preparedness to mobilize all appropriate resources and capabilities of the civil sector 

and the Department of Defense, whenever required for any form of national security emergency.”91 

MSCA planning focuses on “centralized direction of peacetime planning with civil authorities, with 

decentralized planning by DoD Components with civil agencies, where appropriate, and 

decentralized execution of approved plans in time of emergency.”92 Also, DoD resources are 

provided only when response or recovery requirements are beyond the capabilities of civilian 

 87 DoD Dir. 3025.1, supra note 87 at 4.5.4.1-10. 88 Id.

89 DoD Dir. 3025.1, supra note 87 at A.2.6. 90 DoD Dir. 3025.1, supra note 87 at 4.1.1. 91 Id. at 4.4.5. 92 Id. at 4.4.3. 

38 
authorities (as determined by FEMA or another lead emergency response Agency). 93

2.3.3. DoD Military Assistance to Civilian Authorities (MACA) 

MACA missions are but one category of the military’s responsibilities for counter-terrorism

and homeland defense which also include, inter alia, force protection, support to federal 

consequence management activities [discussed in Chapter I], and protection of critical assets. 

Assistance under MACA extends from the immediate response and MSCA activities for natural and 

manmade disasters, to DoD assistance for civil disturbances, law enforcement, and counter-drug and 

counter-terrorism actions.94 The assistance may be loans of equipment, facilities or personnel to law 

enforcement agencies, aid in a civil emergency other than terrorism, and support for domestic civil 

disturbances or domestic counter-terrorism operations.95 At least a flag officer or general officer 

must approve all requests for all types of MACA operations; their evaluation must consider six 

factors: 

• legality (compliance with laws); 

• lethality (potential use of lethal force by or against DoD forces); 

• risk (safety of DoD forces); 

• cost (who pays, and what is the impact on the DoD budget); 

• appropriateness (whether conducting the requested mission is in DoD’s interest); and 

• readiness (impact on the DoD's ability to perform its primary mission). 

In addition, DoD may provide support for domestic civil disturbances or domestic counter-terrorism

operations only with Presidential authorization, as noted below in the MACDIS discussion. 

2.3.4. Military Assistance for Civil Disturbances (MACDIS)

DoD maintains a separate policy, MACDIS, governing assistance to civilian agencies in the 

event of a civil disturbance or terrorist incident. A civil disturbance is a “group act of violence and 

disorder prejudicial to public law and order;”96 a domestic terrorist incident is a “distinct criminal act

... by a group or ... individual ... to advance a political objective, and which endangers the safety of 

the people, property, or a Federal function.”97 Either event could also constitute a civil emergency 

addressed in the MACA and MSCA policies discussed above; if so, DoD coordinates provision of 

services among the applicable policies. MACDIS also applies to National Guard forces if the 

President orders them into Federal service. Otherwise, the National Guard, as discussed below, is 

under the command of the state’s Governor.98

MACDIS is based in the Insurrection Clause of the Constitution; the President must 

authorize deployment of forces for this purpose, based on the advice of the Attorney General, not 

 93 Id. at 4.4.4.2. 94 U.S. Dept. of Defense Directive 3025.15, Military Assistance to Civil Authorities (MACA) (Feb. 18, 1997) 

[hereinafter DoD Dir. 3025.15]. 

95 Id. at 4.7. 96 U.S. Dept. of Defense Directive 3025.12, Military Assistance for Civil Disturbances, E2.1.4. (Feb. 18, 1997) 

[hereinafter DoD Dir. 3025.12]. 

97 Id. at E2.1.12. 98 Id. at 4.5 

39 
from the Secretary of Defense.99 Two exceptions to the requirement for Presidential authorization 

exist: when military forces are required “to prevent loss of life or wanton destruction of property, or

to restore government functioning and public order,” and when civilian authorities cannot or will not

protect federal property or functions.100 In all circumstances, military troops must “maintain the 

primacy of civilian authority” and not take charge of the civilian government unless necessary in an

“extreme emergency.”101

2.3.5. Phases Of Military Disaster Response Operations 

Domestic disaster operations are normally conducted in stages: response, recovery, and 

restoration. Response operations focus on those life-sustaining functions required by the population 

in the disaster area. Recovery operations begin the process of returning the community infrastructure 

and services (both municipal and commercial) to a status that satisfies the needs of the population. 

Restoration is a long-term process that returns the community to pre-disaster normalcy. 

The military has an important role in the relief and recovery stages, but restoration is 

primarily a civilian responsibility. Military forces will redeploy as operations transition from the 

response and recovery stages to the restoration stage. The role of the military is most intense in the 

response stage, decreasing steadily as the operation moves into the recovery and restoration stages. 

Military disaster response operations are conducted in five phases. 

Phase 1: Pre-Disaster Activities - Preparations for life-saving missions begin on notice of the 

requirement for military support to include pre-positioning of resources near the disaster 

area. 

Phase 2: Assessment - Assessment is a fundamental task for providing effective disaster 

assistance, requiring the integration and analysis of information from many different sources. 

DoD may deploy a disaster area survey team to the affected area to supplement the FEMA 

disaster assessment effort. 

Phase 3: Initial Response Force - Response operations focus on the life-sustaining functions

(i.e. food, water, shelter, medical, and power) required by the population in the disaster area. 

DoD may rapidly deploy an initial response force with capabilities to provide the lifesustaining functions. 

Phase 4: Follow-on-Force - As the federal relief effort escalates, additional military forces 

may be rapidly deployed to the disaster area to assist in restoring essential public service. 

Phase 5: Transition - The military's ultimate role in disaster response is to help a local 

community to return to a normal, pre-disaster status; that role must end as soon as practical. 

Consequently, the military does not compete with civilian commercial enterprises. As a 

commercial resource becomes more available, the military's provision of support and 

services can diminish. Disaster response operations require that end conditions be 

established to enable the affected population to know when military operations will cease 

and local support organizations are to continue the mission. Conditions must be definable 

and attainable. 

 99 Id. at 4.22 and 4.8.1.1. 100 Id. at 4.2.2.1. and 4.2.2.2. 101 Id. at 4.1.5. and 4.2.7. 

40 
2.3.6. Assistance To Civilian Law Enforcement Authorities

DoD Directive 5525.5, DoD Cooperation with Civilian Law Enforcement Officials,102

addresses DoD cooperation with civilian (state and local as well as federal) law enforcement. The 

Directive states that it is “DoD policy to cooperate with civilian law enforcement officials to the 

extent practical.”103 Any cooperation “shall be consistent with the needs of national security and 

military preparedness, the historic tradition of limiting direct military involvement in civilian law 

enforcement activities, and the requirements of applicable law.”104 Enclosure 4, Restrictions on 

Participation of DoD Personnel in Civilian Law Enforcement Activities, includes a list of 

permissible direct assistance that does not violate the Posse Comitatus Act. Allowed activities 

include: 

• Actions to further a military or foreign affairs function of the United States. The Directive 

warns that “This provision must be used with caution, and does not include actions taken for 

the primary purpose of aiding civilian law enforcement officials or otherwise serving as a 

subterfuge to avoid restrictions.”105 Allowed actions include investigations related to 

maintenance of law and order on a military installation or facility, including enforcement of

the Uniform Code of Military Justice; and protection of classified military information, 

personnel, or equipment.106 

• Audits and investigations conducted by, under the direction of, or at the request of IG, DoD,

subject to any applicable limits on direct participation in law enforcement activities.107

• Actions that are taken to ensure preservation of public order and to carry out governmental 

operations. According to the Directive, “This authority is reserved for unusual 

circumstances”, and will be used only under DoD Directive 3025.12, “when sudden and 

unexpected civil disturbances, disaster, or calamities seriously endanger life and property 

and disrupt normal governmental functions to such an extent that duly constituted local 

authorities are unable to control the situation” or to protect federal property if duly 

constituted local authorities are unable or decline to provide adequate protection.”108

• Use of military forces during insurgency or domestic violence that hinders execution of state

or federal law, based on DoD responsibilities under Title 10, Sections 331-334.109

• Actions taken under express statutory authority allowing military participation in civilian 

law enforcement.110 

• Except as elsewhere allowed, the PCA prohibits the following forms of direct assistance: 

a. interdiction of a vehicle, vessel, aircraft, or other similar activity; 

 102 U.S. Dept. of Defense Directive 5525.5, DoD Cooperation With Civilian Law Enforcement Officials, (Jan. 15, 

1985), Administrative Reissuance, [hereinafter DoD Dir. 5525.5] 103 Id. at 4. 104 Id. 105 Id. at E4.1.2.1. 106 Id. at E4.1.2.1.1-6. 107 5 U.S.C. App § 3, 8(g) (2000); DoD Dir. 5525.5 supra note 106 at E4.1.2.2. 108 Id. at E4.1.2.3. 109 Id. at E4.1.2.4. Actions under this authority are governed by DoD Directive 3025.12, supra note 100. 110 DoD Dir. 5525.5, supra note 106 at E4.1.2.5. 

41 
b. a search or seizure; 

c. an arrest, apprehension, stop and frisk, or similar activity; and 

d. Use of military personnel for surveillance or pursuit of individuals, or as undercover 

agents, informants, investigators, or interrogators.111

2.4. Military Response Involving Weapons of Mass Destruction

The use of the military is specifically authorized in response to terrorist incidents involving 

chemical and biological weapons of mass destruction.112 As discussed, the Defense Secretary may 

allow the use of military equipment (including supplies or spare parts), base facilities, or research 

facilities to any federal, state, or local civilian law enforcement official for law enforcement 

purposes.113 The statutes concerning WMD augment that authority, especially in connection with 

nuclear weapons. Also, reserves may be mobilized to support emergency preparedness programs 

and to respond to any emergency involving the use of a weapon of mass destruction.114

2.4.1. Nuclear Weapons

Title 18, Section 831 implements the Convention on the Physical Protection of Nuclear 

Material115 that obligates the United States to protect nuclear material during transport and in 

storage, and prohibits the illegal ownership or use of nuclear material, including use of nuclear 

materials that cause death. Punishment is a fine and up to twenty years imprisonment.116 The

Attorney General may request assistance from the Secretary of Defense117 to enforce this section. 

Also, notwithstanding the PCA, the Secretary of Defense may provide assistance to the Attorney 

General to support law enforcement activities if an emergency situation exists and providing 

assistance will not adversely affect military preparedness. Here, an emergency situation is a 

circumstance that “poses a serious threat to the interests of the United States” and that “enforcement 

of the law would be seriously impaired if the assistance were not provided” and “civilian law 

enforcement personnel are not capable of enforcing the law.”118 Whether an emergency situation 

 111 Id. at E4.1.3.1-4. 112 The term “weapon of mass destruction” means any weapon or device that is intended, or has the capability, to 

cause death or serious bodily injury to a significant number of people through the release, dissemination, or impact 

of-- (A) toxic or poisonous chemicals or their precursors; (B) a disease organism; or (C) radiation or radioactivity. 50 

U.S.C.S. § 2302 (Law. Co-op. 2001). 

113 10 U.S.C.S. § 372(a) (Law. Co-op. 2001). The Defense Secretary conducts a yearly briefing of each state’s law 

enforcement personnel, explaining how civilian officials can (a) obtain “information, equipment, training, expert 

advice, and other personnel support,” (b) obtain surplus military equipment, and (c) obtain “a description of the types 

of information, equipment and facilities, and training and advice available to civilian law enforcement officials from

the Department of Defense,” including a “current, comprehensive list of military equipment which is suitable for law 

enforcement officials from the Department of Defense or available as surplus property from the Administrator of 

General Services.” 10 U.S.C.S. §§ 380(a)- (b) (Law. Co-op. 2001). 114 10 U.S.C.S. §12304 (b) (Law. Co-op. 1998); 10 U.S.C.S. §12310 (c) (Law. Co-op. 1998). The term “weapon of 

mass destruction” means any weapon or device that is intended, or has the capability, to cause death or serious 

bodily injury to a significant number of people through the release, dissemination, or impact of-- (A) toxic or 

poisonous chemicals or their precursors; (B) a disease organism; or (C) radiation or radioactivity. 50 USCS § 2302 

(Law. Co-op. 2001). 50 U.S.C.S. § 2302 (1)(1998) 115 18 I.L.M. 1419, opened for signature Mar. 3, 1980, entered into force Feb. 8, 1987. 116 18 U.S.C.S. § 831 (Law. Co-op. 2001). 117 10 U.S.C.S. §§ 371 (Law. Co-op. 1998). 118 18 U.S.C.S. § 831(e) (Law. Co-op. 2001). 

42 
exists is to be determined jointly by the Attorney General and the Secretary of Defense “in their 

discretion.”119

Assistance may include: 

• “use of personnel of the Department of Defense to arrest persons and conduct searches and 

seizures with respect to violations of this section;” and 

• “such other activity as is incidental to the enforcement of this section, or to the protection of 

persons or property from conduct that violates this section.”120

2.4.2. Chemical or Biological Weapons 

The Secretary of Defense may allow a federal, state, or local law enforcement or emergency

response agency to use DoD materials to prepare for or respond to an emergency involving chemical 

or biological agents if the item is not reasonably available otherwise. These items include 

appropriate DoD materials or expertise, such as training facilities, sensors, protective clothing, and 

antidotes.121

Also, the Secretary of Defense may provide assistance to the Department of Justice in 

emergency situations involving a chemical or biological weapon of mass destruction. Assistance is 

allowed if “the Secretary of Defense and the Attorney General jointly determine that an emergency 

exists,” and that the Secretary of Defense determines that United States military preparedness would 

not be adversely affected.122 An emergency situation is defined as circumstances that involve a 

biological or chemical weapon of mass destruction that poses “a serious threat to the interests of the 

United States” and three factors exist: (1) civilian expertise and capabilities cannot immediately 

counter the threat; (2) the Defense Department’s “special capabilities and expertise . . . are necessary 

and critical to counter the threat posed by the weapon involved”; and (3) enforcement of laws 

against weapons of mass destruction123 would be impaired if the Defense Department was not 

allowed to act.124

Generally, military forces may “monitor, contain, disable, or dispose of the weapon involved

or elements of the weapon.”125 Though this statute prohibits the direct participation of military 

personnel in most cases, it allows direct participation in arrest, search and seizure, and intelligence 

collection when necessary to save human life and civilian authorities are unable to take the required

action, as long as the action is otherwise authorized by law.126 The Secretary of Defense and the 

Attorney General must prescribe regulations describing the actions that Department of Defense 

personnel may take in these circumstances. The regulations may not authorize arrest, direct 

 119 Id. § (e)(1)(a). 120 Id. §§ (e)(3)(a)-(b). 121 10 U.S.C.S. § 372 (b) (Law. Co-op. 1998). The requirement of a determination that an item is not reasonably 

available from another source does not apply to assistance provided under 10 U.S.C. §382, after a request for 

assistance by the Attorney General. Id. 122 10 U.S.C. § 382 (a) (2000). 123 Id. §175; Id. § 2332. 124 Id. § 382(d). 125 Id. § 382(c). 126 Id. § 382(d); see also H.R. REP. NO. 104-724, at 819 (1996) (emphasizing that using the military in such 

circumstances “should be limited both in time and scope to dealing with the specific chemical or biological 

weapons-related incident”). 

43 
participation in conducting a search for or seizure of evidence, or direct participation in the 

collection of intelligence for law enforcement purposes. 

Similarly, under Title 18 Sections 175(a) and 2332(e), the Attorney General (or other Justice 

Department officials) may request the Secretary of Defense to provide assistance in emergency 

situations involving a biological weapon.127 Also, the Attorney General may request that the 

Secretary of Defense provide assistance128 supporting Department of Justice activities129 during an 

emergency situation involving a weapon of mass destruction. The Defense Secretary must “develop 

and maintain at least one domestic terrorism rapid response team composed of members of the 

Armed Forces and employees of the Department of Defense who are capable of aiding Federal, 

State, and local officials in the detection, neutralization, containment, dismantlement, and disposal of

weapons of mass destruction containing chemical, biological, or related materials.”130 Pursuant to 

this authority, DoD has formed the Response Task Force (RTF) and the Chem/Bio Quick Response 

Force (CBQRF). 

According to Title 50 Section 2316(d), however, “The President shall take reasonable 

measures to reduce the reliance of civilian law enforcement officials on Department of Defense 

resources to counter the threat posed by the use or potential use of biological and chemical weapons 

of mass destruction within the United States. The measures include actions to increase civilian law 

enforcement expertise to counter such a threat and to improve coordination between civilian law 

enforcement officials and other sources of expertise, within and outside the Federal Government, to 

counter such a threat.”131 The President must report to Congress, including a description of the 

policy functions and operational roles of federal agencies in countering the threat of use or potential 

use of biological and chemical weapons of mass destruction within the United States and if the 

civilian law enforcement reliance on the federal government has been reduced. 

3. THE NATIONAL GUARD

Use of the National Guard to respond to a terrorist event has been advocated in order to 

employ military capabilities without risking the problems of domestic involvement of the armed 

forces. The National Guard is designed to serve as states’ first line of defense against sudden, local 

disasters. It may enforce curfews, provide immediate logistical support for distributing needed 

supplies, or protect vulnerable areas. In addition, the President may order National Guard units to 

serve as full-time federal troops in the Army or Air Force. This section explains the complex 

connection between states’ National Guards and the National Guard of the United States, the duty 

status of Guardsmen and how the relationships are coordinated. 

3.1. Legal Foundation

The National Guard is the modern militia reserved to the states by the ‘Militia Clauses’ of the

Constitution.132 Article I, Section 8, Clause 15 authorizes Congress to provide for calling forth the 

 127 18 U.S.C.S. § 175(a) (Law. Co-op. 2001). 128 10 U.S.C. § 382 (2000). 129 Relating to the enforcement of biological weapons criminal laws. See 18 U.S.C.S. § 2332a (Law. Co-op. 2001). 130 50 U.S.C.S. § 2314(a) (Law. Co-op. 2001). 131 Id. § 2316(d). 132 Maryland for Use of Levin v. United States, 381 U.S. 41, 46 (1965), vacated on other grounds, 382 U.S. 159, 

159 (1965). The Virgin Islands National Guard was called into federal service for Hurricane Hugo, as was the 

California National Guard for the Los Angeles riots. Each Presidential order cited only chapter 15 of Title 10, 

44 
militia to execute the laws of the Union, suppress insurrections, and repel invasions. Clause 16 

authorizes Congress to provide for organizing, arming, and disciplining the militia, and for 

governing such part of them as may be employed in the service of the United States, reserving to the 

states the appointment of the officers, and the authority for of training the militia as prescribed by 

Congress. 

The Supreme Court described the two conflicting themes that motivated these clauses: the 

framers feared that a national standing Army would be an intolerable threat to individual liberty and 

to the sovereignty of the separate states, but they recognized the danger of relying on inadequately 

trained soldiers as the primary means of providing for the common defense. Thus, Congress has 

certain powers and responsibilities regarding the militia, but the selection of its officers and 

command and control remain with the states except during periods in the actual service of the United 

States.133

3.2. The Dual-Component Status 

In 1933, Congress created two overlapping, but distinct organizations--the National Guard 

of the various states (ARNG) and the National Guard of the United States (ARNGUS).134 State 

ARNG members must simultaneously enroll in the ARNGUS.135 Congress later limited the 

“National Guard of the United States” to the Army and created a separate Air National Guard of the 

United States.136 Presently, the militia of the United States consists of two classes, organized and 

unorganized. The class consisting of the National Guard and the Naval Militia is the organized 

Militia.137 The National Guard consists of the Army National Guard and the Air National Guard. 

The Army National Guard is the part of the organized militia that is a land force, is trained under the 

sixteenth Clause of Section 8, Article 1 of the Constitution, is organized, armed and equipped at least 

partially at federal expense, and is federally recognized.138

A member of the National Guard belongs both to a state ARNG and the federal ARNGUS, 

and is a civilian when not in military status. A Governor may order a guardsman, as an ARNG 

member, to address an emergency within the state; the State pays all salary, benefits and other costs. 

Full-time members of the National Guard are not on “Active Duty”, which is limited to “full-time 

duty in the active military service of the United States.”139 The President may order the same

person to active duty as a federal ARNGUS member. In this situation, the federal government pays 

the salary, benefits and other costs, and the Federal Tort Claims Act protects the guardsman as a 

 

without specifying any particular section. Lieutenant Colonel Steven B. Rich, The National Guard, Drug 

Interdiction and Counterdrug Activities, and Posse Comitatus: The Meaning and Implications of "In Federal 

Service," 1994 ARMY LAW. 35, 39 n.36 (1994). 133 United States ex rel v. Dern, 74 F.2d 485, 487 (D.C. Cir. 1934). 134 National Defense Act Amendments of 1933, Pub. L. No. 73-64, 48 Stat. 153 (1933). 135 10 U.S.C. § 101(c)(3) (2000); 32 U.S.C. § 101(5) (2000); Johnson v. Powell, 414 F.2d 1060, 1063 (5th Cir. 

1969). 

136 Armed Forces Reserve Act of 1952, Pub. L. No. 82-476, 66 Stat. 481, 498, 501 (1952). The definitions were 

further changed by the creation of the “Army National Guard of the United States.” Pub. L. No.1028, 70A Stat. 3 

(1956). 

137 10 U.S.C. § 311(b) (2000). 138 Id. § 101(c). 139 Id. § (d)(1). 

45 
federal employee. The National Guard, then, is only a potential part of the United States Armed 

Forces and does not become a part thereof until the requisite entry into active federal service.140 

Units or individual members of the National Guard may enter “active duty” (that is, federal 

service) in two ways. First, once ordered into Federal service, they serve as reserves of the Army.

141

Duty performed as reserves of the Armed Forces is performed by the Army service, and the member 

has been temporarily disassociated from the State militia. Second, members of the ARNG (as such,

and not as members of the ARNGUS) may be called into federal service under the President’s 

authority to federalize the militia 142 -- while in federal service, the ARNG is a component of the 

Army.

143 

While in active federal duty, guardsmen are relieved from service in the ARNG.144 States'

authority to train the militia, reserved to them by the Militia Clause, does not apply to militia 

members who are on active duty in the ARNGUS.145 “Although National Guard members receive 

federal pay and allowances, retirement points, certain medical benefits, and Federal Tort Claims Act 

protection while performing full-time National Guard Duty and IDT under Title 32,146 this occurs in 

the status of the ARNG, not the ARNGUS.”147 When not on active duty, “members of Army

National Guard of the United States shall be administered, armed, equipped, and trained in their 

status as members of the Army National Guard.”148

Thus, the Army includes, in addition to the Regular Army: the ARNGUS, a reserve 

component of the Army whose members must be members of the state ARNG;149 the ARNG only 

 140 Id. §10103. 141 Id. §12403. National Guard units were activated for Operation Desert Storm/Desert Shield. At first, it was under 

the Presidential “200 K” call-up authority of the appropriate code section. 10 U.S.C. § 12309 (2000). A subsequent 

partial mobilization occurred under the National Emergency provisions. 10 U.S.C. § 12309 (2000). Lieutenant 

Colonel Steven B. Rich, The National Guard, Drug Interdiction and Counterdrug Activities, and Posse Comitatus: 

The Meaning and Implications of "In Federal Service," 1994 ARMY LAW. 35, 39 n.42. 10 U.S.C. § 673 was 

subsequently moved to 10 U.S.C.S. § 12302 in 1994. 10 U.S.C. § 673 (2000). 142 10 U. S. C. §§ 331, 332, 333 (2001). 143 Id. § 3062(c); Id. § 10106. An example of federalizing the militia occurred during the Los Angeles riots in 1992. 

10 U.S.C. § 3062(c) (2000). Lieut. Colonel Steven B. Rich, The National Guard, Drug Interdiction and Counterdrug 

Activities, and Posse Comitatus: The Meaning and Implications of "In Federal Service," 1994 ARMY LAW. 35, 39 

n.41 (1994). 

144 32 U.S.C. § 325 (1988). 145 Dukakis v. Department of Defense, 686 F. Supp. 30, 36 (D. Mass 1988), aff'd, 859 F.2d 1066 (1st Cir. 1988). 146 For purposes of laws providing benefits to members of the ARNGUS, their dependents and beneficiaries, fulltime National Guard duty is deemed to be active duty in federal service. 10 U.S.C. § 12602 (2001). According to 28 

U.S.C.§ 2671 (2001), for purposes of the Federal Tort Claims Act, “employees of the government” includes 

members of the National Guard while in training or other duty under §§ 316, 502, 503, 504, or 505 of Title 32. The 

definition of “scope of employment” can include duty performed by a member of the state ARNG as defined by 32 

U.S.C. § 101(3); see 28 U.S.C. § 2671 (2000); 32 U.S.C. §715 (2001). 147 Lieutenant Colonel Steven B. Rich, The National Guard, Drug Interdiction and Counterdrug Activities, and 

Posse Comitatus: The Meaning and Implications of "In Federal Service," 1994 ARMY LAW. 35, 39 (1994). 148 10 U.S.C. § 10107 (2001). 149 Id. §§ 101(c)(3), 10101, 10105, 3062 (c) (2001). We recognize that “the Guard is an essential reserve component 

of the Armed Forces of the United States.”). Jorden v. National Guard Bureau, 799 F.2d 101, 106 (3d Cir. 1986) 

(citing Gilligan v. Morgan, 93 S.Ct. 2440, 2444 (1973). It is common knowledge that, in the event of a surprise 

attack, the Guard may be the first line of defense. See 32 U.S.C. § 102 (2000) (“It is essential that the strength and 

organization of the Army National Guard and the Air National Guard as an integral part of the first line defense of 

46 
while in service of the United States, and the Army Reserve.150 Because the ARNGUS is the reserve 

component, Congress may order members into active service. An individual may be called without 

his/her consent but with the Governor’s consent for up to fifteen days, an unspecified time with the 

consent of both the individual and the Governor, or in time of national emergency declared by the 

Congress or the President.151 The President, absent declaration of a national emergency, may order 

up to 200,000 members of the Selected Reserve to active duty. The President is required to report in 

writing to Congress within twenty-four hours the circumstances requiring the use of the Reserves 

and describing their anticipated use.152

Authority over federalized members of the National Guard lies with the President, not the 

Governor; the Federal Uniform Code of Military Justice jurisdiction applies.153 The Secretary of 

Defense has been delegated that authority.154 Authority for law enforcement support to civilian 

officials has been delegated to the Secretary of the Army.

155 The Under Secretary of the Army may 

exercise the law enforcement support authority, and the Assistant Secretary of the Army

(Installations, Logistics, and Environment) is the principal assistant, overseeing military support 

activities to civilian law enforcement and for disaster relief.

156 

3.3. Application of the PCA to the National Guard

National Guard coverage under the PCA depends on its status. The ARNG -- the militia -- is 

a part of the Army only when in active federal service. The ARNG, unless called into federal 

service, are not “federal troops;” by definition, they are not within the PCA’s coverage. Because 

command and control remains with the states, the perceived abuses of federal power that the PCA is 

designed to protect against could not occur.157 A significant implication here is that the ARNG may 

engage in law enforcement activities; when called into federal service, however, the Posse Comitatus

Act prohibits such activities. 

 

the United States be maintained and assured at all times.”) Indeed, Congress passed a resolution, Pub. L. No. 99-

290, 100 Stat. 413 (1986), designed to “reaffirm Congressional recognition of the vital role played by members of 

the National Guard . . . in the nation's armed forces.” H.R. REP. NO. 504, 99th Cong., 2d Sess. (1985), reprinted in 

1986 U.S.C.C.A.N. 1294. 

150 10 U.S.C. §§ 3062(c), 10104 (2001). 151 Id. § 12301(a), (b), (d). 152 Id. § 12304 (a)-(h). 153 Id. § 802 (a)(3). 154 32 U.S.C. §§ 110, 940, 12103 (d) (2001). 155 Dep’t of Defense, Directive 3025.1, Military Support to Civil Authorities (MSCA), para. 3a (Jan. 15, 1993). 156 10 U.S.C. § 136 (2001). 157 United States v. Benish, 5 F.3d 20 (3d Cir. 1993); United States v. Kyllo, 809 F. Supp. 787, 793 (D. Ore. 1992) 

(holding that PCA does not apply to National Guard). 

47 
3.4. State Authority and Responsibility 

The Governor is in charge of the National Guard (NG) in each state except when called into 

active federal service where, of course, the President is the “Commander in Chief.” When the NG is 

in a non-federal status, the Governor, as each State's Chief Executive Officer as well as the state 

Commander of the Army and Air National Guard, may order the National Guard to take specific 

action in response to contingency operations. While serving in state status, the NG provides military

support to civilian authorities, including law enforcement, in accordance with state law. Federal 

equipment assigned to the NG may be used for emergency support on an incremental cost 

reimbursement basis. 

3.4.1. The State Adjutant General and Supporting Officials 

The Governor administers the Guard through the State Adjutant General (AG) or 

Commanding General (CG) who administers the state’s National Guard program. Although the 

Governor is in command, the AG is actually in charge of State National Guard forces called to State 

Active Duty. Each office may administer the requirements of both Army and Air National Guard 

elements located in the State. 

The AG, working through the State Area Command (STARC) and the Plans, Operations, 

and Military Support Officer (POMSO), coordinates the response plans for state emergencies. The 

STARC is a mobilization entity in each state and territory, responsible for emergency planning and 

response using all National Guard resources. It organizes, trains, plans, and coordinates the 

mobilization of National Guard units and elements for state and federal missions. It directs the 

deployment and use of Army Reserve National Guard (ARNG) units and elements for domestic 

support operations, including military support to civilian authorities. Within each state, the Plans, 

Operations, and Military Support Officer (POMSO) plans for disaster response and recovery 

operations within the full spectrum of military support missions. S/he coordinates training, plans 

and exercises between the state NG and federal, state, and local emergency management agencies. 

3.4.2. Liaison Officers 

United States Property and Fiscal Officers (USPFOs) work for the Chief National Guard 

Bureau and are detailed for duty in each state. They are accountable for all federal resources 

provided to each state’s National Guard. The USPFO staff provide supply, transportation, 

contracting and financial support. The USPFOs can be a support installation for active components 

or reserve forces on a reimbursable basis. The Executive Staff Support Officer (ESSO) is the Air 

National Guard point of contact with the DoD during a federally declared disaster. The ESSO acts 

as the chief executive officer for the AAG Air. 

Representatives from the Services are Emergency Preparedness Liaison Officers (EPLOs) to 

each State NG. As service planning agents' representatives to TAGs and STARCs, they plan and 

coordinate the execution of national security emergency preparedness (NSEP) plans, performing 

duty with the STARC's. EPLOs are Army, Navy, and Air Force Reservists who have been trained in 

disaster preparedness and military support matters. They report to an active duty program manager 

or planning agent who provides (or seeks further approval of) military support to the state. EPLOs 

must know their respective service facilities and monitor relevant DoD resources. Upon 

appointment of the DCO, EPLOs may be ordered to active duty to serve as liaison representatives to 

the STARCs and their respective services. 

48 
3.5. Federal Administration and Coordination 

3.5.1. National Guard Bureau (NGB) 

The NGB is the federal coordination, administrative, policy, and logistical center for the 

Army and Air National Guard. It serves as the legal channel of communications among the United 

States Army and Air Force, and the National Guard. The laws pertaining to the federal role of the 

National Guard are contained in Title 10 of the code, while laws relating to state/territorial roles are 

contained in Title 32. The NGB is responsible for contracting for and managing supplies, providing 

meals and medical services, removing waste and debris, providing power generation and 

communications, and repairing vehicles and equipment. The Adjutant General must periodically 

report to the National Guard Bureau on the guard's reserve status. 

3.5.2. WMD Civil Support Teams (WMD CST's), Formerly RAID Teams

The mission of the WMD CST’s is to deploy to an area of operations to assess a suspected 

nuclear, biological, chemical or radiological event in support of the local incident commander; 

advise civilian responders as to appropriate action; and facilitate requests for assistance to expedite 

arrival of additional state and federal assets to help save lives, prevent human suffering, and mitigate 

great property damage. 

4. LEGISLATED PRESIDENTIAL AUTHORITIES

As discussed earlier in this Chapter, Congress can, and has, specifically authorized the 

President to deal with interference with communications channels, energy sources, food and health 

supplies, public health necessities, or transportation capabilities, and has authorized surveillance of

potential lawbreakers or initiation of emergency preparedness measures. In addition, the President 

has issued Executive Orders that specify authorities for emergencies. Notably, Executive Order No. 

12656 catalogs the President’s emergency powers, including the use of military personnel and 

civilian law enforcement, regulation of aliens, imposition of wage and price controls, control of

civilian transportation, acquisition and lease of property, and control of civilian nuclear plants. This 

authority may be triggered by “any occurrence . . . or other emergency, that seriously degrades or 

seriously threatens the national security of the United States.”158

This section discusses some important authorizations. Two issues pertain to many of these 

enactments and orders: (1) Do the specified authorities apply to a terrorist event or are they more 

limited in application, e.g., only to war (and, if so, does that mean only following a formal 

Declaration of War)? and (2) Is congressional approval or some positive action required before the 

authority may be exercised?

4.1. Communications

The importance of maintaining reliable channels of communications escalates during a 

national crisis. In recognition of this sentiment, the following statutes have been created. 

47 U.S.C. §308 -- During time of war or national emergency declared by the President or 

Congress (or at the FCC’s discretion, if necessary), the FCC may waive the requirement that all 

radio station licenses, renewals, modifications, and construction permits be obtained only upon 

written application. No Congressional notification is required. In addition, the FCC may issue a 

 158 Exec. Order No. 12,656, 53 Fed. Reg. 47,491 (Nov. 18, 1988). 

49 
permit, in lieu of a license, for the operation of a communication station on a vessel of the United 

States at sea. This permit shall remain effective until the vessel returns to a port of the continental 

United States. 

47 U.S.C. §606(a) -- During the continuance of war in which the United States is engaged, 

the President is authorized to direct and control the priority use of any communications carrier that 

the President decides is necessary for national defense and security of the U.S. The President, the 

FCC, or any Presidential designee may give directions and may modify, suspend or annul these 

directions for any authorized purpose. Carriers that comply with such directions shall be exempt 

from all liabilities or penalties contained in existing law. No congressional notification is required. 

47 U.S.C. §606(b) -- It is unlawful for any person to knowingly obstruct, by physical force or 

by intimidation through threats of physical force, interstate or foreign communication during any 

war in which the United States is engaged. The President is authorized to employ the armed forces 

to prevent obstructions when the public interest so requires. 

47 U.S.C. §606(c) -- Upon a Presidential proclamation that there exists a war or threat of 

war, a state of public peril, a disaster or other national emergency, or in order to maintain the 

neutrality of the United States, the President may suspend or amend rules for stations capable of

transmitting electromagnetic radiation within the United States. The President may also close or 

control any station or equipment used for radio communication that is capable of emitting 

electromagnetic radiation between 10 kilocycles and 100,000 megacycles. Also, the President may 

authorize any federal department to use or control any station or device with just compensation to 

the owners. 

47 U.S.C. §606(d) -- The President may suspend or amend rules applicable to all facilities 

used for wire communications, upon Presidential proclamation that there exists a state or threat of 

war. Additionally, the President may order closure of any such facility and removal of its equipment 

as well as authorize controlling such a facility through any designated federal department, provided

there is just compensation to the owners. No congressional notification is required. 

4.2. Energy 

42 U.S.C. §2138 -- In a declared state of war or national emergency or when the NRC finds it 

necessary for defense and security, the NRC is authorized to suspend licenses and to order the 

recapture of special nuclear material; it may order entry into any plant to facilitate the recapture such 

material. The Commission may also order the operation of any licensed nuclear facility. 

4.3. Resource Use 

The Defense Priorities and Allocations System (DPAS) creates legal requirements for all 

persons who receive priority-rated contracts or orders under the terms of the Defense Production Act 

of 1950 or for FEMA-approved emergency preparedness activities under Section 602 of the Stafford

Act.159 FEMA and other designated federal agencies have authority to place priority ratings on 

“contracts or orders necessary or appropriate to promote the national defense”160 or for a “disaster 

situation that is serious enough to require Federal intervention and assistance, and timely delivery of 

urgently required ...products, materials and/or services [that] cannot otherwise be obtained.”161

 159 50 U.S.C. app. § 2061 et seq.; 15 C.F.R. § 700 (2002) 160 15 C.F.R. § 700.2(c) (2002). 161 Office of Strategic Industries and Economic Security, U.S. Dept. of Commerce, DPAS, Defense Priorities and 

50 
A DPAS priority rating requires that the supplier give the contract or order preferential 

treatment over other pending orders. In addition, rated orders must be subject to the same terms and 

conditions as unrated orders, to prevent price discrimination.162 Suppliers need not be existing 

government contractors to be subject to DPAS terms and conditions. In a national emergency, 

special supplemental rules may be adopted to allocate scarce materials and facilities.163 The

Secretary of Commerce also has authority to control general distribution of scarce goods in the 

civilian market that are required for the emergency.164 If communications are severed during a 

national emergency, Regional Emergency Coordinators have the authority to represent the Secretary

of Commerce in carrying out DPAS functions.165

Various additional statutes authorize action to ensure that necessary resources are available 

to provide for the public interest. 

10 U.S.C. §2538 (formerly 10 U.S.C. §4501, §9501) -- In a time of war or when war is 

imminent, the President, through the head of any department, may order necessary products or 

materials from any person or organized manufacturing industry, so long as the products or materials 

are usually produced or capable of being produced by that person or industry. Any person or 

industry so ordered must make the order its primary priority. Similarly, in a time of war or when 

war is imminent, the President, through the head of any department, may take immediate possession 

of any plant equipped, or capable of being readily equipped, for the manufacture of arms, 

ammunition, or parts if the owner refuses to comply with a Presidential order. An owner fails to 

comply if it refuses to give precedence to the Presidential order, to manufacture the kind, quantity, or

quality of supplies needed, or fails to furnish the supplies at a reasonable price as determined by the 

head of such department. Failure to comply can result in imprisonment of up to three years. 

50 U.S.C. §82 -- In times of war, the President is authorized to place an order for ships or 

war material which are usually produced by that person. Compliance with such orders is obligatory, 

and such orders must take precedence over all other existing contracts or requests placed with such a 

person. The President may take immediate possession of an entire or part of a facility, or of any 

person who refuses to give the United States order precedence, or fails to manufacture the kind of 

ships so ordered at a reasonable price. In addition, the President may require the output of such a 

factory to be placed at the disposal of the United States and to be delivered at a specified destination

for a reasonable price. An existing contract between the United States and such a facility is not 

required. 

Executive Order No. 12742 -- With respect to Title 10, Sections 4501 and 9501, now 

encompassed in Title 10, Section 2538 above, as well as Title 50, Section 82, former President 

George Bush Sr. enacted Executive Order No. 12742, delegating the President’s authority under 

those statutes to: 

• the Secretary of Agriculture for all food resources; 

• the Secretary of Energy for all forms of energy; 

• the Secretary of Transportation for all forms of civil transportation; and 

 

Allocation System, at B-20 (Aug. 1998). 162 15 C.F.R. § 700.3 (2002). 163 Id. § 700.4. 164 Id. § 700.30(a)(3). 165 Id. § 700.30(b). 

51 
• the Secretary of Commerce for other products, and materials, including construction 

materials.

50 U.S.C. §98f(a)(2) -- In a time of declared war or during a national emergency, 

Presidentially designated officers may authorize the release of stockpile material for the purposes of 

the national defense. It is important to note that Title 50 Section 98h-3, defines the term “national 

emergency” as a general declaration of emergency announced by the President or by Congress 

concerning the national defense. 

50 U.S.C. §1701 - §1706 -- To deal with an unusual or extraordinary threat to the national 

security, foreign policy, or national economy that substantially originates outside the United States, 

the President may declare a national emergency and, thereupon, may investigate, regulate, or 

prohibit: 

• transactions in foreign exchange; 

• transfers of credit involving any banking institution and any foreign country; 

• the import/export of currency or securities; and 

• any transaction involving any property subject to the jurisdiction of the United States in 

which a foreign country or national thereof has an interest. 

In exercising this authority, the President may require a person to maintain a full record and report of 

any such transaction. Whenever possible, the President should consult with Congress prior to 

exercising such authority. Exercise of such authority should immediately be followed by a report to 

Congress specifying the circumstances that necessitate the exercise of such power, and the actions to

be taken. 

50 U.S.C. App. §2093(a) -- The President may execute a contract for the purchase of an 

industrial resource or critical technology item for government use. The President may also make 

provisions for to encourage exploration, development, and mining of critical and strategic materials. 

However, as a prerequisite to either authority, the President must determine that the resource or 

technology is essential to the national defense, the need for the item exceeds domestic industry’s 

output capability without Presidential action, and that such contracts are the most cost-effective and

practical alternative. 

4.4. Prevention of Hoarding 

If, following an incident such as a terrorist attack, persons accumulate unreasonable amounts

of necessary commodities either for their own use or for resale at excessive prices, the federal 

government may act to prevent such hoarding. 

42 U.S.C. §5196(i) -- The FEMA Director may procure or maintain, by condemnation or 

otherwise, materials and facilities for emergency preparedness; possession thereof may be taken 

immediately and used before the Attorney General approves title. The Director can lease any real 

property acquired for emergency preparedness but shall not acquire fee title to the property unless 

specifically authorized. The Director can also procure and maintain radiological, chemical, 

bacteriological, and biological agent monitoring devices, which may be granted or loaned to a state 

for emergency preparedness. 

52 
50 U.S.C. App. §2072 - 2073 -- To prevent hoarding of scarce materials, the President may 

designate certain materials as scarce. Any person accumulating such scarce materials in excess of 

reasonable needs of business, personal, or home consumption, or to resell at prices exceeding the 

prevailing market prices may be fined up to $10,000 and/or imprisoned for up to one year. 

4.5. Electronic Surveillance 

50 U.S.C. §1811 -- Following a declaration of war, the President, through the Attorney 

General, may authorize the use of electronic surveillance to obtain foreign intelligence without a 

court order. Such surveillance may not exceed a period of 15 days. 

4.6. Public Health

42 U.S.C. §217 -- Upon declaration of war or national emergency, the President may utilize 

the Public Heath Service as needed to promote the public interest. This authority includes the 

issuing of an executive order declaring the commissioned corps of the Service to be a military 

service. 

42 U.S.C. §266 -- In order to protect the armed forces and war workers of the United States 

during a time of war, the Surgeon General, upon recommendation of the NAHC, may provide 

regulations to apprehend, examine, and detain any person reasonably believed to be infected with a 

communicable disease. If such a person is found to be infected, and may constitute a source of 

infection to members of the armed forces or suppliers thereof, that individual may be detained for as 

long as reasonably necessary. 

42 U.S.C. §264 -- The Surgeon General, upon the approval of the HHS Secretary, may make 

and enforce necessary regulations to prevent the introduction, transmission, or spread of 

communicable diseases. This authority includes ordering inspections, fumigation, pest 

extermination, and destruction of infected animals or articles. However, this authority extends only 

to persons traveling interstate or from a foreign country. Neither this statute nor the regulatory 

program establishes a national quarantine system for citizens within a state. 

42 U.S.C. §243 -- The HHS Secretary may accept assistance from state or local authorities 

regarding the enforcement of quarantine regulations. The Secretary shall also cooperate with and 

assist the states to suppress communicable diseases. The Secretary shall encourage the states to 

cooperate in developing plans for future health needs, including training personnel for state and local 

health work. In doing so, the Secretary is authorized to develop a plan under which personnel, 

equipment, medical supplies, and other resources of the Service and other agencies under the 

jurisdiction of the Secretary may be used to control epidemics of any disease and to meet other 

health emergencies or problems. 

4.7. Transportation 

10 U.S.C. §2644 -- In a time of war, the President, through the Secretary of Defense, may 

take possession and assume control of transportation systems to transport troops, war materials, and 

equipment, or for other emergency purposes. The President can exclude other traffic from the 

transportation system. 

4.8. Emergency Preparation

The Stafford Act is the general authorization for emergency planning. There are several 

Executive Orders relevant to this authority, including the following: 

53 
54 

E.O. 12656 -- As noted, this Order addresses “any occurrence . . . or other emergency, that 

seriously degrades or seriously threatens the national security of the United States.” It assigns 

responsibilities for national security emergency preparedness to the various federal departments and 

agencies. Under the direction of the President, the National Security Council develops and 

administers the policy. Preparedness functions and activities include, “as appropriate, policies, 

plans, procedures, and readiness measures that enhance the ability of the United States Government 

to mobilize for, respond to, and recover from a national security emergency.”166

E.O. 13010 -- Certain infrastructures are so vital that their destruction would have a 

debilitating impact on national defense: telecommunications, electrical power systems, gas and oil 

storage and transportation, banking and finance, transportation, water supply systems, emergency 

services, and government continuity. To protect such systems, the Order established the President’s 

Commission on Critical Infrastructure Protection. 

E.O. 13130 -- Under this Order, President Bill Clinton established the National Infrastructure 

Assurance Council (NIAC). The members of the NIAC shall be no more than 30 in number, and are 

selected from state and local government and the private sector. The goals of NIAC include the 

development of a partnership between the public and private sectors in protecting crucial 

infrastructures, encouraging private industry to conduct periodic risk assessments of critical 

processes, monitoring the development of Private Sector Information Sharing and Analysis Center, 

and advising lead agencies with critical infrastructure responsibilities. 

 

166 Exec. Order No. 12,656, 53 Fed. Reg. 47,491 (Nov. 18, 1988). 
CHAPTER III -- STATE AND LOCAL EMERGENCY RESTRICTIONS

INTRODUCTION

The Tenth Amendment vests responsibility for coping with emergencies, including terrorist

events, in the states which have primary jurisdiction to undertake consequence management. 

Preservation of public health is the most important duty incumbent upon the State.1

 This police 

power is not explicitly limited but is co-extensive with the threat to the public interest. “Thus on the 

state level, the power to provide for and protect the public health is a basic, inherent power of the 

government.”2

 “Inspection laws, quarantine laws, and health laws of every description are 

component parts of this mass.”3

 Justice Holmes noted that: 

[P]ublic danger warrants the substitution of executive for judicial process; and the ordinary 

rights of individuals must yield to what the executive honestly deems the necessities of a 

critical moment. When it comes to a decision by the head of the state upon a matter 

involving its life, the ordinary rights of individuals must yield to what he deems the 

necessities of the moment.4

In the event of a terrorist attack and the ensuing mass chaos, state or local officials might 

need to restrict fundamental liberties, especially freedom of movement, for at least three reasons. 

First and perhaps of narrowest impact, movement of rescuers, equipment, and supplies could 

demand precedence over personal travel; officials might seek to disencumber highways or airports or

to prevent crowding at a site. Second and perhaps of widest impact, in the event of a biological 

attack, officials might have to prevent personal movement to reduce the potential for spreading 

contagion. Third, a catastrophic terrorist attack could incite riots or vigilante attacks against ethnic 

groups perceived to be associated with the attackers; restrictions on liberty might be necessary to 

restore law and order. 

Emergency restrictions bring into sharp contrast each American’s right to freedom of 

movement with the authority of state and local officials to protect the public. The “constitutional 

right to travel from one state to another” is firmly embedded in our jurisprudence.5

 Yet even traffic 

 1

 Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). 

2

FRANK GRAD, PUBLIC HEALTH LAW MANUAL 10 (2nd ed., American Public Health Association 1990). “[T]here 

are circumstances in which a public emergency, for instance, a fire, the spread of infectious or contagious diseases or 

other potential public calamity, presents an exigent circumstance before which all private rights must immediately 

give way under the government’s police power.” Davis v. City of South Bay, 433 So. 2d 1364, 1366 (Fla. Dist. Ct. 

App. 1983). 

3

 Gibbons v. Ogden, 22 U.S. 1, 87 (1824); see also, Medtronic, Inc. v. Lohr, 518 U.S. 470, 475-7 (1996). 

4

 Moyer v. Peabody, 212 U.S. 78, 85 (1909). “By virtue of his duty to 'cause the laws to be faithfully executed,' the 

executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that 

purpose has arisen. His decision to that effect is conclusive.” Sterling v. Constantin, 287 U.S. 378, 399 (1936). 

5 Saenz v. Rue, 526 U.S. 489, 498 (1999); see also United States v. Guest, 383 U.S. 745, 758 (1966) (the right to 

interstate travel originated in the Articles of Confederation and is a “necessary concomitant of the stronger Union the 

Constitution created); Shapiro v. Thompson, 394 U.S. 618, 630 (1969). The Supreme Court has suggested that some

more generalized right to movement may exist. See, e.g., Kent v. Dulles, 357 U.S. 116, 126 (1958) (“Freedom of 

movement is basic in our scheme of values.”); Justice Douglas noted that “wandering or strolling” from place to 

55 
restrictions (although they have been easily sustained) implicate a substantive right of free 

movement.6

 The right to travel must be balanced against the state’s police power to protect the 

compelling needs of the public health, safety, morals, and general welfare.7

 To protect society, the 

police power may justify severe restraint of personal liberty such as preventing passage into or out of

an infected district in order to limit contagion.8

 More accurately, a citizen may not be deprived of 

the right to travel without due process of law; thus, this right may be restricted with due process of 

law. 

The constitutional protection of freedom of travel “does not mean that areas ravaged by 

flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to 

the area would directly and materially interfere with the safety and welfare of the area.”9

 Yet, even 

in emergencies, restrictions on personal movement must be imposed in good faith and with actual 

basis that the restrictions are necessary.10 Neither personal liberty nor official authority is absolute.

The legality of a restriction depends on case-specific factors: who imposes it; how serious is the 

need for the restriction; how unbiased is it; and do restricted persons have means to sustain their 

health and well-being. Restrictions that violate legal standards may be struck down or even give rise 

to liability claims. 

Thus, the issue here is not whether Americans have a right to travel (we do), nor is it whether 

the Governor has authority to restrict travel when necessary to protect the public (s/he does); the 

issue here is what travel restrictions cross the boundary of reasonableness and necessity such that a 

court will deny their enforcement. Part I of this chapter discusses statutory authorization for state or

local emergency response efforts, including restrictions on movement. Part II of this chapter 

discusses judicial review of restrictive measures. [Relevant liability issues are discussed in Chapter 

IV.] 

 

place was historically part of the “amenities of life.” Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972). 

6

 A The right to travel upon the public streets of a city is a part of every individual’s liberty, protected by the Due 

Process Clause of the 14th Amendment to the United States Constitution. “[T]he familiar traffic light is, however, an 

every present reminder that this segment of liberty is not absolute. It may be regulated, as to the time and manner of 

its exercise, when reasonably deemed necessary to the public safety, by laws reasonably adapted to the attainment of 

that objective.” State v. Dobbins, 277 N.C. 484, 497 (N.C. Sup. Ct. 1971). 

7 See Lutz v. City of New York, 899 F.2d 255, 268 (3d Cir. 1990) (ordinance outlawing “cruising,” i.e. driving 

repeatedly around loop of public roads, implicated substantive due process right to “move freely about one's

neighborhood or town,” but was upheld under intermediate scrutiny test derived from First Amendment time, place, 

and manner doctrine); see also Townes v. City of St. Louis, 949 F. Supp. 731 (E.D. Mo. 1996) (heightened scrutiny 

applied when resident claimed that city's placement of large flower pots across the entrance to her block infringed 

her fundamental right to localized travel but holding the ordinance would survive intermediate scrutiny), aff'd, 112 

F.3d 514 (8th Cir. 1997). 

8

 Compagnie Francaise etc. v. Louisiana State Board of Health, 186 U. S. 380, 385 (1902). 

9

 Zemel v. Rusk, 381 U.S. 1, 15 (1965). 

10 Smith v. Avino, 91 F.3d. 105, 109 (11th Cir. 1996). 

56 
1. STATE EMERGENCY AUTHORITIES 

A catastrophic terrorist attack will create an immediate emergency in every locality where it 

strikes. Before any disaster draws a national response, states and localities will have to use 

established emergency preparedness frameworks to address the occurrences. During the attack 

itself, responsible officials must be certain of who is legally authorized to perform which functions. 

This section looks at existing emergency planning requirements, authorities, funding and training, 

and at quarantines and travel restrictions, as the basis for local responses to terrorist acts. 

1.1. Federal Support for State Emergency Planning 

A primary purpose of the Stafford Disaster Relief and Emergency Assistance Act (Act) 

(discussed in Chapter I), is to promote federal and state programs for responding to emergencies and 

disasters. The Act establishes and maintains coordinated federal, state and regional actions to 

prepare for, respond to and resolve anticipated hazards.11 The Act grants the FEMA Director 

authority to: 

• prepare response plans and programs along with other federal departments and agencies; 

• develop preparedness measures and develop and conduct training programs; 

• encourage states to enter into interstate preparedness agreements and review them for 

uniformity with federal plans; 

• obtain necessary materials and facilities and give matching contributions to states for 

obtaining materials and facilities and for constructing emergency preparedness centers; and 

• obtain, for loan or grant to states, “radiological, chemical, bacteriological, and biological 

agent monitoring and decontamination devices.”12

The federal government provides a one-time grant not to exceed an aggregate $250,000 for 

each State to assist in developing comprehensive emergency plans and programs. To receive this 

grant, the State must submit a comprehensive disaster preparedness program to the FEMA Director, 

setting forth provisions for both emergency preparedness and permanent assistance. The plan must: 

• be mandatory and apply to all political subdivisions of the State; 

• be administered by a single state agency, under a full-time director or deputy director; 

• require development of state and local preparedness plans that meet FEMA standards; 

• provide for reporting, as required, to FEMA; 

• allow for audits; and 

• be submitted to FEMA within sixty days after receiving notice of the State’s allocation.13

 11 42 U.S.C. §§ 5195, 5195a (2000); Exec. Order No. 12,656, 53 Fed. Reg. 47,491 (Nov. 23, 1988) “Assignment of 

Emergency Preparedness Activities” extends the FEMA Director’s responsibilities to preparing for responses to 

national emergencies. A “national security emergency” is “any occurrence, including natural disaster, military 

attack, technological emergency, or other emergency, that seriously degrades or seriously threatens the national 

security of the United States.” Id. at Part I, § 101(a). 

12 42 U.S.C. § 5196 (2000). 

13 Id. § 5196b(a)-(f). 

57 
It must also provide for the appointment and training of appropriate staff and for the 

formulation of necessary regulations and procedures. Matching grants of 50% to the states (not in 

excess of $50,000) are available for revision and updating of disaster assistance plans.14

In addition to the Stafford Act, the Emergency Planning and Community Right-to-Know Act 

of 1986 (EPCRA) requires state and local planners to identify potential risks and notify the public of

any releases of hazardous substances.15 EPCRA requires that each state establish an emergency 

response commission which in turn must appoint and supervise local emergency planning 

committees for addressing releases of hazardous substances.16 The State Emergency Response 

Commission must also establish procedures to receive and process public requests for information.

17

Within nine months of the law’s enactment, each commission must designate emergency planning 

districts to facilitate preparation and implementation of emergency plans. The State Commission 

appoints members of a local emergency planning committee for each district that must prepare an 

emergency response plan. Local planning committees must submit their plans to their State 

Emergency Response Commission which “shall review the plan and make recommendations to the 

committee on revisions of the plan that may be necessary to ensure coordination” with those of other 

planning districts.18 

The response plans must designate responsible officials as well as identify relevant facilities, 

methods the facilities must follow, and “[p]rocedures providing reliable, effective, and timely 

notification by the facility emergency coordinators and the community emergency coordinator to 

persons designated in the emergency plan, and to the public, that a release has occurred...”19 In

addition, plans must describe available emergency resources including equipment nearby and at 

facilities, measures to minimize risks to human health and the environment, evacuation plans, and 

training programs. There is no provision, however, allowing the federal government, state 

government or private citizen to challenge a nonexistent or incomplete state or local plan. Nor may 

citizens prevent locally elected government officials from implementing an emergency response 

plan.20

1.2. The Governor’s Authority 

[The following sections are generalized, describing essential authorities common in all states. 

Particular examples are noted parenthetically.]

The Governor is the state’s overall director of emergency management. The Governor’s 

general powers include authority to appoint an Adjutant General and mobilize the national guard, 

transfer and direct state personnel for emergency management purposes, direct the evacuation of all 

or part of the population, commandeer or use private property, suspend state statutes as necessary (in 

Tennessee, for example, the Governor may authorize the emergency management agency to amend 

 14 Id. §5131. 

15 Codified at 42 U.S.C. §§11001-11050 (1995). 

16 Id. § 11001. 

17 Id. § 11044 

18 Id. § 11003. 

19 Id.§ 11003. 

20 Vernet v. Town of Exeter, 523 A.2d 48, 50 (1986). 

58 
or rescind laws as necessary during an emergency), authorize emergency funds, and enter into 

mutual aid agreements with other states. For states with an emergency management advisory 

commission, the Governor appoints its members and serves as chair. 

Typically, the legislature creates a State Emergency Management Agency or Commission 

which is delegated the Governor’s authority to allocate resources in an emergency. It may be 

located in the Governor’s office, the Department of Military Affairs, the Department of Public 

Safety, the Department of Community Affairs, or under the State Police. Almost always, the 

Governor appoints that agency’s Director (in Oregon, the State Police superintendent appoints the 

Director; in Arizona and Maryland, the Adjutant General does so). 

The emergency agency has lead responsibility to appoint county and local directors of 

emergency planning organizations, establish local planning districts, and prepare a comprehensive 

emergency management plan for submission to the Governor. (In a few states, the Governor retains 

direct responsibility for these tasks: in Pennsylvania, Maryland to appoint local directors; in Alaska, 

Texas to establish local districts; in Alabama to prepare the plan.) It generally oversees 

implementation of state emergency management functions as required by federal law. In some

states, the agency certifies state and local relief agencies, and registers and classifies relief workers 

for compensation, liability, and management purposes (California). A primary responsibility is to 

ensure a rapid and effective disaster communication systems to be used by disaster relief employees 

operating in different jurisdictions. The agency is also in charge of collecting and disseminating 

information regarding hazardous materials from facility owners and operators. 

The State Adjutant General is responsible for organizing and training the National Guard 

which, at the Governor’s discretion, provides staff and equipment for emergencies. The Adjutant 

General is also responsible for emergency management activities not expressly reserved to the 

Governor. S/he sits on the emergency management advisory commission in order to advise the 

Governor on military affairs (in Missouri, s/he heads the agency). 

The Attorney General handles all state claims arising out of the implementation of 

emergency plans, including claims for reimbursement of state funds or for compensation by the State 

for use of private property. In some states, the Attorney General may restrict and control the flow of 

vehicular traffic (New Jersey), although this power is usually reserved for the Governor. 

Local planning committees appointed by local officials prepare and maintain local plans, 

coordinate emergency management organizations, and arrange training exercises. They also execute 

mutual aid agreements with other planning districts and other states. Local districts that cannot 

establish their own planning committees (due to lack of resources and population) may combine to 

do so, or the locality may appoint a liaison officer to the State Emergency Management Agency. In 

some states, if the local committee cannot manage the disaster, the State Emergency Management 

Agency assumes direction of local disaster operations (New York). 

In most states, firefighting response is handled by local fire officials. Search and rescue 

operations are the responsibility of sheriffs’ departments although the State Emergency Management 

Agency usually appoints a coordinator for such operations. In some states, a local planning 

committee having jurisdiction within the zone of a commercial nuclear reactor is required to submit 

a radiological emergency response plan to the state director, providing for evacuation in the event of

a dangerous release of radiation (Maryland). 

Most states have adopted by legislation or executive order the Incident Command Structure 

59 
(ICS) that is designed to ensure effective procedures for the various agencies that must jointly plan 

and execute disaster response; it also facilitates integration of federal assistance into state and local 

response efforts. It consists of a modular organization, integrated communications, a unified 

command structure, consolidated action plans, pre-designed incident facilities, a manageable span of

control, and comprehensive resource management. 

1.2.1. Declarations and Orders

Most states authorize the Governor to issue executive orders in an emergency even without 

complying with procedural safeguards or defined process that other laws require. These orders, 

legally binding on all state political subdivisions, public agencies, officials and employees, typically 

have three parts. The first part establishes the purpose of the order, details the actions that the 

Governor plans to take, and cites the Governor’s legal authority. The second part is a broad 

statement invoking the Governor’s powers. The final section contains the substance of the order. In 

most states, however, a long-term solution to a problem cannot be addressed by executive orders 

unless the legislature declares a continuing emergency. 

The Governor may declare a state of emergency by issuing an executive order. This 

declaration initiates the Governor’s emergency powers for a statutory period (i.e. 30 days in Illinois) 

that can be lengthened at the Governor’s request and legislative approval. If the Governor is 

inaccessible, authority to declare a state of emergency follows the statutory/constitutional line of 

succession. In some states, the emergency management agency has this authority if the Governor is 

inaccessible or absent (California, Arizona). Local jurisdictions may declare a local state of 

emergency. In general, the Governor by rescinding the initial order, or the legislature by joint 

resolution, has the power to terminate a state emergency. The Governor is responsible for notifying 

the public of rules and regulations issued during a state of emergency; local emergency management 

districts disseminate these orders to judicial and law enforcement authorities. Generally, the 

Governor’s Chief of Staff is the principal contact in the Governor’s office for emergency 

management. 

1.2.2. Mitigation Measures

To support emergency management activities, states set requirements on individuals, 

companies and on state agencies to assure advance preparation that will mitigate the effects of a 

disaster. States require that facility owners/operators register hazardous materials; the state 

emergency management agency collects and maintains that information. Local fire fighting 

organizations are in charge of inspecting facilities reporting hazardous materials. Some states have 

hazmat response teams to be activated in a hazardous material emergency. When authorized to 

respond to a hazardous release, these teams may enter onto any private or public property where the 

release has occurred or where there is an imminent threat of such release; they may also enter an 

adjacent or surrounding property to monitor, control, or contain the release or perform any other 

mitigation activity. 

Some states have set up committees that address specific types of disasters and propose 

mitigation measures. To cope with a disaster that may cause disease, some states authorize the State

Board of Health to establish preventative programs. Most states require local planning districts to 

establish a voluntary register of persons needing assistance during an emergency (such as the 

handicapped, the infirm, and others with disability) and to file those registries with the State 

Emergency Management Agency. These registries are used to provide special services during an 

60 
evacuation. If the Governor orders evacuation of persons from an area, state and county departments 

of health, local police, militia, and/or National Guard would carry out those orders. 

In most states, publicly funded schools would operate as mass care facilities. School buses 

and other forms of publicly funded transportation would be made available for an evacuation. In 

some states, the Governor may prescribe routes, modes of transportation, and destinations for an 

evacuation. Typically, the Department of Public Utilities is responsible for mapping underground 

infrastructures (gas lines, electrical lines, etc.) to plan for safe evacuation of areas and detonation of 

explosives. The emergency management agency must study structures to identify those that may be 

susceptible in a disaster and to recommend structural changes. Also, some Emergency Management 

Agencies establish standards for construction of fall-out shelters. 

1.2.3. Training Programs

The Governor administers emergency management training programs. The emergency 

management agency is responsible for organizing statewide and multi-jurisdictional training 

exercises and programs. Most states require local districts to establish training programs and 

conduct exercises. Some states have created specialized training institutes and curriculum for 

disaster relief, and some states have designated special funds for such purposes. 

1.2.4. Funding 

The Emergency Management Agency is generally in charge of obtaining federal funding for 

planning programs and maintaining compliance with federal requirements. Statutorily designated 

persons manage and allocate those funds. A Board (usually a Disaster Emergency Funding Board) 

advises the Governor on allocation matters, but the Governor has decisional authority. Most states 

have a separate fund controlled by the Governor for use during an emergency. Usually, the 

Governor delegates his authority to allocate funds to an office of emergency management within his 

offices. Such funds are typically dispersed via grants to local districts to establish local planning 

committees or to assist in disaster relief and recovery efforts. 

In general, disaster relief personnel are considered state employees and have immunity for 

activities undertaken in good faith. States can obtain insurance (not in excess of workers 

compensation) to cover injuries/deaths of emergency employees. 

1.2.5. Quarantines and Travel Restrictions 

The Governor has broad authority to restrict the movement of persons and may use this 

authority to issue orders of quarantine. Yet, most quarantines are issued at the local level or by the 

Department of Health which has authority to declare epidemics. The State Department of Health 

issues rules and regulations for quarantines and may obtain warrants to arrest persons violating an 

epidemic-based quarantine. Local counterparts to those departments enforce those rules or may 

issue their own if not more stringent than state rules. Most states direct counties and/or local boards 

of health to set up quarantine facilities within their jurisdiction. 

Local physicians must notify the Department of Health of certain diseases. That information 

is used for general statistical purposes and to determine whether clusters or epidemics may be 

emerging. In most states, the initial step in issuing quarantines requires that an infected person stay 

home. Only if there is evidence that a person has a contagious disease may physical restraint be 

used. When necessary, quarantined persons may be relocated to hospitals. Quarantined persons 

may contest the necessity of quarantine or isolation, usually at a hearing within forty-eight hours of a 

61 
request, but those persons must remain in quarantine while awaiting that hearing. Persons that 

refuse medical treatment must comply with other quarantine measures. 

Most state departments and localities are authorized to remove or destroy any property 

believed likely to communicate disease. Compensation may be provided to parties injured by such 

actions. But, following an historic volcanic eruption, the State of Washington successfully argued 

that continued restriction of access to a town near the volcano was a proper exercise of police power 

and as such did not require compensation.21 

The State Department of Agriculture and local boards have authority to issue quarantine 

orders and to establish rules and regulations of plants and animals infected with communicable 

disease. This authority includes controlling the movement of animals into and out of state. When 

necessary, the State Wildlife Commission is in charge of measures to control the movement of 

wildlife in the event of a rapidly spreading infectious disease. In most states, the Department is 

authorized to destroy property that poses a threat of spreading the disease. Owners are not typically

compensated for the quarantine or destruction of infected plants or animals. When owners fail to 

obey the Department’s eradication orders, the Department may take necessary means to do so, with 

or without the owner’s consent, and owners must pay costs associated with such actions. 

2. JUDICIAL EVALUATION OF EMERGENCY RESTRICTIONS

That terrorism presents unforeseen challenges suggests that officials might not actually make 

the most appropriate responses in an emergency. This section discusses how courts examine 

whether a particular response is properly authorized under the circumstances. First are issues 

concerning the nature and extent of limitations placed upon personal liberties. Second is the matter 

of an official’s skill, experience and judgment and how s/he applies those attributes in responding to 

a specific situation. When events are moving quickly amid uncertainty and fear, officials may take 

steps so extreme that the courts later question the legitimacy of the action. This section looks at the 

standards courts apply in evaluating official decisions, and considers circumstances requiring martial 

law, quarantines, curfews, restrictions on movement or seizures of goods and services. 

In general, the courts defer to officials concerning the legality of emergency restrictions. 

There is a need to protect the public interest without fear that a judge might overrule decisions. If 

the emergency restrictions are legally wrong, there is typically a subsequent liability action that is a 

sufficient remedy. 

[Issues as to whether that restriction was properly executed arise in connection with liability actions 

brought by adversely affected citizens and are discussed in Chapter IV.] 

The rare situations where the courts strike down an emergency restriction for lack of 

authority typically are where those restrictions amount to punishment of the person. That is, when 

courts are faced with a challenge to a state-imposed restriction on the grounds that a citizen has been 

deprived of liberty without due process of law, the judicial inquiry is whether those conditions or 

restrictions are non-discriminatory and tailored to achieve a necessary non-punitive public purpose 

or, by contrast, show an express intent to punish.22 If a condition or restriction is arbitrary or 

purposeless, a court may permissibly infer that the governmental action may not constitutionally be

 21 Cougar Business Owners Assn. v. State of Washington, 647 P.2d 481, 486 (Sup. Ct. Wash. 1982). 

22 Bell v. Wolfish, 441 U.S. 520, 564 (1979). 

62 
inflicted.23

2.1. Governors’ Martial Law Authority 

[For discussion of Presidential martial law authority, see Chapter II.]

If law and order within a state seriously break down, the Governor has authority to declare 

martial law and to use the National Guard to enforce the declaration. This authority, although 

distinct from the Presidential authority to declare martial law in a state of emergency [discussed in 

the previous chapter], is based on the same idea. The Supreme Court has held that a Governor has 

power to call out its military forces to suppress insurrection and disorder.24 

This principle was developed in Duncan v. Kahanamoku.25 After the Japanese attacked Pearl 

Harbor, Hawaii Governor Poindexter declared martial law, suspended the writ of habeas corpus, and 

authorized the commanding general of the Military Department of Hawaii to use all powers normally

exercised by judicial officers and employees of the territory. At issue in Duncan was whether 

Congress, under a declaration of martial law, had authorized the trial of civilians by military 

commission. Ultimately, the Court held that even though the Hawaii Organic Act authorized martial 

law, Congress had not intended to replace civilian courts with military jurisdiction. However, the 

Court explicitly explained that it was not addressing: the validity of suspending the writ of habeas 

corpus under martial rule; the military authority to arrest or detain persons or to enforce curfews; nor 

the military power to exercise court martial jurisdiction as well as to try civilians in foreign territory

where civilian government cannot function.26

Chief Justice Stone's concurrence in Duncan added that martial law “is a law of necessity to 

be prescribed and administered by the executive power. Its object, to preserve public safety and 

good order, defines its scope which will vary with the circumstances and necessities of the case.”27 

Additionally, the power of the “executive branch of the government to preserve order and insure the 

public safety in times of emergency [does] not extend beyond what is required by the exigency 

which calls it forth.”28 Thus, the necessity to declare martial law limits the authority granted 

thereunder to the circumstances of the emergency. This notion renders military jurisdiction 

unnecessary if civilian courts are capable and accessible. 

The Governor’s authority to declare martial law arises from either the state constitution or 

from the legislature. Any such declaration, to be valid, must be within the terms of the power the 

legislature has granted the executive.29 No specific process is required to validate the Governor’s 

decision.30 Martial law is a tool that may be wielded only by the Governor, not local or subordinate 

State officials. Local officials may proclaim an emergency, but only in “situations involving riots or 

 23 Egan v. Aurora, 365 U.S. 514 (1961). 

24 Moyer v. Peabody, 212 U.S. 78, 81 (1909). 

25 Duncan v. Kahanamoku, 327 U.S. 304 (1946). 

26 Id. at 312-314. 

27 Id. at 335. 

28 Id.

29 Gayle v. Governor of Guam, 414 F. Supp. 636, 638 (D. Guam App. Div. 1976) (holding that the Governor did not 

have authority to bar the population from all public places after a super typhoon, or set a curfew). 

30 Bright v. Nunn, 448 F.2d 245, 248 (6th Cir. 1971). 

63 
unlawful assemblies characterized by violence or an imminent threat of violence; extraordinary 

disasters; and instances where deliberate acts of destruction or personal injury pose a threat to the 

public at large.”31

A Governor’s declaration is not afforded absolute immunity, but courts grant Governors wide 

latitude in the use of the power to declare martial law: “It is not a tort for government to govern.”32 

Only rarely have such declarations and the exercise of military authority following the declaration 

been overturned.33 Governors have declared martial law in circumstances such as student 

demonstrations in state university campuses,34and labor unrest.35 Courts are somewhat stricter in 

scrutinizing how the Governor, having declared martial law, exercises the authority.

36 Only the most 

arbitrary and capricious acts, however, will be found illegal. 

The nature of the power also necessarily implies that there is a permitted range of honest judgment 

as to the measures to be taken in meeting force with force, in suppressing violence and restoring 

order, for without such liberty to make immediate decision, the power itself would be useless. Such 

measures, conceived in good faith, in the face of the emergency, and directly related to the quelling 

of the disorder or to the prevention of its continuance, fall within the discretion of the executive in 

the exercise of his authority to maintain peace.37

Under martial law, the National Guard has the power to imprison a person, deprive him of 

the right of a trial by jury, deny him the right of habeas corpus, or deprive him of other rights, in 

order to restore law and order. The arrests and detention are not considered punishment, but a means 

to halt the disorder that gave rise to the declaration of martial law. In this situation, then, the 

National Guard is not considered an adjunct to civil law enforcement personnel. The Guard is sent 

in when they can no longer maintain law and order, and military rules are substituted as necessary.38

 31 ACLU v. Chandler, 458 F. Supp. 456, 460 (W.D. Tenn. 1978). 

32 Scheuer v. Rhodes, 416 U.S. 232, 241 (1973) (noting that qualified immunity is based on “existence of reasonable 

grounds for the belief formed at the time ... coupled with good-faith belief ... in light of all the circumstances”). 

“[T]he range of discretion must be comparably broad” when considering broad and subtle options when evaluating 

civil disorder. Id. at 247. 

33 Gayle v. Governor of Guam, 414 F. Supp. 636 (D. Guam App. Div. 1976); Hearon v. Calus, 178 S.C. 381 (1936) 

(striking down the Governor’s use of militia to seize control of State Highway Commission and removing the head of 

the commission from his office, as political in nature and beyond his constitutional authority). 

34 Bright v. Nunn, 448 F.2d 245, 248 (6th Cir. 1971) (holding use of National Guard on state university campus was 

justified because student-caused disorders and violence constituted a clear and present danger); Gilligan v. Morgan, 

413 U.S. 1, 6-7 (1973) (holding that even after death of students during National Guard’s presence on state campus, 

court will not evaluate or oversee how the Guard operates; that is a legislative and executive function). 

35 Cox v. McNutt, 12 F. Supp. 355, 356 ( S.D. Ind. 1935) (upholding martial law declared after 15,000 workers in 

one county took a “labor holiday”); ACLU v. Chandler, 458 F. Supp. 456, 460 (W.D Tenn. 1978) (upholding 

declaration of curfew after strike by Memphis police union). 

36 “We hold it to be the established rule that the discretion of the Governor to determine the existence of an 

insurrection may not be interfered with by judicial authority. We hold it to be the established rule that the acts of the 

Governor after the declaration of a state of insurrection , which are in excess of his constitutional and legislative 

authority, are subject to review by the Courts.” Hearon v. Calus, 178 S.C. 381, 406 (1936). 

37 Cox v. McNutt, 12 F. Supp. 355, 359 (S.D. Ind. 1935), quoting Sterling v. Constantin, 53 S. Ct. 190, 196 

(1936). 

38 State ex rel Roberts v. Swope, 28 P.2d 4, 6 (N.M. Sup. Ct. 1933). 

64 
2.2. Quarantines and Evacuations

Not surprisingly, the courts have been extremely tolerant of quarantines and related orders 

when health conditions may reasonably be said to be in jeopardy. City and state officials often have 

the authority to enact such regulations in emergency situations. The right to travel may be 

legitimately curtailed when a community has been ravaged by flood, fire or disease, and its safety 

and welfare are threatened.39 Yet, most of the case law on quarantines is pre-WWII or earlier, 

reflecting the fact that the past five decades in the United States have been relatively free of health 

threats that call for quarantines or similar restrictions. 

In order to restrict the movement of persons due to suspected infection, a credible and 

factual basis must exist supporting the suspicion that the person has been exposed to contagion. The 

police may hold persons arrested of an unrelated offense who are also suspected of being infected 

with disease without bail until the prisoners submit to an examination where the state law enables 

municipalities to segregate or treat persons suffering from communicable disease. Such quarantine 

laws are not within the criminal code but are based on the state’s police power. Therefore, persons 

can be held without bail.40 

2.2.1. Geographic Quarantines

Where a quarantine is established due to conditions within a particular area, the courts have 

uniformly upheld the order. A leading recent decision is Miller v. Campbell City,

41 involving an 

order to evacuate an area due to leaking methane and hydrogen gases. After residents of a 

subdivision contracted maladies, the County Commissioners declared the subdivision uninhabitable. 

Plaintiff was arrested when he traveled through a roadblock in attempting to return to his home. 

The court upheld a finding that the evacuation order was substantially related to the public health 

and safety, and there was no evidence that the action was taken in bad faith or maliciously. Because 

the defendants obviously needed to act quickly because of the potential danger, no liability could be 

found. 

Similarly, in People ex Rel. Barmore v. Robertson,

42 the plaintiff was ordered to stay at home 

without access by visitors because she carried typhoid bacilli. Even despite evidence that she had 

never been sick with typhoid fever nor caused anyone else to become sick, the court upheld the 

quarantine as properly authorized by the State Department of Health. 

2.2.2. Ethnic or Oppressive Quarantines 

Despite the general principle of judicial deference to health authorities, a few cases suggest 

that the courts will step in if they view a quarantine restriction as unreasonable or oppressive. In 

Kirk v. Board of Health,

43 the Aiken, South Carolina, Board of Health ordered Miss Kirk, a refined, 

elderly, white victim of leprosy, to be taken to a city hospital used mainly for “incarcerating negroes 

 39 Zemal v. Rusk, 381 U.S. 1, 15-16 (1965). 

40 People ex rel Baker v. Strautz, 54 N.E. 2d 441, 445 (Ill. 1944) (Prostitutes held without bail subject to 

examination for venereal disease). 

41 Miller v. Campbell Co., 945 F.2d 348 (10th Cir. 1991). 

42 People ex rel Barmore v. Robertson, 134 N.E. 815 (Ill. 1922). 

43 Kirk v. Board of Health, 65 S.E. 387 (S.C. 1909). 

65 
having smallpox and other dangerous and infectious diseases.”44 Miss Kirk disputed that her leprosy 

was contagious, and she charged that the place she was to go was “coarse and comfortless,” and 

located a hundred yards from the town dump. After reviewing the constitutional principles 

supporting the board of health’s power over citizens, the court defined the issue as whether the 

required isolation exceeded what was necessary to protect the public. While emphasizing that courts 

should exercise caution in deciding against boards of health, the court held that this was an 

exceptional case, given the plaintiff’s age, health and the effectiveness of quarantining her home. 

In Wong Wai v. Williamson45 the San Francisco Board of Health required inoculation of all 

Chinese residents against bubonic plague and restricted their right to leave the city, following nine 

deaths allegedly from plague. The inoculation was poisonous, producing severe reactions and could 

be fatal. The court assumed that the regulations were properly authorized but struck them down as 

“not based on any established distinction in the conditions that are supposed to attend the plague, or 

the persons exposed to its contagions.”46 Shortly after, in Jew Ho v. Williamson, the same court 

found that the quarantine requirements applied only to Chinese and questioned whether bubonic 

plague actually caused the reported deaths. It struck down the quarantine as “unreasonable, unjust 

and oppressive.”47

2.3. Municipally-Imposed Restrictions: Curfews

A curfew forbids people (or certain classes of people) from being outdoors between certain 

hours. A usual curfew is directed at minors out at night. Less common are curfews before or during 

an emergency, either natural (hurricanes) or because of civil unrest. In either case, the purpose of 

the curfew is to prevent people from interfering with civilian authorities who are protecting the 

community and from taking advantage of the situation by committing crime. Especially if law and 

order has broken down, persons who are out may represent a threat to the quietude of the public. It 

is easier to maintain order when people are off the streets and in their homes. 

Legal challenges to curfews have typically failed. Courts have generally ruled that the 

temporary restrictions of individual rights are worth the sacrifice for the return of peace to the area. 

In the contrast of rights, the public’s right to be safe during dangerous situations almost always 

trumps the individual’s right to travel. Courts do not tend to second-guess the official because it is 

the executive in charge who has the best understanding of the dangers and the needs of the 

community and because that person is statutorily empowered to make that decision.48 In such

circumstances, preventive action is far more desirable than actions remedial.49 

In general, the legal test of a curfew is whether it is reasonable in relation to the specified 

 44 Id. at 374. 

45 Wong Wai v. Williamson, 103 F. 1 (N.D. Cal. 1900). 

46 Id. at 15. 

47 Jew Ho v. Williamson, 103 F. Rep. 1047 (1900). 

48 “Whether the conditions warrant the curfew is a difficult question not easily answered with a simple ‘yes’ or ‘no.’ 

A court’s role in the aftermath of an emergency . . . is to review, with deference, the decision of the executive; at all 

times, however, under such conditions, the executive must be permitted to make the decision in the first instance.” 

Moorhead v. Farrelly, 727 F. Supp. 193, 201 (D.C.V.I. 1989). 

49 United States v. Chalk, 441 F.2d 1277, 1280 (4th Cir. 1971) 

66 
ends.50 The courts have often upheld a curfew because it is targeted at persons whose control is 

necessary to maintain order and who are clearly defined. “[A] municipality, under its inherent police 

power, may enact legislation which may interfere with the personal liberties of its citizens and 

impose penalties for the violation thereof where the general welfare, public health and safety 

demand such enactment; but this rule is always subject to the rule of reasonableness in relation to the 

objects to be attained.”51 The District of Columbia Court of Appeals recently upheld a curfew 

prohibiting juveniles 16 and under from being in a public place unaccompanied by an adult from

11:00 p.m. on Sunday through Thursday to 6:00 a.m. the next day, subject to enumerated 

exceptions.52

Therefore, temporary restrictions on the right to travel are a reasonable means of reclaiming 

order from anarchy so that all may exercise their constitutional rights freely and safely. In the case 

of riots or looting, a threat to safety and the welfare of a community exists, providing a compelling 

reason to impose a curfew. Courts are deferential even to a curfew that affects First Amendment 

rights so long as those effects are incidental and non-discriminatory.53 Where the courts have struck 

down a curfew, it has been because either: (1) the official who ordered it was not authorized to do 

so; (2) the curfew was vague and thereby encouraged discriminatory enforcement; or (3) the curfew 

was unreasonable for failing to permit exceptions. 

2.3.1. Questionable Authority

A curfew must be issued by someone with proper authority. The Governor’s unquestionable 

authority derives from the power to declare a state of emergency. Some courts have held that 

mayors, by contrast, must have clear statutory authority, usually from a municipal ordinance, to 

declare states of emergency and issue curfew orders.54 The reasoning is that an absence of statutory

authority suggests a preference for coordinated state-wide direction; although the mayor has implicit 

powers to respond immediately to an emergency, a curfew is of greater duration. These cases turn 

on legislative intent as to who has the authority to impose a curfew. The curfew is a protection of 

the community’s rights at the sacrifice of some individual rights, and the only source to whom the 

public has deemed authorized to strike that balance is the legislature. 

That said, statutory authority to enable local officials to order a curfew need not be very 

specific. A broad grant to make and enforce reasonable police regulations during periods of 

emergency has been upheld as sufficient to protect a curfew order during riot conditions when 

speedy response was essential.55 Nor need the emergency actually have materialized; a mayor’s 

authority to order curfews during a “civil emergency” was sufficient when, during a strike of police 

and firefighters, the mayor thought it necessary to maintain order.56

 50 Thistlewood v. Ocean City Magistrate, 204 A.2d 688, 693 (Md. 1964). 

51 Alves v. Justice Court, 306 P.2d 601, 603 (Cal. App. 3d Dist. 1957). 

52 Hutchins v. District of Columbia, 188 F.3d 531 (1999). 

53 In re Juan C, 28 Cal. App. 4th Supp. 1093 (1994) (curfew stated that persons cannot be out in public areas or 

unimproved private properties from 7pm-6am. Violators of curfew are subject to arrest. Curfew imposed in 

response to civil disorder. Arrest only applies to those who refuse to obey curfew even after oral or written notice). 

54 Walsh v. City of River Rouge, 189 N.W.2d 318, 635-36 (1971). 

55 Glover v. District of Columbia, 250 A.2d 556, 560 (D.C. Cir. 1969) 

56 ACLU v. Chandler, 458 F. Supp. 456, 459-60 (W.D. Tenn. 1978). 

67 
2.3.2. Vagueness

In some cases, curfews have been struck down where the persons to whom they apply are 

vaguely defined. The problem with vagueness is that police officers might indiscriminately or 

unfairly decide whether a person on the street is covered by the curfew. Carte blanche discretion 

without guidelines impermissibly transfers the judicial task of determining what conduct violates the 

law to the police. Especially during emergencies and periods of chaos, there should be as little 

guessing as possible. 

To avoid unconstitutional vagueness, an ordinance must: (1) define the offense with 

sufficient precision that ordinary people can understand what conduct is prohibited; and (2) establish 

standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner. Thus, 

the Ninth Circuit struck down a curfew that prohibited juveniles to “loiter, idle, wander, stroll or 

play” on the grounds that the prohibition was vague.57 Similarly, a court struck down a curfew that 

prohibited being on the street “without satisfactory explanation.”58 And a statute that penalized 

“anyone who prevented, hindered or delayed the protection of the city” could not be used to justify a 

municipal order that anyone on the street after curfew hours was guilty of that crime because there 

was insufficient reason to believe that curfew-breakers were endangering any lives or property.59

2.3.3. Impermissibility of Exceptions

A judicial concern throughout the cases involving emergency restrictions is that, without 

exceptions or sensitive application, their imposition will cause unnecessary harm to innocent 

persons. Thus, an ordinance that fails to provide for any exceptions may be unconstitutional. If

there are not any delineated exceptions, the police must decide who will or will not be restricted, 

leading to the risk of arbitrary enforcement.60 That said, some courts disagree, ruling that desperate 

measures may be necessary in desperate times,61 or that the lack of exceptions deprives police of 

discretion and is, therefore, less arbitrary than an ordinance with exceptions.62 

2.4. Restrictions on Interstate Movement 

The opposite of a quarantine is establishment of a barrier to movement that keeps people or 

goods out. A unique situation arises when the barrier is a state border, i.e., when a Governor closes 

a border with a neighboring state. Legal issues arise both as to right to travel and to the risk that the 

restriction might overstep congressional prerogatives under the commerce clause. The power of the 

federal government to regulate interstate commerce does not prevent states from adopting reasonable 

measures intended to secure the public health.63 However, a state may neither impose a burden that 

 57 Nunez v. San Diego, 114 F.3d 935, 943-44 (1997); see also Stoutenburgh v. Frazier, 16 App. D.C. 229, 239-41 

(1900) (congressional legislation declaring that “suspicious persons” within the District of Columbia can be arrested 

and prosecuted as criminals was struck down unconstitutionally vague). 

58 City of Shreveport v. Brewer, 72 So. 2d 308, 98 (La. Ct. App. 1954); see also City of Portland v. Goodwin, 210 

P.2d 577, 428-29 (1949) (ordinance struck down that prohibited any person to be out at night without having and 

disclosing a lawful purpose). 

59 People v. Continola, 15 Cal. App. 4th Supp. 20, 27 (1993). 

60 People v. Kearse, 295 N.Y.S.2d 1921 (1968). 

61 Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996). 

62 State v. Boles, 240 A.2d 920, 928-29 (Conn. Cir. Ct. 1967). 

63 Clason v. Indiana, 306 U.S. 439, 444 (1939) (where statute prohibited the transfer of dead animals not slaughtered 

68 
materially affects interstate commerce in an area where uniformity of regulation is necessary, nor 

impose laws that discriminatorily restrict interstate commerce in order that its citizens gain a 

competitive advantage.64 When a state statute directly regulates or discriminates against interstate 

commerce, or when its effect is to favor in-state economic interests over out-of-state interests, it will 

be declared unconstitutional as violative of implied substantive restrictions on permissible state 

regulation of interstate commerce, under the dormant commerce clause, unless it advances a 

legitimate local purpose that cannot be adequately served by reasonable non-discriminatory 

alternatives.65 

2.4.1. Products and Goods 

Courts have upheld that prohibiting import of livestock into a state unless the state of origin’s

chief sanitary official has certified such livestock as being disease-free; this does not unduly burden 

interstate transportation so as to contravene the commerce clause.66 However, some states have 

attempted to prohibit transportation of livestock into the state completely during certain times of the 

year.67 Such laws are not quarantine laws nor inspection laws (because the states are not concerned 

about the health of livestock). These statutes impose liabilities and criminal penalties on persons 

attempting to transport cattle without any other stated purpose. Such statutes go outside the scope of 

the police powers of the State and are not allowed under the commerce clause. States cannot, 

beyond what is absolutely necessary for self-protection, interfere with transportation into or through 

its territory.68

2.4.2. Hazardous Materials 

The 1990 the Hazardous Materials Transportation Uniform Safety Act (HMTUSA)69

empowers the Secretary of the Department of Transportation (DoT) to protect the nation adequately 

against the risks to life and property that are inherent in the transportation of hazardous materials in 

commerce.70 The Secretary is authorized to promulgate regulations governing any safety aspect of 

the transportation of hazardous materials which the Secretary deems necessary or appropriate.71 The

HMTUSA regulations preempt “inconsistent” state or local regulations, i.e. when it is not possible to 

 

for food on state highways. This did not unduly burden interstate commerce); see also Huron Portland Cement Co. 

v. Detroit, 362 U.S. 440, 445 (1960) (city’s smoke abatement code not pre-empted by federal statutes under which 

steam vessels and their equipment, including their broilers, are inspected, approved, and licensed to operate in 

interstate commerce in accordance with a comprehensive scheme of federal regulation. Federal purpose is to ensure 

seagoing safety of vessels subject to inspection. State purpose is to eliminate air pollution for the health of the local 

community). 

64 Louisiana v. Texas, 176 U.S. 1, 21 (1900); Chemical Waste Management v. Hunt, 504 U.S. 334, 347 (1992); 

Philadelphia v. New Jersey, 437 U.S. 617, 626-27 (1978). 

65 Bainbridge v. Bush, 148 F. Supp 2d. 1306, 1310-11 (M.D. Fla. 2001) (upheld state statute prohibiting shipments of 

alcohol, from out-of-state vendors to recipients within state not holding manufacturer’s or wholesaler’s license). 

66 Mintz v. Baldwin, 289 U.S. 346, 350 (1933). 

67 Railroad Co. v. Husen, 95 U.S. 465, 468 (1877). 

68 Id.

69 49 U.S.C.S. app. §§ 1801-1819 (Law. Co-op. 1998) 

70 Id. § 1801. 

71 Id. § 1804(a). 

69 
comply with both or where state requirements are an obstacle to federal law.72 The HMTUSA 

established that the DoT is the single federal authority with the responsibility to oversee 

transportation of hazardous materials, that there is not any requirement that safety in such transport 

be maximized, and that even state action that increases such safety, is precluded.73

2.5. States’ Authority To Commandeer Resources 

[The following discussion is related to, but distinct from, a state’s liability for a taking of private 

property, discussed in Chapter IV, section 1]

Inherent in government’s sovereignty and its police power is the right to commandeer or 

seize private property for public service, “in cases of extreme necessity in time of war or of 

immediate and impending public danger.”74 The Fifth Amendment of the Constitution provides the 

underpinning for such seizure over a property owner’s objection by requiring “just compensation” 

for any such acquisition,75and the Fourteenth Amendment extends this to state government action. 

The rationale for this is that the State must use its power to control violence and disorder and protect 

public health and welfare,76 even to the point of taking extraordinary action.77

Courts have regularly upheld commandeering or requisitioning in emergencies without 

requiring the normal judicial exercise of eminent domain.78 The test for the validity of the 

government action is whether it has “some actual and reasonable relation to the maintenance and 

promotion of the public health and welfare, and whether such is in fact the end sought to be 

attained.”79 

The basic objective of government is to protect and promote the health, safety and general welfare of 

the people. When a condition of affairs appears in the state which presents a threat to the 

accomplishment of that objective, the government has the right, and obligation, to cope with such 

 72 Jersey Central Power v. Lacey, 772 F.2d. 1103, 1113 (3d Cir. 1985). 

73 New York v. United States Dep’t of Transp., 715 F.2d 732, 741 (2d Cir. 1983); New York State Energy Research 

and Development Authority vs. Nuclear Fuel Services, 102 F.R.D. 18, 22 (W.D. N.Y. 1983). 

74 U.S. v. Russell, 80 U.S. 623, 627 (1871) (upholding compensation to the owner of three steamboats used by the 

U.S. government for military transport during the Civil War). 

75 “Nor shall private property be taken for public use without just compensation.” U.S. CONST. amend. V. 

76 See generally Richard A. Epstein, Symposium on Richard Epstein’s Takings: Private Property and the Power of 

Eminent Domain, 41 U. MIAMI L. REV. 3, 5 (1986); David G. Tucker and Alfred O. Bragg, III, Florida’s Law of 

Storms: Emergency Management, Local Government, and the Police Power, 30 STETSON L. REV. 837, 839-40 

(2001). 

77 David G. Tucker and Alfred O. Bragg, III, Florida’s Law of Storms: Emergency Management, Local Government, 

and the Police Power, 30 STETSON L. REV. 837, 850 (2001). 

78 “Such a [T]taking of private property by the government, when the emergency is too urgent to admit of delay, is 

everywhere regarded as justified...” United States v. Russell, 80 U.S. 623, 629 (1871). “In times of natural 

catastrophe or civil disorder, immediate and decisive action by some component of state government is essential.” 

Cougar Business Owners Assn. v. State of Washington, 647 P.2d 481, 486 (Sup. Ct. Wash. 1982) (internal 

quotations and citation omitted). Gregory R. Kirsch, Hurricanes and Windfalls: Takings and Price Controls in 

Emergencies, 79 VA. L. REV. 1235, 1242 (1993). 

79 David G. Tucker and Alfred O. Bragg, III, Florida’s Law of Storms: Emergency Management, Local Government, 

and the Police Power, 30 STETSON L. REV. 837, 843 (2001). (citing Varholy v. Sweat, 15 S.2d 267, 270 (Fla. 1943)). 

70 
threat by whatever measures, within constitutional limits, that are necessary and appropriate.80 

At the federal level, emergency expropriation has generally occurred in time of war, to offset 

shortages of means of production (such as steel81 or power generation82), services (such as 

transportation83), space,84 or supplies (such as oil85). At the state level, seizures more frequently 

involve the accidental destruction of private property in emergency circumstances (such as a police 

vehicle colliding with an automobile during a chase) or the intentional destruction of property that 

poses a hazard, during or after an emergency. That curfews, quarantines, destruction of diseased 

animals and mandatory confinement of persons with contagious diseases have survived state court 

scrutiny suggests that courts would also be deferential to commandeering at the state level in order 

to assure that citizens have basic necessities and ease their hardships.86 

In most states, the Governor as well as local governments may enter into purchase, lease, or 

other arrangements for temporary housing units to be occupied by disaster victims. The Governor 

has authority to commandeer private property with or without the owner’s permission, but the owner 

must be compensated. If dissatisfied by the offered compensation, the owner may file a request for 

additional compensation, but denial of that request may result in a reduction of the original offer. 

Depending on the state’s statutory requirements, the seizure of property may require a formal 

declaration of an emergency;87 the declaration may have to specifically authorize authorities to seize 

or destroy property in dealing with the emergency.88 Courts typically do not review seizures for 

necessity unless the actions are arbitrary and capricious, a difficult standard of review for a plaintiff

to meet. Moreover, courts have found that state government is not liable for damages to seized or 

destroyed property,89 on the basis that “police power controls the use of property by the owner, for 

the public good.”90 

 80 Suber v. Alaska State Bond Comm., 414 P.2d 546, 551-52 (Sup. Ct. Alaska, 1966). 

81 Omnia Commercial Co. v. United States, 261 U.S. 502, 511 (1923). 

82 Southern Calif. Edison Co. v. United States, 91 F. Supp 757, 520 (Cl. Ct. 1950). 

83 United States v. Russell, 80 U.S. 623, 627 (1871) (upholding compensation to the owner of three steamboats used 

by the U.S. government for military transport during the Civil War); Northern Pac. R. Co. v. N. Dak. Ex rel. Langer, 

250 U.S. 135, 144-45 (1919) (upholding the power of the Congress and President to take possession and control of 

railroads for troop transport during World War I); Louisville Flying Service v. United States, 64 F. Supp. 938, 942 

(W.D. Ky., 1945) (providing just compensation for government’s seizure of two private airplanes required for the 

war effort). 

84 United States v. General Motors Corp., 323 U.S. 373, 374 (1945) (government has power to take possession of 

leased space from the lessee). 

85 Gulf Refining Co. v. United States, 58 Cl. Ct. 559 (Cl. Ct. 1923). 

86David G. Tucker and Alfred O. Bragg, III, Florida’s Law of Storms: Emergency Management, Local Government, 

and the Police Power, 30 STETSON L. REV. 837, 843 (2001). 

87 Cougar Business Owners Assn. v. State of Washington, 647 P.2d 481, 472-73 (Wash. 1982). 

88 Marty v. State of Idaho, 786 P.2d 524, 142 (Idaho 1989). 

89 Cougar Business Owners Assn. v. State of Washington, 647 P.2d 481, 476 (Wash. 1982); Suber v. Alaska State 

Bond Comm., 414 P.2d 546, 552 (Alaska 1966); Balent v. City of Wilkes-Barre, 492 A.2d 1196, 581 (Comm. Ct. of 

Penn. 1985). 

90 Balent v. City of Wilkes-Barre, 492 A.2d 1196, 1197 (Pa. Commw. Ct. 1985). 

71 
72 

If an emergency both interferes with supply and increases demand for services or products, 

federal or state government may use its police powers to remedy an economic and supply system 

that is not working. For example, when a hurricane left 250,000 people homeless and in need of 

food, water and shelter, the State of Florida enacted price controls to limit price gouging for 

necessities. Legal experts have argued that the State could also have engaged in a “take and 

distribute” strategy, requisitioning supplies from manufacturers and distributing them directly to 

citizens in the affected area, to reduce their waiting time and assure that price gouging did not 

occur.91

 

91 Gregory R. Kirsch, Hurricanes and Windfalls: Takings and Price Controls in Emergencies, 79 VA. L. REV. 1235,

1239 and 1262 (1993). 
CHAPTER IV -- LIABILITIES OF EMERGENCY RESPONDERS

INTRODUCTION

Previous chapters have discussed proper authority for consequence management activities. 

Yet, even properly authorized activity can be performed in a manner that inflicts damages. Lawsuits 

seeking redress for that damage generate legal rules of behavior. Thus, officials who manage the 

consequences of terrorism should appreciate that the issue of how relevant activities are executed has 

important legal answers; these answers set the contours of their responses. Accordingly, the cases 

and principles discussed in this chapter should be understood as generating rules that shape the 

process of planning and preparation. 

For example, consider the legality of quarantines. The material in Chapter III makes clear 

that a Governor has ample authority to order a quarantine when conditions warrant. Only if that 

order is palpably discriminatory or unjustified will the courts interfere. But many questions remain 

as to how to treat persons subject to the quarantine order; additional questions arise concerning 

property losses. Courts confront these questions in liability suits where complaining citizens allege

that the quarantine or restriction, even if properly authorized, caused an injury for which government 

or an official should be liable. The overwhelming majority of relevant cases, and accordingly of 

relevant rules, are generated by such suits. 

There is another important implication here: both federal and state law immunize official 

responses to an emergency. However, there is no immunity that is wholly absolute; all grants of 

immunity are limited by reasonableness in view of the policy objective for the grant. What is meant 

by reasonableness is a question that courts decide in liability suits. 

1. IMPLICATIONS OF POTENTIAL LIABILITY

Emergency responders coping with catastrophic terrorism may view the risk of potential 

liability as counter-productive to the community’s needs, inducing excessive caution precisely when

decisive action is critical. Immediate decisions must be made under extraordinary pressures. 

Compounding that crisis will be the threat of a breakdown in law and order. Response authorities 

will be pressed into service in the most dire crisis conditions in order to attend to people who need 

help and to control those who disobey the law. At that moment, whatever level of official 

inexperience or lack of preparedness will rise to the surface. 

Citizens seek redress for alleged injuries by filing liability actions only after relatively 

normal conditions are restored. Liability suits are always retrospective, asking judges to decide what 

should have been reasonable conduct in unprecedented situations. There is a risk of Mondaymorning quarterbacking -- that a judge will, in calm hindsight, point an accusatory finger at officials 

who did their best under exceptional duress. Significantly, the case law does not demonstrate this 

risk. Courts accord officials and responders wide latitude to cope with extraordinary situations, 

concerned that inducing inaction could cost lives or property unnecessarily. The primary judicial 

concern is to prod officials to perform their responsibilities. Officials who prepare and, when 

necessary, carry out their preparations to the best of their ability should not fear liability. But the 

courts may impose liability on officials who ignore threats and fail to prepare or, when an 

73 
emergency strikes, manifest carelessness for the public they are supposed to serve. 

In this context, the underlying inquiry of most liability actions is to separate the vast majority

of responders who will rise to the crisis from the minority who will not, because that minority is 

dangerous. A recurrent focus of judicial attention throughout this legal inquiry is on advance 

training and preparedness. The courts will be broadly deferential to officials who are reasonably 

aware of the terrorism threat, have organized to address it, and have trained personnel who can carry 

out complex tasks under pressure. The courts’ key focus is to distinguish “discretionary” activity 

that does not give rise to liability from “deliberate indifference.” The point of this distinction is to 

inquire: has a responder reasonably acted in view of the responder’s mission and the circumstances 

even if those actions have unfortunate results, or are the choices patently unreasonable causing harm

that could have been avoided by the exercise of reason. Thus, officials who have done nothing to 

prepare for a terrorist event and whose personnel are untrained for the emergency may find that the 

courts, while respectful of the dire situation, will be inclined to impose liability. 

2. THE LAW’S COMPLEXITY

Broadly viewed, liability actions are pursued in three broad categories: (1) tort actions, 

claiming that officials breached a duty; (2) actions under Title 42 Section 1983, claiming that official 

action violated a citizen’s constitutional rights; and (3) actions under various state statutes, claiming 

that official conduct violated prescribed rules. These categories substantially overlap, and claims

arising from similar factual circumstances could be litigated under different legal constructions. 

Moreover, claims may be brought against the government or against an official in his/her individual 

capacity, further complicating the issue. 

Two sections comprise this Chapter. Section one discusses tort actions seeking redress for 

failure to prepare or warn of an emergency and for destruction of property. Section two discusses 

predominantly (but not exclusively) actions under Section 1983 seeking redress for creating a 

dangerous situation, for detaining people and not attending to their needs, for mistreatment, and for 

failure to protect from criminal violence. Each section’s brief introduction describes the legal 

principles that underlie these respective sets of claims. 

3. TORT LIABILITY

3.1. Introduction To Principles Of Government Liability in Tort

3.1.1. Federal Tort Claims 

The United States government has sovereign immunity from liability for its negligence or 

other wrongful behavior, i.e. “the king can do no wrong.” Because the government creates the right 

to bring a claim, the government must itself agree to be sued. The Supreme Court embraced this 

principle in 1824, in Osborn v. Bank of United States.

1

 Over time, however, the federal government 

began consenting to liability for contract claims; later, Congress legislated consent to tort claims on

a case-by-case basis. 

 

1

 Osborn v. Bank of United States, 1824 U. S. Lexis 409, at *77 (1824) (noting “a sovereign State is entirely exempt 

from jurisdiction”). Id. at 707. “But for the law, the case would never have existed. But for the continued existence 

of the law, it could not continue to exist. If, by any conceivable means, the law were to be determined, the case must 

be at an end. There is, therefore, an inseparable, indissoluble connection between the law and the case, as cause and 

effect. The case owes its being to the law, and only to the law”). Id. at 806. 

74 
Facing escalating inefficiency of private legislation, Congress enacted a general waiver of 

immunity to tort suits through the Federal Tort Claims Act (FTCA) of 1946.2

 The FTCA waives the 

government’s sovereign immunity from tort liability for acts or omissions of its employees “under 

circumstances where the United States, if a private person, would be liable to the claimant.”3

 The

FTCA grants exclusive jurisdiction to federal district courts to hear FTCA claims.

4

 It provides only 

for bench, not jury trials.5

 A plaintiff must exhaust all administrative or statutory remedies before 

making an FTCA claim.

6

 Finally, the FTCA waives immunity only for suits against the federal 

government, not against its employees. The Federal Employees Liability Reform and Tort 

Compensation Act of 1988 (FELRTCA) immunizes federal employees acting within the scope of 

their employment but does not bar actions brought for the violation of a statute or the Constitution.7

 

For any plaintiff injured in tort by a federal employee, the FTCA is the only available remedy. 

The FTCA’s waiver of immunity is subject to thirteen exceptions; a complaint within any of

these exceptions may not proceed. Thus, a plaintiff who has suffered a loss from federal government 

activity must show that the wrongful conduct falls outside those exceptions. The two most relevant 

exceptions here involve quarantines and discretionary functions. Section 2680(f) of the FTCA 

excludes “Any claim for damages caused by the imposition or establishment of a quarantine by the 

United States.”8

 There is no relevant case under this provision, however, leaving open issues as to 

what constitutes a valid declaration of a quarantine, how long a quarantine may reasonably last, and

how large an area may be quarantined. 

The “discretionary function” exception (DFE) of the FTCA as well as the Stafford Act9

 

immunizes the United States against any claim of “an act or omission of an employee of the 

Government ... based upon the exercise or performance or the failure to exercise or perform a 

discretionary function or duty on the part of a federal agency or an employee of the Government, 

whether or not the discretion involved be abused.”10 Its purpose is to insulate government actions 

and decisions based on “social, economic, and political policy” so as to “prevent judicial ‘secondguessing’ of legislative and administrative decisions through the medium of an action in tort.”11 The

DFE “marks the boundary between Congress’s willingness to impose tort liability upon the United 

States and its desire to protect certain governmental activities from exposure to suit by private 

 

2

 28 U.S.C.A. §§ 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671, 2672, 2674-80 (West 1991). 

3 Id. § 2674. The U.S. government cannot be held strictly liable for a wrongful act even if an individual defendant 

could have been so held. 

4 Id. §§ 1346(b), 2679(d). 

5 Id. § 2402. 

6 Id. §§ 2401(b), 2675. 

7 Id. § 2679(b). 

8 Id. § 2680(f). 

9

 42 U.S.C. § 5148 (2000). 

10 28 U.S.C. § 2680(a) (2000). 

11 United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting United States v. S.A. Empresa de Viacao Aerea Rio 

Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). 

75 
individuals.”12 To be “discretionary”, therefore, the decision must be susceptible to a policy 

analysis.13 Whether the discretionary function applies in a particular case does not turn on the 

actor’s office nor how much power s/he possesses but whether the nature of the actor’s conduct 

amounts to policymaking authority as to the particular question.14 

Berkovitz v. United States15 illustrates the subtle distinction between a discretionary and nondiscretionary activity. After an oral dose of polio vaccine, two-month-old Kevan Berkovitz became 

almost completely paralyzed and could not breathe without a respirator. His parents sued the United 

States, alleging that the National Institutes of Health (NIH) had wrongfully licensed vaccine 

production and that the Food and Drug Administration (FDA) had wrongfully approved release of 

the vaccine that Kevan received. Noting that, “The discretionary function exception applies only to 

conduct that involves the permissible exercise of policy judgment,”16 the court used a two-part test 

for immunizing conduct from a tort challenge. First, under applicable statutes or regulations, is the 

conduct a matter of choice; if not, then the function is not discretionary, and the DFE does not apply. 

Second, if the conduct involves an element of judgment, does that judgment involve policy 

considerations? Because the NIH lacked discretion to issue a license without determining that the 

vaccine complied with all regulatory requirements, plaintiffs could proceed with their claim that the 

NIH had wrongfully licensed the vaccine’s production. But, because the regulations for release of 

vaccine allowed the FDA to determine how to regulate those releases, “the discretionary function 

exception bars any claims that challenge the [FDA’s] formulation of policy as to the appropriate way 

in which to regulate the release of vaccine lots.”17

In many respects, emergency response functions fulfill the requirement of “discretionary 

function.” Emergency response always entails judgments made under pressure, typically involving 

allocation of scarce resources. Responders might have to choose among different options with 

imperfect information. For a court to rule in hindsight that such choice was negligent would not 

serve the public’s interests. The courts have denied immunity, however, when the question is not 

which action responders should undertake or whether any particular action is preferable but is 

merely how to perform an already-chosen task. 

Downs v. United States18 demonstrates how the “discretionary function” exception might 

apply in a terrorism response case. A small plane was hijacked with four hostages aboard. Nearly 

out of fuel, it landed on an airstrip where FBI agent O’Connor engaged the hijacker in a stand-off. 

After the hijacker released two hostages to bargain for fuel, O’Connor, fearing that the hijacker 

 

12 Berkovitz v. United States, 486 U.S. 531, 536 (1988) (quoting United States v. S.A. Empresa de Viacao Aerea Rio 

Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)). 

13 Gaubert, 499 U.S. at 325; Federal Deposit Ins. Corp. v. Craft, 157 F.3d 697, 707 (9th Cir. 1998). 

14 Pembauer v. City of Cincinnati, 475 U.S. 469, 483-84 (1986); Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985). 

15 Berkovitz v. United States, 486 U.S. 531 (1988). 

16 Id.at 539. 

17 Id. at 546. The court rejected the government’s argument that the decision not to install carpet or a handrail in a 

Post Office fell under the DFE: “The discretionary policy exception protects only activities which, because they 

further policy goals, are uniquely governmental.” Raymond v. United States, 923 F. Supp. 1419, 1423 (D.C. Kan. 

1996). 

18 Downs v. United States, 522 F.2d 990 (6th Cir. 1975). 

76 
would compel the pilot to fly off, ordered the tires and engine to be shot out. The hijacker responded 

by killing himself and the two remaining hostages. The victims’ heirs alleged that O’Connor’s 

conduct was legally responsible for their loss. The court agreed, refusing to apply the discretionary 

function exception because O’Connor’s choices did not entail the formulation of governmental 

policy. O’Connor was handling a hijacking situation, policy for which was set forth in the FBI 

Handbook emphasizing hostage safety. Because O’Connor was familiar with the Handbook, 

liability would ensue for his failure to comply with FBI procedures. A reasonable FBI agent with 

his training and experience would have been patient and tried to reason with the hijacker. 

Besides Downs’ obvious relevance to terrorism situations, it informs this discussion in two 

respects. First, it limits the discretionary function exception to situations that involve formulation of 

policy rather than its execution. This is a difficult line to draw; policy can be formulated even by 

low-level or operational officials. But the mere fact that the official makes a choice is insufficient to 

place that official’s actions within the scope of the exception. Second, Downs suggests that where 

the government has a policy and the officer has constructive knowledge of that policy yet fails to 

abide by it, liability is more likely to be found. 

3.1.2. State Tort Claims 

State governments also have sovereign immunity under the Eleventh Amendment from suits 

by citizens of other states or foreign plaintiffs.19 In Florida Department of State v. Treasure Salvors, 

Inc., the Supreme Court extended this protection to suits from citizens against their own State if the 

officials involved acted within the scope of their statutory authority.20 Thus, as with the federal 

government, a State must consent before a tort action can proceed against it.21 Without consent, 

state governments have substantive and jurisdictional immunity; even with consent, States retain 

discretionary immunity for official or policy acts. 

Case law and statutes set forth exceptions to the principle of state immunity. First, the 

Supreme Court held in Edelman v. Jordan that citizens may enjoin state officers to compel action 

(but not retroactive disbursement of funds) if federal or state law requires.22 Second, Congress may 

provide that certain complaints against state officials be heard in federal court, most specifically 

 

19 “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced 

or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign 

state.” U. S. CONST. amend. XI. 

20 A suit generally may not proceed directly against the State itself, or against its agency or department, unless the 

State has waived its sovereign immunity; If the complaint directly makes a state that has not consented to the suit, it 

must be dismissed from the action. Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 684 (1982), citing 

Alabama v. Pugh, 438 U.S. 781, 782 (1978). 

21 “In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find 

waiver only where stated by the most express language or by such overwhelming implications from the text as [will] 

leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673 (1974) (citations and 

internal quotations omitted); see generally, W. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON & DAVID G.

OWEN, PROSSER & KEETON ON TORTS, 1043-51 (5th ed. 1984). 

22 “[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to 

prospective injunctive relief, Ex parte Young, supra, and may not include a retroactive award which requires the 

payment of funds from the state treasury.” Edelman v. Jordan, 415 U.S. 651, 677 (1974) (citations and internal 

quotations omitted). 

77 
Section 1983 civil rights claims, discussed below. Third, most states, like the federal government, 

have enacted tort claims acts (TCAs) waiving immunity from tort suits, albeit with similar 

exceptions. For example, California’s waiver of immunity provides that “[a] public entity is liable 

for injury proximately caused by an act or omission of an employee of the public entity within the 

scope of his employment if the act or omission would, apart from this section, have given rise to a 

cause of action against that employee or his personal representative.”23 Some states, e.g. Georgia, 

have established administrative bodies to hear claims against it and make awards if a private party 

would have been liable for the same action.24 Some states waive immunity only under limited 

conditions, e.g. when insurance will pay for the State’s wrongdoing or for cases involving motor 

vehicles or tangible personal property.25 

Even within general statutory waivers, states, like the federal government, limit liability in 

certain areas. Some states’ constitutions preserve all sovereign immunity. Alabama, for example, 

provides, “That the State of Alabama shall never be made a defendant in any court of law or 

equity.”26 According to Gill v. Sewell, involving a police officer who was shot by an escaped felon, 

sovereign immunity specifically bars suits against Alabama officials when acting in their official 

capacity.27 It also extends to executive bodies and overrides statutory language allowing those 

bodies to sue and be sued.28 Other states, such as Tennessee, preserve immunity both 

constitutionally and statutorily.29 Yet other states, like Maine, allow tort liability only up to the 

amount of insurance held by the relevant government body. In Blier v. Inhabitants of Town of Fort 

Kent, a plaintiff injured in an auto accident with a city employee could recover only $50,000 of an 

$84,757 jury award, because that was the maximum amount of insurance the town carried.30

According to the Restatement of Torts (Second), local governments are immune for 

discretionary functions arising from court decisions and from state statutory language waiving tort 

immunity.31 Significantly, if the challenged conduct fails to satisfy standards of applicable federal 

or state regulations, the discretionary function exception will not apply. Thus, in Maresh v. State of 

Nebraska,

32 plaintiff died in an auto accident -- the highway under construction lacked markings 

 

23 CAL. GOV’T CODE § 815.2(a) (West 2001). 

24 R. Perry Sentell, Jr., Tort Claims Against the State: Georgia’s Compensation System, 32 GA. L. REV. 1103, 1120 

(1998). 

25 Id. at 1044-45. 

26 ALA. CONST. art. I, § 14. 

27 Gill v. Sewell, 356 So. 2d 1196, 1198 (Ala. 1978). 

28The Armory Commission of Ala. v. Wanda T. Staudt, 388 So. 2d 991 (Ala. 1980) (reversing a claim brought by a 

woman who slipped and fell in a State National Guard armory). 

29“The rule of sovereign immunity in Tennessee is both constitutional and statutory. It is not within the power of the 

courts to amend it.” Jones v. L & N Railroad, 617 S.W.2d 164, 170 (Tenn. App. 1981), quoted in City of Lavergne 

v. Southern Silver, Inc., 872 S.W.2d 687, 689 (Tenn. App. 1993). 

30 Blier v. Inhabitants of Town of Fort Kent, 272 A.2d 732 (Maine 1971). 

31 “It will be assumed here that the sovereign immunity against action in tort was waived by both fire districts when 

the State yielded its general immunity by section 8 of the Court of Claims Act.” Tillson v. Kuhner, 283 A.D. 604, 

607 (N.Y. App. Div. 1954). 

32 Maresh v. State of Neb., 489 N.W.2d 298 (Neb. 1992). 

78 
showing where the shoulder of the road bordered a five inch drop-off. The court deemed the 

discretionary function exception inapplicable and held the State liable for creating the hazard; the 

State Department of Roads had adopted United States Department of Transportation regulations that 

prescribed the course of action required. Similarly, in Bellman v. The City of Cedar Falls,

33 the 

court found the discretionary function exception did not shield a school district from liability in a 

suit involving a kindergarten student who was crushed by a golf cart on a school field trip. The 

principal’s failure to determine appropriate supervision for field trips, specifically required by the 

school district’s policy manual, was “not a matter of choice;” the discretionary function exception 

could not apply. 

Finally, most states in their comprehensive emergency services statute immunize responders 

acting in response to an emergency but only when a Governor or a local official proclaims a state of 

emergency.34 For example, the Alabama Code provides that: 

Neither the state nor any political subdivision thereof nor other agencies of the state 

or political subdivisions thereof, nor, except in cases of willful misconduct, gross 

negligence or bad faith, any emergency management worker, individual, partnership, 

association or corporation complying with or reasonably attempting to comply with 

this chapter [entitled “emergency management”] or any order, rule or regulation 

promulgated pursuant to the provisions of this chapter . . . shall be liable for the 

death of or injury to persons, or for damage to property, as a result of any such 

activity.35

3.2. Failure To Prepare or Warn

A municipal corporation is generally not liable for injuries caused by its negligence in the 

exercise of “governmental” functions.36 The following material considers case law where a 

plaintiff’s injury or loss is allegedly attributable to the government’s inaction in a situation where 

harm could be foreseeable. In these cases, the plaintiff argues that, if the government had 

responsibly prepared for that situation or warned of it, the plaintiff would have been spared the 

harm. 

3.2.1. Absence or Inadequacy of a Plan

As discussed in Chapter III, states, and through them localities, must develop a plan to 

respond to emergencies. Governments have discretion in determining the contents of the plan. 

There is no statutorily-provided cause of action to challenge the nonexistence or inadequacy of a 

plan. Nor may citizens sue to prevent local officials from implementing an emergency response 

 

33 Bellman v. The City of Cedar Falls, 617 N.W.2d 11 (Iowa, 2000). 

34 Swanson, The Delicate Art of Practicing Municipal Law under Conditions of Hell and High Water, 76 N. DAK. L.

REV. 487 (2000). 

35 ALA. CODE § 31-9-16(b) (1989). 

36 57 AM JUR. 2d, Municipal, School, and State Tort Liability, §27 (2001); see also Jay M. Zitter, Annotation: 

Liability for Failure of Police Response to Emergency Call, 39 A.L.R. 4th 691 (2001) (includes cases of liability 

caused by actions of police officers and emergency systems dispatchers); see also Hendon v. DeKalb County, 417 

S.E.2d 705 (Georgia 1992). 

79 
plan.37 

Bradley v. Board of County Commissioners of Butler County38 is a rare case discussing the 

absence of a mandatory emergency preparedness plan. Butler County was the only county in Kansas 

without a state-approved disaster plan. Plaintiff suffered serous injuries when a tornado struck her 

home. She claimed that the county negligently failed to warn her of the impending danger, and that, 

under the Kansas Tort Claims Act (KTCA), the lack of the required plan erased the county’s 

immunity for emergency preparedness activities. The court found the Board immune from suit: 

“nowhere in all of the statutes of this state is there any mention that having an approved emergency 

plan on file is a prerequisite to immunity for emergency preparedness activities. Nor has [plaintiff] 

cited us to any case law to support her position.”39

Similarly, in Autery v. United States,40 a federal court found that the lack of a written tree 

hazard management plan in a national park did not subject the National Park Service to liability after 

plaintiff was killed by a diseased tree that fell on him. Park personnel had received “critical safety 

information” about the trees in question and were advised to remove them when possible; the Park 

Service had a written policy that “the saving and safeguarding of human life takes precedence over 

all other park management activities.”41 Citing Berkovitz, the court held that the language of the 

administrative policy determines whether conduct is mandatory. In this instance, the directive to 

safeguard human life was “written in broad language [and] does not mention tree inspections, nor 

how the agency should implement the goal of safety.”42 Thus, the guideline was too general to 

eliminate the discretionary function exemption. 

By contrast, a state that used an inadequate traffic plan while resurfacing 15 miles of public 

highway, which caused cars to drive 55 miles an hour on a largely gravel road, was liable for an 

accident that left a motorist paralyzed. The court in McCorvey v. Utah State Department of 

Transportation found that the traffic plan “failed to provide drivers with sufficient warning of the 

hazards presented by the loose gravel.”43

3.2.2. Failure to Warn of Potential Danger

Another potential area for liability for state and local governments involves failure to warn 

the public about a potential danger such as diseases or natural disasters. In general, a government 

may be liable if, under a statute or regulation, it must provide a warning and fails to comply with that 

obligation. Yet, if the government has complied but a specific plaintiff did not receive that warning, 

there is no basis for liability. 

In Jasa v. Douglas County, plaintiff claimed that the county health department negligently 

failed to warn that there was a case of contagious bacterial meningitis at a day care center. The 

 

37 Vernet v. Town of Exeter, 523 A.2d 48, 49 (1986).

38 Bradley v. Bd. of Co. Com’rs of Butler Co., 890 P.2d 1228 (Kan. Ct. App. 1995). 

39 Id. at 1231. 

40 Autery v. United States, 992 F.2d 1523 (11th Cir. 1993).

41 Id. at 1524-25. 

42 Id. at 1523, 1528 (11th Cir. 1993). 

43 McCorvey v. Utah State Dept. of Transp., 868 P.2d 41, 44 (Utah 1993). 

80 
county board of health was statutorily authorized to designate bacterial meningitis a reportable 

disease and to promulgate regulations to prevent its spread. The board had a program of educating 

day-care operators and offering assistance to day-care facilities, but not of notifying parents. How 

the board gave notice and who it notified were discretionary functions, held the court. “[T]he duty 

to make and enforce regulations is painted in broad strokes and does not specify the manner in which 

investigations are to be conducted.”44 The county department’s approach was based on public policy 

considerations of how to allocate resources and therefore was within the discretionary function 

exemption. The court found the county not liable: “[H]ow the disease was to be contained was a 

matter of judgment. . . . However one may view the efficacy of the county department’s policy and 

reaction to the onset of bacterial meningitis, the courts are not at liberty to second-guess the county 

department’s policy decisions.”45

Similarly, in Roberson v. State of Louisiana,

46 plaintiff died when his car skidded on a patch 

of ice on a bridge. The court found that the Department of Transportation and Development had no 

good reason to expect icing conditions “so as to trigger a duty to begin constant monitoring” of the 

weather tracking equipment, as was required by the emergency plan. Accordingly, courts should 

not “impose upon that department a burden of anticipating atypical weather conditions, i.e., of 

expecting the unexpected, and then acting upon the basis of that anticipation.”47 By contrast, the 

court in Lemke v. Metropolitan Utilities District48 asserted that when “(1) a governmental entity has 

actual or constructive notice of a dangerous condition or hazard caused by or under the control of the 

governmental entity, and (2) the dangerous condition or hazard is not readily apparent to persons 

who are likely to be injured by the dangerous condition or hazard, the governmental entity has a 

non-discretionary duty to warn of the danger or take other protective measures that may prevent 

injury as the result of the dangerous condition or hazard.”49 

A few cases address a government agency’s liability for failure to monitor emergency 

weather services such that the public is not notified of dangerous conditions.50 The cases hold that 

no liability can be imposed, even where a customary practice of notification had developed, 

including having an emergency plan.51 Government bodies have no duty to adequately warn each 

citizen of approaching severe weather. The court in Litchhult v. County of Orange52 did not find the 

 

44 Jasa v. Douglas County, 510 N.W.2d 281, 291 (Neb. 1994). 

45 Id. at 292. 

46 550 So. 2d 891, 896-97 (1989). 

47 Id. at 897. See also Linda Lee Corp. v. Covington Co. and City of Bedford, 36 Va. Cir. 590 (Va. Cir. Ct. 1993). 

48 Lemke v. Metropolitan Utilities Dist., 502 N.W.2d 80 (Neb. 1993). 

49 Id. at, 89. See also Hellmers v. Dept. of Transp. & Development, 503 So.2d, 174 La. App. 4 Cir. (1987). But see 

McCormick v. City of Norfolk, 263 Neb. 693 (2002). 

50Roberson v. State of Louisiana, 550 So. 2d 891 (La. 1989) (ice on bridge); Bradley v. Bd. of County 

Commissioners, 890 P. 2d 1228, 1231-32 (Kansas 1995) (tornado). See also Griffin v. Rogers, 653 P.2d 463, 479 

(1982) (high winds on water causing several deaths; however, cause of action was based on contract, not duty to 

public, individuals or as a whole). 

51 Griffin v. Rogers, 653 P.2d 463, 479 (1982); Roberson v. State of Louisiana, 550 So. 2d 891 (1989). 

52 Litchhult v. County of Orange, 583 N.Y.S. 2d 671, (1992); see also Bergquist v. United States 849 F. Supp. 1221 

(N.D. Il. 1994). 

81 
county liable for failing to disseminate tornado watch information before it struck a school, killing or 

injuring thirty children. The county’s duty ran to the public “as intended beneficiaries of the 

emergency preparedness plan,” not to the school or the students. The county could choose whether 

to warn the public about a tornado and was thus subject to the discretionary immunity exception 

(although the court did not address whether the county’s public information officer’s failure to 

distribute the notice was a deliberate choice or an oversight). 

3.2.3. Failure to Keep Emergency Systems (911) Working 

Local governments are typically not found liable for personal injury or property damage that 

results from a breakdown of emergency systems, including 911 emergency services. For example, 

in Chiczewski v. Emergency Telephone System Board of DuPage County,

53 plaintiff called 911 but 

was routed to the wrong system, and the 911 operator told plaintiff she could not send emergency 

services to outside areas. The court held that defendant would only be liable for willful or wanton 

conduct.54 There was no evidence that defendant should have been aware that plaintiff’s call would 

be mis-routed, nor was there a record of any previous mis-routing; an earlier 911 call from plaintiffs’ 

home had been routed correctly. Courts are even more deferential of systems that are only used 

during emergencies: “the very fact that these are emergency procedures suggests a design that they 

not be maintained constantly in operation. Few, if any, emergencies so persist or endure.”55

3.2.4. Failure to enter into a mutual aid agreement

Mutual aid agreements are made, pursuant to statutory language either at the state or local 

level, among government entities (states, counties, or municipalities) to assist each other in the event 

of a fire or police emergency.56 Most statutes permit mutual aid agreements; provision of aid under 

them is generally voluntary, conditional on the donor’s ability to spare the resources.57 Informal 

agreements may not be legally recognized.58 Similarly, who may enter into the mutual aid agreement 

(Governor, mayor, fire or police official) depends upon the statutory wording. Who may request or 

invoke aid under the agreement is also specific to the statute and to the agreement itself. In New 

York, for example, only the Governor may activate the fire mobilization plan, following a request 

 

53 Chiczewski v. Emergency Telephone System Board of Du Page County, 692 N.E.2d 691 (Ill. 1997). 

54 E.g., a “course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, 

shows an utter indifference to or conscious disregard for the safety of others or their property.” 745 ILCS 10/1C210 

(West 1994). 

55 Roberson v. Louisiana, 550 So. 2d 891, 896 (La. 1989). 

56 Advance Food Service Equipment v. County of Nassau, 128 A.D.2d 658, 659-60 (NY App. Div. 1987) (citing 

state law requiring state fire administration to prepare a mutual aid plan); Pennsylvania v. Novick, 438 A.2d 974, 

976 (1981) (citing state law permitting municipalities to entire in to mutual aid agreements). 

57 In New York, the state fire administration was required to prepare a plan “which may provide for mutual aid 

zones.” Advance Food Service Equipment v. County of Nassau, 128 A.D.2d 658, 659 (N. Y. App. Div. 1987) 

emphasis added. But see Lima v. County of Rockland, 133 A.D.2d 740, 741 (N.Y. App. Div. 1987) (the Rockland 

County (NY) mutual aid plan for fire districts was voluntary); see also Tillson v. Kuhner, 283 A.D. 604, 609 (N.Y. 

App. Div. 1954) (the defendant fire districts “instructed” their firemen to cooperate with each other. Pennsylvania 

permits its municipalities to enter into joint agreements). 

58 Pennsylvania v. Novick, 293 PA Super. 241, 245 (Pa. Super Ct. 1981) (finding “only municipalities may enter into 

such agreements, and that tacit agreements between police departments of adjoining municipalities purporting to 

authorize mutual aid are without legal effect”). 

82 
for assistance from a local official.59

Case law involving mutual aid agreements is limited for several reasons. First, they are 

infrequently invoked: one case found that less than five percent of a fire department’s calls were to 

provide mutual aid to another district.60 Second, failure to create or to invoke an agreement, without 

mandatory language in the statute or the agreement, does not give rise to a cause of action. Finally, 

even if a mutual aid agreement is mandated, courts favor the government in assessing any failure to 

act. A few cases use a mutual aid agreement as an element of proof in addressing other issues, such 

as whether a government entity is liable for property damage or personal injury that occurred when 

assistance was provided under that agreement,61 or whether a policeman’s arrest outside of his 

municipality was lawful as “mutual aid” to the community where the arrest occurred.62 

In planning for a terrorist attack, state and local governments are well-advised to review 

existing mutual aid agreements to determine whether they are in compliance with any state law 

mandating them, whether they have been properly executed with neighboring communities, what 

steps are required to invoke them, what the penalty is for failure to respond to a request for mutual 

aid and to assure that any response plan for a terrorism attack properly references the mutual aid 

agreements. 

3.3. Tort Liability for Damage to Private Property

In contrast to the previous section’s discussion of potential tort liability for officials who do 

remiain idle in advance of a situation, this section discusses liability for officials who act during a 

situation and cause harm to property by their actions. 

 3.3.1. Federal Liability

Previously-discussed principles of federal tort liability might suggest that courts would be 

deferential and rarely hold the government liable for responses to a crisis. In fact, when federal 

responders’ actions cause damage to private property, courts often reject application of the 

discretionary function exception and hold them to a high duty of care. The leading cases involving 

the United States Forest Service (USFS) distinguish between discretionary choices involving 

allocation of resources and non-discretionary execution of fire-fighting tasks. 

In Rayonier Inc. v. United States,

63 the Supreme Court held that USFS firefighters could be 

 

59 Advance Food Service Equipment, 128 A.D.2d 658, 659-60 (N.Y. App. Div. 1987). 

60 Lima v. County of Rockland, 133 A.D.2d 740, (N.Y. App. Div. 1987). 

61 Advance Food Service Equipment v. County of Nassau, 128 A.D.2d 658, 741 (N.Y. App. Div. 1987) (defendant 

was not providing assistance under the mutual aid agreement, and therefore was not entitled to immunity under the 

statute mandating the plan); Tillson v. Kuhner, 283 A.D. 604, 607-08 (N.Y. App. Div. 1954) (fire department that 

requested mutual aid had no liability for fatal accident caused by fireman from another department who was 

responding to the request). 

62 Pennsylvania v. Novick, 293 Pa. Super. 241, 245 (Pa. Super Ct. 1981) (“tacit agreements of police departments of 

adjoining municipalities purporting to authorize such mutual aid are without legal effect to empower the police of 

one municipality to arrest someone in the other municipality”). 

63 Rayonier, Inc. v. United States, 352 U.S. 315, 321, (1957), on remand, Arnhold v. United States, 284 F.2d 326, 

329-30 (9th Cir. 1960) (holding USFS firefighters liable under Washington law for negligently failing to control a 

fire started on federal land).

83 
liable for negligent firefighting if state law would hold a private individual liable for similar 

conduct.64 More recently, in Anderson v. United States,

65 the USFS initiated controlled burns in the 

Cleveland National Forest pursuant to a program to prevent major forest fires. When the fire got out

of control, it destroyed part of a residential neighborhood. The court said that liability could ensue 

for the alleged negligence in setting, controlling, and suppressing the fire because California law 

imposes liability for damages caused when one sets fires that escape one’s property. The same

conclusion was reached in Bennett v. United States,

66 where the fire service negligently lost control 

of naturally-started fires, in contrast to fires it had set. 

But in Miller v. United States,67 the court dismissed a complaint against the fire service 

because the discretionary function exception is designed to prevent the judiciary from policing 

executive branch decisions. The damage resulted from a choice as to how best to cope with multiple 

fires in Bald Butte, considering fire suppression costs, minimizing resource damage and 

environmental impacts, and protecting private property. Although guidance sources for forest 

service operations were allegedly not satisfied, the court stated that “when there is more than one 

fire to fight, ... the inevitable competition for resources dictates discretion.” Regardless of whether 

the Forest Service made correct resource allocation decisions, if officials are forced to balance 

competing concerns, immunity shields the decision.68 

Case law concerning the liability of FEMA, the Army Corps of Engineers, and other disasterresponse agencies closely parallels the forest service cases. FEMA has been held immune from

liability for deciding which property should be cleared or whether federal agencies should lead the 

effort or make grants to state or local governments. “The Government’s decisions on when, where, 

and how to remove debris after a major disaster are exactly the sort of policy-imbued decisions that 

fall within the second prong of the discretionary function exception.”69 But if federal law or policy 

prescribes a specific course of action, and the official violates that prescription, the discretionary 

function exception will not apply. Federal agents have no discretion to violate mandatory federal 

regulations. If their behavior does not comply with applicable regulations and where that noncompliance is the proximate cause of the damage, the government is negligent per se.

70 

Moreover, the discretionary function exception will not apply if the choices do not involve 

high policy judgments that should be immune from judicial second-guessing or if the injury-causing 

 

64 Rayonier did not address the discretionary function exception which did not receive its current meaning until 

decades later. The government did not argue for, nor did the Court consider, the discretionary function exception. 

Moreover, when Rayonier was decided, discretionary immunity did not connote what it does under current law. It 

was not until 1984 that the Court formed the two-step analysis approach. Varig Airlines, 467 U.S. 797, 813-14 

(1984); see William P. Kratzke, The Supreme Court's Recent Overhaul of the Discretionary Function Exception to 

the Federal Tort Claims Act, 7 ADMIN. L.J. AM. U. 1, 12 (1993). 

65 55 F.3d 1379 (9th Cir. 1995). 

66 53 F.3d 1080 (9th Cir. 1995). 

67 163 F.3d 591 (9th Cir. 1998). 

68 See also Defrees v. United States, Through U.S. Forest Service, 738 F. Supp. 380, 384 (Or. 1990). 

69 Sunrise Village Mobile Home Park v. United States, 42 Fed. Cl. 392, 398 (1998). 

70 See Smalls v. U.S.E.P.A., 861 F.2d 60 (3d Cir. 1988); Starrett v. United States, 847 F.2d 539 (9th Cir. 1988); and 

Clark v. United States, 660 F. Supp. 1164 (9th Cir. 1988). 

84 
negligence is unnecessary to execute policy choices.71 Thus, in Ward v. United States,72 plaintiff 

could recover damages resulting from a sonic boom induced by Air Force aircraft. Ordering military 

aircraft to undertake training flights was within the discretionary function exception, negligently 

operating aircraft during maneuvers was not.73 Similarly, in Miller v. United States,74 decisions to 

keep lake levels within a specific range were discretionary, but immunity did not extend to mistakes 

in judging how much water goes through the gates.75

These cases, viewed together, clarify understanding of liability under the FTCA. No liability 

will follow from choices made involving policy considerations, even if a choice harms someone. 

However, if a policy, once chosen, can be carried out without causing harm, but a careless official 

selects a way to proceed that causes unnecessary harm, then immunity does not apply and liability 

may follow. 

3.3.2. State Liability

Under the public necessity doctrine, state/local governments may make emergency response 

decisions that damage property without incurring liability: “[O]ne is privileged to enter land in 

possession of another if it is ... necessary for the purpose of averting an imminent public disaster.” 76

Thus, no liability attaches if: (1) there a valid emergency; (2) the destruction of private property 

was necessary to alleviate a public danger; (3) if the destruction was not under exigent 

circumstances, the property owner received due process before the loss occurred; and (4) there was 

no intentional misrepresentation. A minority position, however, is that a taking occurs even if the 

damage results from necessary actions.77

There is no liability if the property loss is inflicted to prevent further damage to other persons 

or property. “The basic objective of government is to protect and promote the health, safety and 

general welfare of the people. When a condition of affairs appears in the state which presents a 

threat to the accomplishment of that objective, the government has the right, and obligation, to cope 

with such threat by whatever measures, within constitutional limits, that are necessary and 

appropriate.”78

 

 

71 Melton v. U.S., 488 F. Supp. 1066 (D.D.C. 1980). 

72 471 F.2d 667, (3d Cir. 1973). 

73 See also United States v. Hunsucker, 314 F.2d 98 (9th Cir. 1962). 

74 583 F. 2d 857, (6th Cir. 1978), on remand, 480 F. Supp. 612 (E.D. Mich. 1979) 

75 See also Hayes v. United States, 585 F.2d 701 (4th Cir. 1978). 

76 Restatement (Second) of Torts § 196, quoted in Marty v. State of Idaho, 786 P.2d 524, 142 (Idaho 1989) (whether 

flooding of farm land by flood control district was a taking or exercise of necessity was a question of fact to be 

determined at trial). “In times of natural catastrophe or civil disorder, immediate and decisive action by some

component of state government is essential.” Cougar Bus. Owners Assn. v. State of Wash., 647 P.2d 481, 486 

(Wash. 1982). 

77 See Wegner v. Milwaukee Mutual Ins. Co., 479 N.W. 2d 38 (Minn. 1991). The Minnesota Supreme Court said 

“We believe the better rule, in situations where an innocent third party’s property is taken, damaged or destroyed by 

the police. . . is for the municipality to compensate the innocent party for the resulting damages.” Id. at 42. 

78 Suber, 414 P.2d 546, 551-52 (1966); see also Balent v. City of Wilkes-Barre, 492 A.2d 1196 (Pa. Commw. Ct. 

1985). 

85 
Depending on a state’s statutory requirements, seizure of property may require a formal 

emergency declaration that specifically authorizes officials to seize or destroy property in dealing 

with the emergency.79 The state of emergency may last for as long as necessary to resolve the public 

peril, even if longer than scheduled and without additional notice to the public. The emergency 

need not be declared until long after it occurred in order to be official and immune, so long as the 

declaration substantially complies with the applicable disaster preparedness statute. Immunity may 

extend to losses caused by damage to property that was not directly involved in the emergency 

situation such as nearby structures or automobiles.80 

There are exceptions to immunity for emergency response actions. Officials must 

substantially comply with disaster preparedness laws and with laws that specify activities to protect 

the public, such as cleanup of hazardous waste. If the government waits too long to destroy property 

after a disaster, then neither a necessity nor a nuisance exists, and the property owner must receive 

due process prior to destruction. Thus, the destruction must be timely, although the declaration of 

emergency may not have to be.81 In addition, intentional misrepresentation of harm that could arise 

from emergency actions is not a discretionary act.82 Officials must give complete and accurate 

information without deliberately concealing what harms could arise from their planned emergency 

measures. But inadvertently giving misinformation does not give rise to liability. Finally, the action 

must not violate state and federal constitutional rights or it could be a “taking” of property for public 

use, rather than an emergency action required as a police power. 

Teresi v. California83 demonstrates the meaning of “discretionary action.” In the early 

1980s, the Mediterranean fruit fly, Medfly, infested California’s commercial agricultural land, 

prompting a state-declared emergency quarantine and pesticide program lasting almost two years. 

Quarantining the shipment of peppers and then spraying caused plaintiff’s entire pepper crop to rot. 

Plaintiff alleged that his losses resulted from the negligent failure to adopt a safer pest eradication 

program and negligence in not realizing that it would damage crops. Plaintiff could not recover 

despite a California constitutional provision for compensation for a taking of private property; the 

actions were reasonably necessary to avoid further infestation. Similarly, in Farmers Insurance 

Exchange v. California,

84 an auto insurance company could not recover from the State for the claims

it had paid to repaint cars damaged by the pesticide spraying. Moreover, a decision to continue 

spraying beyond its originally scheduled period without giving the public further notice was also a 

discretionary decision. 

 

79 Cougar Bus. Owners Assn. v. State of Wash., 647 P.2d 481, 486 (Wash. 1982). 

80 LaBadie v. California, 256 Cal. Rptr. 604 (Cal. Ct. App. 1989); see also S. Griffin Construction, Inc. v. City of 

Lewiston, 135 Idaho 181 (Idaho 2000) (declaring a fire a state of emergency three years after it occurred 

substantially complied with the Idaho Disaster Preparedness Act, and only substantial compliance was required). 

81 Rapid City v. Boland, 271 N.W.2d 60 (1978) (holding that waiting 21 days to demolish a house damaged by a 

flood was too long to show a necessity existed, and the owner was entitled to due process or compensation). But see 

S. Griffin Construction, Inc. v. City of Lewiston, 135 Idaho 181 (Idaho 2000) (declaring a fire a state of emergency 

three years after it occurred substantially complied with the Idaho Disaster Preparedness Act). 

82 Adkins v. California, 50 Cal.App. 4th 1802, (Cal. App. 1996) (the state was liable to plaintiffs who suffered harm

from pesticides because their supervisors knowingly misrepresented that the chemicals in the pesticides were safe). 

83 Teresi v. California, 180 Cal.App. 3d 239 (Cal. Ct. App. 1986). 

84 Farmers Insurance Exchange v. California, 175 Cal.App. 3d 494 (Cal. Ct. App. 1985). 

86 
Damages inflicted during a proper exercise of the state’s police power are non-compensable. 

The constitutional guarantee of just compensation attaching to an exercise of the power of eminent 

domain does not extend to the State’s exercise of its police power. In cases calling for immediate 

action, the emergency justifies the measures taken to control the menacing condition, and private 

interests must be held wholly subservient to the State’s right to proceed howsoever it deems 

appropriate to protect the public health or safety.85 Thus, the Illinois Supreme Court held in In re 

Chicago Flood Litigation that city officials were not liable for a public injury caused by city workers 

who allegedly failed to supervise contractors who damaged an underwater tunnel system leading to 

flooding in downtown buildings. The court considered the officials’ alleged failure to repair the 

tunnel and decisions made immediately after the accident as within the exercise of discretionary 

decisions.86 

4. LIABILITY UNDER SECTION 1983 FOR RIGHTS VIOLATIONS 

Section 1983 of Title 42 of the United States Code arises from the Ku Klux Klan Act of 

1871, one of the Civil Rights Acts passed between 1866 and 1875 to enforce the 13th, 14th, and 15th

Amendments to the Constitution.87 It provides that state and local officials or their governments for 

may be liable for actions that deprive persons of rights secured by the Constitution or laws of the 

United States.88 For the locality to be liable, the wrongful action must implement or execute a 

promulgated policy or law or it must manifest customary government actions. If the locality was not 

responsible for the plaintiff’s constitutional injury, then the Section 1983 action may proceed only 

against the offending officer.89 Delegating authority to a subordinate to exercise discretion does not 

render the locality liable; the delegated subordinate’s discretionary decisions must be unconstrained 

by official policies and not subject to review.90 A constitutional violation by a non-policy-making 

official not pursuant to an unconstitutional policy is insufficient to impose liability,91 but municipal 

liability may attach to the actions of the decisive policymaker as to that subject matter.92 

Persons making Section 1983 claimstypically allege that the harm they sustained was due to 

 

85 Id. at 501, 502. 

86 In re Chicago Flood Litigation, 680 N.E.2d 265 (Ill. 1997). 

87Section 1983 of 28 U.S.C.S. is derived from the first provision (usually referred to as § 1, although not designated 

as such in the Act) of the Act of Congress of April 20, 1871 (17 Stat 13), which, in relevant part, reads “Any person 

who, under color of any state law, statute, ordinance, regulation, custom or usage of any State, shall subject, or cause 

to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or 

immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, 

custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit 

in equity, or other proper proceeding for redress.” Observers consider § 1983 the only one of the Civil Rights Acts 

that has had successful effect over time. Zwickler v Koota, 389 U.S. 241 n.9 (1967). 

88 Monell v. New York City Dep’t of Social Servs., 436 U.S. 658 (1987) (the Supreme Court approved the recovery 

of damages directly from a municipality that ultimately was found responsible for the plaintiff’s deprivation). 

89 Collins v. City of Harker Heights, 503 U.S. 115 (1992). 

90 City of St. Louis v. Praprotnik, 485 U.S. 112 (1998). 

91 City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985). 

92 Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989). 

87 
a violation of their privacy rights or of their substantive due process rights.93 In connection with 

catastrophic terrorism, four categories of Section 1983 claims may arise. First, liability may ensue if

responders create or increase a person’s danger or harm. Second, liability may result from detaining 

persons, thereby preventing them from taking care of themselves, and failing to attend to their needs 

or manifesting deliberate indifference to them. Third, liability may be imposed for using excessive 

force in carrying out official functions. Fourth, liability may be imposed for not protecting persons 

from private violence. As to this last claim, this discussion also considers state “mob-action” 

statutes that may provide a cause of action for similar problems. 

4.1. State and Local Responders’ Liability for Creating or Increasing Danger

This section explores whether a municipality and/or its officers could be liable for a citizen’s 

injuries if the officials’ actions in stressful conditions contributed to plaintiff’s peril by increasing 

the potential danger. 

No liability will be imposed simply because responders did not succeed in protecting persons

from harm. There is no right to competent rescue services.94 Mere failure to rescue does not give 

rise to liability, nor does a poorly executed rescue. Officials are not obliged to prevent harm nor 

rescue persons in danger. The Due Process Clause does not guarantee certain minimal levels of 

safety and security for citizens; it is designed to control abuses of governmental power and thus does 

not reach negligence. Nor is it a source of mandatory rescue services, though it does proscribe 

intentional deprivations.95 

Liability can be established, however, if officials leave a person in more danger than when 

they found him, or when they deny self-help or the help of others. This basis for a claim must 

involve conduct that endangers a person.96 If the government creates or increases the danger that 

leads to a person’s injury and fails to protect the person, then the government is liable under Section 

1983.97 The logic here is traditional tort doctrine; no one must rescue someone in distress, but a 

person who begins a rescue must not be negligent.98 This doctrine respects the autonomy of 

bystanders and reduces the risk of conscription into hazardous rescue. At the same time, liability for 

incompetent rescue reflects the view that a rescue in process may lead superior rescuers to pass by, 

endangering the victim more than if the first rescue had not been initiated. Therefore, by application 

of this rule to governmental rescue services such as police, fire departments, “hot line” phone 

numbers, etc., the government need not offer such services but must provide them competently if it 

does. 

Contrast two recent decisions from the Seventh Circuit Court of Appeals. In Archie v. City 

of Racine,

99 Les Hiles repeatedly called the Racine Fire Department, seeking a rescue squad for his 

 

93 Brogsdale v. Barry, 926 F.2d 1184, 1187-88 (D.C. Cir. 1991). 

94 Jackson v. City of Joliet, 715 F.2d 1200, 1205 (7th Cir. 1983). 

95 DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989). 

96 L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). 

97 Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982). 

98 RESTATEMENT 2D OF TORTS §§ 314, 323 (1965); PROSSER & KEETON, THE LAW OF TORTS 378-82 (5th ed. 1984). 

99 847 F.2d 1211 (7th Cir. 1988). 

88 
friend Rena DeLacy who was hyperventilating heavily. George Giese, the dispatcher, advised Hiles 

to have DeLacy breathe into a paper bag. DeLacy died a few hours later; appropriate emergency 

care could have saved DeLacy’s life. In the suit against the City of Racine as well as Giese, the 

appellate court ruled that, although Giese may have negligently violated state tort law, neither he nor 

the government had a constitutional obligation to DeLacy. To treat a violation of state law as a 

constitutional violation would make the federal government the enforcer of state law, impermissibly 

intruding upon state determinations of how to allocate resources and responsibilities. 

In Ross v. United States,

100 twelve year-old William Ross fell off a pier into Lake Michigan 

and drowned. Two lifeguards, two firefighters, a policemen and two civilian scuba divers sought to 

attempt a rescue but were stopped by county deputy sheriff Johnson, citing a policy forbidding 

civilian rescue attempts; only official agents could perform rescues. Deputy Johnson ordered 

everyone to cease their rescue efforts. When the civilian divers offered to attempt a rescue at their 

own risk, Johnson threatened to arrest them and positioned his boat to prevent their dive. Thirty 

minutes later, official divers retrieved William’s body. Plaintiff successfully alleged liability under 

Section 1983 for the “official policy” that led Deputy Johnson to forbid rescue efforts, even though 

this was the first challenge to the policy. The wrong was not the failure to provide assistance; it was 

the official’s cutting off private sources of rescue without providing an alternative, depriving 

William of his right to life. “Where a particular course of action is authorized by a municipality’s 

authorized decision-makers, it represents a policy rightly attributed to the governmental entity, and 

in such a case, there is no need to resort to proof of the policy’s multiple applications to attribute its 

existence to the municipality.”101

The line that separates Archie from Ross is captured in two sentences from the opinion in 

Archie: 

Having put the citizen on the defensive, or having stripped away avenues of selfhelp, the state must afford a procedure reasonably likely to reach an accurate 

conclusion even if that means the implication of positive rights from negative ones. 

When the government does not monopolize the avenues of relief, or when it has 

already afforded process sufficient to yield accurate decisions, it has no further 

obligation to give aid.102

Other cases illustrate when police may be liable for increasing a risk of injury. In Kneipp v. 

Fedder,

103 police stopped plaintiff’s daughter and her husband while walking visibly intoxicated. 

The police sent the husband home; he believed that the police would take his seriously impaired wife

to the hospital. Instead, they sent her home alone. She fell down an embankment, suffering 

hypothermia and brain damage. The court ruled that by assuming responsibility for her safety when 

they told the husband to leave, the police cut off her private source of safety and increased risk that 

she might be injured when they later abandoned her. The officers could be liable under a four-part 

test of the state-created danger theory: (1) the harm ultimately caused was foreseeable and fairly 

 

100 910 F.2d 1422 (7th Cir. 1990). 

101 Id., citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986); see also Sinthasomphone v. City of 

Milwaukee, 785 F. Supp. 1343 (E.D. Wis. 1992). 

102 Archie v. City of Racine, 847 F.2d 1211, 1222 (7th Cir. 1988). 

103 95 F.3d 1199 (3d Cir. 1996). 

89 
direct; (2) the official acted in willful disregard for the plaintiff’s safety; (3) a relationship existed 

between the official and the plaintiff; and (4) the officials used their authority to create a risk of 

harm that would not have otherwise existed. As to the city’s liability, the facts would have to show 

that its training program for handling such situations was inadequate and that inadequacy was caused 

by deliberate indifference.104

Closely related is a claim that, due to the claimant’s ethnicity, officers selectively ignored the 

risk. In Amos v. The City of Page, Arizona,

105 decedent’s estate could pursue a claim against police 

for having called off a rescue effort, allegedly because they believed that the decedent was Native 

American. Moreover, as the refusal to rescue was allegedly pursuant to an unstated municipal 

policy, the municipality itself could be a culpable party, and not merely the officers who declined to

conduct the rescue. 

These cases suggest that the courts will hold municipalities liable if police or officials 

manifest an extraordinary or unjustifiable disregard of a danger or interfere with private sources of 

rescue. If the disregard or interference is linked to a municipal “policy,” then the municipality is 

likely to be held responsible itself, not just the official. The basis of liability here is not the 

reasonable exercise of discretion that leads to an unfortunate result, it is the obstinate refusal to be 

helpful or to allow others to help someone in need. In a catastrophe, police and other responders 

must not stand in the way of private rescue efforts nor disregard victims in danger. 

 

104 See also Hansberry v. City of Philadelphia, No. 01-CU-1670 #2002 U.S. Dist. LEXIS 20493, at *9 (Oct. 24, 

2002).

105 No. #99-16214, 2001 U.S. App. Lexis 16792 (July 26, 2001).

90 
4.2. Liability for Failure To Properly Attend To Detainees’ Needs

During and after a terrorism emergency, authorities might impose a quarantine or might order 

persons confined to their homes or detained for medical testing and vaccination. Individuals may 

lose personal liberty as well as the normal ability to tend to their own needs. This section explores 

whether a municipality and/or its officers could face liability for depriving or failing to attend to 

detainees’ medical needs. That is, could a municipality be liable if police or other officials detain 

someone yet do not provide that person with necessary medical attention or medication? As stated, 

Section 1983 does not generally obligate officials to provide for citizens’ safety or well-being. 

However, if officials detain or have custody of a person, preventing access to avenues of assistance 

such that the detainee is dependent upon those officials, a “special relationship” exists. “Deliberate 

indifference” to the detainee’s needs in that context can lead to liability. When officials restrain an 

individual’s freedom to act on his own behalf -- through incarceration, institutionalization, or other 

detention -- the protections of the Due Process Clause are triggered.106 

“‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal 

actor disregarded a known or obvious consequence of his action.... A plaintiff must demonstrate 

that a municipal decision reflects deliberate indifference to the risk that a violation of a particular 

constitutional or statutory right will follow the decision.”107 “Deliberate indifference” cannot be 

inferred merely from a negligent or even a grossly negligent response to a substantial risk of harm. 

Nor will liability be found for failure to provide medical care for detainees whose injuries appear to 

be slight but later turn out to be serious.108 

The term “deliberate indifference” serves to distinguish actions giving rise to liability from

actions that are shielded by the doctrine of qualified immunity for performance of discretionary 

functions that are objectively reasonable.109 If a Section 1983 defendant is an official whose 

position involves exercising discretion, plaintiff must rebut the defense of qualified immunity by 

showing that a clearly established right was violated such that a reasonable official would 

understand that what he is doing violates that right.110 The defendant’s acts are held to be 

objectively reasonable unless officials in the defendant’s circumstances would have known that the 

defendant’s conduct violated established rights. Decisions of how to manage programs and even 

concerning a particular response to a situation involve many policy choices that local officials must 

make without fear that federal judges will hold them liable in hindsight for a mistake.111 However, 

qualified immunity turns only upon the objective reasonableness of the defendant’s actions; a 

particular defendant’s subjective state of mind has no bearing on whether qualified immunity should 

 

106 Farmer v. Brennan, 511 U.S. 825 (1994). 

107 Board of County Comm’rs. v. Brown, 520 U.S. 397, 411 (1997). 

108 Davis v. Jones, 936 F.2d 971 (7th Cir. 1991). 

109 Harlow v. Fitzgerald, 457 U.S. 800 (1982). 

110 Anderson v. Creighton, 483 U.S. 635 (1987). 

111 See Johnson v. Hardin County, 908 F.2d 1280 (6th Cir. 1990) (county jailer not liable despite being in complete 

charge of the jail with unreviewable authority to decide on prisoners’ medical care; the legislature was responsible 

for enacting laws regarding medical care at the jail, even though relevant ordinances had not been adopted). 

91 
apply.112 

Detainees have a constitutional right to have confining officials not meet their serious 

medical needs with deliberate indifference. “Deliberate indifference” in this context means that: (1) 

the official knew facts and could draw an inference of substantial risk of harm; (2) the official 

actually drew that inference; and (3) the official’s response indicates a subjective intent that harm

occur. If the need for treatment is obvious, intentionally refusing to provide it or providing care that 

is so cursory as to amount to no treatment at all may amount to deliberate indifference. In Fielder v 

Bosshard,

113 liability could be found where both the detainee and his mother had asked the jailer for 

medical attention for delirium tremens but the jailer ignored those requests; the jailer thought the 

prisoner was “faking.” In Mandel v. Doe,

114 the defendant’s persistent refusal to order an x-ray 

despite the plaintiff’s complaints or to refer plaintiff to a hospital for more experienced treatment, 

coupled with his utter lack of concern for the well-being of a detainee with whose care he had been 

entrusted, was held to constitute constitutionally intolerable deliberate indifference.115 

If the official’s liability can be established, then a question arises as to whether the 

municipality itself may be liable. In Canton v. Harris, the Supreme Court held that to support a 

claim of “failure to train,” the plaintiff must show that: “in light of the duties assigned to specific 

officers or employees, the need for more or different training is obvious, and the inadequacy so 

likely to result in violations of constitutional rights, that the policymakers of the city can reasonably

be said to have been deliberately indifferent to the need.”116 The municipality could be held liable 

under Section 1983 for violating a plaintiff’s Due Process rights to receive necessary medical 

attention while in police custody because of the municipality’s failure to train its employees. The 

plaintiff arrestee twice slumped to the ground and was incoherent when asked if she needed medical 

attention. The police left her on the floor until after she was released from custody when she was 

admitted to the hospital for treatment of emotional illness. The municipality’s policy was to provide 

necessary medical treatment to arrestees. In this case, the municipal policymakers responsible for 

establishing training regimens deliberately chose inadequate training. 

Theories of vicarious liability or respondeat superior will not support supervisory liability. 

Absent a policy or custom evincing deliberate indifference, there is no liability for claims of failure 

to train officers that derive from a municipality’s discretionary allocation of strained resources, even 

if officials were negligent.117 In order to pursue such liability, the plaintiff must establish that: (1) 

the wrongful conduct was due to a failure to train or supervise the officers involved; (2) that failure 

is causally connected to the alleged violation of plaintiff’s rights; and (3) the failure to train 

manifested deliberate indifference to plaintiff’s rights.118 Thus, in S.P. v. City of Takoma Park,

119

 

112 Thompson v. Upshur County, 245 F.3d 447 (5th Cir. 2001). 

113 590 F.2d 105 (5th Cir. 1979). 

114 888 F.2d 783 (11th Cir. 1989).

115 See also, Gibson v. County of Washoe, 290 F.3d 1175 (2002). 

116 Canton v. Harris, 489 U.S. 378, 390 (1989). 

117 Ringuette v. City of Fall River, 888 F. Supp. 258 (D. Mass. 1995). 

118 Thompson v. Upshur County, 245 F.3d 447 (5th Cir. 2001). 

119 134 F.3d 260 (4th Cir. 1998). 

92 
the Fourth Circuit held that a municipality’s failure to instruct employees as to the proper 

constitutional standard to detain a person for mental health reasons suffices to constitute inadequate 

training for purposes of a Section 1983 claim. In Colle v. Brazos County,

120 the sheriff was held 

liable for staffing the jail with persons lacking authority to transfer a detainee needing medical care 

to a hospital, and having a policy of not monitoring detainees’ serious health needs. 

4.3. Liability for Use of Excessive Force 

In responding to a terrorist event, an important liability issue concerns law enforcement 

officers’ use of force. Persons who interfere with responders must be forcibly moved or controlled; 

persons who panic must be restrained. If a quarantine or other emergency restriction is ordered, 

force may be necessary to enforce it against disobedient citizens. Moreover, the general stress on 

social conditions might encourage people to commit crime: either traditional crimes such as looting 

or robbery; or crimes of violence directed at purported associates of the terrorist event (i.e., persons 

of the same ethnicity as the alleged culprit). The courts review allegations of excessive use of force 

case by case; there are no absolute rules, although the cases establish some guidelines. To control 

emergency situations, law enforcement officers may not use objectively unreasonable force “from

the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 

hindsight.”121 Police acting in their community care taking function, i.e., protecting community 

safety, rather than conducting investigations, may use force that would be excessive in other 

situations if they reasonably believe that their action is required to avert a life-threatening 

emergency.122

In contrast to previously discussed liability issues where the courts’ inquiry focused on 

“deliberate indifference,” cases involving claims of excessive force turn on whether force was 

applied “maliciously and sadistically for the very purpose of causing harm,”123 or with “a purpose to 

cause harm.”124 The Supreme Court has held that use of force where circumstances require police 

officers to make split-second judgments may not be a basis for Section 1983 culpability under either 

the Eighth Amendment (in prison riots) or the Fourteenth Amendment (in high-speed automobile 

chases) if the officers were merely indifferent to the risk posed by that force. Determining if the 

force used was unnecessary requires evaluation of the need to apply force, the relationship between 

that need and the amount of force used, the threat “reasonably perceived by the responsible 

officials,” and “any efforts made to temper the severity of a forceful response.”125

Police, in situations requiring fast action, might have conflicting obligations. Their duty is to 

restore and maintain lawful order decisively and to show restraint at the same time, and their 

decisions must be made “in haste, under pressure, and frequently without the luxury of a second 

chance.”126 An officer’s use of some degree of force is justified against a person who resists arrest 

 

120 981 F.2d 237 (5th Cir. 1993). 

121 Graham v. Connor, 490 U.S. 386, 396 (1989). 

122 Russoli v. Salisbury, 126 F. Supp. 2d 821 (E.D. Pa. 2000). 

123 Whitley v. Albers 475 U.S. 312, 320-21 (1986). 

124 County of Sacramento v. Lewis, 523 U.S. 833, 835 (1998). 

125 Hudson v. McMillian 503 U.S. 1 (1992).

126 County of Sacramento v. Lewis, 523 U.S. 833, 852 (1998). 

93 
or threatens to assault the officer, but the officer has no license to use force without limit. The force 

used must be reasonably related to the nature of the resistance.127 While not “every push or shove an 

officer makes during an arrest will subject the officer to Section 1983 liability,” the force used need 

not “‘shock the conscience’ or cause ‘severe injuries’” to rise to the level of excessive force.128 A

key issue is whether the officer’s actions comported with a department’s routine practice and in light 

of their training such that the officer’s conduct was objectively reasonable.129 

Terrorism creates new problems for police; line officers’ ability to rapidly follow their 

training and the law in dangerous situations involving politically motivate sociopaths is critical.130 

In a case where a criminal escorted by DEA agents during a flight became unruly, the court found 

that the agents had not used excessive force. Some force was necessary to restrain him and protect 

the other passengers under the circumstances: where the alleged excessive force occurred for a very 

brief period; the passenger was clearly disturbed and dangerous; and crew members faced potential 

criminal liability if they did interfere.131

4.4. Liability for Failure To Protect Against Private Violence and Mob Actions

A terrorist act can (and has) provoked violence by creating an environment of mass panic 

that spawns violence by non-terrorists. For example, rioting may erupt if there is a widespread sense 

that law and order have broken down. In another respect, persons unrelated to the terrorist might, 

out of misplaced anger, behave violently to innocent members of the terrorists’ ethnic group. This 

section explores the legal rules governing the liability of officials with respect to harm caused by 

private violence. 

Persons injured by criminal violence face a steep burden of proof in seeking to hold officials

liable for failing to provide protection. In general, state and local governments are not responsible 

for damages caused by private citizens’ wrongful conduct. As earlier stated, officials are not 

obligated to protect people, least of all from conduct outside their control. Even if officials are 

negligent in their responsibilities, that does not lead to liability because of statutory protections from

tort liability for performing government functions. Yet, despite their broad immunity, officials can 

be held liable under either: (1) Section 1983 for violation of a right protected by the constitution or 

federal law; or (2) state statutes that provide a cause of action against a municipality for damages to 

property or injuries to persons resulting from mob actions or riots. 

 

127 Sullivan v. Town of Dewitt New York, 225 F.3d 161 (2000). 

128 Lester v. City of Chicago, 830 F.2d 706, 712 (7th Cir. 1987); see also Warren v. Humphrey, 875 F. Supp 378 

(E.D. Texas 1995); Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.).

129 Malley v. Briggs, 475 U.S. 335, 341 (1986). 

130 O’Brien v. City of Grand Rapids, 23 F.3d 990 (6th Cir. 1994). 

131 Levy v. American Airlines, No. 90 Civ. 7005, 1993 U.S. Dist. LEXIS 7842, at (S.D.N.Y. June 9, 1993), aff’d, 22 

F.3d 1092, (3d Cir. 1994). 

94 
4.4.1. Liability under Section 1983 for Injuries from Private Violence

In general, Section 1983 does not provide relief for persons injured by private violence. 

When a civil disturbance injures individuals, even an official’s precipitate recklessness will not 

necessarily shock the conscience if the official did not act with malice or intend to cause the harm.

132

According to the Supreme Court, “[N]othing in the language of the Due Process Clause itself 

requires the State to protect the life, liberty and property of its citizens against invasion by private 

actors.... It forbids the State itself to deprive individuals of life, liberty, or property ... but its 

language cannot be fairly extended to impose an affirmative obligation on the State to ensure that 

those interests do not come to harm through other means.”133 

Yet, if plaintiff can show that the official actions were based on discriminatory intent, 

increased the victim’s vulnerability to private attacks, or were made without due care, plaintiff can 

raise a Section 1983 claim. In Dwares v. City of New York,

134 plaintiff observed a flag-burning rally 

and was severely beaten by skinheads. He alleged that police officers looked on and did nothing to 

stop the beating, although the defendants knew that one attacker had a history of violence against 

free speech activists and had told a local newspaper that police officers had agreed to not interfere 

with the skinheads. The Second Circuit found that the victim could claim a Section 1983 violation 

where the State “assisted in creating or increasing the danger to the victim.” This complaint 

“asserted that the defendant officers indeed had made the demonstrators more vulnerable to 

assaults,” which “violated the victim’s rights under the Due Process Clause.” 

In Rosenbaum v. City of New York,

135 plaintiffs sued the Mayor of New York and the City 

Police Commissioner, claiming an inappropriate policy of restraint. After an African-American 

child was killed by a car driven by a Hasidic Jew, civil disturbances led to personal injury, another 

death, and property damage. The court refused to dismiss the §1983 complaint against the City 

“because plaintiffs have adequately pleaded the violation of their equal protection rights.” But the 

Mayor and Police Commissioner were entitled to qualified immunity because plaintiffs had not 

made a particularized showing that the officials made policy decisions with improper discriminatory 

intent. “[I]t was objectively reasonable for [them] to conclude that they were not behaving in a 

manner that either created or increased danger to plaintiffs” by deciding not to make arrests for 

unlawful assembly during the first two and a half days of violence. 

4.4.2. Mob Action Statutes

Some states have enacted statutes specifying municipal liability for harm to persons and 

property caused by mob action or riots. These laws both encourage prevention of losses and deter 

local residents from rioting by imposing a dollar liability upon them. They also reflect a policy that 

the community rather than the individual victim should absorb the losses. Thus, the municipality is 

the surety in these situations. Even in states having no fault liability statutes, the plaintiff must 

establish that the damages were caused by the riot,136 not merely from a municipality’s discretionary 

 

132 Radecki v. Barela, 146 F.3d 1227 (10th Cir. 1998). 

133 DeShaney v. Winnebago County Social Services Dept., 489 U.S. 189, 195 (1988). 

134 Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993). 

135 Rosenbaum v. City of New York, 975 F. Supp. 206 (E.D. N.Y. 1997). 

136 Wigler v. City of Newark, 309 A.2d 897 (1973). 

95 
administrative or legislative decisions.137

Some of the statutes imposing liability for mob action provide for liability only if the 

municipality has not exercised reasonable care or diligence in suppressing the mob.

138 Other statutes 

provide for strict liability in cases where the victim is assaulted or lynched.139 Other statutes provide 

for liability unless the victim did not exercise due diligence in protecting its property.140 Indeed, a 

municipality may use the claim of contributory negligence as a defense even in states with no fault 

liability statutes. Some states that had such statutes have repealed them or replaced them with 

victim compensation statutes.141

Various issues arise concerning claims under these statutes, including whether the 

perpetrators were a mob; whether the municipality had notice or knowledge; and what damages does

liability extend to? 

4.4.2.1. What Constitutes a Mob? 

Generally, a mob must share a common purpose for the victim to recover for its violence.142 

Thus, a mob is not merely a group of persons who commit individual illegal acts. In Barbour 

Package Store v. City of Hartford,

143 recovery was not allowed for losses from acts of looters who 

did not act in concert. The court could not determine how many persons were involved in the 

looting nor whether they acted in concert or alone. Other courts, however, have assumed that 

criminal acts were committed in concert, especially if there is a history of roving gangs,144 or where 

the persons assembled to carry out what they believed was a community or collective interest.145 In

some cases, persons have constituted a mob for purposes of finding liability even though they had 

assembled with no common purpose but became unlawful thereafter.146 Nor has the criminality of

 

137 A&B Auto Stores of Jones St. v. City of Newark, 279 A.2d 693 (1971).

138 See e.g. CONN. GEN. STAT. § 7-108 (1999); Idaho Code § 6-903 (Michie 1996); KY REV. STAT. ANN. § 411.100 

(Banks-Baldwin 1991) (liability only if authorities could have prevented the damage; Maryland Ann. Code art. 82 

''1-3 (liability only if authorities had reason to believe that riot was likely, and could have prevented injury but did 

not exercise proper care); MASS ANN. LAWS Ch. 269 § 3 (Law. Co-op. 1992); N.Y. Gen. Mun. § 71 (McKinney 

1999) (liability of official for neglecting or refusing to provide protection). 

139 See e.g. OHIO REV. CODE ANN. § 3761.03 (Anderson 2002) (damages up to $5,000 for persons assaulted or 

lynched by a mob); S. C. CODE ANN. § 16-5-60 (Law. Co-op. 2001) (county is liable at least $2,000 for lunching 

regardless of officers’ conduct); W. VA. CODE § 61-6-12 (2000) (municipal liability for $5,000 when person lunched 

was taken from municipal officer. 

140 See e.g. N.J. STAT. ANN. § 2A:48-1 (West 2000) (plaintiff can recover only if it used all reasonable diligence to 

prevent injury/destruction); WIS. STAT. ANN. § 893.81 (West 1997) (claimant must have tried to prevent loss and 

immediately notified authorities). 

141 See e.g. CAL. GOV. CODE § 13960 (West 1984). 

142 Meadows v. City of Logan, 1 S.E.2d 394 (W.Va. 1939) (persons assembled to force plaintiffs to sign an 

agreement regulating their business who destroyed and carried off all plaintiff’s property had assembled for a 

common unlawful purpose and constituted a mob).

143 300 A.2d 254 (Conn. C.P. 1972).

144 Abraham v. City of Woburn, 421 N.E. 2d 1206 (Mass. 1981).

145 Slaton v. City of Chicago, 130 N.E. 2d 205 (Ill. 1955).

146 Yalenezian v. City of Boston, 131 N.E. 220 (Mass. 1921). 

96 
97 

the common purpose been determinative. In City of Madisonville v. Bishop,

147 the court disregarded 

the aim or purpose of the assembly (to celebrate Christmas by setting off fireworks) if in fact the 

assembly was riotous. 

4.4.2.2. Municipality’s Knowledge or Notice

Most statutes require that a person seeking recovery for damages/injury notify the authorities 

of any threat or act of rioting. However, if such notice would have been useless to secure protection 

from the mob, the plaintiff will not be precluded from recovery for failure to give notice.148 Some 

courts have focused not on a municipality’s knowledge that riots were occurring but whether it knew 

that specific property was in danger.149

4.4.2.3. Liability for What Damages? 

Almost all mob action statutes allow recovery for damage to property, but only a few allow 

recovery for personal injury. Even where personal injuries may be recovered, the courts generally 

require that such injury be the mob’s specific or common purpose.150 With regard to recovery for 

property damages, property owners can typically recover from losses resulting from theft and 

looting.151 However, plaintiffs may not recover for loss of profits, losses from business interruption, 

or intangible losses.152

 

147113 Ky 106 (1902). But see A & B v. Newark, 59 N.J. 5 (1971) (a mob or riot is different than a joint violation of 

law). 

148 Roy v. Hampton, 108 N.H. 51 (1967). 

149City of Louisville v. Habeeb, 556 S.W.2d 665 (Ky. 1977) (city did not have notice of imminent danger to 

plaintiff’s store even though it knew of mob riots in the area). 

150 Landesman v. Board of County Commissioners, 224 N.E.2d 532 (Ohio 1967). 

151 But see Yalenezian v. City of Boston, 238 Mass. 538 (1921) (theft of property does not signify that the thing 

stolen has been destroyed or injured, only that the plaintiff’s possessory right has been injured). 

152 Mulliken v. City of Englewood, 59 N.J. 1 (1971). 
CHAPTER V -- LEGAL CHALLENGES FOR THE PUBLIC HEALTH SECTOR1

INTRODUCTION: PUBLIC HEALTH AND CATASTROPHIC TERRORISM

Acts of catastrophic terrorism would cause widespread human and property damage in a 

society. The terrorist aim of attacking large populations with weapons of mass destruction 

(WMD) brings the public health sector of government into the forefront of efforts to deal with 

catastrophic terrorism. “Public health” focuses on population health as opposed to the health of 

the individual, which is the province of health care and medicine. The Institute of Medicine 

defined the substance of public health as “organized community efforts aimed at the prevention 

of disease and promotion of health.”2

 Acts of catastrophic terrorism would threaten the essence 

of the public health mission. 

Public health is also important in connection with catastrophic terrorism because the 

public health sector bears significant burdens of planning for and would bear critical 

responsibilities in responses to acts of catastrophic terrorism. Public health officials and services 

will be among the first to respond to uses of WMD because of the adverse population health

consequences these weapons could achieve. Catastrophic terrorism’s challenge to public health is 

complicated because biological, chemical, and nuclear/radiological weapons affect human health 

differently and require distinct public health planning and responses. The public health sector’s 

importance is magnified if biological weapons are used because public health personnel and

resources represent the main lines of defense against the spread of disease (see Table 1). The

anthrax attacks in the United States in October 2001 demonstrated the critical importance of the 

public health sector to responses to acts of bioterrorism. 

Table 1: Unique Public Health Challenges of Biological Weapons 

“Bioterrorism presents unique challenges since it differs dramatically from other forms of 

terrorism and national emergencies. While explosions or chemical attacks cause

immediate and visible casualties, an intentional release of a biological weapon would

unfold over the course of days or weeks, culminating potentially in a major epidemic. Until

sufficient numbers of people arrive in emergency rooms, doctors’ offices and health clinics 

with similar illnesses, there may be no sign that a bioterrorist attack has taken place.” 

Source: Testimony of Tommy G. Thompson, Secretary of the Department of Health and

Human Services, before the Subcommittee on Commerce, Justice, State, and Judiciary, 

Committee on Appropriations, U.S. Senate, May 9, 2001.

While public health is achieved through public and private activities, the government’s 

role in protecting and promoting public health is paramount. For purposes of this chapter, 

references to the “public health sector” are confined primarily to governmental entities and 

efforts on behalf of the public’s health. The threat of catastrophic terrorism only reinforces the 

government’s dominant public health role as private citizens and companies cannot be expected 

to lead the effort to plan for and respond to acts of catastrophic terrorism.

 

1 Sections 5.1-5.5 prepared by Prof. David Fidler; section 5.6 prepared by Edward Tanzman.

2

 INSTITUTE OF MEDICINE, THE FUTURE OF PUBLIC HEALTH 41 (1988). 

98 
Governmental efforts on public health at the local, state, and national levels in the United

States have not historically focused on the threat posed by possible terrorist use of WMD. Fears 

of biological weapons use by Cold War adversaries, especially the Soviet Union, affected public

health in the United States,3

 but this effect did not penetrate the public health sector deeply or 

address the possible terrorist use of biological weapons. The public health sector faces the 

daunting challenge of addressing this threat without, generally speaking, legal authorities 

specifically tailored to catastrophic terrorism or practical experience in dealing with the kinds of 

public health emergencies WMD could produce. In addition, public health services in the United 

States have historically been inadequately staffed and funded for their day-to-day 

responsibilities. Acts of catastrophic terrorism, especially bioterrorism, could exhaust public 

health capabilities at local, state, and federal levels. The October 2001 anthrax incidents 

seriously challenged, for example, federal and state public health capabilities. Further, some

public health experts believe that the WMD planning that has occurred at the federal level has

not properly addressed the important role that the public health sector would play, especially in 

the context of the use of biological weapons. 

This chapter breaks down public health responsibilities in the context of catastrophic 

terrorism into three functions: 

• Deterrence. Public health agencies play a role in deterring the development and use of 

WMD through regulatory mechanisms and criminal sanctions. While law enforcement

and national security entities play the dominant role in deterring catastrophic terrorism, 

state and federal legislation on WMD give public health agencies a deterrence function. 

• Preparedness. Public health agencies are responsible for preparing for the public health

and medical consequences catastrophic terrorism might create. Preparedness includes 

such traditional public health responsibilities as epidemiological surveillance and nontraditional tasks such as planning for the consequences use of WMD might produce. 

• Response. Public health services and personnel will be on the front lines of responses to

acts of catastrophic terrorism and may, in some cases, take the lead role in containing and 

mitigating threats to population health from WMD. 

1. PUBLIC HEALTH, CATASTROPHIC TERRORISM, AND FEDERALISM4

1.1. Public Health and Federalism Generally 

Under the United States Constitution, state governments not the federal government 

possess primary legal responsibility for public health. Under the 10th Amendment of the 

Constitution, the states of the Union retain the “police power” -- a sovereign government’s 

authority to protect the health, safety, morals, and general welfare of the citizenry. State 

governments delegate their sovereign public health authority in many instances to county and 

local governments, but it is the state government that ultimately retains legal responsibility for 

promoting and protecting public health. 

 

3

 Elizabeth Fee & Theodore M. Brown, Preemptive Biopreparedness: Can We Learn Anything from History? 91

AM. J.L. PUB. HEALTH 721 (2001).

4 See infra Chapter 3: State and Local Emergency Restrictions for more general discussion of federalism in

connection with catastrophic terrorism.

99 
This allocation of public health power in the federal system means that state governments

create, manage, and fund most of the public health sector in the United States. From a public 

health perspective, how state governments plan for and respond to acts of catastrophic terrorism 

is equally or more important than federal government activities. Unlike dealing with national 

security threats from foreign nations, which is a federal responsibility under the Constitution,

preparing for catastrophic terrorism elevates the importance of state sovereignty and law, 

especially in the area of public health. Recent legislative and regulatory activity at the state level 

on preparedness for catastrophic terrorism reflects the assignment of public health powers under 

the United States constitution. 

While state governments retain primary responsibility for public health under the 

Constitution, the federal government exercises constitutional powers to protect and promote

public health. Through its authority to tax and spend, for example, the federal government

influences how state governments exercise their public health powers and support state efforts to 

prepare for catastrophic terrorism. For example, pursuant to federal law,5

 the United States

Department of Health and Human Services (DHHS) leads the effort to provide “coordinated 

Federal assistance to supplement State and local resources in response to public health and 

medical care needs following a major disaster or emergency.”6

 Congress has also directed DHHS 

to support state and local efforts to improve public health systems to respond to public health 

emergencies caused by terrorist attacks.7

1.2. Federalism’s Effect on the Public Health Functions in the Context of 

 Catastrophic Terrorism

The allocation of public health powers under federalism affects the structure of legal 

responsibility for the deterrence, preparedness, and response functions that the public health 

sector has in connection with catastrophic terrorism. 

Deterrence. Deterring the development and use of WMD involves, among other things, 

regulating access to weapons materiel and sanctioning efforts to develop and use WMD. 

Effectively deterring the development and use of WMD requires federal government leadership 

because terrorist activities likely span many jurisdictions inside and beyond the borders of the 

United States. United States ratification of treaties such as the Biological Weapons Convention 

(1972) and Chemical Weapons Convention (1993) provide examples of federal government 

leadership in deterring and preventing the development and use of biological and chemical 

weapons. Individual states of the Union do not have the interstate law enforcement or

international legal powers possessed by the federal government to deter and prevent acts of 

catastrophic terrorism. State activities in the deterrence area supplement federal government

efforts. 

Preparedness. Federalism affects government preparations for the public health 

consequences of catastrophic terrorism by placing the primary legal responsibility for such 

preparedness at the state government level. Literature on preparing for catastrophic terrorism 

 

5 42 U.S.C.A. § 5121 (Law. Co-op. 1995). 

6

 FEDERAL RESPONSE PLAN EMERGENCY SUPPORT FUNCTION #8 -- HEALTH AND MEDICAL SERVICES ANNEX, APRIL

1999; See also Chapter 1: Federal Disaster and Emergency Assistance for more discussion of the federal role in

catastrophic terrorism planning and response. 

7 42 U.S.C.A. § 247d (Law. Co-op. 2002). 

100 
makes clear that state and local governments are primarily responsible for management of 

emergencies within their jurisdictions. In addition, as noted earlier, states retain the bulk of 

public health powers in the United States constitutional system. The chief legal responsibility for 

preparedness falls, thus, within the “police power” retained by the states under the Tenth 

Amendment to the Constitution. The federal government’s legal responsibility in public health

preparedness is to support state efforts. The federal government has, however, a leadership role 

in the preparedness area because, in the words of the Gilmore Commission, the federal 

government “must provide national leadership, guidance, and assistance to response entities at all 

levels.”8

 

Response. Federalism’s impact on public health responses to catastrophic terrorism are 

similar to its effects on public health preparedness: states of the Union have the primary legal 

responsibility for responding to the public health consequences of emergencies and disasters in 

their jurisdictions. In connection with terrorism, the Federal Response Plan notes that “[s]tate 

and local governments exercise primary authority to respond to the consequences of terrorism; 

the Federal Government provides assistance as required.”

9

 The Gilmore Commission similarly

noted that “the Federal role in a response to an actual attack should be to assist when requested 

and to meet response requirements that exceed local and State capabilities.”10 The federal 

government is responsible for supporting state public health efforts should state governments

need such support. 

These descriptions of federalism’s effects on the public health functions in the 

catastrophic terrorism context do not present jurisdictional complications that would arise in

public health responses to catastrophic terrorism. Most analysis of catastrophic terrorism 

assumes that any use of a WMD would overwhelm state and local public health resources, 

requiring early and strong federal government intervention. Despite assignment of primary legal 

authority for emergency management and public health to the state level in the federal system, 

the need for significant federal involvement may “federalize” public health responses to acts of 

catastrophic terrorism involving WMD. 

2. PUBLIC HEALTH AND DETERRENCE OF CATASTROPHIC TERRORISM

The public health responsibilities in deterring acts of catastrophic terrorism are twofold: 

(1) assisting law enforcement agencies in the application of criminal law on development and use 

of WMD; and (2) regulating the use and transfer of materiel that may be used in WMD terrorism. 

2.1. Assistance to Law Enforcement 

Federal law and the law of some states criminalize the development, possession, and use 

of WMD. Law enforcement agencies may call upon public health officials in applying criminal 

sanctions in the context of chemical and biological weapons. Federal law’s criminal prohibitions

on the development, possession, transfer, or use of chemical or biological weapons involve the 

 

8

 SECOND ANN. REP. OF THE ADVISORY PANEL TO ASSESS DOMESTIC RESPONSE CAPABILITIES FOR TERRORISM

INVOLVING WEAPONS OF MASS DESTRUCTION, 23 (2000). 

9

 FEDERAL RESPONSE PLAN, TERRORISM INCIDENT ANNEX (April 1999), at TI-1. 

10 SECOND ANN. REP. OF THE ADVISORY PANEL TO ASSESS DOMESTIC RESPONSE CAPABILITIES FOR TERRORISM

INVOLVING WEAPONS OF MASS DESTRUCTION, 23 (2000). 

101 
determination that a chemical or biological agent is being used for illegitimate purposes.11 

Federal law enforcement agencies may consult or rely on federal public health personnel on 

whether development or possession of: (1) a biological agent involves “prophylactic, protective, 

other peaceful purposes;”12 or (2) a chemical relates to a “medical or pharmaceutical activity.”13

The USA PATRIOT Act of 2001, which Congress passed in the wake of the terrorist violence of 

September 11, 2001, tightens the Federal criminal law on biological agents,14

 making public 

health input to federal law enforcement on biological weapons even more important. Federal law 

prohibits illegitimate possession and threats to use nuclear material or nuclear byproduct 

material,

15 but federal law enforcement agencies are less likely to call upon public health 

expertise in applying these criminal sanctions. In addition, federal and state public health 

resources, such as public health laboratories, will be important for law enforcement agencies to 

investigate and perhaps prosecute persons alleged to violate federal criminal law on WMD, 

especially biological weapons. 

Public health agencies may have a similar assistance function in connection with state 

laws that criminalize development and use of WMD. For example, California criminalized the 

development, possession, use, or threat of use of WMD.16 In addition to providing advice to 

California law enforcement about whether a person or persons violated this law in developing or 

using a WMD, other provisions in the law may require public health input. The California statute

criminally sanctions “[a]ny person who uses recombinant technology or any other biological 

advance to create new pathogens or more virulent forms of existing pathogens for the purposes 

specified in this section.”

17 Whether a person has created a new pathogen or a more virulent one 

could require public health expertise to assist the criminal investigation and prosecution. 

2.2. Regulating the Use and Transfer of Weapons Materiel 

Federal public health officials contribute to deterrence of catastrophic terrorism in 

connection with biological weapons by regulating facilities receiving and transferring select

agents identified as potential biological or toxin weapons. The Anti-Terrorism and Effective 

Death Penalty Act of 1996 required the Secretary of DHHS to: (1) establish a list of biological 

and toxin agents that have the potential to pose a severe threat to public health and safety; and (2)

regulate facilities handling and transferring biological and toxin agents placed on such list.18 The

Secretary of DHHS assigned the task of compiling the list and promulgating the regulations to 

 

11 18 U.S.C.A. § 175 (Law. Co-op. 2002) (on biological weapons); 18 U.S.C.A. §§ 229, 229F (Law. Co-op. 2002) 

(on chemical weapons); 18 U.S.C.A. § 2332a (Law. Co-op. 2000) (on use of WMD).

12 18 U.S.C.A. § 175(b) (Law. Co-op. 2002). 

13 18 U.S.C.A. § 229F(7)(A) (Law. Co-op. 1991). 

14 United and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism

Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, § 801(Oct. 12, 2001). 

15 18 U.S.C.A. § 831 (Law. Co-op. 2000). 

16 CAL. PENAL CODE § 11418-11418.5 (West 2000). 

17 Id. § 11418(d). 

18 42 U.S.C.A. § 262 (Law. Co-op. 2002).

102 
the Centers for Disease Control and Prevention (CDC). CDC issued the list and regulations in 

1996.19

Federal law also regulates the interstate handling and transfer of nuclear materials20 and 

the use of chemicals that could be used as weapons,

21 but federal public health agencies are not 

assigned formal regulatory roles in these regimes. 

3. PUBLIC HEALTH AND PREPAREDNESS FOR CATASTROPHIC TERRORISM

The second public health function in connection with catastrophic terrorism is

preparedness. Given the potential threat to population health posed by WMD, public health 

preparedness constitutes one of the most important responsibilities of the public heath sector at

the federal, state, and local levels. State and federal public health agencies have familiarity with

planning for chemical and nuclear accidents;22 but, until the latter half of the 1990s, they had 

little or no experience in planning for the use of biological weapons against the civilian 

population in the United States.23 The October 2001 anthrax attacks reinforced the importance of

public health preparedness in connection with bioterrorism. 

For public health, the preparedness function involves many tasks, including 

epidemiological surveillance, scientific research and development, consequence management

planning and training, stockpiling pharmaceuticals and antidotes, and developing effective lines

of communication. The effectiveness of a public health response to catastrophic terrorism

depends on the quality of the planning and preparations made by public health authorities prior 

to the use of a WMD. The chief objectives of public health preparedness for catastrophic 

terrorism are to field, organize, and train public health capabilities to: (1) detect health threats 

posed by use of WMD; and (2) contain and mitigate the adverse effects of WMD use on the

health of the population. 

The different health threats posed by biological, chemical, and nuclear weapons

complicate public health preparedness efforts for catastrophic terrorism because each of these

WMD poses particular detection, containment, and mitigation challenges for the public health

sector. This reality means that public health preparedness for catastrophic terrorism has to plan to 

respond to three kinds of threats to population health. Experts have warned against lumping 

WMD together in connection with public health preparedness activities. Consensus also has 

emerged that biological weapons pose the greatest challenges for public health in the context of 

catastrophic terrorism (see Table 1 above). 

As noted above, state governments bear the primary legal responsibility for public health 

preparedness for catastrophic terrorism under their general “police power” authority to protect 

 

19 42 C.F.R. § 72.6 (2002). Federal law previously regulated interstate shipment of etiologic agents. See 42 CFR §§

72.1-72.5 (2002). 

20 18 U.S.C.A. § 831 (Law. Co-op. 2000). 

21 22 U.S.C.A. § 6701 (Law. Co-op. 2002). 

22 For example, the Federal Emergency Management Agency (FEMA) has developed the: (1) Chemical Stockpile

Emergency Preparedness Program to plan for accidents involving U.S. chemical weapons munitions; and (2) the 

Federal Radiological Emergency Response Plan and the Radiological Emergency Preparedness Program for 

peacetime radiological emergencies. 

23 DEPT. OF HEALTH & HUMAN SERVS., FACT SHEET, May 21, 2001, at 1. 

103 
public health and safety. The federal government has the legal duty to assist and support state 

efforts to prepare for acts of catastrophic terrorism. Federal law on emergency preparedness 

recognizes the joint duty of the state and federal governments because it vests “responsibility for 

emergency preparedness jointly in the Federal Government and the States and their political 

subdivisions.”24 

To date, most legislative and regulatory activity on public health preparedness has 

occurred at the federal rather than the state level. This fact illustrates the important leadership

role the federal government has in the public health sector’s approach to catastrophic terrorism

and reflects federal law’s mandate that the federal government “shall provide necessary

direction, coordination, and guidance, and shall provide necessary assistance . . . so that a 

comprehensive emergency preparedness system exists for all hazards.”

25 

3.1. PREPAREDNESS AND DETECTION OF WMD EVENTS 

Whether in the context of catastrophic terrorism or natural occurrence of disease, public 

health surveillance of the population to detect disease trends and unusual events is very 

important. Given that any use of a WMD will likely be covert, the quality of surveillance will

determine the speed that the public health sector identifies the WMD attack. Surveillance 

involves identifying possible unusual disease trends in a population and then analyzing the trend 

through clinical and laboratory examinations to determine precisely the nature of the disease

occurrence. The earlier a WMD attack is identified and confirmed, the faster state and federal 

government consequence management plans and resources can be mobilized to contain and 

mitigate the damage to society. Public health surveillance constitutes a critical component of 

preparedness for catastrophic terrorism. 

State governments have the primary legal and fiscal responsibility to ensure that their 

public health surveillance systems contribute to preparedness for catastrophic terrorism. State 

governments determine what disease events must be legally reported to state public health 

authorities. Historically, reporting duties under state public health law have not included diseases 

or clinical syndromes that WMD may cause because preparedness for WMD terrorism has not 

been a function of state public health departments. But, as experts emphasize (see Table 2), local 

and state surveillance capabilities are crucial to the successful handling of acts of catastrophic

terrorism. 

Some states are, however, revising their public health laws to bring WMD threats directly 

within the scope of public health surveillance. Indiana passed, for example, a statute that requires

the state public health department to “adopt procedures to gather, monitor, and tabulate case 

reports of incidents involving dangerous communicable diseases or unnatural outbreaks or 

diseases known or suspected to be used as weapons.”26 The statute imposes on the state public 

health department the duty to notify emergency management, law enforcement, and public health 

officials within twenty-four hours if surveillance detects a possible WMD case.27 The Indiana 

 

24 42 U.S.C.A. § 5195 (Law. Co-op. 2002). 

25 Id. § 5195. 

26 IND. CODE § 16-41-3-1(b) (2001). 

27 Id. § 16-41-3-1(c). 

104 
statute further requires the state department of health to “develop capabilities and procedures to

perform preliminary analysis and identification in as close to a real time basis as is scientifically

possible of unknown bacterial substances that have been or may be employed as a weapon.”28 

Table 2: The Importance of State and Local Public Health Surveillance in Responding to 

Use of Biological or Chemical Weapons 

“● Because the initial detection of a covert biological or chemical attack will probably 

occur at the local level, disease surveillance systems at state and local health 

agencies must be capable of detecting unusual patterns of disease or injury, 

including those caused by unusual or unknown threat agents. 

● Because the initial response to a covert biological or chemical attack will probably be 

made at the local level, epidemiologists at state and local health agencies must have 

expertise and resources for responding to reports of clusters of rare, unusual, or 

unexplained illnesses.” 

Source: U.S. Centers for Disease Control and Prevention, Biological and Chemical 

Terrorism: Strategic Plan for Preparedness and Response—Recommendations of the 

CDC Strategic Planning Workgroup, 49 MORBIDITY AND MORTALITY WEEKLY, April 21, 

2000, p. 3.

The federal government has also been stressing the importance of public health 

surveillance at the local and state levels in preparedness strategies for catastrophic terrorism (see 

Table 2 above), and it is using its constitutional appropriations authority to assist state 

governments with training and resources to improve local and state public health. Under the 

Public Health Threats and Emergencies Act of 2000, for example, the Secretary of DHHS shall

award grants to state and local public health agencies in order “to address core public health

capacity needs . . . with a particular focus on building capacity to identify, detect, monitor, and

respond to threats to the public health.”29 

DHHS and CDC have been working to improve the nation’s public health surveillance 

capacities generally and in connection with catastrophic terrorism specifically. CDC efforts 

include strengthening “the capacity to detect outbreaks of illness that might have been caused by 

terrorists, improved laboratory identification and characterization of causal agents for disease

outbreaks, and improved electronic communications among public health and other officials 

regarding outbreaks and responses to them.”30 CDC initiatives in the surveillance area relevant to

preparedness for catastrophic terrorism include the Foodborne Diseases Active Surveillance 

Network (FoodNet), the National Electronic Disease Surveillance Systems (NEDSS), and 

Epidemic Information Exchange (EPI-X). Table 3 below provides brief descriptions of these 

federal disease surveillance efforts. 

 

28 Id. § 16-41-3-2(d)

29 42 U.S.C.A. § 247d-3 (Law. Co-op. 2002). 

30 DEPT. OF HEALTH & HUMAN SERVS., FACT SHEET, May 21, 2001, at 3.

105 
Table 3: CDC-Sponsored Disease Surveillance Initiatives 

FoodNet Provides a network to respond to new and emerging foodborne diseases of

national importance, monitoring the burden of foodborne diseases, and 

identifying sources of specific foodborne diseases. FoodNet is a collaborative

project among CDC, nine state health departments, the Food Safety and

Inspection Service (FSIS) of the United States Department of Agriculture

(USDA), and the Food and Drug Administration (FDA). 

NEDSS Facilitates the handling of surveillance data primarily through creating 

standards for data collection, management, access, analysis, and

transmission. NEDSS will improve how public health surveillance is conducted

at the federal, state, and local level. It seeks complementary electronic 

information systems that automatically gather data from a variety of sources on

a real-time basis; facilitate the monitoring of community health; assist in 

analysis of trends and detection of emerging public health problems; and

provide information for setting public health policy. 

Is a secure, Web-based communications network for public health officials that

will both simplify and expedite the exchange of routine and emergency public

health information between CDC and state health departments. This

information will prompt investigative and prevention efforts, and help

bioterrorism preparedness efforts by helping officials share preliminary 

information about outbreaks and other health events across jurisdictions, and

gain every day experience in the use of a secure communication system. 

EPI-X 

Source: CDC 

DHHS is also increasing funding for scientific research and development in connection 

with biological organisms likely to be used in acts of terrorism. Such research may strengthen 

public health surveillance by producing new diagnostic methods that can help clinicians and 

laboratory technicians identify more rapidly possible bioterrorist events. Federally sponsored 

research and development activities are also underway to improve sensors and detection 

technologies that could assist in identifying the use of a chemical or nuclear device. 

3.2. Preparedness for Containment and Mitigation 

Public health officials at the state and federal levels are also involved in consequence

management planning, organizing, and training to improve the prospects of successful 

containment and mitigation of any act of catastrophic terrorism. 

The federal government has taken the lead in shaping consequence management planning 

in the public health sector for catastrophic terrorism. FEMA has developed a Federal Response 

Plan (FRP) to establish the process and structure for delivery of federal assistance to state and

local governments to address the consequences of any major emergency or disaster declared 

under the Robert T. Stafford Disaster Relief and Emergencies Assistance Act.31 FEMA has also 

developed a State and Local Guide (101) for All-Hazard Emergency Operations Planning (1996) 

to assist state and local governments in planning for emergency management. 

Presidential Decision Directive 62 on Combating Terrorism (May 22, 1998) designates 

the DHHS as the lead federal agency to plan and prepare for a national response to medical 

 

31 42 U.S.C.A. § 5121 (Law. Co-op. 2002). 

106 
emergencies in the event of a WMD event. The FRP includes Emergency Support Function #8 -- 

Health and Medical Services, for which DHHS is the primary federal agency.32 Emergency 

Support Function #8 plans for the provision of federal assistance to state and local governments

in identifying and addressing the health and medical needs of victims of a major disaster, 

emergency, or terrorist attack.33 Table 4 below describes the functional areas of federal support 

contained in Emergency Support Function #8 along with the DHHS agency with primary 

responsibility. The State and Local Guide (101) for All-Hazard Emergency Operations Planning

also includes guidance in Attachment G on developing a health and medical services annex for 

state and local emergency management plans. 

Table 4: Emergency Support Function #8 Support Areas and Responsible Agencies 

Functional Support Lead DHHS Agency

Assessment of health and medical needs

Office of Public Health and Science/Office 

of Emergency Preparedness/National 

Disaster Medical System 

(OPHS/OEP/NDMS)

Health surveillance CDC 

Medical care personnel OPHS/OEP/NDMS 

Health and medical equipment and supplies OPHS/OEP/NDMS 

Patient evacuation OPHS/OEP/NDMS 

In-hospital care OPHS/OEP/NDMS 

Food, drug, and medical device safety Food and Drug Administration 

Worker health and safety CDC 

Radiological, chemical, and biological hazards 

consultation CDC 

Mental health care 

Substance Abuse and Mental Health 

Services Administration 

Public health information CDC 

Vector control CDC 

Potable water and disposal of wastewater and 

solid waste 

Indian Health Service 

Victim identification and mortuary services OPHS/OEP/NDMS 

Veterinary services OPHS/OEP/NDMS 

Source: Emergency Support Function #8 -- Health and Medical Services Annex (April 

1999), at ESF #8-8 – ESF #8-11. 

The FRP also contains a Terrorist Incident Annex to ensure appropriate responses to the 

consequences of terrorism, including the use of WMD, in the United States. Under the Terrorism 

Incident Annex, DHHS is responsible for technical operations and support in the health and 

 

32 Federal Response Plan -- Basic Plan (April 1999), at 1, available at www.fema.gov/rrr/frpbpln.shtm.

33 Emergency Support Function #8 -- Health and Medical Services Annex (April 1999), at ESF #8-1, available at

www.fema.gov/pdf/rrr/frp/frpesf8.pdf.

107 
medical services area. Pursuant to this responsibility, DHHS developed a Health and Medical 

Services Support Plan for the Federal Response to Acts of Chemical/Biological Terrorism.

34 The 

State and Local Guide (101) for All-Hazard Emergency Operations Planning also contains an 

attachment on terrorism to aid state and local emergency planners in developing and maintaining 

a terrorist incident appendix to their emergency operations plan for incidents involving WMD.35

In addition, CDC prepared recommendations for preparedness in connection with biological and 

chemical terrorism.

36

Presidential Decision Directive 39 on United States Policy on Counterterrorism (June 21, 

1995) mandated that FEMA “ensure that States’ response plans are adequate and their 

capabilities are tested.” According to the United States General Accounting Office, the 

emergency preparedness plans of: (1) forty-six states mirrored the FRP; and (2) forty-one states 

incorporated terrorism preparedness plans.37 These statistics suggest that state emergency 

management and public health agencies have exercised their primary legal responsibilities in this 

area by following the federal lead in strengthening consequence management preparedness both 

generally and in connection to acts of terrorism specifically. 

In addition to planning, DHHS efforts include improving local response capabilities 

through the development of Metropolitan Medical Response Systems (MMRS) in cities around 

the United States. A MMRS coordinates local public health, public safety, and health services 

capabilities to respond to a WMD terrorist incident. Current MMRS efforts and goals are 

summarized in Table 5 below. 

Table 5: Current MMRS Efforts and Enhancement Goals 

Current MMRS Efforts Current Goals for MMRS 

Enhancement 

• Focusing on immediate site-specific 

response capability. 

• Enhancing existing capabilities. 

• Developing overall systems plans. 

• Raising awareness of WMD agents. 

• Developing enhanced capability to operate 

in contaminated environments. 

• Developing specialized treatment protocols 

for WMD victims. 

• Integrate biological preparedness 

into the overall planning process. 

• Develop plans for mass prophylaxis 

of exposed and potentially exposed

populations. 

• Develop plans for mass patient care. 

• Develop plans for mass fatality 

management. 

• Develop plans for environment 

surety. 

Source: DHHS, Metropolitan Medical Response System—Program Description, at 

http://www.mmrs.hhs.gov/About/ProDesc.cfm 

 

34 TERRORISM INCIDENT ANNEX (April 1999), at TI-2, available at www.fema.gov/r-n-r/frp/frplet.htm.

35 FED. EMERG. MGMT. ADMIN., STATE AND LOCAL GUIDE (101) FOR ALL-HAZARD EMERGENCY OPERATIONS 

PLANNING, Chapter 6, Attachment G - Terrorism (April 2001), available at www.fema.gov/rrr/gaheop.shtm.

36 Biological and Chemical Terrorism: Strategic Plan for Preparedness and Response—Recommendations of the

CDC Strategic Planning Workgroup, 49 MORBIDITY AND MORTALITY WEEKLY REPORT, April 21, 2000. 

37 U.S. GENERAL ACCOUNTING OFFICE, COMBATING TERRORISM: FEMA CONTINUES TO MAKE PROGRESS IN 

COORDINATING PREPAREDNESS AND RESPONSE (March 2001), at 9, available at www.gao.gov/terrorism.html.

108 
DHHS achieves coordination through the MMRS program through contracts with local 

municipalities. By the end of 2002, DHHS hopes to have 122 MMRS in various stages of 

development around the United States.38

DHHS also coordinates the National Disaster Medical System (NDMS), which

constitutes a cooperative, asset-sharing program among federal, state, and local governments, 

private businesses, and civilian volunteers. The purpose of NDMS includes establishing a

“single, integrated national medical response capability for assisting state and local authorities in 

dealing with the medical and health effects of major peacetime disasters.”39 As indicated in

Table 4 above, Emergency Support Function #8 on health and medical services calls the NDMS 

into service in connection with multiple support functions to respond to disasters or emergencies, 

including those involving catastrophic terrorism. The NDMS capabilities are found in various 

teams -- the Disaster Medical Assistance Teams (DMATs), Disaster Mortuary Operational 

Response Teams (DMORTs), and Veterinary Medical Assistance Teams (VMATs). The NDMS 

also includes specialized National Medical Response Teams (NMRTs) that are equipped and 

trained to provide medical care for victims of WMD.40 Each NMRT has its own pharmaceutical 

stockpile designed to provide it with the necessary drugs and antidotes to respond to acts of 

biological and chemical terrorism. 

An increasingly important element of the federal efforts at consequence management

preparedness is the development of the national pharmaceutical stockpile (NPS). Presidential 

Decision Directive 62 on Combating Terrorism (May 22, 1998) charged DHHS with establishing 

a national stockpile of antibiotics, vaccines, antidotes, and other medical supplies to assist 

consequence management of biological and chemical terrorism. In 1999, DHHS delegated 

responsibility for establishing the NPS to CDC. 

According to CDC, the NPS “is designed to supplement and re-supply state and local 

public health agencies in the event of a biological or chemical terrorism incident anywhere, at

anytime within the United States or its territories.”41 The NPS consists of life saving 

pharmaceuticals, antibiotics, chemical interventions, as well as medical, surgical and patient 

support supplies, and equipment. The medical equipment includes what would be essential for 

treatment, including airway supplies, bandages and dressings, and other emergency medications. 

These are items that local clinicians may find in short supply in the event of a terrorism incident. 

Various national security agencies and expert panels convened by the CDC provide updates and 

analyses of threat agents to ensure that the NPS reflects current needs. CDC lists the following 

biological agents as its current NPS priorities: smallpox, anthrax, pneumonic plague, tularemia, 

botulinum toxin, and viral hemorrhagic fevers.42

 

38 DEPT. OF HEALTH & HUMAN SERVS. METROPOLITAN MEDICAL RESPONSE SYSTEM—PROGRAM DESCRIPTION, at

http://www.mmrs.hhs.gov/About/ProDesc.cfm. 

39 OFFICE OF EMERGENCY PREPAREDNESS, DEPT. OF HEALTH & HUMAN SERVS., NDMS: CATASTROPHIC CARE FOR 

THE NATION, at http://ndms.dhhs.gov/NDMS/ndms.html. 

40 OFFICE OF EMERGENCY PREPAREDNESS, DEPT. OF HEALTH & HUMAN SERVS., NDMS: CATASTROPHIC CARE FOR 

THE NATION -- ABOUT TEAMS, at http://ndms.dhhs.gov/NDMS/About_Teams/about_teams.html#dmat. 

41 CENTERS FOR DISEASE CONTROL, NPS SYNOPSIS, at http://www.cdc.gov/nceh/nps/synopses.htm.

42 National Pharmaceutical Stockpile, 

http://www.bt.cdc.gov/DocumentsAPP/national_pharmaceutical_stockpile.pdf.

109 
The NPS is not a first response tool. State and local officials can use the NPS to bolster 

their initial response to a biological or chemical terrorism attack -- thereby increasing their 

capacity to mitigate more rapidly the results of this type of terrorism.43 The NPS can support 

local first response efforts with a Push Package followed by quantities of materiel specific to the 

terrorist agent used, utilizing Vendor Managed Inventory (see below). Deployment of the NPS

stockpile is based on the best epidemiologic, laboratory, and public health information regarding 

the nature of the threat. 

The NPS has two basic components. The first consists of eight 12-hour Push Packages

for immediate response. These Push Packages are fully stocked, kept in environmentally 

controlled and secured warehouses, and ready for immediate deployment to reach any affected 

area within twelve hours of the federal decision to release the assets. Each Push Package consists 

of fifty tons of material intended to address a mass casualty incident. These packages will permit 

emergency medical staff to treat a variety of different agents, since the actual threat may not 

have been identified at the time of the stockpile deployment. The second NPS component is 

Vendor Managed Inventory (VMI). If an incident requires a larger or multi-phased response,

follow-on VMI Packages can be shipped to arrive within twenty-four to thirty-six hours. VMI 

packages are comprised of pharmaceuticals and supplies that can be “tailored” specifically for

the suspected or confirmed agent or combination of agents. 

CDC transfers authority for the NPS materiel to the state and/or local authorities once it

arrives at the airfield near the disaster site. State and/or local authorities will then repackage and 

label the bulk medicines and other NPS materiel according to their state terrorism contingency

plan. CDC’s technical advisors will accompany the NPS in order to assist and advise state/local 

officials in putting the NPS assets to prompt, effective use. 

While the federal government has taken the lead role in public health preparedness for 

acts of catastrophic terrorism, many state governments have also been exercising their “police 

power” authority by, as indicated above, incorporating federal guidelines and advice (e.g., the 

FRP, Emergency Support Function #8, and the Terrorism Incident Annex) into state 

preparedness planning, organizing, and training. Some state governments have gone beyond such 

incorporation of federal guidance to strengthen further their public health preparedness for acts 

of catastrophic terrorism. For example, Colorado passed a statute in 2000 that created an expert 

emergency epidemic response committee to advise the governor in declaring and handling an 

emergency epidemic, whether caused naturally or from an act of bioterrorism. 44

The Colorado statute also empowered the State Board of Health to promulgate

regulations to “assure that hospitals, other acute care facilities, local public health departments,

trauma centers, area trauma advisory councils, and managed care organizations are prepared for

an emergency epidemic.”45 Legislation in Indiana requires the Indiana Emergency Medical 

Services Commission to provide training and certification standards for the administration of 

antidotes, vaccines, and antibiotics in situations related to a terrorist attack.

46 These are examples

 

43 See id. 

44 COL. REV. STAT. § 24-32-2103 (2000). 

45 COL. REV. STAT. § 25-1-108 (2000).

46 IND. CODE § 16-31-2-9(9)(3) (1993). 

110 
of state governments exercising their public health powers to prepare for acts of catastrophic 

terrorism. 

Both the Colorado and Indiana statutes strengthen preparedness for WMD events by

providing certain persons who participate in health and medical consequence management with 

immunity from civil liability for acts undertaken during a response to a terrorist event. The 

Colorado statute provides in part that “persons and entities that in good faith comply completely 

with Board of Health rules regarding the emergency epidemic and with executive orders 

regarding the disaster emergency shall be immune from civil or criminal liability for any action 

taken to comply with the executive order or rule.”47 The Indiana legislation protects paramedics 

or emergency technicians (including persons from other states with equivalent certifications)

who provide basic or advanced life support in good faith in connection with a disaster emergency 

declared by the governor in response to an act of terrorism.

48 

State government public health preparedness for catastrophic terrorism can also be aided 

by interstate mutual aid agreements that provide a mechanism for state governments to assist one

another in response to disasters or emergencies. The Gilmore Commission recommended that 

states use either the: (1) Emergency Management Assistance Compact administered by the 

National Emergency Management Association (NEMA); or (2) the Interstate Civil Defense and 

Disaster Compact first promulgated in the Civil Defense Act of 1950.49 The States’ Terrorism

Policy Summit in February 1999 also included the following recommendation: “[s]tates should 

develop mutual aid agreements across multiple jurisdictions and consider developing a regional 

WMD response capability.”

50 Congress has instructed FEMA to assist and encourage state 

governments to negotiate and enter into interstate emergency preparedness compacts.51 In 

addition to interstate preparedness compacts, state governments that share borders with foreign 

countries can enter arrangements, with the assistance of the Department of State, on rendering 

mutual emergency and disaster aid.52 

4. PUBLIC HEALTH AND RESPONSES TO CATASTROPHIC TERRORISM

The third public health function in connection with catastrophic terrorism is responding 

to the threat to population health posed by use of a WMD. In the event catastrophic terrorism 

occurs, the public health response will seek to contain and mitigate the damage terrorism causes 

to human health. The consequence management plans discussed above would, of course, be 

activated if terrorists used a WMD within the United States. Achieving containment and 

 

47 COLO.REV.STAT. § 24-32-2111.5(2) (2000).

48 IND. CODE § 16-31-6-4(4)(b) (1993); see also infra Annex, MODEL STATE EMERGENCY HEALTH POWERS ACT § 

804 (Draft of Oct. 23, 2001), reprinted as the Annex to this monograph, regarding state and private liability. See 

infra Section 6 for more on liability issues. 

49 SECOND ANN. REP. OF THE ADVISORY PANEL TO ASSESS DOMESTIC RESPONSE CAPABILITIES FOR TERRORISM

INVOLVING WEAPONS OF MASS DESTRUCTION, 25-26 (2000). 

50 Cited in SECOND ANN. REP. OF THE ADVISORY PANEL TO ASSESS DOMESTIC RESPONSE CAPABILITIES FOR 

TERRORISM INVOLVING WEAPONS OF MASS DESTRUCTION, Appendix J-2 (2000). 

51 42 U.S.C.A. § 5196(h) (West 1995). 

52 Id. § 5196a. 

111 
mitigation in the face of the use of a WMD may, however, involve the exercise of extraordinary

powers by public health and other government officials. Use of a communicable disease 

organism as a weapon would exacerbate the public health sector’s need to exercise powers not 

utilized in its everyday work because of the potential for the agent to spread disease through an 

unprotected population. 

As noted earlier (see Section 5.2.2), state governments have the primary legal 

responsibility for responding to the public health consequences of acts of catastrophic terrorism.

In the words of the Gilmore Commission, “[s]tate public health entities have the primary role in 

the control of disease outbreaks, including those intentionally inflicted. The Federal role is

almost exclusively one of support to States upon request.”53 

Containment and mitigation of public health threats from WMD falls, thus, most heavily

upon state governments and their exercise of public health powers. Except in limited 

circumstances (e.g., the exercise of federal foreign and interstate quarantine authority54), federal 

officials cannot exercise public health powers directly in state jurisdictions because public health

is a state not a federal constitutional function. For example, CDC transfers control over 

pharmaceuticals from the NPS (discussed above in Section 4.2) to state government officials 

when the pharmaceuticals are delivered.55 While CDC officials may provide advice on the state 

government’s use of the NPS pharmaceuticals, the power to determine how they are used

remains with the state government. 

4.1. Accessing Federal Public Health Assistance 

Most experts acknowledge that acts of catastrophic terrorism will quickly overwhelm or 

exhaust the public health resources and capabilities of state and local governments. Accessing 

federal support for public health responses to WMD events becomes an important factor. To 

access federal public health support under the FRP and its related Emergency Support Function

#8, the governor of the affected state must request that the President of the United States declare 

that an emergency exists.56 The President can unilaterally declare an emergency and release

federal support if “he determines that an emergency exists for which the primary responsibility 

for response rests with the United States because the emergency involves a subject area for 

which, under the Constitution or laws of the United States, the United States exercises exclusive 

or preeminent responsibility and authority.”57 Because the federal government exercises 

preeminent responsibility for anti-terrorism policy, terrorism involving a WMD perpetrated in 

the United States would provide the President with cause to declare an emergency requiring 

federal assistance without the request from the affected state’s governor. 

State access to the NPS can be achieved through: (1) the emergency declaration authority 

provided the federal government in the Stafford Act and the subsequent activation of the FRP; or

(2) a state request directly to the CDC Director, who has the authority, in consultation with the 

 

53 SECOND ANN. REP. OF THE ADVISORY PANEL TO ASSESS DOMESTIC RESPONSE CAPABILITIES FOR TERRORISM

INVOLVING WEAPONS OF MASS DESTRUCTION, 34 (2000). 

54 42 U.S.C.A. § 264 (West 1991); 42 CFR § 70 (2002). 

55 CENTERS FOR DISEASE CONTROL, NPS SYNOPSIS, at http://www.cdc.gov/nceh/nps/synopses.htm. 

56 42 U.S.C.A. § 5191(a)

57 Id. § 5191(b). 

112 
Surgeon General and the DHHS Secretary, to order the deployment of the NPS.58 The ability to

request access to the NPS directly through the CDC Director creates public health flexibility for 

responding to disease events that have not developed into full-scale public health emergencies 

requiring a presidential emergency declaration. The importance of access to the NPS was 

emphasized at the February 1999 States’ Terrorism Policy Summit, at which the participants

recommended that “[s]tates need to develop procedures to access [the] National Pharmaceutical 

Stockpile including how to formally request resources and how local governments will receive

it.”59

4.2. Public Health Powers Needed in Responses to Catastrophic Terrorism 

[This section refers to The Model State Emergency Health Powers Act, which appears in 

an Annex to this volume.]

As part of its Bioterrorism Preparedness and Response Program, CDC compiled a list of

public health powers that a public health officer would need in responding to a bioterrorist event 

(Report on Cantingy Conference on State Emergency Health Powers & the Bioterrorism Threat, 

April 26-27, 2001, at Appendix A). Although put together with bioterrorism in mind, the list of 

public health powers is also relevant for public health responses to uses of chemical and nuclear 

WMD. Annex 1 to this chapter reprints CDC’s list. This section divides public health response 

powers into those relating to management of property, persons, and information. 

Description of the public health powers needed to respond to WMD events is important 

for two reasons. First, discourse about public health responses to catastrophic terrorism has 

raised questions about whether state and local public health officials possess sufficient legal 

authority to undertaken the kinds of acts necessary to contain and mitigate the public health

effects of catastrophic terrorism.

60 As the Gilmore Commission noted, “[v]irtually all States have

some statutory basis for undertaking extraordinary measures, such as quarantine, in the event of a

major attack. In several cases, however, the statutes are ambiguous, because of the broad 

authority given to state public health officials to take whatever steps necessary to respond to such 

an incident.”

61 These questions and ambiguities can only be answered and clarified by detailed

review of state public health and emergency response laws in each jurisdiction.62 Second, the 

 

58 CENTERS FOR DISEASE CONTROL, NPS SYNOPSIS, at http://www.cdc.gov/nceh/nps/synopses.htm.

59 SECOND ANN. REP. OF THE ADVISORY PANEL TO ASSESS DOMESTIC RESPONSE CAPABILITIES FOR TERRORISM

INVOLVING WEAPONS OF MASS DESTRUCTION, J-3 (2000). 

60 REP. ON CATIGNY CONF. ON STATE EMERGENCY HEALTH POWERS & THE BIOTERRORISM THREAT, April 26-27, 

2001, available at www.nationalsecurity.com/april%20conference.htm.

61 SECOND ANN. REP. OF THE ADVISORY PANEL TO ASSESS DOMESTIC RESPONSE CAPABILITIES FOR TERRORISM

INVOLVING WEAPONS OF MASS DESTRUCTION (Dec. 15, 2000), at 34).

62 The Gilmore Commission recommended the following: “The [proposed] National Office for Combating 

Terrorism should review existing Federal and State authorities for mandatory or prescriptive activities, such as 

vaccinations, quarantine, containment, and observation. As a result of that review, “model” legislation and 

regulations should be promulgated for consideration of the States. The [proposed] National Office for Combating 

Terrorism should also provide, as part of its information “clearinghouse” function, reports that will ensure that 

Federal, State, and local response entities have a mutual understanding of the authorities and procedures at all levels 

of government.” SECOND ANN. REP. OF THE ADVISORY PANEL TO ASSESS DOMESTIC RESPONSE CAPABILITIES FOR

TERRORISM INVOLVING WEAPONS OF MASS DESTRUCTION, 35(Dec. 15, 2000). A similar recommendation was made

by the National Commission on Terrorism. NATIONAL COMMISSION ON TERRORISM, COUNTERING THE CHANGING 

THREAT OF INTERNATIONAL TERRORISM, 38 (2000) available at www.w3access.gpo.gov/net/. 

113 
extraordinary nature of many of the powers needed by public health raises issues concerning 

respect for and protection of civil liberties during a WMD emergency (see Section 5.5.3 below). 

4.2.1. Management of Property 

Containment and mitigation of the public health threats posed by the use of WMD may 

require public health officials to manage private property. Containment of public health threats 

from WMD may require seizing, closing, decontaminating, or destroying privately owned 

buildings, facilities, land, or other forms of property contaminated or suspected of contamination 

by biological, chemical, or nuclear/radiological devices.63 Public health authorities may also 

need to commandeer private hospitals, health care facilities, and hotels to provide space for

treatment of casualties.64 Public health agencies may have to confiscate private stocks of

pharmaceuticals and other medical supplies to support supplies available from the public 

sector.65 Colorado legislation on emergency epidemics illustrates that state public health

departments understand the potential necessity for exercising extraordinary powers to manage

private property to contain and mitigate the consequences of WMD use (see Table 6). 

Table 6: Management of Property in Colorado Emergency Epidemic Legislation 

“In the event of an emergency epidemic that has been declared a disaster emergency, the

Committee shall convene as rapidly as possible and as often as necessary to advise the

Governor, who shall act by executive order, regarding reasonable and appropriate 

measures to reduce or prevent spread of the disease, agent, or toxin and to protect the

public health. Such measures may include, but are not limited to: 

(I) Procuring or taking supplies of medicines and vaccines; . . . 

(III) Isolating . . . property; 

(IV) Determining whether to seize, destroy, or decontaminate property or objects that

may threaten the public health; . . . “ 

Source: Colorado Revised Statutes § 24-32-2104.

 State governments participating in a February 1999 States’ Terrorism Policy Summit also recommended that 

“[e]very state should examine state laws and authorities that relate to search and seizure, invasion of privacy, 

quarantine, evacuation, relocation or restricting access. State should develop comprehensive preparedness strategies

that utilize all legally available assets.” cited in SECOND ANN. REP. OF THE ADVISORY PANEL TO ASSESS DOMESTIC 

RESPONSE CAPABILITIES FOR TERRORISM INVOLVING WEAPONS OF MASS DESTRUCTION, Appendix J-3 (2000). State 

public health officials reflecting on the TOPOFF bioterrorism exercise in Denver recommended “that state public

health agencies review their statutory authority and evaluate whether these laws would be adequate to deal with the 

threat[] of bioterrorism” (Richard E. Hoffman and Jane E. Norton, Lessons Learned from a Full-Scale Bioterrorism

Exercise, 6 Emerging Infectious Diseases, 652 (Nov. Dec. 2000). After the terrorist attacks of September 11, 2001, 

CDC asked the Center for Law and the Public’s Health (CLPH), based at Georgetown University Law Center and

the Johns Hopkins School of Public Health, to accelerate its work on preparing a model statute on public health 

emergency powers. CLPH released a draft of The Model State Health Emergency Health Powers Act on October 23, 

2001. This model statute is reprinted as an annex to this monograph. Infra Annex 1, MODEL STATE EMERGENCY

HEALTH POWERS ACT

63 See, e.g. infra Annex 1, MODEL STATE EMERGENCY HEALTH POWERS ACT, § 401 (Oct. 23, 2001 Draft)

(emergency measures concerning dangerous facilities and materials; id. at § 407 (destruction of property). 

64 See id. at § 402 (access to and control of facilities and properties generally). 

65 See id. at § 405 (control of health care supplies). 

114 
State public health officials have experience with managing private property to protect 

public health, as illustrated by the exercise of licensing, inspection, and nuisance abatement 

powers.66 The scale and emergency nature of potential public health management of private 

property in the context of WMD terrorism is beyond the experience of most state public health 

authorities and is not the kind of property regulation typically found in state public health law 

statutes and regulations. While the state government’s inherent sovereign “police power” 

supports emergency management of private property (as illustrated by the Colorado statute 

excerpted in Table 6), the legal and administrative procedures for doing so need clarifying in 

most state jurisdictions. In addition, drastic interference with private property for public health 

responses to WMD terrorism raises issues involving civil liberties (see Section 5.5.3 below). 

Property management questions have also arisen concerning whether government 

authorities can compel pharmaceutical companies to produce drugs, vaccines, or other medicines

in the wake of a WMD terrorist event exhausting or threatening to exhaust existing supplies. The 

legal authority to compel emergency pharmaceutical production would clearly be a federal power 

given that such compulsion would affect interstate commerce. Under federal law, the President 

can declare a national emergency and exercise emergency powers granted to him by statutes of

Congress.67 Whether Congress has expressly authorized the President to compel production of 

pharmaceuticals or other related goods in the context of a national emergency is not clear. One 

possible source of authority is the Defense Production Act of 1950, which permits the President 

to require that the performance of government orders for goods and services he deems necessary

to promote the national defense take priority over performance under any other contract or 

order.68 

This presidential power may, however, require the existence of a national emergency and

a state of war because the Defense Production Act was passed pursuant to Congress’ war 

powers.69 One commentator noted that the Defense Production Act “was never contemplated, or 

used, to provide presidential authority during a domestic crisis.”70 Based on the United States 

government’s reaction to the September 11, 2001 terrorist attacks on the World Trade Center and

Pentagon, the federal government may, however, consider the use by a terrorist organization of a 

WMD in the United States to be an act of war falling within the scope of the Defense Production 

Act. 

The cooperation between the federal government and the pharmaceutical industry that 

developed in connection with the production of a vaccine for swine influenza in 1976 offers

insight into federal government efforts to encourage drug or vaccine production in response to a 

perceived national public health emergency. In order to ensure that pharmaceutical companies 

would produce adequate quantities of swine influenza vaccine, Congress enacted a special 

regulatory regime: (1) that gave pharmaceutical companies temporary immunity from anti-trust 

 

66 LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW 252-261 (2000). 

67 50 U.S.C.A. § 1621 (West 2003). 

68 50 App. U.S.C.A. § 2071(a) (West 2002). 

69 U.S. v. Excel Packing Co., 210 F. 2d 596 (10th Cir. 1954).

70 Juliette Kayyem, U.S. Preparations for Biological Terrorism: Legal Implications and the Need for Planning, 

ESDP-2001-02 and BCSIA-2001-4, 13 (2001) (noting that “FEMA’s Federal Response Plan does not mention 

federal authority to marshal resources like that in the Defense Production Act”). 

115 
laws to promote inter-company collaboration;71 (2) under which the federal government accepted 

responsibility for any liability (except for bad vaccine production) for harm incurred from 

administration of the swine influenza vaccine; and (3) that prohibited the export of swine

influenza vaccine produced in the United States for the national vaccination program.72 Federal 

efforts to encourage vaccine manufacturers to produce drugs or vaccines as part of a response to

a public health emergency triggered by catastrophic terrorism would probably entail legal 

protections for pharmaceutical companies similar to those found in the legislation issued for the 

1976 swine influenza vaccination program.

73 

Federal government seizure of privately owned pharmaceutical facilities in order to

produce drugs or vaccines needed in a response to an act of terrorism involving WMD would 

have to be approved in advance by an act of Congress because the constitutional authority of the 

executive branch cannot by itself support such an act.74 Any local, state, or federal government

seizure, confiscation, or property-related compulsion in response to catastrophic terrorism would, 

under state and federal constitutional law, be a “taking” for which appropriate compensation 

would have to be paid to the property owner.75 

Federal government attempts to encourage or compel the production of needed drugs or 

vaccines in the wake of WMD terrorism would face not only the legal disciplines outlined above 

but also the practical difficulties of gearing up pharmaceutical production in an emergency 

context. Pharmaceutical company manufacturing capacities do not generally contain “surge” 

capabilities because the capacities are designed to meet most efficiently estimated normal market

demand. Quickly ramping up pharmaceutical production to meet the public health emergency

triggered by WMD terrorism may, thus, face very serious practical as well as legal constraints. 

4.2.2. Management of People 

Containment and mitigation of the public health threats posed by the use of WMD may 

require public health officials to manage people in extraordinary ways. Persons exposed to 

biological, chemical, or nuclear/radiological material may need to be compelled to undergo 

medical examinations and tests, treatment, decontamination, surveillance, or isolation by public

health authorities.76 Public health officials may need to move patients in hospitals and health care

acilities to accommodate triage and treatment needs caused by WMD events. People in areas

 

71 The Defense Production Act of 1950 gives persons and companies engaging in voluntary agreements for

preparedness programs and expansion of production capacity and supply a defense against civil or criminal action 

brought for violation of federal or state anti-trust laws with respect to any act or omission to act to develop or carry

out any voluntary agreement. 50 U.S.C.A. 2158(j) (West 1991). 

72 Maurice R. Hilleman, Cooperation Between Government and Industry in Combating a Perceived Emerging 

Pandemic: The 1976 Swine Influenza Vaccination Program, 275 J. AM. MED. ASSOC. 241 (1996). 

73 The issue of legal protections for pharmaceutical companies has arisen in discussions about the production of 

smallpox vaccine in the wake of the October 2001 anthrax attacks in the United States.

74 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 

75 U.S. CONST. amend. V; see also COL. REV. STAT. § 24-32-2104 (2000) (for state statutes on compensation for the 

taking of property); infra Annex 1, MODEL STATE EMERGENCY HEALTH POWERS ACT § 406 (compensation). 

76 See infra Annex 1, MODEL STATE EMERGENCY HEALTH POWERS ACT § 502 (mandatory medical examinations);

Id. § 503 (isolation and quarantine); Id. § 504 (vaccination and treatment); Id. § 505 (collection of laboratory

specimens; performance of tests); Id. § 506 (access to and disclosure of patient records). 

116 
affected by a communicable biological agent may have to be quarantined by public health

authorities to prevent the potential spread of disease. People in the vicinity of chemical or 

nuclear/radiological releases may have to be evacuated to mitigate the threat to public health. 

As with the management of private property, state public health officials have legal 

authority and experience in managing people to protect public health. Historically, state public 

health authorities used quarantine against groups of people and isolation of individual patients to 

prevent the spread of infectious diseases (see Table 7). In the past, public health authorities also 

utilized compulsory vaccination of populations in efforts to control disease outbreaks, as 

evidenced by the use of compulsory smallpox vaccinations in the smallpox outbreaks in Muncie, 

Indiana (1893) and Boston, Massachusetts (1901). The use of compulsory smallpox vaccination 

in Boston was challenged in federal court as a violation of the United States Constitution, and the 

case was ultimately decided in favor of the State of Massachusetts in Jacobson v. 

Massachusetts.

77 Jacobson provides constitutional precedent for the government’s ability to use 

compulsory vaccination (and perhaps other compulsory public health measures) in its efforts to 

deal with public health emergencies. 

Table 7: Some Historical Examples of Quarantine to Control Suspected Infectious

Disease Outbreaks78

Year Quarantine Description 

1892 New York City Port Authority imposed quarantine on ships arriving from Europe

to prevent importation of cholera. 

1893 City of Muncie, Indiana imposed quarantine on neighborhoods and isolation of 

individual persons in an attempt to deal with a smallpox outbreak. 

1900 San Francisco imposed quarantine on a Chinese area of the city in an attempt to

contain a plague outbreak.

1901 Massachusetts used quarantine and isolation of individuals in its efforts to stem 

a smallpox outbreak in Boston. 

1924 California used quarantine as part of its attempt to control an outbreak of 

pneumonic plague in Los Angeles. 

Quarantine and compulsory vaccination of populations to deal with public health 

emergencies faded, however, from public health practice after the first quarter of the 20th century 

as governments brought infectious diseases under better control. Today, public health experience 

with compulsory public health measures involves almost exclusively isolated, individual cases. 

For example, individuals with highly communicable diseases, such as multi-drug resistance 

tuberculosis, can be compulsorily isolated and treated because of the risk the individual poses to 

 

77 Jacobson v. Mass., 197 U.S. 11 (1905). 

78 H. Markel, Knocking Out Cholera: Cholera, Class, and Quarantines in New York City, 1892, 69 BULL. HIST.

MED. 420, (1995); W. Eidson, Confusion, Controversy, and Quarantine: The Muncie Smallpox Epidemic of 1893, 

86 IND. MAG. HIST. 374 (1990); G. Risse, A Long Pull, a Strong Pull, and All Together: San Francisco and Bubonic 

Plague, 1907-1908, 66 BULL. HIST. MED. 260, (1992); M. R. Albert, K. G. Ostheimer, J. G. Breman, The Last Small

Epidemic in Boston and the Vaccination Controversy, 1901-1903, 344 NEW ENG. J. MED. 375 (2001); A. J. 

Viseltear, The Pneumonic Plague Epidemic of 1924 in Los Angeles, 1 YALE J. BIO. & MED. 40 (1974). 

117 
the general populace.79 Again, the scale and emergency nature of potential public health 

management of populations in the context of WMD terrorism is beyond the experience of most

state public health authorities and is not the kind of action currently undertaken pursuant to state

public health law statutes and regulations. Further, protections for civil liberties in this area 

complicate the public health exercise of extraordinary powers for management of people in the 

wake of WMD terrorism (see Section 5.3 below). 

In addition to contemporary public health inexperience with quarantine powers,

confusion exists concerning federal quarantine authority. The federal government has the power 

to quarantine to protect the public health in two contexts: in connection with: (1) infectious 

diseases imported from foreign nations; and (2) stopping interstate transmission of infectious 

diseases.80 The growing concern about bioterrorism has led experts to raise questions about the 

scope and potential implementation of federal quarantine authority. CDC is currently reviewing 

federal quarantine authority with a view to revising the existing statutory and regulatory powers. 

4.2.3. Management of Information 

Public health officials may also need to engage in extraordinary management of personal 

and public information in responding to WMD terrorism. In investigating suspicious outbreaks 

or injuries, public health officials may require access to patient and health care information to

assess whether a threat to public health is imminent or underway.81 Such personal health 

information may need to be shared with emergency management and law enforcement personnel

as part of the larger effort at crisis and consequence management. The right to privacy and state 

and federal rules protecting the privacy of individual health care information present obstacles to

such public health management of information in the context of WMD terrorism. 

The most recent federal protection for individual health care information, the Standards 

for Privacy of Individually Identifiable Health Information (Privacy Standards),82 were 

authorized by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 

Compliance is required by April 14, 2003.83 Because of the limits the Privacy Standards place on

release of patient medical information, the Privacy Standards attracted considerable attention and 

comment from health care providers before and after their introduction. Health care providers 

may refuse to release patient information to state public health or law enforcement officials 

relevant to a bioterrorist attack because of the federal requirements in the Privacy Standards. The

Privacy Standards do, however, set out exceptions for consequence management purposes in 

emergency contexts; and public officials and health care providers should be aware of these 

exceptions as the apply to acts of catastrophic terrorism.

84

 

79 See generally LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW, 203-224 (2000)

80 42 U.S.C.A. § 264 (West 1991); 42 C.F.R. § 70 (2002). 

81 See, infra Annex 1, MODEL STATE EMERGENCY HEALTH POWERS ACT § 506 (access to and disclosure of patient 

records). 

82 45 C.F.R. § 160 (2000). 

83 American Health Lawyers Association, Bush Puts Privacy Rules into Effect, but Promises ‘Modifications,

HEALTH LAWYERS NEWS, 9-10, (May 2001). 

84 See 45 C.F.R. § 164.506 (2002) (consent for uses or disclosures to carry out treatment, payment, and health care 

operations); 45 C.F.R. § 164.510 (2002) (uses and disclosures requiring patient agreement); 45 C.F.R. § 164.512

(2002) (uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required). 

118 
Experts have also raised the possibility that public health officials may want to regulate

the content of information being released to the public through various media outlets in order to: 

(1) prevent panic fueled by bad information and rumors; and (2) ensure dissemination of accurate 

public health information and guidance to reassure citizens and to enlist their cooperation with 

public health orders and activities taken to contain and mitigate the consequences of WMD 

terrorism.

85 Such interference with the media would clash with the strong constitutional 

protection of free speech in the United States, and Supreme Court jurisprudence might require a 

specific federal law authorizing prior restraints on the media before such restraints can pass 

constitutional muster.86

 4.2.4. Implementation of Public Health Response Powers 

Most state public health departments would have serious problems implementing the

extraordinary powers outlined above. State public health officials may have the statutory power 

to quarantine populations in large geographical areas, but state public health departments do not 

have the personnel to implement and enforce quarantine orders. Reflecting on the TOPOFF 

bioterrorism exercise in Denver, Colorado, public health officials noted that: 

an executive order was issued quarantining all persons in metropolitan Denver in

their homes. . .. However, quarantining two million persons is not simple. 

Essential workers must be identified, be given prophylaxis and protective barriers, 

and be permitted to do their jobs. Other members of the community can stay in

their homes only a few days before they need fresh supplies of food.87

Therefore, a one-time, blanket quarantine order is unlikely to be successful and cannot be 

enforced unless these and many other issues are addressed. 

Similar implementation problems would arise with exercising other extraordinary powers 

to manage property and people, especially in the face of opposition from individuals and

property owners.88 If such response powers are exercised, public health officials have to be 

supported by personnel resources from emergency management, law enforcement, the National 

Guard, or federal troops89 in effectively implementing and enforcing them. 

Implementation challenges will include more than questions about the adequacy of the 

number of personnel needed to implement extraordinary public health actions. In a public health 

 

85 Juliette Kayyem, U.S. Preparations for Biological Terrorism: Legal Implications and the Need for Planning,

ESDP-2001-02 and BCSIA-2001-4, 17-18 (March 2001). 

86 New York Times v. United States, 403 U.S. 713 (1971); Juliette Kayyem, U.S. Preparations for Biological

Terrorism: Legal Implications and the Need for Planning, ESDP-2001-02 and BCSIA-2001-4, 17 (March 2001). 

87 Richard E. Hoffman & Jane E. Norton, Lessons Learned from a Full-Scale Bioterrorism Exercise, 6 EMERGING

INFECTIOUS DISEASES 652, 653 (2000). 

88 Episodes of civil resistance and violence against the exercise of emergency public health powers have historically

occurred. See D. HOPKINS, PRINCES AND PEASANTS: SMALLPOX IN HISTORY, 285-286 (1983) (describing riots in

Montreal following imposition of quarantine to contain smallpox); W. Eidson, Confusion, Controversy, and

Quarantine: The Muncie Smallpox Epidemic of 1893, 86 IND. MAG. HIST. 374 (1990) (describing violence between 

townspeople of Muncie and public officials trying to enforce quarantine and compulsory vaccinations as

governmental responses to a smallpox epidemic). 

89 See infra Chapter 2-- Extraordinary Presidential Authority, on the role of federal armed forces for more on the

role of the military. 

119 
emergency requiring large quantities of vaccines, drugs, antidotes, or other medicines, public 

health officials may have to ration pharmaceuticals. Principles and procedures for rationing 

scarce pharmaceuticals will have to be determined by statute or regulation prior to a crisis in

order to maximize the effectiveness of the public health response and to minimize legal 

challenges to rationing decisions in the aftermath of the emergency. Experts have, for example, 

discussed the importance of giving priority to health care workers and their families in the 

distribution of limited pharmaceutical supplies in order to ensure the functioning of the health

care system in an emergency.90 Such principles and procedures will be necessary to guard

against prejudice and discrimination in how rationing decisions are made in the context of the

volatile political and social consequences of WMD terrorism. 

4.3. Disciplines to Protect Civil Liberties 

4.3.1. The Threat to Individual Rights 

As indicated in Section 5.2, public health responses to WMD terrorism involving the 

management of property, people, and information could impose serious infringements on 

individual civil rights. Table 8 below provides a non-exhaustive list of the individual civil rights 

potentially affected by public health actions that might need to be taken in a response to WMD 

terrorism. 

Table 8 contains more than enough to worry those concerned about protecting civil 

liberties from governmental power. Historical applications of extraordinary public health powers 

also suggest that governmental violation of civil liberties is not illusionary. The 1892 quarantine 

applied by the New York Port Authority discriminated without cause between rich and poor 

passengers.91 A federal court struck down the quarantine imposed on a Chinese neighborhood in 

San Francisco in 1900 because the public health authorities acted with an “evil eye and unequal 

hand” by discriminating against the Chinese community.92 In 1905, the United States Supreme 

Court recognized the potential for unnecessary violations of civil liberties in efforts to protect the 

public health by requiring that liberty-restricting public health measures be necessary to protect 

the public from a demonstrable health threat.93 

Another factor also helps focus attention on respecting civil rights in the context of public 

health actions. Protecting civil rights in the application of public health law in the ordinary 

course of government has become an important issue in the last two decades, particularly in the 

wake of the HIV/AIDS crisis. Most public health statutes at the state level were written in the

first half of this century or before; and they have not, for the most part, been updated to reflect 

contemporary protections for civil rights. As leading public health law scholars have argued, 

most public health law at the state level was not promulgated during a time when the protection 

of civil rights generally and in public health specifically were burning issues. 

 

90 REP.ON CANTINGY CONF.ON STATE EMERGENCY POWERS & THE BIOTERRORISM THREAT, April 26-27, 2001, at 4, 

8, available at www.nationalsecurity.com/april%20conference.htm

91 H. Markel, “Knocking Out Cholera”: Cholera, Class, and Quarantines in New York City, 1892, 69 BULL. HIST.

MED. 420 (1995).

92 Jew Ho v. Williamson, 103 F. 10, 24 (N.D. Cal. 1900).

93 Jacobson v. Mass., 197 U.S. 11 (1905); LAWRENCE O. GOSTIN, PUB. HEALTH L. 68 (2000). 

120 
Table 8: Non-Exhaustive List of Civil Rights Threatened by Public Health Actions in

Response to WMD Terrorism 

Civil Right Public Health Action 

Freedom of 

Movement 

and Travel 

-Isolation of infected individuals and individuals suspected of being 

infected with biological agents 

-Compulsory hospitalization, treatment, or decontamination 

-Quarantine of populations in geographical areas 

-Preventing people from entering quarantine or contaminated areas 

-Evacuation of people 

Freedom of 

Association 

-Isolation of infected individuals and individuals suspected of being 

infected with biological agents 

-Quarantine of populations in geographical areas 

-Prohibitions on public meetings or social gatherings

Personal 

Integrity and 

Security of 

Person 

-Compulsory vaccination 

-Compulsory administration of antidotes and antibiotics 

-Compulsory decontamination 

-Compulsory medical examinations

-Compulsory collection of biological specimens 

-Handling of diseased or contaminated corpses 

Privacy -Reporting of cases of illnesses and injuries 

-Access to health-care provider records 

-Data sharing with law enforcement and emergency management

authorities 

-Identification of infected or injured persons 

-Tracing of contacts of infected or injured persons

Freedom of 

Speech 

-Restrictions on the publication or broadcasting of information in order to

preserve civil order and the effectiveness of public health responses 

Private 

Property 

-Seizure and use of vaccines and drugs 

-Access to suspicious buildings 

-Closure of buildings 

-Temporary use of health care and other privately owned facilities 

-Decontamination of property 

-Seizure and destruction of contaminated property 

Due Process 

of Law 

-Emergency context prevents citizens from having challenging public

health action in court before the government infringes on civil rights 

These older statutes have to be read today against the backdrop of heightened sensitivities 

about respecting civil rights. The content of Table 8, the historical examples of discriminatory 

application of public health powers, and the on-going melding of public health law and modern 

121 
civil rights law mean that public health and other government officials must be concerned with 

disciplining governmental responses to WMD events to ensure as much respect for civil rights as 

possible. Some of the strongest criticisms of the Model State Emergency Health Powers Act 

involve concerns that the model statute, if enacted, would unnecessarily threaten important civil 

liberties and rights.94

4.3.2. A Framework for Public Health Responses to WMD Terrorism and

Respect for Individual Rights 

Balancing Public Health and Civil Rights in General. Understanding how experts believe

that public health powers and the protection of civil rights should be balanced in non-crisis 

contexts is helpful in thinking about respecting civil rights in the emergency circumstances a 

WMD attack would create. Generally speaking, both United States constitutional law and 

international human rights law recognize that governments may need to restrict civil liberties for

public health purposes (usually infectious disease control) but impose five requirements on 

governments if they wish to so restrict: 

1. The measure to be applied must be prescribed by law (i.e., public health officials have been

authorized by law to take the measure in question). 

2. The measure must be applied in a non-discriminatory manner. 

3. The measure must relate to a compelling public health interest in the form of a significant 

risk to the public’s health. 

4. The measure must be necessary to achieve the protection of the public’s health, meaning that 

the measure must be: (a) based on scientific and public health information and principles; (b) 

proportional in its impact on individual rights to the public health threat posed; and (c) the 

least restrictive measure possible to achieve protection against the significant health risk. 

5. Individuals who have their civil rights affected by public health measures have the right to 

due process of law to challenge the measures before a court of law. 

The significance of a risk to public health is determined by looking at multiple factors, 

including: (1) the nature of the health risk (e.g., is the risk posed by an organism that is highly 

contagious among humans?); (2) the duration of the health risk (e.g., how long is the chemical

agent active in the environment or the incubation period of an infectious agent?); (3) the 

probability that the health risk is transmissible in the population (e.g., how is an infectious

disease transmitted; how often are such transmissions likely to occur; can victims of chemical or 

nuclear/radiological devices contaminate other people?); and (4) the severity of the consequences

if the health risk is transmitted to other individuals or the population. 

United States constitutional law and international human rights law recognize that public 

health authorities may need to restrict civil rights in emergency situations -- situations that do not 

allow for due process of law prior to the application of the measure in question. When there is 

not a bona fide emergency, public health officials in the United States must, generally speaking, 

obtain a court order for actions that infringe on civil rights and provide the individual(s) affected

with the opportunity to challenge the actions in a court of law prior to the implementation of the

 

94 See Letter, from the Health Privacy Project at Georgetown University, to Lawrence O. Gostin (Nov. 7, 2001) (on 

file with author); Letter from the New England Coalition for Law & Public Health, to Tommy Thompson, Secretary 

of Health and Human Services (Nov. 13, 2001) (on file with author).

122 
order.95 In emergency situations, granting the individuals affected by the exercise of public

health powers a prior hearing may not be in the interest of the public’s health. Nevertheless, due 

process of law for the individuals affected should take place as soon as possible.96

United States federal and state courts have, generally speaking, upheld public health 

actions infringing on civil rights when such actions are administered fairly and are necessary to

protect the public against a significant health risk. This is true even when the courts apply strict

scrutiny analysis to infringements of fundamental constitutional rights, such as the rights to 

travel and to bodily integrity. 

Balancing Public Health and Civil Rights in the Context of WMD Terrorism. To 

discipline the exercise of public health power with respect to civil rights in response to WMD 

terrorism, the general five-point framework presented above can guide governmental decisionmakers in balancing the need to protect the public’s health and respect individual rights. Some

people might think that a framework developed for the ordinary operation of government’s

public health powers does not, and should not, apply to the crisis situation a use of a WMD 

would produce. Emergencies, this line of reasoning goes, allow the government to exercise 

extraordinary powers without having to worry about civil rights law. Such a stance invites 

governments to take societies beyond the rule of law. The five-point framework above does not 

prevent the government from exercising extraordinary powers in emergency situations. It simply 

requires that such exercises satisfy procedural and substantive criteria to ensure that the 

infringement of individual rights is necessary. 

In addition, the five-point framework can be seen as a positive rather than negative 

element of the decision-making process in the event of WMD terrorism because it requires

policy-making discipline and rigor that might otherwise be lost in the panic of a WMD attack. 

For example, the five-point framework produces a decision-making approach to exercising 

public health measures in the context of responding to WMD terrorism: 

STEP 1: DEMONSTRATE THE EXISTENCE OF A SIGNIFICANT THREAT TO THE PUBLIC’S 

HEALTH. This step responds to the requirement imposed by United States constitutional law and 

international human rights law that any measure taken that restricts civil rights relate to a

compelling public interest in the form of a significant threat to the public’s health. This step also 

places scientific and public health information and evidence, rather than panic or politics, at the 

forefront of responding to WMD terrorism. This emphasis on scientific and public information 

and evidence is necessary because the immediate policy objective is to control and mitigate the 

health damage the WMD might cause. 

STEP 2: IDENTIFY THE PUBLIC HEALTH INTERVENTIONS THAT ARE NECESSARY TO 

CONTAIN THE SIGNIFICANT HEALTH RISK. The nature of the WMD used will drive what public

health interventions are necessary to contain and mitigate the damage to population health. While

population quarantine may be necessary to contain the spread of a pathogen that is highly 

contagious in human-to-human contact, it would not be necessary to contain an outbreak of a 

pathogen that does not transmit from person to person (e.g., anthrax). Precise identification of the 

 

95 See infra Annex 1, MODEL STATE EMERGENCY HEALTH POWERS ACT § 503(e)(1) (requiring public health

authority to obtain a court order before isolating and quarantining a person and providing person with notification of

a right to a hearing). 

96 See id. § 503(e)(2) (containing exception to obtaining prior court order to isolate or quarantine a person).

123 
needed public health interventions for specific pathogens, chemical agents, and 

nuclear/radiological devices can be determined in advance of an event and can provide a efficient

and effective template for political leaders and public health officials making decisions in a

consequence management situation. 

STEP 3: DEMONSTRATE THAT THE NEEDED PUBLIC HEALTH INTERVENTIONS ARE

PRESCRIBED BY LAW. If an intervention is needed to contain and mitigate a significant health

threat, then the power to intervene in that way should be found in existing law and regulations. 

Implementation and enforcement procedures and protocols should be developed in advance. 

Public health officials and government lawyers should cooperate before an actual WMD event to 

outline the legal authority for each and every possible public health intervention that may be 

needed and all the necessary steps and actors that would have to be involved in implementing 

such authority. Such cooperation should deal not only with the existence of legal authority but 

also the procedural and substantive requirements the legal authority for the interventions 

prescribes. Demonstrating that the needed interventions are prescribed by law also reinforces 

public health’s function of empowering governments to respond in effective ways to WMD 

terrorism. 

STEP 4: DEMONSTRATE THAT THE INTERVENTION’S INFRINGEMENTS ON INDIVIDUAL

RIGHTS ARE REASONABLE COMPARED TO THE INTERVENTION’S BENEFITS IN CONTAINING THE

SIGNIFICANT HEALTH THREAT. United States constitutional and international legal criteria

require that the government establish that the intervention to be taken is reasonably likely to 

achieve the public health objective. While courts historically have been deferential to the

judgments of public health officials, it is important in balancing public health and civil rights for

the perceived benefits of the intervention to outweigh the burdens placed on individual rights. 

Scientific and public health evidence and information can be organized in advance that would 

allow decision-makers in a WMD crisis to demonstrate the necessity and reasonableness of 

burdening individual rights in such an emergency. 

STEP 5: DEMONSTRATE THAT THE INTERVENTION IS THE LEAST RESTRICTIVE

ALTERNATIVE. Wherever possible, public health authorities should use the intervention that will 

achieve the public health goal with the minimal possible infringement on civil rights. For 

example, if isolating a small number of individuals can contain an epidemic, such isolation is a

less restrictive intervention than quarantining a large population. This requirement ensures that 

decision-makers consider their full range of options and do not, in a panic, revert to the most 

draconic interventions. 

STEP 6: PROVIDE FOR TIMELY JUDICIAL REVIEW OF ALL INTERVENTIONS TAKEN TO 

RESPOND TO WMD TERRORISM. In responding to a WMD event, decision-makers will probably

not have time to provide individuals with due process of law prior to the implementation of rightinfringing interventions. The emergency context should not, however, mean that judicial review

of public health interventions is entirely removed from the scene. Timely judicial review might, 

in some contexts, be hampered by state and federal courts themselves being affected by public 

health interventions, such as quarantine or evacuation. Part of the public health strategy for

WMD terrorism should be sorting out how to make judicial review of public health interventions 

subject to timely judicial review to maximize protection of civil rights and the rule of law. 

The six-step approach to ensuring the maximum protection of and respect for individual 

rights outlined above does not, by itself, eliminate all political, economic, scientific, and legal 

124 
uncertainties that would confront decision-makers facing the aftermath of WMD terrorism. The 

six-step approach is ultimately a balancing test, but panic and the pressure of an emergency 

situation could cause the balancing of public health and individual rights to be done poorly so 

that neither the public health objective nor respect for individual rights is achieved. The intention

behind the six-step approach is to discipline government authorities to think systematically about 

public health interventions that might have to be made and apply rigorous standards when 

making policy so that individual rights and liberties can be protected to the maximum extent 

possible. 

5. LIABILITY OF MEDICAL CARE PROVIDERS AND PUBLIC HEALTH OFFICIALS 

Acts of catastrophic terrorism would be expected to activate a full panoply of medical 

care and public health services, ranging from emergency care to preventive measures, such as

quarantines and vaccinations. This section considers the extent to which medical care providers

and public health officials may be liable for their acts or omissions during responses to acts of 

catastrophic terrorism. 

5.1. Liability for Refusal to Treat

Many forms of terrorism could produce large numbers of injuries, or widespread illness

or fears of illness, all of which could prompt the public to seek medical treatment. Often, the first 

place of treatment, especially for urgent care, is the hospital emergency room. Even with careful 

preparation and disaster planning, hospitals could find themselves swamped with individuals 

seeking treatment. Traditionally, hospitals have had no duty to provide care to all patients who 

presented themselves for emergency treatment.97 Indeed, courts have held that private hospitals 

need not even explain their reasons for refusal.98 Under this traditional approach, no liability 

would be imposed on a hospital that turned away victims of catastrophic terrorist attacks because 

of, for example, fear of contamination, or even concern that the victim would be unable to pay 

the bill. 

Enactment by Congress of the Emergency Medical Treatment and Active Labor Act of

1986 (EMTALA)99 dramatically changed this traditional approach. Congress enacted EMTALA 

to respond to the specific problem of hospital emergency rooms refusing to treat patients who 

were uninsured or who could otherwise not pay for treatment. In such situations, emergency 

rooms would either decline to provide treatment, or transfer patients in an unstable condition to 

other hospitals, thereby jeopardizing the patient’s health.100 

EMTALA imposes two duties upon hospitals and their on-call physicians. First, the 

hospital must provide a medical screening exam to any individual who comes to the emergency 

department and requests an examination or treatment for a medical condition.101 This

requirement does not mandate accurate diagnosis of a patient’s illness but rather requires that the 

 

97 Brooks v. Maryland Gen. Hosp., Inc., 996 F.2d 708, 710 (4th Cir. 1993). 

98 Birmingham Baptist Hosp. v. Crews, 229 Ala. 398, 399, 157 So. 224, 225 (1934). 

99 42 U.S.C. § 1395dd (2002). 

100 Baker v. Adventist Health, Inc., 260 F.3d 987 (9th Cir. 2001) (This practice is often called “patient dumping,” and 

EMTALA is frequently referred to as the “Patient Anti-Dumping Act”). 

101 OFC.OF INSP.GEN., DEPT. OF HEALTH & HUMAN SERVS., THE EMERGENCY MEDICAL TREATMENT AND LABOR 

ACT: THE ENFORCEMENT PROCESS REPORT (Jan 2001) [hereinafter Enforcement Process]. 

125 
screening be performed equitably in comparison to other patients with similar symptoms.

102 

EMTALA explicitly recognizes the differences among the capabilities of hospital emergency 

rooms and limits the screening required to one that is within the capability of a given emergency 

department. The second EMTALA duty arises if the hospital determines an individual has a 

medical emergency. The hospital must then stabilize the condition or provide for appropriate 

transfer.103 

A hospital’s duty to stabilize under EMTALA does not arise until the hospital first 

detects an emergency medical condition, and the Act’s transfer restrictions apply only when an 

individual comes to the emergency room; and, after an appropriate medical screening 

examination, the hospital determines that the individual has an emergency medical condition. 

The hospital is obligated to provide these services regardless of the individual’s ability to pay. It 

cannot delay the services to inquire about the individual’s method of payment or insurance 

status.104 Patients need not be Medicare recipients to benefit from EMTALA protections,

105 and 

refusal to treat is wrongful even if it is not based on inability to pay or some other improper

motive.106 In sum, EMTALA protects patients from all refusals to treat, not just those that are

economically motivated. 

Enforcement of EMTALA occurs within DHHS. The Centers for Medicare and Medicaid 

Services (CMS, formerly the Health Care Financing Administration) authorize investigations of 

dumping complaints by state survey agencies, determine if a violation has occurred, and, if

appropriate, terminate a hospital’s provider agreement. The DHHS Office of Inspector General 

(OIG) assesses civil monetary penalties against hospitals and physicians and may exclude 

physicians from the Medicare program for repeated or gross and flagrant behavior.107 Large

hospitals and doctors who negligently violate any legal requirements are subject to a civil penalty 

of up to $50,000 for each offense. The penalty for hospitals with fewer than 100 beds is $25,000 

per violation.108

Since enactment of EMTALA, the only hospital that might still be free (depending on 

state laws)

109 to turn away emergency patients is one that does not have emergency rooms or 

does not accept Medicare patients. Thus, most hospital emergency rooms in the United States to 

 

102 Marshall v. E. Carroll Parish Hosp. Serv., 134 F.3d 116 (5th Cir. 1998). 

103 Baker, 260 F.3d at 987. 

104 Jackson v. E. Bay Hosp., 246 F.3d 1248 (9th Cir. 2001).

105 D. Mackey, The Emergency Medical Treatment and Active Labor Act: An Act Undergoing Judicial

Development, 19 U. ARK. LITTLE ROCK L. REV. 465, 471 (1997) (footnote omitted). 

106 M. Frank, Tailoring EMTALA to Better Protect the Indigent: The Supreme Court Precludes One Method of

Salvaging a Statute Gone Awry, 3 DEPAUL J. HEALTH CARE L. 195, 230-31, (2000) (citing Roberts v. Galen of

Virginia, Inc., 119 S. Ct. 685 (1999). 525 U. S. 249 (1999).

107 Enforcement Process, supra note 102 at 1. 

108 Press Release, Office of Inspector General, Department of Health and Human Services, Special Advisory Bulletin

Outlines Hospitals’ Obligations to Provide Emergency Services to Managed Care Enrollees, (Nov. 9, 1999) (on file

with author). 

109 “At the time of [EMTALA’s] enactment, twenty-two states had issued regulations or enacted statutes requiring

hospitals to provide emergency services to some extent.” D. Mackey, The Emergency Medical Treatment and Active 

Labor Act: An Act Undergoing Judicial Development, 19 U. ARK. LITTLE ROCK L. REV. 465-466 (1997). 

126 
which victims of a catastrophic terrorist attack might be brought would be required to screen and 

stabilize them. 

The OIG and CMS chiefs have suggested the following practices to minimize the

likelihood that a hospital will violate EMTALA: 

• Staff should not seek prior authorization of coverage from health plans before screening 

or stabilizing patients. 

• Hospitals should not ask a patient to complete a financial responsibility form or an 

advanced beneficiary notification form before screening. 

• A physician or other qualified medical personnel must screen all individuals. 

• Hospitals must have knowledgeable staff to answer patients’ inquiries about potential 

financial liability. They must clearly inform the patient about the hospital’s obligation to 

provide screening and stabilizing treatment regardless of ability to pay, and encourage 

any patient who believes his/her condition is an emergency to defer discussion of 

financial responsibility until after the screening. 

• If the individual voluntarily withdraws the request for examination or treatment, the 

hospital still must offer an examination and treatment, inform the person of the risks and 

benefits of being examined or refusing to be examined, and “take all reasonable steps” to 

get the individual’s refusal in writing.

[As this monograph is being prepared, CMS is preparing a guidance memo as to how 

EMTALA would apply in the event of a bio-terrorist incident. The draft memo provides that a

potentially exposed patient who appears at a hospital that is not designated in a community 

response plan can be referred to a designated response facility. The referral can be made after

interviewing the patient and determining that s/he might be a category that is included in the 

response plan. Without this provision, transferring patients to a designated facility before 

conducting a screening examination could be considered an EMTALA violation.] 

5.2. Liability for Improper Disclosure of Private Health Care Information 

Part of the response by medical care providers to catastrophic terrorist incidents might 

include disclosure of health care information about patients to other organizations or persons. 

For example, providers might be requested to identify victims and their medical conditions by: 

• other medical caregivers in the ordinary course of treatment, such as by victims’ primary 

care physicians; 

• law enforcement investigators seeking to identify terrorist suspects from among the

victims; 

• public health agencies attempting to determine the cause of a disease outbreak to prevent 

further spread; or 

• reporters trying to inform the public about the incident.110

 

110 See Charity Scott, Is Too Much Privacy Bad for Your Health? An Introduction to the Law, Ethics, and HIPAA 

Rule on Medical Privacy, 17 GA. ST. U. L. REV. 481, 483-44 (2000). 

127 
Because much medical information is legally protected, such disclosure could create liability if 

carried out unlawfully. 

Opportunities for error involving private health care information would certainly exist 

under the pressure of responding to catastrophic terrorism incidents. Medical records of 

emergency care provided to victims could be released to the wrong primary care physicians.

Public health agencies could mix up victim records and, in the course of contact tracing, 

incorrectly notify relatives and neighbors that persons who were not exposed to contagious 

diseases might have such dreaded afflictions. Well-meaning public officials might identify 

victims to the media without prior permission. Consequently, it is worthwhile exploring the laws 

that protect private health information. 

Regulation of private health information exists at four levels: ethical restrictions on 

licensed medical care providers,111 state statutes,112 state personal injury common law,113 and 

federal regulations114 issued under the Health Insurance Portability and Accountability Act of 

1996 (HIPAA).115 Depending on the nature and seriousness of violations, consequences can 

include loss of licenses, civil fines, criminal punishment, or liability for monetary damages. 

Because the laws are extremely complex and vary greatly between states,116 it is essential for

those who must comply to consult their local counsel about the answers to particular questions. 

Nevertheless, it is possible to point out some features of applicable law that would be 

relevant during responses to catastrophic terrorist incidents. First, ethical duties imposed on 

licensed practitioners to protect privileged medical information (e.g., the doctor-patient 

privilege) are, strictly speaking, rules of evidence that apply only to legal and quasi-legal 

proceedings. Second, while states generally treat medical information as confidential and 

statutorily penalize its disclosure absent patient authorization, these laws also require reporting 

to law enforcement and public health agencies of diagnoses such as gunshot wounds or certain 

contagious diseases.117 Third, tort actions for personal injuries caused by wrongful medical 

 

111 Health Privacy Project, THE STATE OF HEALTH PRIVACY: AN UNEVEN TERRAIN, Institute for Health Care 

Research and Policy, Georgetown University, 12 (July 1999) at http://www.healthprivacy.org [hereinafter 

Georgetown Study].

112 Id. at 11-12. 

113 See Note, Do Doctors Have a Constitutional Right to Violate Their Patients' Privacy?: Ohio's Physician 

Disclosure Tort and the First Amendment, 46 VILL. L. REV. 141, 148-53 (2001). 

114 Standards for Privacy of Individually Identifiable Health Information, Final Rule, 65 Fed. Reg. 82,462 (Dec. 28, 

2000) (codified at 45 C.F.R. pt. 160, 164, as corrected, Technical Corrections to Final Rule, 65 Fed. Reg. 82,944

(Dec. 29, 2000)) available at http://aspe.hhs.gov/admnsimp/index.htm.

115 Pub. L. No. 104-191, 110 Stat. 2021 (1996) (codified at 42 U.S.C. §§ 1320d et.seq. (2001). 

116 Georgetown Study, supra note 12 at p.3, the author explained in the Preface “Eighteen months ago, the Health 

Privacy Project launched an initiative to compile and publish a comprehensive survey of state health privacy 

statutes. As word spread that we had undertaken this effort, we heard two distinct messages, often delivered by the 

same people in the same breath: First, ‘Nothing like this exists.’ Second, ‘Are you crazy? Do you have any idea 

what you are getting into?’ Over the past year and a half, we have come to appreciate both the importance of this 

effort, and the near impossibility of the task.” Id.

117 Georgetown Study, supra note 112, at 25. 

128 
records disclosure can be brought under a number of legal theories, but have often proven to be 

very difficult to win.118

Perhaps most important, the HIPAA regulations, while intended to create a set of national 

minimum health records privacy standards,119 specifically address many conditions that would be 

encountered during catastrophic terrorism incident responses. For example, these regulations 

provide explicitly that “[a] covered health care provider may, without prior consent, use or 

disclose protected health information . . . to carry out treatment, payment, or health care

operations . . . [i]n emergency treatment situations, if the covered health care provider attempts 

to obtain such consent as soon as reasonably practicable after the delivery of such treatment 

. . . .”120 

Another HIPAA provision permits medical care providers to disclose protected health 

information to the extent required by other laws,121 to public health authorities responsible for 

preventing contagious disease spread,

122 to other persons who may be at risk of contracting a 

contagious disease,123 in the course of judicial or administrative proceedings,124 to law

enforcement personnel for law enforcement purposes, 125 or in good faith efforts to “prevent or 

lessen a serious and imminent threat to the health or safety of a person or the public.”126 Thus, 

 

118 “Patients sufficiently distressed by a disclosure of their private medical information and seeking justice through a 

common law cause of action encounter a number of difficulties. Legal theories upon which patients traditionally 

have brought suit include invasion of privacy, negligence/malpractice, implied breach of contract, breach of 

fiduciary trust, and intentional or negligent infliction of emotional distress. Assuming no legal justification 

immunizes a physician from liability, a patient must successfully establish a prima facie case and win a judgment 

that fits the injury incurred. Traditional legal actions typically frustrate patients in one or both of these areas.” Note, 

Do Doctors Have a Constitutional Right to Violate Their Patients' Privacy?: Ohio's Physician Disclosure Tort and 

the First Amendment, 46 VILL. L. REV. 141, (2001) (footnotes omitted). 

119 “This final rule establishes, for the first time, a set of basic national privacy standards and fair information

practices that provides all Americans with a basic level of protection and peace of mind that is essential to their full 

participation in their care. The rule sets a floor of ground rules for health care providers, health plans, and health

care clearinghouses to follow, in order to protect patients and encourage them to seek needed care. The rule seeks to

balance the needs of the individual with the needs of the society. It creates a framework of protection that can be

strengthened by both the federal government and by states as health information systems continue to evolve.” 

Standards for Privacy of Individually Identifiable Health Info., 65 Fed. Reg. 82,464 (Dec. 28, 2000).

120 45 C.F.R. § 164.506(a)(3)(1)(A) (2001). “In these situations, covered providers must attempt to obtain the 

consent as soon as reasonably practicable after the delivery of the emergency treatment.” Standards for Privacy of

Individually Identifiable Health Info., 65 Fed. Reg. 82,510 (Dec. 28, 2000); see also 45 C.F.R. § 164.510(a)(3)

(2003).

121 45 C.F.R. § 164.512(a)(1) (2003). 

122 Id. at § 164.512(b)(1)(i). 

123 Id. at § 164.512(b)(1)(iv). The organization that notifies such persons must also be authorized by law to do so. 

124 Id. at § 164.512(e)(1). 

125 Id. at § 164.512(f). This section of the regulations contains many intricate provisions that must be consulted in

their entirety to fully understand the specific requirements. Id.

126 Id.§ 164.512(j)(1)(i)(A). 

129 
considerable legal protection exists for careful, common-sense disclosures of private health 

information during emergency responses.127

5.3. Liability for Failure to Protect Staff 

Terrorist acts that expose the public to biological, chemical, or radiological contaminants 

might create a secondary risk for health care workers who treat victims at hospitals. The 

Occupational Safety and Health Act of 1970 (OSHA)128 requires minimum safety standards for 

places of work, including hospitals, in order to protect such workers. State worker compensation 

statutes provide monetary damages to workers who become injured or ill as a result of workplace 

exposure. In addition, while not discussed here, most hospitals obtain accreditation through the 

Joint Commission on Accreditation for Healthcare Organizations (JCAHO), which includes

standards for worker protection. 

5.3.1. Occupational Health and Safety Act of 1970 

OSHA is a preventive statute,129 with OSHA rules protecting workers from today’s 

hazards and tomorrow’s threats.130 Through extensive regulations, it provides for an enormous 

variety of specific protections that employers must implement. For example, hospitals are 

required to prevent workers from exposure to contagious disease by providing protection against 

bloodborne pathogens (BBPs),131 by implementing “various engineering controls, work practice 

controls, personal protective equipment requirements, and information-related mandates.”132 

OSHA’s bloodborne pathogens standard requires the employer to prepare a written exposure 

control program. The standard mandates that the program evaluate routine workplace tasks and

 

127 However, the provisions of 45 C.F.R. § 164.512 are not intended to preempt “any state or other restrictions” or

the right to enforce any disclosure consent requirements under other laws. Standards for Privacy of Individually

Identifiable Health Info., 65 Fed. Reg. 82,524 (Dec. 28, 2000). 

128 29 U.S.C. §§ 651-78 (2000) 

129 One of the statute’s purposes is “to assure so far as possible every workingman and woman in the Nation safe 

and healthful working conditions and to preserve our human resources. . . .” 29 U.S.C. § 651(b) (2000). 

130 OCCUPATIONAL HEALTH AND SAFETY ADMINISTRATION, OSHA Facts (2001) at http://www.osha.gov/ 

as/opa/oshafacts.html. 

131 See generally 29 C.F.R. § 1910.1030 (2002). BBPs “means pathogenic microorganisms that are present in

human blood and can cause disease in humans. These pathogens include, but are not limited to, hepatitis B virus 

(HBV) and human immunodeficiency virus (HIV).” Id. at § 1910.1030(b). 

132 P. Berg, When the Hazard Is Human: Irrationality, Inequity, and Unintended Consequences in Federal 

Regulation of Contagion, 75 WASH. U. L.Q. 1367, 1380 (1997). In particular, “[e]mployers must develop and

implement an Exposure and Control Plan that identifies all employees at risk and describes the risk-producing 

functions they perform and the safety measures that have been implemented. Employers must institute work 

practice controls, including the use of universal precautions (“UPs”), handwashing, use and disposal of needles and 

sharp instruments, and laundry handling techniques. Employers must offer employees (but may not require that they

avail themselves of) the vaccination for hepatitis. All occupational exposures to any bloodborne pathogen must be 

documented and evaluated, and exposed employees must be informed of the infection status of any person with

whom they had contact. Finally, workers must receive education on preventing occupational exposure to BBPs.” 

Id. at 1380-81 (footnotes omitted). 

130 
procedures that involve exposure to blood or other potentially infectious materials, identify 

workers performing such tasks, and use a variety of methods to reduce the risks.133

Hospitals that become part of emergency responses involving hazardous substances must 

comply with the OSHA-based Hazardous Waste Operations and Emergency Response

(HAZWOPER) Standard.134 HAZWOPER requires employers, including hospitals, to plan for 

emergencies if they expect to use their employees to handle an emergency involving hazardous 

substances, including biological agents. Where hospitals are pre-designated to handle

emergency victims from hazardous substance releases, they “must have an Emergency Response 

Plan (ERP), decontamination equipment, personnel protective equipment (PPE), and trained 

personnel.”135 

HAZWOPER requires various levels of training for personnel in hazardous material 

releases or clean up; however, it is not OSHA’s intent that every member of a community’s 

emergency response services receives the highest levels of specialized hazardous materials 

training.136 The Occupational Safety and Health Administration, however, does suggest that 

every member of the emergency room clinical staff, plus any employee who might be exposed to 

hazardous substances during an emergency response incident, should be: 

1. familiar with how the hospital intends to respond to hazardous substance incidents; 

2. trained in the appropriate use of personnel protective equipment (PPE); and, 

3. required to participate in scheduled drills.137

Failure to comply with OSHA can lead to civil fines or criminal penalties.138 However, 

OSHA does not give rise to employer tort liability.

139

 

133 OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Occupational Exposure to Bloodborne Pathogens--

Precautions for Emergency Responders, OSHA 3106 (1998), available at

www.osha.gov/Publications/osha3130.pdf. 

134 29 C.F.R. § 1910.120 (2002). This regulation includes within its scope “[e]mergency response operations for 

releases of, or substantial threat of releases of, hazardous substances without regard to the location of the hazard.” 

Id. § 1910.120(a)(1)(v); see generally OCCUPATIONAL HEALTH AND SAFETY ADMINISTRATION, Hazardous Waste

Operations and Emergency Response, OSHA 3114 (Revised 1997) at http://www.oshaslc.gov/Publications/OSHA3114/osha3114.html. 

135 OCCUPATIONAL HEALTH AND SAFETY ADMINISTRATION, Hospitals and Community Emergency Response --

What You Need to Know, OSHA 3152 (1997) at http://www.osha-slc.gov/Publications/OSHA3152/osha3152.html. 

136 “The community may determine that it is appropriate for the fire department to develop a small group of highly

trained hazardous materials technicians and specialists called a “HAZMAT” team,” or may find that the community 

does not require a HAZMAT team and that less intensive training is adequate.” Id. at 6. 

137 Id.

138 N. Stillman and J. Wheeler, Symposium: Health in the Workplace: Article: The Expansion of Occupational 

Safety and Health Law, 62 NOTRE DAME L. REV. 969, 976 (1987). Criminal penalties could be imposed where 

willful violations cause death; for giving unauthorized advance notice of inspections; for providing false information

to OSHA; killing, or for assaulting or hampering the work of an OSHA compliance officer. See id. n. 37 (citation

omitted). 

139 “The consistent holdings of courts that there is no private right of action permitted under the Act by employees 

who claim they have been injured due to an employer’s violation of the OSH Act or a standard promulgated 

thereunder are further proof that the statute is preventive in nature.” Id. at 976 (footnote omitted). 

131 
 5.3.2. Worker Compensation Statutes 

Hospital workers who become injured or ill because of workplace exposure to 

contaminants from catastrophic terrorist weapons will be compensated through state worker 

compensation statutes. Worker compensation statutes were enacted specifically to avoid tort

litigation and are supposed to be the exclusive remedy available to employees against employers

for workplace injury and illness.140 Statutory requirements vary from state to state, and in some

instances there may be a question as to coverage for extraordinary events such as terrorism. In

general, some the following elements are included:

• compulsory application of the worker’s compensation principle to certain specific 

employments; 

• liability based solely on the work connection and not on fault; 

• benefits according to a prescribed schedule for injury or death; 

• rate of compensation keyed to the earning power of the employee; 

• provision for exclusive employer liability under the program; 

• compulsory insurance for or proof of financial responsibility by the employer; and 

• administration of the program outside the court system through agency or commission 

proceedings.141

Nonetheless, employees have occasionally been able to recover damages from employers in

addition to this compensation by: (1) proving unusually egregious employer conduct, such as 

where an employer knowingly meant to harm an employee; or (2) bringing tort actions against

third parties who bear responsibility under tort law for the injury or illness, which can then 

trigger contribution or indemnification actions by the third parties against the employers.142

5.4. Liability Concerns for Public Health Officials 

Response to catastrophic terrorist incidents is likely to involve public health officials in 

key roles. In addition to providing expertise and advice to emergency management and law

enforcement officials, public health officials may find themselves in the position of exercising 

special statutory powers and authorities. For example, administration of correct dosages of

potassium iodide before exposure can protect against thyroid cancer in cases of radiation 

emergencies by blocking thyroid uptake by ingestion or inhalation of radioiodines.143 An

outbreak of anthrax may be contained by use of antibiotics or prevented by use of a vaccine.144 

Even a chemical weapons attack with nerve agent could be mitigated by timely advance 

 

140 Id. at 971-72. 

141 Id. at 971. 

142 “Generally, recklessness or gross negligence by an employer does not establish the exception.” Id. at 1004. 

143 See Draft Guidance on Potassium Iodide as a Thyroid Blocking Agent in Radiation Emergencies, 5 (2001) at

http://www.fda.gov/cder/guidance/3698dft.pdf.

144 Anthrax Vaccine: What You Need to Know, at http://www.cdc.gov/nip/ publications/VIS/vis-anthrax.pdf. 

132 
distribution of masks.145 Such measures might be taken before, during, or after an incident. 

They might be offered on a voluntary basis, or, under extreme circumstances, might have to be 

imposed under government authority. 

Unfortunately, each of these measures also carries its own costs and risks. Potassium 

iodide can cause reactions among those who are allergic to iodine.146 Improper use of respirators 

by the public led to several deaths in Israel during the Gulf War.147 On rare occasions, anthrax 

vaccine can cause severe allergic reactions.

148 Lastly, any public health measure incorporating 

an element of compulsion, such as quarantine or mandatory vaccinations, will likely be opposed 

by some individuals on grounds of religious or personal freedom. For all these reasons, the risk 

of liability for public health officials should be evaluated. 

5.4.1. Liability for Voluntary Administration of Preventive Measures 

Where preventive measures such as vaccines or use of potassium iodide are offered on a

voluntary basis, the most likely source of liability claims by recipients will be through tort suits 

against manufacturers for damages resulting from adverse side effects.149 Liability claims may 

also be made by those who are not offered such preventive measures but who allege that such 

offers should have been made. 

Liability for Side Effects. Liability by a manufacturer for the side effects of voluntarilyadministered measures to prevent harm from catastrophic terrorism incidents is determined by 

state law generally applicable to medical product liability. Among possible causes of action, 

depending on the state with jurisdiction, would be negligence, strict liability, and breach of 

warranty.150 A key issue would be whether patients were provided “informed consent” about the 

potential side effects that could occur in the course of receiving treatment.151

 

145 See NATIONAL RESEARCH COUNCIL, Chemical and Biological Terrorism Research and Development to Improve 

Civilian Medical Response, (1999) at http://www.nap.edu/html/terrorism/ch3.html. 

146 See Draft Guidance on Potassium Iodide as a Thyroid Blocking Agent in Radiation Emergencies, 5 (2001) at

http://www.fda.gov/cder/guidance/3698dft.pdf. 

147 NATIONAL RESEARCH COUNCIL, Chemical and Biological Terrorism Research and Development to Improve 

Civilian Medical Response, (1999) at http://www.nap.edu/ html/terrorism/ch3.html. 

148 Anthrax Vaccine: What You Need to Know (Nov. 6, 2000) at http://www.cdc.gov/nip/publications/ VIS/visanthrax.pdf. 

149 See P. Huber, Safety and the Second Best: The Hazards of Public Risk Management in the Courts, 85 COLUM.

L. REV. 277, 285-90 (1985). 

150 See Note, Expansion of the Government Contractor Defense: Applying Boyle to Vaccine Manufacturers, 70 TEX.

L. REV. 1261, 1267 (1992) (discussing theories of liability for harm resulting from the diphtheria-tetanus-pertussis, 

or DTP, vaccine). 

151 “Informed consent appears to be much the same in all U.S. states. The Ohio Revised Code specifically 

delineates the components of valid written informed consent for surgical or medical procedures. Despite past 

successes in patients suing physicians for battery based on the physicians’ failure to inform them of appropriate 

risks, Ohio legal precedent currently favors physicians. To prevail against a physician in Ohio and other states for 

lack of informed consent a patient must show the following: (1) An undisclosed risk must materialize; (2) The 

undisclosed risk must harm the patient; and (3) If the risk had been disclosed, the patient would have refused 

treatment. . . . [M]edical expert testimony must also be presented “to establish the significant risks which should

have been disclosed to support the plaintiff’s claim.” Requiring expert medical testimony essentially reduces 

medical informed consent in Ohio to the practices of other physicians in that locale, i.e., standard medical practice, 

133 
Precedent for liability protection to benefit vaccine manufacturers exists. The National 

Childhood Vaccine Injury Act of 1986152 created the National Vaccine Injury Compensation

Program (VICP) to provide no-fault compensation for the unavoidable side effects of childhood 

vaccines. Compensation is currently available for injury or death resulting from vaccines for 

polio, diphtheria, pertussis, tetanus, measles, mumps, rubella, hepatitis B, haemophilius influenza

type b, varicella (chicken pox), rotavirus, and pneumoccocal 7-valent conjugate.153 Additional 

vaccines may be added in the future.154 While none of the vaccines currently included in the 

VICP relate to biological weapons, future additions to the program could in theory encompass

them, making a brief description of the VICP appropriate. 

The VICP is administered jointly by the United States Court of Federal Claims, DHHS, 

and the Department of Justice (DoJ). If injury or death results from a vaccine covered in the 

VICP, then a claim may be filed by the injured individual. A parent, legal guardian, or a trustee 

may file on behalf of a child or an incapacitated person.155 The VICP provides for a presumption 

of vaccine causation if a listed condition occurred within a prescribed time frame,156 assuming 

certain legal requirements were met and another cause of the illness was not present.157 In the 

case of an injury, a claim must be filed within thirty-six months after the first symptoms

appeared. In the case of a death, the claim must be filed within twenty-four months of the death

and within forty-eight months after the onset of the vaccine-related injury from which the death 

occurred.158 At the time of this writing, legislation was pending in Congress to revise the filing

deadlines for certain claims under the VICP159 and to lower the burden of proof claimants must 

satisfy.

160

In order to qualify for compensation, a petitioner must show either that the injury was a 

result of a vaccine covered by the VICP, that the vaccine caused the condition, or that the 

 some would feel, to the detriment of patient autonomy.” K. Severyn, Jacobson v. Massachusetts: Impact on

Informed Consent and Vaccine Policy, 5 J. PHARMACY & L. 249, 253-54 (1995) (footnotes omitted). 

152 42 U.S.C. § 300aa (1991). 

153 CENTERS FOR DISEASE CONTROL, Overview of the National Vaccine Injury Compensation Program, (2001) at

http://www.cdc.gov/od/nvpo/fs_tableIV_doc1.htm.

154 See 42 C.F.R. § 100.3(c)(4) (2000). 

155 http://bhpr.hrsa.gov/vicp/qanda.htm#1.

156 http://www.turtletrack.org/ManyVoices/Issue_17/Vaccine_915.htm.

157 http://www.virtualpaper.com/whistler/coastviews.nsf.

158 http://bhpr.hrsa.gov/vicp/qanda.htm#1.

159 On January 3, 2001, HR 195 was introduced in the House; this bill would amend the vaccine injury compensation

portion of the Public Health Service Act to permit a petition for compensation to be submitted within 48 months of 

the first symptoms of injury. On June 5, 2001, HR 2056, Vaccine Injury Compensation Reform Act, was introduced

in the House; this would amend the Public Health Service Act to revise the filing deadlines for certain claims under 

the VICP, to prevent the unfair denial of compensation under the VICP to individuals who are diagnosed as having

vaccine-related injuries more than 36 months after the first symptom, manifestation of onset, or significant 

aggravation of such injuries. 

160 On March 29, 2001, HR 1287, was introduced in the House to amend the Vaccine Injury Compensation Program. 

It is cited as the Vaccine Injured Children’s Compensation Act of 2001; The bill would modify the burden of proof 

required from a preponderance of the evidence to “submitting evidence sufficient to justify a belief by a fair and

impartial individual that petitioner’s claims are well grounded.” 

134 
vaccine significantly aggravated a pre-existing condition. If a case is found eligible for 

compensation, a hearing is scheduled to determine the amount of compensation.161 Awards in a 

vaccine-related death are limited to $250,000 plus attorney’s fees and costs. Awards to 

individuals with a vaccine-related injury have averaged $824,463. Injuries from vaccines 

administered prior to October 1, 1988, are compensated from federal tax dollars allocated by 

Congress. For vaccines administered on or after October 1, 1988, claims are paid from the

Vaccine Injury Compensation Trust Fund, funded from an excise tax on every dose of covered

vaccine that is purchased.

162 

The VICP’s “no fault” compensation has reduced liability for manufacturers of vaccines 

and protected them from strict design defect liability.163 The manufacturer fulfills its duty to 

warn by merely transmitting information to the treating physician which is called the learned 

intermediary doctrine.164 The VICP creates the presumption that manufacturers’ warnings that 

comply with the Food and Drug Administration (FDA) standards are adequate, thereby 

preventing state courts from performing an independent assessment of these warnings’ 

sufficiency.165 Vaccine manufacturers are not liable for unavoidable side effects caused by

vaccines that are properly prepared and accompanied by adequate warnings.166 

The VICP protects administrators and manufacturers because it requires that vaccine

injury claims involving covered vaccines given on or after October 1, 1988, must first be filed 

with the VICP before civil litigation through the tort system can be pursued. If a petitioner 

accepts an award under the VICP, the claim cannot be brought subsequently to the tort system.

167 

Also, for vaccine manufacturers, the legislation sets new, more restrictive standards for actions 

alleging injury from these covered vaccines in cases that are brought to the tort system.

168 

Manufacturers and vaccine administrators may still be sued if a petition has been judged 

non-compensable or dismissed under the VICP, if the award granted by the VICP is otherwise 

rejected by the petitioner, or if the vaccine is not covered under the VICP.169 Although an 

individual who is dissatisfied with the Court’s final judgment can reject it and file a lawsuit in 

state or federal court, a positive result of the program is that costly litigation against drug

manufacturers and health care professionals who administer vaccines has virtually ceased.170 For

further discussion of congressional efforts to assure adequate supplies of vaccines through the 

National Pharmaceutical Stockpile, see Section 4.2 of this chapter. At the time of this writing,

Congress was considering additional legislation to expand the supply of smallpox vaccine. 

 

161 http://bhpr.hrsa.gov/vicp/qanda.htm#1.

162 http://bhpr.hrsa.gov/vicp/qanda.htm#1.

163 RESTATEMENT (SECOND) OF TORTS § 402A cmt. k (1965). 

164 42 U.S.C. § 300aa-22(c) (1991). 

165 Id. § 300aa-22(b)(2). 

166 Id. § 300aa-22(b)(1). 

167 http://bhpr.hrsa.gov/vicp/qanda.htm. 

168 http://bhpr.hrsa.gov/vicp/qanda.htm. 

169 http://bhpr.hrsa.gov/vicp/qanda.htm. 

170 http://www.usdoj.gov/opa/pr/1998/September/453civ.htm.

135 
Public health and legal professionals should be aware that any time such proposals protect 

private entities from tort liability, even in the interest of public health, lively debate will occur. 

Liability for Discrimination. A greater risk to emergency planners and responders than

liability for side effects would be liability for discriminatory distribution of pre-incident 

preventive measures. In addition to the obvious liability that would result from, for example, 

racially discriminatory policies, the Americans with Disabilities Act of 1990 (ADA)171 requires 

government services to include “reasonable accommodations” for those with recognized 

disabilities. As one expert explained: 

After flat refusals to provide care and pretextual referrals based on disability, the next 

most obvious violation of the ADA in the health care context is the failure of a provider 

covered by the ADA to provide auxiliary aids or services necessary to ensure that an

individual with a disability is not “excluded, denied services, segregated or otherwise 

treated differently than other individuals.” For example, the ADA has the effect of 

requiring health care providers to procure the services of sign language interpreters to 

communicate with the hearing impaired.172

The prudent course is to take reasonable steps to assure that the plans for distributing preincident preventive measures take into account the special needs of the disabled. For example, it 

may be necessary to provide written information in Braille as well as in print,173 or to deliver

medicines to those who are unable to drive to a facility. Such steps can also have the effect of

building community confidence that the government is behaving thoughtfully and fairly in a 

crisis, rather than panicking. 

5.4.2. Liability for Compulsory Measures: Preventive or Therapeutic 

Treatment 

In every state, public health officials have at their disposal certain powers to compel 

measures to prevent the spread of disease. While this authority was not originally delegated in

contemplation of terrorism, in an emergency these powers would be available. The choice to

invoke them, whether before, during, or after an incident, would presumably include medical and 

political considerations that are outside the scope of this manual. However it is important to

understand the contours of the legal authority and the potential consequences of its use.174

 

171 42 U.S.C. §§ 12101 – 12132 (2000).

172 M. Crossley, Symposium: The Americans with Disabilities Act: A Ten-Year Retrospective: Becoming Visible: 

The ADA's Impact on Health Care for Persons with Disabilities, 52 ALA. L. REV. 51, 60 (2000), citing 42 U.S.C § 

12182(b)(2)(A)(iii). It should be noted that the remedy for ADA violations of this requirement include injunctive 

relief, but not damages. The fact that similar emergency services are unlikely to be repeated in the future may defeat 

a plaintiff’s standing. On the other hand if the health care provider receives federal funds, compensatory damages 

may be available under section 504 of the Rehabilitation Act of 1973, which provides that: An otherwise qualified

individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity

receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the 

United States Postal Service. See Id. at n. 55. 

173 See infra Annex 1, MODEL STATE EMERGENCY HEALTH POWERS ACT the Model State Emergency Health Powers 

Act § 601(i) (accessibility to public information for persons with disabilities). 

174 For example, a traditional rationale for government-required vaccinations is to prevent the spread of 

communicable disease. A credible threat that a biological weapon disseminating an infectious disease is about to

136 
States have broad power to enact statutes compelling their residents to undergo 

preventive medical treatment designed to protect the public from the spread of disease. In the 

1905 case of Jacobson v. Commonwealth of Massachusetts, the United States Supreme Court

held that a state statute enabling municipal boards of health to penalize those who refused to 

undergo mandatory smallpox vaccinations did not violate the United States Constitution.175 Key

to the Court’s reasoning was the view that: 

According to settled principles, the police power of a state must be held to embrace, at 

least, such reasonable regulations established directly by legislative enactment as will 

protect the public health and the public safety. . . . The liberty secured by the 14th 

Amendment, this court has said, consists in part in the right of a person “to live and work 

where he will;” and yet he may be compelled, by force if need be, against his will and 

without regard to his personal wishes or his pecuniary interests, or even his religious or 

political convictions, to take his place in the ranks of the army of his country, and risk the 

chance of being shot down in its defense. It is not, therefore, true that the power of the 

public to guard itself against imminent danger depends in every case involving the 

control of one’s body upon his willingness to submit to reasonable regulations established 

by the constituted authorities, under the sanction of the state, for the purpose of protecting 

the public collectively against such danger.176

In Prince v. Massachusetts, the Supreme Court stated that a Jehovah’s Witness could not 

shield her child on religious grounds from receiving a compulsory vaccination, observing that 

“[t]he right to practice religion freely does not include liberty to expose the community or the 

child to communicable disease or the latter to ill health or death.”177 Presumably, the principles 

announced in Jacobson and Prince would also apply to pre-incident measures other than 

vaccinations, such as the compulsory use of antibiotics and victim rescue masks. 

The Jacobson decision “is cited as legal precedent for compulsory vaccination laws in all 

fifty United States states and the District of Columbia.”178 However, there are significant

variations from state to state; it is essential to consult individual state laws to determine what 

powers and authorities are available. A recent survey of state public health laws concluded that 

“state public health laws vary significantly in definitions, methods, age, and scope” so 

significantly, in fact, that the data defy useful tabulation or categorization.”179 In particular,

 occur could justify compulsory vaccinations to reduce the resulting impacts. See SECOND ANN. REP. TO THE 

PRESIDENT AND THE CONGRESS OF THE ADVISORY PANEL TO ASSESS DOMESTIC RESPONSE CAPABILITIES FOR 

TERRORISM INVOLVING WEAPONS OF MASS DESTRUCTION 35 (Dec. 2000) (recommending review of existing federal

and state authority to prescribe a variety of mandatory measures, including vaccines). 

175 Jacobson v. Comm. of Mass., 197 U.S. 11 (1905).

176 Id. at 25, 29-30 (citations omitted). However, if a vaccination scheme is racially discriminatory, it could be 

invalidated. W. Parmet, Law, Social Policy, and Contagious Disease: A Symposium on Acquired Immune

Deficiency Syndrome (AIDS): AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 HOFSTRA L. REV. 53,

69-71 (1985).

177 Prince v. Massachusetts, 321 U.S. 156, 166-67 (1944) (citation omitted). 

178 K. Severyn, Jacobson v. Massachusetts: Impact on Informed Consent and Vaccine Policy, 5 J. PHARMACY & L. 

249 (1995) (footnotes omitted). 

179 L. Gostin, S. Burris, and Z. Lazzarini, The Law and the Public's Health: A Study of Infectious Disease Law in

the United States, 99 COLUM. L. REV. 59, 101 (1999). 

137 
many state public health statutes were enacted in response to specific disease epidemics and, 

consequently, may provide for different compulsory authority to prevent different types of illness

or injury.180

Commentators have identified three types of state law exemptions from compulsory 

vaccinations. First, medical exemptions are available in all states. Religious exemptions are

available in forty-seven states. So-called “philosophical” exemptions exemptions based on 

individual beliefs were available in nineteen states.181 Where illness or injury is alleged from a

compulsory vaccination, tort liability is much more likely to be imposed on the manufacturer182

than on the unit of government that imposed its use, because the latter will probably be protected

by sovereign immunity.183 The fact that administration was pursuant to government compulsion, 

rather than on a voluntary basis, might make recovery easier.184

5.4.3. Liability for Compulsory Measures: Isolation and Quarantines

Quarantining victims could be an effective response to protect public health and safety 

following an act of catastrophic terrorism.

185 For example, it might be necessary to isolate those

who may have been infected with disease agents dispersed from a biological weapon, until it can

be determined that they do not pose an infection hazard to others. Similarly, it might be 

necessary to isolate victims of a chemical or radiological incident until they can be 

decontaminated or otherwise confirmed as not posing a hazard of spreading contamination. 

Although many would undoubtedly assent to such confinement, it is reasonable to expect that 

some would not. 

Both state and federal laws broadly authorize public health authorities to implement 

quarantines. In California, for example, the health department is authorized to quarantine,

isolate, inspect and disinfect persons, animals, houses, rooms, other property, places, cities or 

localities, whenever in its judgment such action is necessary to protect or preserve the public 

health.186 At the federal level, the Director of the Centers for Disease Control and Prevention

may take measures to prevent the spread of diseases as he/she deems reasonably necessary, 

whenever he or she determines the measures taken by a State are insufficient to prevent the 

spread of a communicable disease.187

 

180 See id. at n.164. 

181 Id. at 260-61. 

182 See generally J. Wilson, The Resolution of Legal Impediments to the Manufacture and Administration of an

AIDS Vaccine, 34 SANTA CLARA L. REV. 495, 534-45 (1994). 

183 See supra Section 1.1.2. 

184 As one commentator explained “Obviously, if one may not refuse vaccinations, a basic component of informed 

consent is absent, thus nullifying the consent.” K. Severyn, Jacobson v. Massachusetts: Impact on Informed 

Consent and Vaccine Policy, 5 J. PHARMACY & L. 249, 255 (1995). 

185 See CONPLAN: United States Government Interagency Domestic Terrorism Concept of Operations Plan 10, 

(January 2001) at http://www.fbi.gov/publications/conplan/conplan.pdf; FEDERAL EMERGENCY MANAGEMENT

AGENCY, Guide for All-Hazard Emergency Operations Planning: Chapter 6, Attachment G B Terrorism 6-G-15

(State and Local Guide-101) (April 2001). 

186 CAL. HEALTH & SAFETY CODE § 120145 (West 1996), cited in L. Gostin, S. Burris, and Z. Lazzarini, The Law

and the Public's Health: A Study of Infectious Disease Law in the United States, 99 COLUM. L. REV. 113-14 (1999). 

187 42 C.F.R. § 70.2 (2000). 

138 
It is unlikely that plaintiffs can recover damages as a result of government quarantine 

decisions during an emergency response to an act of catastrophic terrorism. The case law and 

commentary involving damages caused by improper quarantine decisions (both imposing and 

failing to impose quarantines) is sparse, perhaps because federal and state tort claims acts 

typically do not permit claims for damages caused by the imposition of a quarantine.188 While

claims have been upheld occasionally by courts,189 the successful plaintiffs are those that can fit 

their claims into some other legal cause of action.190 In addition, as mentioned in Section 5.4.2 

above, state statutes on catastrophic terrorism sometimes contain provisions that render persons 

who respond in good faith to public health emergencies immune from civil and criminal

prosecution.191 The proposed Model State Emergency Health Powers Act also contains

provisions that grant immunity from liability to state government entities and officials and to 

private persons involved in various ways with responding to a public health emergency.192

6. CONCLUSION

The public health sector represents one of the most important governmental sectors in the 

management of the consequences of catastrophic terrorism. Public health fulfills deterrence,

preparedness, and response functions in connection with catastrophic terrorism. The federal 

structure of government in the United States affects each of these functions, but an important 

consequence of federalism in this context is that state governments have primary legal authority 

and responsibility for preparedness and response to catastrophic terrorism. This situation 

contrasts with terrorism deterrence, where the federal government and federal law dominate. The 

federal government plays a vital role in providing public health leadership in the areas of

preparedness and response given the demands these objectives place on state and local resources 

not designed to deal with terrorism involving WMD. 

As this chapter indicates, many activities and initiatives are currently underway at federal 

and state levels to improve the public health sector’s ability to deter, prepare, and respond to 

catastrophic terrorism. This represents not only increasing recognition of the public health

sector’s pivotal role in national defense against catastrophic terrorism but also the realization that

the status quo is far from sufficient to protect the public’s health from acts of catastrophic

terrorism involving WMD. Monitoring and advancing developments in the public health sector 

as deterrence, preparedness, and response efforts evolve should be a top priority for federal and 

state governments. 

 

188 28 U.S.C. § 2680(f). 

189 See generally J. Fraiser, A Review of the Substantive Provisions of the Mississippi Governmental Immunity Act: 

Employees' Individual Liability, Exemptions to Waiver of Immunity, Non-Jury Trial, and Limitation of Liability, 68 

MISS. L.J. 703, 801-02 (1999). Fraiser observes that Athis exemption’s cloak of immunity spreads wider to cover 

decisions imposing a quarantine than it does to cover decisions not to impose a quarantine. Id. 

190 For example, one plaintiff succeeded by arguing that a state veterinary doctor was liable for malpractice for 

misdiagnosis. See id. 

191 See, e.g., COLO. REV. STAT. § 24-32-211.5(2) (2000); IND. CODE § 16-31-6-4(4)(b) (1998). 

192 See infra Annex 1, MODEL STATE EMERGENCY HEALTH POWERS ACT the Model State Emergency Health Powers 

Act § 804(a) (state immunity); Id. § 804(b) (private liability). 

139 
ANNEX 1-- CDC LIST OF PUBLIC HEALTH POWERS NEEDED BY A HEALTH OFFICER IN A 

BIOTERRORISM EVENT

Collection of Records and Data 

• Reporting or diseases, unusual clusters, and suspicious events. 

• Access to hospital and provider records. 

• Data sharing with law enforcement agencies. 

• Veterinary reporting. 

• Reporting of workplace absenteeism.

• Reporting from pharmacies. 

Control of Property 

• Right of access to suspicious premises. 

• Emergency closure of facilities. 

• Temporary use of hospitals and ability to transfer patients. 

• Temporary use of hotel rooms and drive-through facilities. 

• Procurement or confiscation of medicines and vaccines. 

• Seizure of cellphones and other “walkie-talkie” type equipment. 

• Decontamination of buildings. 

• Seizure and destruction of contaminated articles.

Management of Persons 

• Identification of exposed persons. 

• Mandatory medical examinations. 

• Collect lab specimens and perform tests. 

• Rationing of medicines. 

• Tracking and follow-up of persons. 

• Isolation and quarantine. 

• Logistical authority for patient management. 

• Enforcement authority through police or National Guard. 

• Suspension of licensing authority for medical personnel from outside jurisdictions. 

• Authorization of doctors to perform functions of medical examiner. 

140 
141 

• Safe disposal of corpses. 

Access to Communications and Public Relations 

• Identification of public health officers, e.g., badges. 

• Dissemination of accurate information, rumor control, 1-800 number. 

• Establishment of a command center. 

• Access to elected officials. 

• Access to experts in human relations and post-traumatic stress syndrome. 

• Diversity training, cultural differences, dissemination of information in multiple 

languages. 
ANNEX 2-- THE MODEL STATE EMERGENCY HEALTH POWERS ACT

The Model State Emergency Health Powers Act1

As of December 21, 2001 

A Draft for Discussion Prepared by: 

The Center for Law and the Public’s Health 

at Georgetown and Johns Hopkins Universities

For the Centers for Disease Control and Prevention [CDC] 

To Assist: 

National Governors Association [NGA], 

National Conference of State Legislatures [NCSL], 

Association of State and Territorial Health Officials 

[ASTHO], and 

National Association of County and City Health Officials 

[NACCHO]

Contact Information: 

Lawrence O. Gostin, J.D., LL.D (Hon.) 

Professor and Director, 

Center for Law and the Public’s Health 

Georgetown University Law Center 

600 New Jersey Avenue, N.W.

Washington, D.C., 20001 

(202) 662-9373 

gostin@law.georgetown.edu 

 

142 

1

 Members of the National Association of Attorneys General (NAAG) also provided input and suggestions to the drafters of 

the Model Act. The language and content of this draft Model State Emergency Health Powers Act do not represent the official

policy, endorsement, or views of the Center for Law and the Public’s Health, the CDC, NGA, NCSL, ASTHO, NACCHO, or

NAAG, or other governmental or private agencies, departments, institutions, or organizations which have provided funding or 

guidance to the Center for Law and the Public’s Health. This draft is prepared to facilitate and encourage communication 

among the various interested parties and stakeholders about the complex issues pertaining to the use of state emergency health

powers. 
MODEL STATE EMERGENCY PUBLIC HEALTH ACT 

Draft Document as of December 21, 2001

TABLE OF CONTENTS

PREAMBLE

ARTICLE I TITLE, FINDINGS, PURPOSES, AND DEFINITIONS 

Section I01 Short title 

Section I02 Legislative findings 

Section I03 Purposes 

Section I04 Definitions 

ARTICLE II PLANNING FOR A PUBLIC HEALTH EMERGENCY 

Section II01 Public Health Emergency Planning Commission 

Section II02 Public Health Emergency Plan 

(a) Content 

(b) Distribution 

(c) Review 

ARTICLE III MEASURES TO DETECT AND TRACK PUBLIC HEALTH EMERGENCIES 

Section III01 Reporting 

(a) Illness or health condition 

(b) Pharmacists 

(c) Manner of reporting 

(d) Animal diseases 

(e) Laboratories 

(f) Enforcement 

Section III02 Tracking 

(a) Identification of individuals 

(b) Interviewing of individuals 

(c) Examination of facilities or materials 

(d) Enforcement 

Section III03 Information sharing 

ARTICLE IV DECLARING A STATE OF PUBLIC HEALTH EMERGENCY 

143 
MODEL STATE EMERGENCY PUBLIC HEALTH ACT 

Draft Document as of December 21, 2001

Section IV01 Declaration 

Section IV02 Content of declaration 

Section IV03 Effect of declaration 

(a) Emergency powers 

(b) Coordination 

(c) Identification 

Section IV04 Enforcement 

Section IV05 Termination of declaration 

(a) Executive order 

(b) Automatic termination 

(c) State legislature 

(d) Content of termination order 

ARTICLE V SPECIAL POWERS DURING A STATE OF PUBLIC HEALTH EMERGENCY: 

MANAGEMENT OF PROPERTY 

Section V01 Emergency measures concerning facilities and materials 

(a) Facilities 

(b) Materials 

Section V02 Access to and control of facilities and property - generally 

(a) Use of materials and facilities 

(b) Use of health care facilities 

(c) Control of materials 

(d) Control of roads and public areas 

Section V03 Safe disposal of infectious waste 

(a) Adopt measures 

(b) Control of facilities 

(c) Use of facilities 

(d) Identification 

Section V04 Safe disposal of human remains 

(a) Adopt measures 

(b) Possession 

(c) Disposal 

(d) Control of facilities 

(e) Use of facilities 

(f) Labeling 

(g) Identification 

Section V05 Control of health care supplies 

(a) Procurement 

(b) Rationing 

144 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(c) Priority 

(d) Distribution 

Section V06 Compensation 

Section V07 Destruction of property 

ARTICLE VI SPECIAL POWERS DURING A STATE OF PUBLIC HEALTH EMERGENCY: 

PROTECTION OF PERSONS 

Section VI01 Protection of persons 

Section VI02 Medical examination and testing 

Section VI03 Vaccination and treatment 

(a) Vaccination 

(b) Treatment 

Section VI04 Isolation and quarantine 

(a) Authorization 

(b) Conditions and principles 

(c) Cooperation 

(d) Entry into isolation or quarantine premises 

Section VI05 Procedures for isolation and quarantine 

(a) Temporary isolation and quarantine without notice 

(b) Isolation or quarantine with notice 

(c) Relief from isolation or quarantine 

(d) Proceedings 

(e) Court to appoint counsel and consolidate claims

Section VI06 Collection of laboratory specimens; performance of tests 

(a) Marking 

(b) Contamination 

(c) Chain of custody 

(d) Criminal investigation 

Section VI07 Access to and disclosure of protected health information 

(a) Access 

(b) Disclosure 

Section VI08 Licensing and appointment of health personnel 

(a) Health care providers 

(b) Health care providers from other jurisdictions 

(c) Personnel to perform duties of medical examiner or coroner 

ARTICLE VII PUBLIC INFORMATION REGARDING PUBLIC HEALTH EMERGENCY 

Section VII01 Dissemination of information 

(a) Means of dissemination 

145 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(b) Languages 

(c) Accessibility 

Section VII02 Access to mental health support personnel 

ARTICLE VIII MISCELLANEOUS 

Section VIII01 Titles 

Section VIII02 Rules and regulations 

Section VIII03 Financing and expenses 

(a) Transfer of funds 

(b) Repayment 

(c) Conditions 

(d) Expenses 

Section VIII04 Liability 

(a) State immunity 

(b) Private liability 

Section VIII05 Compensation 

(a) Taking 

(b) Actions 

(c) Amount 

Section VIII06 Severability 

Section VIII07 Repeals 

Section VIII08 Saving clause 

Section VIII09 Conflicting laws 

(a) Federal supremacy 

(b) Prior conflicting acts 

Section VIII10 Effective date 

146 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

PREAMBLE

In the wake of the tragic events of September 11, 2001, our nation realizes that the government’s 

foremost responsibility is to protect the health, safety, and well being of its citizens. New and emerging 

dangers—including emergent and resurgent infectious diseases and incidents of civilian mass 

casualties—pose serious and immediate threats to the population. A renewed focus on the prevention, 

detection, management, and containment of public health emergencies is thus called for. 

Emergency health threats, including those caused by bioterrorism and epidemics, require the exercise 

of essential government functions. Because each state is responsible for safeguarding the health, 

security, and well being of its people, state and local governments must be able to respond, rapidly and 

effectively, to public health emergencies. The Model State Emergency Health Powers Act (the “Act”) 

therefore grants specific emergency powers to state governors and public health authorities. 

The Act requires the development of a comprehensive plan to provide a coordinated, appropriate 

response in the event of a public health emergency. It facilitates the early detection of a health 

emergency by authorizing the reporting and collection of data and records, and allows for immediate 

investigation by granting access to individuals’ health information under specified circumstances. During 

a public health emergency, state and local officials are authorized to use and appropriate property as 

necessary for the care, treatment, and housing of patients, and to destroy contaminated facilities or 

materials. They are also empowered to provide care, testing and treatment, and vaccination to persons 

who are ill or who have been exposed to a contagious disease, and to separate affected individuals from

the population at large to interrupt disease transmission. 

At the same time, the Act recognizes that a state’s ability to respond to a public health emergency 

must respect the dignity and rights of persons. The exercise of emergency health powers is designed to 

promote the common good. Emergency powers must be grounded in a thorough scientific understanding 

of public health threats and disease transmission. Guided by principles of justice, state and local 

governments have a duty to act with fairness and tolerance towards individuals and groups. The Act thus 

provides that, in the event of the exercise of emergency powers, the civil rights, liberties, and needs of 

infected or exposed persons will be protected to the fullest extent possible consistent with the primary 

goal of controlling serious health threats. 

Public health laws and our courts have traditionally balanced the common good with individual civil 

liberties. As Justice Harlan wrote in the seminal United States Supreme Court case of Jacobson v. 

Massachusetts, “the whole people covenants with each citizen, and each citizen with the whole people, 

that all shall be governed by certain laws for the ‘common good.’” The Act strikes such a balance. It 

provides state and local officials with the ability to prevent, detect, manage, and contain emergency 

health threats without unduly interfering with civil rights and liberties. The Actseeksto ensures a strong, 

effective, and timely response to public health emergencies, while fostering respect for individuals from

all groups and backgrounds. 

 

147 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

Although modernizing public health law is an important part of protecting the population during 

public health emergencies, the public health system itself needs improvement. Preparing for a public 

health emergency requires a well trained public health workforce, efficient data systems, and sufficient 

laboratory capacity. 

148 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

ARTICLE I TITLE, FINDINGS, PURPOSES, AND DEFINITIONS 

Section I01 Short title. This Act may be cited as the “Model State Emergency Health Powers 

Act.” 

Section I02 Legislative findings. The [state legislature] finds that— 

(a) The government must do more to protect the health, safety, and general well being of its 

citizens. 

(b) New and emerging dangers—including emergent and resurgent infectious diseases and 

incidents of civilian mass casualties—pose serious and immediate threats. 

(c) A renewed focus on the prevention, detection, management, and containment of public 

health emergencies is needed. 

(d) Emergency health threats, including those caused by bioterrorism may require the 

exercise of extraordinary government powers and functions. 

(e) This State must have the ability to respond, rapidly and effectively, to potential or actual 

public health emergencies. 

(f) The exercise of emergency health powers must promote the common good. 

(g) Emergency health powers must be grounded in a thorough scientific understanding of 

public health threats and disease transmission. 

(h) Guided by principles of justice and antidiscrimination, it is the duty of this State to act 

with fairness and tolerance towards individuals and groups. 

(i) The rights of people to liberty, bodily integrity, and privacy must be respected to the 

fullest extent possible consistent with maintaining and preserving the public’s health and 

security. 

(j) This Act is necessary to protect the health and safety of the citizens of this State. 

Section I03 Purposes. The purposes of this Act are— 

(a) To require the development of a comprehensive plan to provide for a coordinated, 

appropriate response in the event of a public health emergency. 

(b) To authorize the reporting and collection of data and records, the management of 

property, the protection of persons, and access to communications. 

(c) To facilitate the early detection of a health emergency, and allow for immediate 

investigation of such an emergency by granting access to individuals’ health information

under specified circumstances. 

(d) To grant State and local officials the authority to use and appropriate property as 

necessary for the care, treatment, vaccination, and housing of patients, and to destroy 

contaminated facilities or materials. 

149 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(e) To grant State and local officials the authority to provide care, treatment, and vaccination 

to persons who are ill or who have been exposed to contagious diseases, and to separate 

affected individuals from the population at large to interrupt disease transmission. 

(f) To ensure that the needs of infected or exposed persons are properly addressed to the 

fullest extent possible, given the primary goal of controlling serious health threats. 

(g) To provide State and local officials with the ability to prevent, detect, manage, and 

contain emergency health threats without unduly interfering with civil rights and liberties.

Section I04 Definitions. 

(a) “Bioterrorism” is the intentional use of any microorganism, virus, infectious substance, 

or biological product that may be engineered as a result of biotechnology, or any naturally 

occurring or bioengineered component of any such microorganism, virus, infectious 

substance, or biological product, to cause death, disease, or other biological malfunction 

in a human, an animal, a plant, or another living organism in order to influence the 

conduct of government or to intimidate or coerce a civilian population. 

(b) “Chain of custody” is the methodology of tracking specimens for the purpose of 

maintaining control and accountability from initial collection to final disposition of the 

specimens and providing for accountability at each stage of collecting, handling, testing, 

storing, and transporting the specimens and reporting test results. 

(c) “Contagious disease” is an infectious disease that can be transmitted from person to 

person. 

(d) “Health care facility” means any non-federal institution, building, or agency or portion 

thereof, whether public or private (for-profit or nonprofit) that is used, operated, or 

designed to provide health services, medical treatment, or nursing, rehabilitative, or 

preventive care to any person or persons. This includes, but is not limited to: ambulatory 

surgical facilities, home health agencies, hospices, hospitals, infirmaries, intermediate 

care facilities, kidney treatment centers, long term care facilities, medical assistance 

facilities, mental health centers, outpatient facilities, public health centers, rehabilitation 

facilities, residential treatments facilities, skilled nursing facilities, and adult day-care 

centers. This also includes, but is not limited to, the following related property when used 

for or in connection with the foregoing: laboratories; research facilities; pharmacies; 

laundry facilities; health personnel training and lodging facilities; patient, guest, and 

health personnel food service facilities; and offices and office buildings for persons 

engaged in health care professions or services. 

(e) “Health care provider” is any person or entity who provides health care services 

including, but not limited to, hospitals, medical clinics and offices, special care facilities, 

medical laboratories, physicians, pharmacists, dentists, physician assistants, nurse 

practitioners, registered and other nurses, paramedics, emergency medical or laboratory 

technicians, and ambulance and emergency medical workers. 

150 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(f) “Infectious disease” is a disease caused by a living organism or other pathogen, 

including a fungus, bacillus, parasite, protozoan, or virus. An infectious disease may, or 

may not, be transmissible from person to person, animal to person, or insect to person. 

(g) “Infectious waste” is— 

(i) “biological waste,” which includes blood and blood products, excretions, 

exudates, secretions, suctioning and other body fluids, and waste materials 

saturated with blood or body fluids; 

(ii) “cultures and stocks,” which includes etiologic agents and associated 

biologicals, including specimen cultures and dishes and devices used to 

transfer, inoculate, and mix cultures, wastes from production of biologicals 

and serums, and discarded live and attenuated vaccines; 

(iii) “pathological waste,” which includes biopsy materials and all human tissues, 

anatomical parts that emanate from surgery, obstetrical procedures, necropsy

or autopsy and laboratory procedures, and animal carcasses exposed to 

pathogens in research and the bedding and other waste from such animals, but 

does not include teeth or formaldehyde or other preservative agents; and 

(iv) “sharps,” which includes needles, I.V. tubing with needles attached, scalpel 

blades, lancets, breakable glass tubes, and syringes that have been removed 

from their original sterile containers. 

(h) “Isolation” is the physical separation and confinement of an individual or groups of 

individuals who are infected or reasonably believed to be infected with a contagious or 

possibly contagious disease from non-isolated individuals, to prevent or limit the 

transmission of the disease to non-isolated individuals. 

(i) “Mental health support personnel” includes, but is not limited to, psychiatrists, 

psychologists, social workers, and volunteer crisis counseling groups. 

(j) "Organized militia" includes the State National Guard, the army national guard, the air 

national guard, or any other military force organized under the laws of this state.

(k) “Protected health information” is any information, whether oral, written, electronic, 

visual, or any other form, that relates to an individual’s past, present, or future physical or 

mental health status, condition, treatment, service, products purchased, or provision of 

care, and that reveals the identity of the individual whose health care is the subject of the 

information, or where there is a reasonable basis to believe such information could be 

utilized (either alone or with other information that is, or should reasonably be known to 

be, available to predictable recipients of such information) to reveal the identity of that 

individual. 

(l) “Public health authority” is the [insert the title of the state’s primary public health 

agency, department, division, or bureau]; or any local government agency that acts 

principally to protect or preserve the public’s health; or any person directly authorized to 

act on behalf of the [insert the title of the state’s primary public health agency, 

department, division, or bureau] or local public health agency. 

151 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(m) A “public health emergency” is an occurrence of imminent threat of an illness or health 

condition that: 

(1) is believed to be caused by any of the following: 

(i) bioterrorism; 

(ii) the appearance of a novel or previously controlled or eradicated infectious 

agent or biological toxin; 

(iii) [a natural disaster;]

(iv) [a chemical attack or accidental release; or] 

(v) [a nuclear attack or accident]; and 

(2) poses a high probability of any of the following harms: 

(i) a large number of deaths in the affected population; 

(ii) a large number of serious or long-term disabilities in the affected population; 

or 

(iii) widespread exposure to an infectious or toxic agent that poses a significant 

risk of substantial future harm to a large number of people in the affected 

population. 

(n) “Public safety authority” means the [insert the title of the state’s primary public safety 

agency, department, division, or bureau]; or any local government agency that acts 

principally to protect or preserve the public safety; or any person directly authorized to 

act on behalf of the [insert the title of the state’s primary public safety agency, 

department, division, or bureau] or local agency. 

(o) “Quarantine” is the physical separation and confinement of an individual or groups of 

individuals, who are or may have been exposed to a contagious or possibly contagious 

disease and who do not show signs or symptoms of a contagious disease, from nonquarantined individuals, to prevent or limit the transmission of the disease to nonquarantined individuals. 

(p) “Specimens” include, but are not limited to, blood, sputum, urine, stool, other bodily 

fluids, wastes, tissues, and cultures necessary to perform required tests. 

(q) “Tests” include, but are not limited to, any diagnostic or investigative analyses necessary 

to prevent the spread of disease or protect the public’s health, safety, and welfare. 

(r) “Trial court” is the trial court for the district in which isolation or quarantine is to occur,

a court designated by the Public Health Emergency Plan under Article II of this Act, or to 

the trial court for the district in which a public health emergency has been declared. 

Legislative History. The definition for “bioterrorism” was adapted from its definition in 18 U.S.C.A. § 

178 (West 2000) and from definitions used by the General Accounting Office. The definitions of “chain 

of custody,” “specimens,” and “tests” were adapted from ALA. CODE § 25-5-331 (2000). The 

definition of “health care facility” was adapted from ARK. CODE ANN. § 20-13-901 (Michie 2000); 

CAL. BUS. & PROF. CODE § 4027 (West 2001); FLA. STAT. ANN. § 159.27 (West 2000). The 

definition of “health care provider” was adapted from OKLA. STAT. ANN. tit. 74, § 1304 (West 2001). 

The definition of “infectious waste” was adapted from OR. REV. STAT. § 459.386 (1999). The 

152 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

definition for “organized militia” was adapted from NY CLS MILITARY § 1 (2001), MISS CODE ANN § 

33-1-1 (2001), O.C.G.A. § 38-2-2 (2000), and CONN. GEN. STAT. § 27-141 (2001). The definitions of 

“public health authority” and “protected health information” were adapted from LAWRENCE O. GOSTIN 

AND JAMES G. HODGE,JR.,THE MODEL STATE PUBLIC HEALTH PRIVACY ACT OF 1999. The definition of

a “public health emergency” was adapted from COLO. REV. STAT. ANN. § 24-32-2103(1.5) (West 

2001). 

ARTICLE II PLANNING FOR A PUBLIC HEALTH EMERGENCY 

Section II01 Public Health Emergency Planning Commission. The Governor shall appoint a 

Public Health Emergency Planning Commission (“the Commission”), consisting of the State 

directors, or their designees, of agencies the Governor deems relevant to public health emergency 

preparedness, a representative group of state legislators, members of the judiciary, and any other 

persons chosen by the Governor. The Governor shall also designate the chair of the Commission. 

Legislative History. Section 201 is adapted from COLO. REV. STAT. ANN. § 24-32-2104 (West 

2001); 2001 ILL. LAWS 73(5). 

Section II02 Public Health Emergency Plan. 

(a) Content. The Commission shall, within six months of its appointment, deliver to the 

Governor a plan for responding to a public health emergency, that includes provisions or 

guidelines on the following: 

(1) Notifying and communicating with the population during a state of public health 

emergency in compliance with this Act; 

(2) Central coordination of resources, manpower, and services, including coordination 

of responses by State, local, tribal, and federal agencies; 

(3) The location, procurement, storage, transportation, maintenance, and distribution of

essential materials, including but not limited to medicalsupplies, drugs, vaccines, 

food, shelter, clothing and beds; 

(4) Compliance with the reporting requirements in Section 301; 

(5) The continued, effective operation of the judicial system including, if deemed 

necessary, the identification and training of personnel to serve as emergency judges 

regarding matters of isolation and quarantine as described in this Act; 

(6) The method of evacuating populations, and housing and feeding the evacuated 

populations; 

(7) The identification and training of health care providers to diagnose and treat 

persons with infectious diseases; 

(8) The vaccination of persons, in compliance with the provisions of this Act; 

153 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(9) The treatment of persons who have been exposed to or who are infected with 

diseases or health conditions that may be the cause of a public health emergency. 

(10) The safe disposal of infectious wastes and human remains in compliance with the 

provisions of this Act; 

(11) The safe and effective control of persons isolated, quarantined, vaccinated, tested, 

or treated during a state of public health emergency; 

(12) Tracking the source and outcomes of infected persons; 

(13) Ensuring that each city and county within the State identifies the following— 

(i) sites where persons can be isolated or quarantined in compliance with the 

conditions and principles for isolation or quarantine of this Act; 

(ii) sites where medical supplies, food, and other essentials can be distributed to 

the population; 

(iii) sites where public health and emergency workers can be housed and fed; and 

(iv) routes and means of transportation of people and materials; 

(14) Cultural norms, values, religious principles, and traditions that may be relevant; and 

(15) Other measures necessary to carry out the purposes of this Act. 

(b) Distribution. The Commission shall distribute this plan to those who will be responsible 

for its implementation, other interested persons, and the public, and seek their review and 

comments.

(c) Review. The Commission shall annually review its plan for responding to a public health 

emergency. 

Legislative History. Section 202 is adapted from COLO. REV. STAT. ANN. § 24-32-2104 (West 

2001); 2001 ILL. LAWS 73(5). 

ARTICLE III MEASURES TO DETECT AND TRACK PUBLIC HEALTH EMERGENCIES 

Section III01 Reporting.

(a) Illness or health condition. A health care provider, coroner, or medical examiner shall 

report all cases of persons who harbor any illness or health condition that may be 

potential causes of a public health emergency. Reportable illnesses and health conditions 

include, but are not limited to, the diseases caused by the biological agents listed in 42 

C.F.R. § 72, app. A (2000) and any illnesses or health conditions identified by the public 

health authority. 

154 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(b) Pharmacists. In addition to the foregoing requirements for health care providers, a 

pharmacist shall report any unusual or increased prescription rates, unusual types of 

prescriptions, or unusual trends in pharmacy visits that may be potential causes of a 

public health emergency. Prescription-related events that require a report include, but are 

not limited to— 

(1) an unusual increase in the number of prescriptions or over-the-counter 

pharmaceuticals to treat conditions that the public health authority identifies 

through regulations; 

(2) an unusual increase in the number of prescriptions for antibiotics; and 

(3) any prescription that treats a disease that is relatively uncommon or may be 

associated with bioterrorism. 

(c) Manner of reporting. The report shall be made electronically or in writing within 

[twenty-four (24) hours] to the public health authority. The report shall include as much 

of the following information as is available: the specific illness or health condition that is 

the subject of the report; the patient’s name, date of birth, sex, race, occupation, and 

current home and work addresses (including city and county); the name and address of 

the health care provider, coroner, or medical examiner and of the reporting individual, if 

different; and any other information needed to locate the patient for follow-up. For cases 

related to animal or insect bites, the suspected locating information of the biting animal or 

insect, and the name and address of any known owner, shall be reported. 

(d) Animal diseases. Every veterinarian, livestock owner, veterinary diagnostic laboratory 

director, or other person having the care of animals shall report animals having or 

suspected of having any diseases that may be potential causes of a public health 

emergency. The report shall be made electronically or in writing within [twenty-four (24)

hours] to the public health authority and shall include as much of the following 

information as is available: the specific illness or health condition that is the subject of the 

report; the suspected locating information of the animal, the name and address of any 

known owner, and the name and address of the reporting individual. 

(e) Laboratories. For the purposes of this Section, the definition of “health care provider” 

shall include out-of-state medical laboratories, provided that such laboratories have 

agreed to the reporting requirements of this State. Results must be reported by the 

laboratory that performs the test, but an in-state laboratory that sends specimens to an outof-state laboratory is also responsible for reporting results. 

(f) Enforcement. The public health authority may enforce the provisions of this Section in 

accordance with existing enforcement rules and regulations. 

Legislative History. In Section 301, the language used in Subsections (a) - (d) were adapted from 6 

COLO. CODE REGS. § 1009-1, reg. 1 (WESTLAW through 2001), except that the lists of events in 

(b) was adapted from the Bioterrorism Readiness Plan: A Template for Healthcare Facilities

(Prepared by APIC Bioterrorism Task Force & CDC Hospital Infections Program Bioterrorism 

155 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

Working Group). Subsection (e) was adapted from 6 COLO. CODE REGS. § 1009-1, reg. 3 

(WESTLAW through 2001). 

Section III02 Tracking. The public health authority shall ascertain the existence of cases of an 

illness or health condition that may be potential causes of a public health emergency; investigate all 

such cases for sources of infection and to ensure that they are subject to proper control measures; and 

define the distribution of the illness or health condition. To fulfill these duties, the public health 

authority shall identify exposed individuals as follows— 

(a) Identification of individuals. Acting on information developed in accordance with 

Section 301 of this Act, or other reliable information, the public health authority shall 

identify all individuals thought to have been exposed to an illness or health condition that 

may be a potential cause of a public health emergency. 

(b) Interviewing of individuals. The public health authority shall counsel and interview 

such individuals where needed to assist in the positive identification of exposed 

individuals and develop information relating to the source and spread of the illness or 

health condition. Such information includes the name and address (including city and 

county) of any person from whom the illness or health condition may have been 

contracted and to whom the illness or health condition may have spread. 

(c) Examination of facilities or materials. The public health authority shall, for 

examination purposes, close, evacuate, or decontaminate any facility or decontaminate or 

destroy any material when the authority reasonably suspects that such facility or material 

may endanger the public health. 

(d) Enforcement. The public health authority may enforce the provisions of this Section in 

accordance with existing enforcement rules and regulations. An order of the public health 

authority given to effectuate the purposes of this Section shall be enforceable immediately 

by the public safety authority. 

Legislative History. In Section 302, the main text under “Tracking” was adapted from CAL. HEALTH 

& SAFETY CODE § 120575 (West 1996). Subsections (a) and (b) were adapted from FLA. STAT. 

ANN. § 392.54 (West 1998); CAL. HEALTH & SAFETY CODE § 120555 (West 1996); N.Y. 

COMP. CODES R. & REGS. tit. 10, § 2.6 (LEXIS through Oct. 12, 2001). 

Section III03 Information sharing. 

(a) Whenever the public safety authority or other state or local government agency learns of a 

case of a reportable illness or health condition, an unusual cluster, or a suspicious event 

that may be the cause of a public health emergency, it shall immediately notify the public 

health authority. 

(b) Whenever the public health authority learns of a case of a reportable illness or health 

condition, an unusual cluster, or a suspicious event that it reasonably believes has the 

156 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

potential to be caused by bioterrorism, it shall immediately notify the public safety 

authority, tribal authorities, and federal health and public safety authorities. 

(c) Sharing of information on reportable illnesses, health conditions, unusual clusters, or 

suspicious events between public health and safety authorities shall be restricted to the 

information necessary for the treatment, control, investigation, and prevention of a public 

health emergency. 

Legislative History. Section 303 was adapted from 6 COLO. CODE REGS. § 1009-1, reg. 6 

(WESTLAW through 2001). 

ARTICLE IV DECLARING A STATE OF PUBLIC HEALTH EMERGENCY 

Section IV01 Declaration. A state of public health emergency may be declared by the Governor 

upon the occurrence of a "public health emergency" as defined in Section 1-103(m). Prior to such a 

declaration, the Governor shall consult with the public health authority and may consult with any 

additional public health or other experts as needed. The Governor may act to declare a public health 

emergency without consulting with the public health authority or other experts when the situation 

calls for prompt and timely action. 

Legislative History. Section 401 is adapted from language contained in COLO. REV. STAT. ANN. §§ 

24-32-2104(3)(a), 4 (West 2001); 42 U.S.C.A. § 247d (West 1991 & Supp. 2001). 

Section IV02 Content of declaration. A state of public health emergency shall be declared by an 

executive order that specifies: 

(a) the nature of the public health emergency, 

(b) the political subdivision(s) or geographic area(s) subject to the declaration, 

(c) the conditions that have brought about the public health emergency, 

(d) the duration of the state of the public health emergency, if less than thirty (30) days, and 

(e) the primary public health authority responding to the emergency. 

Legislative History. Section 402 is adapted from COLO. REV. STAT. ANN. § 24-32-2104(4) (West 

2001); 2001 LA. ACTS 1148.

Section IV03 Effect of declaration. The declaration of a state of public health emergency shall 

activate the disaster response and recovery aspects of the State, local, and inter-jurisdictional disaster 

emergency plans in the affected political subdivision(s) or geographic area(s). Such declaration 

authorizes the deployment and use of any forces to which the plans apply and the use or distribution 

157 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

of any supplies, equipment, and materials and facilities assembled, stockpiled, or available pursuant 

to this Act. 

(a) Emergency powers. During a state of public health emergency, the Governor may: 

(1) Suspend the provisions of any regulatory statute prescribing procedures for 

conducting State business, or the orders, rules and regulations of any State agency, 

to the extent that strict compliance with the same would prevent, hinder, or delay 

necessary action (including emergency purchases) by the public health authority to

respond to the public health emergency, or increase the health threat to the 

population. 

(2) Utilize all available resources of the State government and its political subdivisions,

as reasonably necessary to respond to the public health emergency. 

(3) Transfer the direction, personnel, or functions of State departments and agencies in 

order to perform or facilitate response and recovery programs regarding the public 

health emergency. 

(4) Mobilize all or any part of the organized militia into service of the State. An order 

directing the organized militia to report for active duty shall state the purpose for 

which it is mobilized and the objectives to be accomplished. 

(5) Provide aid to and seek aid from other states in accordance with any interstate 

emergency compact made with this State. 

(6) Seek aid from the federal government in accordance with federal programs or 

requirements. 

(b) Coordination. The public health authority shall coordinate all matters pertaining to the 

public health emergency response of the State. The public health authority shall have 

primary jurisdiction, responsibility, and authority for: 

(1) Planning and executing public health emergency assessment, mitigation, 

preparedness response, and recovery for the State; 

(2) Coordinating public health emergency response between State and local authorities; 

(3) Collaborating with relevant federal government authorities, elected officials of other 

states, private organizations or companies; 

(4) Coordinating recovery operations and mitigation initiatives subsequent to public 

health emergencies; and 

(5) Organizing public information activities regarding public health emergency 

response operations. 

(c) Identification. After the declaration of a state of public health emergency, special 

identification for all public health personnel working during the emergency shall be 

issued as soon as possible. The identification shall indicate the authority of the bearer to 

exercise public health functions and emergency powers during the state of public health 

emergency. Public health personnel shall wear the identification in plain view. 

158 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

Legislative History. The main text of Section 403 was adapted from COLO. REV. STAT. ANN. § 24-

32-2104(5) (West 2001); 2001 ILL. LAWS 73(11). Section 403, Subsection (a) was adapted from 2001 

ILL. LAWS 73(7); except that paragraph (4) was adapted from ARIZ. REV. STAT. ANN. § 26-172 

(West 2000). Subsection (b) was drafted in consideration of the Emergency Management Assistance 

Compact and Alaska’s Interstate Civil Defense and Disaster Compact, As. § 26.23.130. Subsection (c) 

was adapted from KY. REV. STAT. ANN. § 39A.050(2)(d) (LEXIS through 2001 Sess.). 

Section IV04 Enforcement. During a state of public health emergency, the public health 

authority may request assistance in enforcing orders pursuant to this Act from the public safety 

authority. The public safety authority may request assistance from the organized militia in enforcing 

the orders of the public health authority. 

Legislative History. Section 404 was adapted from ARIZ. REV. STAT. ANN. § 26-172 (West 2000). 

Section IV05 Termination of declaration. 

(a) Executive order. The Governor shall terminate the declaration of a state of public health 

emergency by executive order upon finding that the occurrence of an illness or health 

condition that caused the emergency no longer poses a high probability of a large number 

of deaths in the affected population, a large number of incidents of serious permanent or 

long-term disability in the affected population, or a significant risk of substantial future 

harm to a large number of people in the affected population. 

(b) Automatic termination. Notwithstanding any other provision of this Act, the declaration 

of a state of public health emergency shall be terminated automatically after thirty (30) 

days unless renewed by the Governor under the same standards and procedures set forth 

in this Article. Any such renewal shall also be terminated automatically after thirty (30) 

days unless renewed by the Governor under the same standards and procedures set forth 

in this Article. 

(c) State legislature. By a majority vote in both chambers, the State legislature may 

terminate the declaration of a state of public health emergency after sixty (60) days at any 

time from the date of original declaration upon finding that the occurrence of an illness or 

health condition that caused the emergency does not or no longer poses a high probability 

of a large number of deaths in the affected population, a large number of incidents of 

serious permanent or long-term disability in the affected population, or a significant risk 

of substantial future harm to a large number of people in the affected population. Such a 

termination by the State legislature shall override any renewal by the Governor. 

(d) Content of termination order. All orders or legislative actions terminating the 

declaration of a state of public health emergency shall indicate the nature of the 

159 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

emergency, the area(s) that was threatened, and the conditions that make possible the 

termination of the declaration. 

Legislative History. Section 405 was adapted from COLO. REV. STAT. ANN. §§ 24-32-2104(3)(a), 4 

(West 2001); 42 U.S.C.A. § 247d (West 1991 & Supp. 2001); 2001 LA. ACTS 1148.

ARTICLE V SPECIAL POWERS DURING A STATE OF PUBLIC HEALTH EMERGENCY: 

MANAGEMENT OF PROPERTY 

Section V01 Emergency measures concerning facilities and materials. The public health 

authority may exercise, for such period as the state of public health emergency exists, the following 

powers over facilities or materials— 

(a) Facilities. To close, direct and compel the evacuation of, or to decontaminate or cause to 

be decontaminated any facility of which there is reasonable cause to believe that it may 

endanger the public health. 

(b) Materials. To decontaminate or cause to be decontaminated, or destroy any material of 

which there is reasonable cause to believe that it may endanger the public health. 

Legislative History. In Section 501, Subsection (a) was adapted from GA. CODE ANN. § 38-3-51 

(1995); Subsection (b) was adapted from COLO. REV. STAT. ANN. § 24-32-2104 (West 2001). 

Section V02 Access to and control of facilities and property - generally. The public health 

authority may exercise, for such period as the state of public health emergency exists, the following 

powers concerning facilities, materials, roads, or public areas — 

(a) Use of materials and facilities. To procure, by condemnation or otherwise, construct, 

lease, transport, store, maintain, renovate, or distribute materials and facilities as may be 

reasonable and necessary to respond to the public health emergency, with the right to take 

immediate possession thereof. Such materials and facilities include, but are not limited 

to, communication devices, carriers, real estate, fuels, food, and clothing.

(b) Use of health care facilities. To require a health care facility to provide services or the 

use of its facility if such services or use are reasonable and necessary to respond to the 

public health emergency as a condition of licensure, authorization or the ability to 

continue doing business in the state as a health care facility. The use of the health care 

facility may include transferring the management and supervision of the health care 

facility to the public health authority for a limited or unlimited period of time, but shall 

not exceed the termination of the declaration of a state of public health emergency.

160 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(c) Control of materials. To inspect, control, restrict, and regulate by rationing and using 

quotas, prohibitions on shipments, allocation, or other means, the use, sale, dispensing, 

distribution, or transportation of food, fuel, clothing and other commodities, as may be 

reasonable and necessary to respond to the public health emergency.

(d) Control of roads and public areas.

(1) To prescribe routes, modes of transportation, and destinations in connection with 

evacuation of persons or the provision of emergency services.

(2) To control or limit ingress and egress to and from any stricken or threatened public 

area, the movement of persons within the area, and the occupancy of premises 

therein, if such action is reasonable and necessary to respond to the public health 

emergency. 

Legislative History. In Section 502, Subsections (a) and (b) were adapted from GA. CODE ANN. § 38-

3-51 (1995). Subsections (c) and (d) were adapted from 2001 LA. ACTS 1148; 2001 ILL. LAWS 73; 

except that (d)(2) also had GA. CODE ANN. § 38-3-51 (1995) as a source. 

Section V03 Safe disposal of infectious waste. The public health authority may exercise, for 

such period as the state of public health emergency exists, the following powers regarding the safe 

disposal of infectious waste— 

(a) Adopt measures. To adopt and enforce measures to provide for the safe disposal of 

infectious waste as may be reasonable and necessary to respond to the public health 

emergency. Such measures may include, but are not limited to, the collection, storage, 

handling, destruction, treatment, transportation, and disposal of infectious waste. 

(b) Control of facilities. To require any business or facility authorized to collect, store, 

handle, destroy, treat, transport, and dispose of infectious waste under the laws of this 

State, and any landfill business or other such property, to accept infectious waste, or 

provide services or the use of the business, facility, or property if such action is 

reasonable and necessary to respond to the public health emergency as a condition of 

licensure, authorization, or the ability to continue doing business in the state as such a 

business or facility. The use of the business, facility, or property may include transferring 

the management and supervision of such business, facility, or property to the public 

health authority for a limited or unlimited period of time, but shall not exceed the 

termination of the declaration of a state of public health emergency. 

(c) Use of facilities. To procure, by condemnation or otherwise, any business or facility 

authorized to collect, store, handle, destroy, treat, transport, and dispose of infectious 

waste under the laws of this State and any landfill business or other such property as may 

be reasonable and necessary to respond to the public health emergency, with the right to 

take immediate possession thereof. 

(d) Identification. All bags, boxes, or other containers for infectious waste shall be clearly 

identified as containing infectious waste, and if known, the type of infectious waste. 

161 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

Legislative History. In Section 503, Subsection (d) was adapted from OR. REV. STAT. § 459.390 

(1999); MINN. STAT. ANN. § 116.78(2) (West 1997 & Supp. 2001); MONT. CODE ANN. § 75-10-

1005 (2001). 

Section V04 Safe disposal of human remains. The public health authority may exercise, for 

such period as the state of public health emergency exists, the following powers regarding the safe 

disposal of human remains— 

(a) Adopt measures. To adopt and enforce measures to provide for the safe disposal of 

human remains as may be reasonable and necessary to respond to the public health 

emergency. Such measures may include, but are not limited to, the embalming, burial, 

cremation, interment, disinterment, transportation, and disposal of human remains. 

(b) Possession. To take possession or control of any human remains. 

(c) Disposal. To order the disposal of any human remains of a person who has died of a 

contagious disease through burial or cremation within twenty-four (24) hours after death. 

To the extent possible, religious, cultural, family, and individual beliefs of the deceased 

person or his or her family shall be considered when disposing of any human remains. 

(d) Control of facilities. To require any business or facility authorized to embalm, bury, 

cremate, inter, disinter, transport, and dispose of human remains under the laws of this 

State to accept any human remains or provide the use of its business or facility if such 

actions are reasonable and necessary to respond to the public health emergency as a 

condition of licensure, authorization, or the ability to continue doing business in the state 

as such a business or facility.. The use of the business or facility may include transferring 

the management and supervision of such business or facility to the public health authority 

for a limited or unlimited period of time, but shall not exceed the termination of the 

declaration of a state of public health emergency. 

(e) Use of facilities. To procure, by condemnation or otherwise, any business or facility 

authorized to embalm, bury, cremate, inter, disinter, transport, and dispose of human 

remains under the laws of this State as may be reasonable and necessary to respond to the 

public health emergency, with the right to take immediate possession thereof. 

(f) Labeling. Every human remains prior to disposal shall be clearly labeled with all 

available information to identify the decedent and the circumstances of death. Any 

human remains of a deceased person with a contagious disease shall have an external, 

clearly visible tag indicating that the human remains is infected and, if known, the 

contagious disease. 

(g) Identification. Every person in charge of disposing of any human remains shall maintain 

a written or electronic record of each human remains and all available information to 

identify the decedent and the circumstances of death and disposal. If human remains 

cannot be identified prior to disposal, a qualified person shall, to the extent possible, take 

fingerprints and photographs of the human remains, obtain identifying dental information, 

162 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

and collect a DNA specimen. All information gathered under this paragraph shall be 

promptly forwarded to the public health authority. 

Legislative History. In Section 504, Subsection (a) is adapted from CAL. HEALTH & SAFETY 

CODE § 102115 (West 1996); GA. CODE ANN. § 43-18-72(b) (1999). Subsection (b) is adapted from

CAL. HEALTH & SAFETY CODE § 120140 (West 1996). Subsection (c) is adapted from OHIO 

REV. CODE ANN. § 3707.19 (Anderson 1999). Subsection (d) is adapted from KY. REV. STAT. 

ANN. § 39F.020(4) (LEXIS through 2001 Sess.). Subsection (f) is adapted from LA. REV. STAT. 

ANN. § 40:1099.1 (West 2001). Subsection (g) was adapted from OHIO REV. CODE ANN. § 313.08 

(Anderson 1998 & Supp. 2000). 

Section V05 Control of health care supplies. 

(a) Procurement. The public health authority may purchase and distribute anti-toxins, 

serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents or 

medical supplies that it deems advisable in the interest of preparing for or controlling a 

public health emergency, without any additional legislative authorization. 

(b) Rationing. If a state of public health emergency results in a state-wide or regional 

shortage or threatened shortage of any product under (a), whether or not such product has 

been purchased by the public health authority, the public health authority may control, 

restrict, and regulate by rationing and using quotas, prohibitions on shipments, allocation, 

or other means, the use, sale, dispensing, distribution, or transportation of the relevant 

product necessary to protect the public health, safety, and welfare of the people of the 

State. 

(c) Priority. In making rationing or other supply and distribution decisions, the public health 

authority may give preference to health care providers, disaster response personnel, and 

mortuary staff. 

(d) Distribution. During a state of public health emergency, the public health authority may 

procure, store, or distribute any anti-toxins, serums, vaccines, immunizing agents, 

antibiotics, and other pharmaceutical agents or medical supplies located within the State 

as may be reasonable and necessary to respond to the public health emergency, with 

the right to take immediate possession thereof. If a public health emergency 

simultaneously affects more than one state, nothing in this Section shall be construed to 

allow the public health authority to obtain anti-toxins, serums, vaccines, immunizing 

agents, antibiotics, and other pharmaceutical agents or medical supplies for the primary 

purpose of hoarding such items or preventing their fair and equitable distribution among 

affected states. 

Legislative History. In Section 505, Subsection (a) was adapted from N.H. REV. STAT. ANN. § 141-C17 (1996). Subsection (b) was adapted from CONN. GEN. STAT. ANN. § 42-231 (West 1958). 

163 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

Section V06 Compensation. The State shall pay just compensation to the owner of any facilities 

or materials that are lawfully taken or appropriated by a public health authority for its temporary or 

permanent use under this Article according to the procedures and standards set forth in Section 805 of

this Act. Compensation shall not be provided for facilities or materials that are closed, evacuated, 

decontaminated, or destroyed when there is reasonable cause to believe that they may endanger the 

public health pursuant to Section 501. 

Section V07 Destruction of property. To the extent practicable consistent with the protection of 

public health, prior to the destruction of any property under this Article, the public health authority 

shall institute appropriate civil proceedings against the property to be destroyed in accordance with 

the existing laws and rules of the courts of this State or any such rules that may be developed by the 

courts for use during a state of public health emergency. Any property acquired by the public health 

authority through such proceedings shall, after entry of the decree, be disposed of by destruction as 

the court may direct. 

ARTICLE VI SPECIAL POWERS DURING A STATE OF PUBLIC HEALTH 

EMERGENCY: PROTECTION OF PERSONS

Section VI01 Protection of persons. During a state of public health emergency, the public health 

authority shall use every available means to prevent the transmission of infectious disease and to 

ensure that all cases of contagious disease are subject to proper control and treatment. 

Legislative History. In Section 601, the text immediately following the heading “Protection of 

individuals” was adapted from CAL. HEALTH & SAFETY CODE § 120575 (West 1996). 

Section VI02 Medical examination and testing. During a state of public health emergency the 

public health authority may perform physical examinations and/or tests as necessary for the diagnosis 

or treatment of individuals. 

(a) Medical examinations or tests may be performed by any qualified person authorized to do 

so by the public health authority. 

(b) Medical examinations or tests must not be such as are reasonably likely to lead to serious

harm to the affected individual. 

(c) The public health authority may isolate or quarantine, pursuant to Section 604, any person 

whose refusal of medical examination or testing results in uncertainty regarding whether 

he or she has been exposed to or is infected with a contagious or possibly contagious 

disease or otherwise poses a danger to public health. 

164 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

Legislative History. Section 602 was adapted from CAL. HEALTH & SAFETY CODE § 120580 

(West 1996 & Supp. 2001); CAL. HEALTH & SAFETY CODE § 120540 (West 1996); N.Y. COMP. 

CODES R. & REGS. tit. 10, § 2.5 (LEXIS through Oct. 12, 2001). 

Section VI03 Vaccination and treatment. During a state of public health emergency the public 

health authority may exercise the following emergency powers over persons as necessary to address 

the public health emergency– 

(a) Vaccination. To vaccinate persons as protection against infectious disease and to prevent 

the spread of contagious or possibly contagious disease. 

(1) Vaccination may be performed by any qualified person authorized to do so by the 

public health authority. 

(2) A vaccine to be administered must not be such as is reasonably likely to lead to 

serious harm to the affected individual. 

(3) To prevent the spread of contagious or possibly contagious disease the public health 

authority may isolate or quarantine, pursuant to Section 604, persons who are 

unable or unwilling for reasons of health, religion, or conscience to undergo 

vaccination pursuant to this Section. 

(b) Treatment. To treat persons exposed to or infected with disease. 

(1) Treatment may be administered by any qualified person authorized to do so by the 

public health authority. 

(2) Treatment must not be such as is reasonably likely to lead to serious harm to the 

affected individual. 

(3) To prevent the spread of contagious or possibly contagious disease the public health 

authority may isolate or quarantine, pursuant to Section 604, persons who are 

unable or unwilling for reasons of health, religion, or conscience to undergo 

treatment pursuant to this Section. 

Legislative History. Section 603 was adapted from CAL. HEALTH & SAFETY CODE §§ 120175, 

120575, 120605 (West 1996); CAL. HEALTH & SAFETY CODE § 120580 (West 1996 & Supp. 

2001). 

Section VI04 Isolation and quarantine. 

(a) Authorization. During the public health emergency, the public health authority may 

isolate (consistent with the definition of “isolation” in Section 103(h)) or quarantine 

(consistent with the definition of quarantine in Section 103(o)) an individual or groups of 

individuals. This includes individuals or groups who have not been vaccinated, treated, 

tested, or examined pursuant to Sections 602 and 603. The public health authority may 

also establish and maintain places of isolation and quarantine, and set rules and make 

orders. Failure to obey these rules, orders, or provisions shall constitute a misdemeanor. 

165 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(b) Conditions and principles. The public health authority shall adhere to the following 

conditions and principles when isolating or quarantining individuals or groups of 

individuals: 

(1) Isolation and quarantine must be by the least restrictive means necessary to prevent 

the spread of a contagious or possibly contagious disease to others and may include, 

but are not limited to, confinement to private homes or other private and public 

premises. 

(2) Isolated individuals must be confined separately from quarantined individuals. 

(3) The health status of isolated and quarantined individuals must be monitored 

regularly to determine if they require isolation or quarantine. 

(4) If a quarantined individual subsequently becomes infected or is reasonably 

believed to have become infected with a contagious or possibly contagious disease 

he or she must promptly be removed to isolation. 

(5) Isolated and quarantined individuals must be immediately released when they pose 

no substantial risk of transmitting a contagious or possibly contagious disease to 

others. 

(6) The needs of persons isolated and quarantined shall be addressed in a systematic 

and competent fashion, including, but not limited to, providing adequate food, 

clothing, shelter, means of communication with those in isolation or quarantine and 

outside these settings, medication, and competent medical care. 

(7) Premises used for isolation and quarantine shall be maintained in a safe and 

hygienic manner and be designed to minimize the likelihood of further transmission 

of infection or other harms to persons isolated and quarantined. 

(8) To the extent possible, cultural and religious beliefs should be considered in 

addressing the needs of individuals, and establishing and maintaining isolation and

quarantine premises. 

(c) Cooperation. Persons subject to isolation or quarantine shall obey the public health 

authority’s rules and orders; and shall not go beyond the isolation or quarantine premises. 

 Failure to obey these provisions shall constitute a misdemeanor. 

(d) Entry into isolation or quarantine premises. 

(1) Authorized entry. The public health authority may authorize physicians, health 

care workers, or others access to individuals in isolation or quarantine as necessary 

to meet the needs of isolated or quarantined individuals. 

(2) Unauthorized entry. No person, other than a person authorized by the public 

health authority, shall enter isolation or quarantine premises. Failure to obey this 

provision shall constitute a misdemeanor. 

(3) Potential isolation or quarantine. Any person entering an isolation or quarantine 

premises with or without authorization of the public health authority may be 

isolated or quarantined pursuant to Section 604(a)(b). 

166 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

Section VI05 Procedures for isolation and quarantine. During a public health emergency, the 

isolation and quarantine of an individual or groups of individuals shall be undertaken in accordance 

with the following procedures. 

(a) Temporary isolation and quarantine without notice. 

(1) Authorization. The public health authority may temporarily isolate or quarantine 

an individual or groups of individuals through a written directive if delay in 

imposing the isolation or quarantine would significantly jeopardize the public 

health authority’s ability to prevent or limit the transmission of a contagious or 

possibly contagious disease to others. 

(2) Content of directive. The written directive shall specify the following: (i) the 

identity of the individual(s) or groups of individuals subject to isolation or 

quarantine; (ii) the premises subject to isolation or quarantine; (iii) the date and time

at which isolation or quarantine commences; (iv) the suspected contagious disease 

if known.; and (v) a copy of Article 6 and relevant definitions of this Act. 

(3) Copies. A copy of the written directive shall be given to the individual to be 

isolated or quarantined or, if the order applies to a group of individuals and it is 

impractical to provide individual copies, it may be posted in a conspicuous place in 

the isolation or quarantine premises. 

(4) Petition for continued isolation or quarantine. Within ten (10) days after issuing 

the written directive, the public health authority shall file a petition pursuant to 

Section 605(b) for a court order authorizing the continued isolation or quarantine of

the isolated or quarantined individual or groups of individuals. 

(b) Isolation or quarantine with notice.

(1) Authorization. The public health authority may make a written petition to the trial 

court for an order authorizing the isolation or quarantine of an individual or groups 

of individuals. 

(2) Content of petition. A petition under subsection (b)(1) shall specify the following: 

(i) the identity of the individual(s) or groups of individuals subject to isolation or 

quarantine; (ii) the premises subject to isolation or quarantine; (iii) the date and time

at which isolation or quarantine commences; (iv) the suspected contagious disease 

if known; (v) a statement of compliance with the conditions and principles for 

isolation and quarantine of Section 604(b); and (vi) a statement of the basis upon 

which isolation or quarantine is justified in compliance with this Article. The 

petition shall be accompanied by the sworn affidavit of the public health authority 

attesting to the facts asserted in the petition, together with any further information 

that may be relevant and material to the court’s consideration. 

(3) Notice. Notice to the individuals or groups of individuals identified in the petition 

shall be accomplished within twenty-four (24) hours in accordance with the rules of

civil procedure. 

167 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(4) Hearing. A hearing must be held on any petition filed pursuant to this subsection 

within five (5) days of filing of the petition. In extraordinary circumstances and for 

good cause shown the public health authority may apply to continue the hearing 

date on a petition filed pursuant to this Section for up to ten (10) days, which 

continuance the court may grant in its discretion giving due regard to the rights of 

the affected individuals, the protection of the public’s health, the severity of the 

emergency and the availability of necessary witnesses and evidence. 

(5) Order. The court shall grant the petition if, by a preponderance of the evidence, 

isolation or quarantine is shown to be reasonably necessary to prevent or limit the 

transmission of a contagious or possibly contagious disease to others. 

(i) An order authorizing isolation or quarantine may do so for a period not to 

exceed thirty (30) days. 

(ii) The order shall (a) identify the isolated or quarantined individuals or groups 

of individuals by name or shared or similar characteristics or circumstances; 

(b) specify factual findings warranting isolation or quarantine pursuant to this 

Act; (c) include any conditions necessary to ensure that isolation or quarantine 

is carried out within the stated purposes and restrictions of this Act; and (d) 

served on affected individuals or groups of individuals in accordance with the 

rules of civil procedure. 

(6) Continuances. Prior to the expiration of an order issued pursuant to Section 

605(b)(5), the public health authority may move to continue isolation or quarantine 

for additional periods not to exceed thirty (30) days each. The court shall consider 

the motion in accordance with standards set forth in Section 605(b)(5). 

(c) Relief from isolation and quarantine.

(1) Release. An individual or group of individuals isolated or quarantined pursuant to 

this Act may apply to the trial court for an order to show cause why the individual 

or group of individuals should not be released. The court shall rule on the 

application to show cause within forty-eight (48) hours of its filing. If the court 

grants the application, the court shall schedule a hearing on the order to show cause 

within twenty-four (24) hours from issuance of the order to show cause. The 

issuance of an order to show cause shall not stay or enjoin an isolation or quarantine 

order. 

(2) Remedies for breach of conditions. An individual or groups of individuals 

isolated or quarantined pursuant to this Act may request a hearing in the trial court 

for remedies regarding breaches to the conditions of isolation or quarantine. A 

request for a hearing shall not stay or enjoin an isolation or quarantine order. 

(i) Upon receipt of a request under this subsection alleging extraordinary 

circumstances justifying the immediate granting of relief, the court shall fix a 

date for hearing on the matters alleged not more than twenty-four (24) hours 

from receipt of the request. 

168 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(ii) Otherwise, upon receipt of a request under this subsection the court shall fix a 

date for hearing on the matters alleged within five (5) days from receipt of the 

request. 

(3) Extensions. In any proceedings brought for relief under this subsection, in 

extraordinary circumstances and for good cause shown the public health authority 

may move the court to extend the time for a hearing, which extension the court in 

its discretion may grant giving due regard to the rights of the affected individuals, 

the protection of the public’s health, the severity of the emergency and the 

availability of necessary witnesses and evidence. 

(d) Proceedings. A record of the proceedings pursuant to this Section shall be made and 

retained. In the event that, given a state of public health emergency, parties can not 

personally appear before the court, proceedings may be conducted by their authorized 

representatives and be held via any means that allows all parties to fully participate. 

(e) Court to appoint counsel and consolidate claims.

(1) Appointment. The court shall appoint counsel at state expense to represent 

individuals or groups of individuals who are or who are about to be isolated or 

quarantined pursuant to the provisions of this Act and who are not otherwise 

represented by counsel. Appointments shall be made in accordance with the 

procedures to be specified in the Public Health Emergency Plan and shall last 

throughout the duration of the isolation or quarantine of the individual or groups of 

individuals. The public health authority must provide adequate means of 

communication between such individuals or groups and their counsel. 

(2) Consolidation. In any proceedings brought pursuant to this Section, to promote the 

fair and efficient operation of justice and having given due regard to the rights of 

the affected individuals, the protection of the public’s health, the severity of the 

emergency and the availability of necessary witnesses and evidence, the court may 

order the consolidation of individual claims into group or claims where: 

(i) the number of individuals involved or to be affected is so large as to render 

individual participation impractical; 

(ii) there are questions of law or fact common to the individual claims or rights to 

be determined; 

(iii) the group claims or rights to be determined are typical of the affected 

individuals’ claims or rights; and 

(iv) the entire group will be adequately represented in the consolidation. 

Legislative History. Sections 604 and 605 were adapted from CAL. HEALTH & SAFETY CODE §§ 

120130, 120225 (West 1996); N.H. REV. STAT. ANN. § 141-C:11 -14; CONN. GEN. STAT. ANN. § 

19a-221 (West 1958). 

Section VI06 Collection of laboratory specimens; performance of tests. The public health 

authority may, for such period as the state of public health emergency exists, collect specimens and 

169 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

perform tests on living persons as provided in Section 602 and also upon deceased persons and any 

animal (living or deceased), and acquire any previously collected specimens or test results that are 

reasonable and necessary to respond to the public health emergency. 

(a) Marking. All specimens shall be clearly marked. 

(b) Contamination. Specimen collection, handling, storage, and transport to the testing site 

shall be performed in a manner that will reasonably preclude specimen contamination or 

adulteration and provide for the safe collection, storage, handling, and transport of such 

specimen. 

(c) Chain of custody. Any person authorized to collect specimens or perform tests shall use 

chain of custody procedures to ensure proper record keeping, handling, labeling, and 

identification of specimens to be tested. This requirement applies to all specimens, 

including specimens collected using on-site testing kits. 

(d) Criminal investigation. Recognizing that, during a state of public health emergency, 

any specimen collected or test performed may be evidence in a criminal investigation, any 

business, facility, or agency authorized to collect specimens or perform tests shall provide

such support as is reasonable and necessary to aid in a relevant criminal investigation. 

Legislative History. Section 606 was adapted from CAL. BUS. & PROF. CODE § 681 (LEXIS 

through Aug. 12. 2001); MISS. CODE ANN. § 71-7-9 (2000); GA. CODE ANN. § 34-9-415 (1998 & 

Supp. 2001); and CAL. PENAL CODE § 13823.11 (LEXIS through Aug. 12, 2001). 

Section VI07 Access to and disclosure of protected health information. 

(a) Access. Access to protected health information of persons who have participated in 

medical testing, treatment, vaccination, isolation, or quarantine programs or efforts by the 

public health authority during a public health emergency shall be limited to those persons 

having a legitimate need to acquire or use the information to: 

(1) provide treatment to the individual who is the subject of the health information, 

(2) conduct epidemiologic research, or 

(3) investigate the causes of transmission. 

(b) Disclosure. Protected health information held by the public health authority shall not be 

disclosed to others without individual written, specific informed consent, except for 

disclosures made: 

(1) directly to the individual; 

(2) to the individual’s immediate family members or personal representative; 

(3) to appropriate federal agencies or authorities pursuant to federal law; 

(4) pursuant to a court order to avert a clear danger to an individual or the public 

health; or 

170 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(5) to identify a deceased individual or determine the manner or cause of death. 

Legislative History. Section 607 was adapted from LAWRENCE O. GOSTIN AND JAMES G. HODGE, JR.,

THE MODEL STATE PUBLIC HEALTH PRIVACY ACT OF 1999. 

Section VI08 Licensing and appointment of health personnel. The public health authority may 

exercise, for such period as the state of public health emergency exists, the following emergency 

powers regarding licensing and appointment of health personnel— 

(a) Health care providers. To require in-state health care providers to assist in the 

performance of vaccination, treatment, examination, or testing of any individual as a 

condition of licensure, authorization, or the ability to continue to function as a health care 

provider in this State. 

(b) Health care providers from other jurisdictions. To appoint and prescribe the duties of 

such out-of-state emergency health care providers as may be reasonable and necessary to 

respond to the public health emergency. 

(1) The appointment of out-of-state emergency health care providers may be for a 

limited or unlimited time, but shall not exceed the termination of the declaration of

a state of public health emergency. The public health authority may terminate the 

out-of-state appointments at any time or for any reason provided that any such 

termination will not jeopardize the health, safety, and welfare of the people of this 

State. 

(2) The public health authority may waive any or all licensing requirements, permits, or 

fees required by the State code and applicable orders, rules, or regulations for health 

care providers from other jurisdictions to practice in this State. 

(3) Any out-of-state emergency health care provider appointed pursuant to this Section 

shall not be held liable for any civil damages as a result of medical care or treatment 

related to the response to the public health emergency unless such damages result 

from providing, or failing to provide, medical care or treatment under circumstances 

demonstrating a reckless disregard for the consequences so as to affect the life or 

health of the patient. 

(c) Personnel to perform duties of medical examiner or coroner. To authorize the 

medical examiner or coroner to appoint and prescribe the duties of such emergency 

assistant medical examiners or coroners as may be required for the proper performance of 

the duties of the office. 

(1) The appointment of emergency assistant medical examiners or coroners may be for 

a limited or unlimited time, but shall not exceed the termination of the declaration 

of a state of public health emergency. The medical examiner or coroner may 

terminate such emergency appointments at any time or for any reason, provided that 

any such termination will not impede the performance of the duties of the office. 

171 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(2) The medical examiner or coroner may waive licensing requirements, permits, or 

fees required by the State code and applicable orders, rules, or regulations for the 

performance of these duties. 

(3) Any emergency assistant medical examiner or coroner appointed pursuant to this 

Section and acting without malice and within the scope of the prescribed duties 

shall be immune from civil liability in the performance of such duties. 

Legislative History. Section 608(b) was adapted from FLA. STAT. ANN. § 768.13(2)(b)(1) (West 1997 

& Supp. 2001). Subsection (c) was adapted from D.C. CODE ANN. § 2-1605 (2001); KAN. STAT. 

ANN. § 22a-226(e) (1995); GA. CODE ANN. § 45-16-23 (1990); COLO. REV. STAT. ANN. § 30-10-

601 (West 1990). 

ARTICLE VII PUBLIC INFORMATION REGARDING PUBLIC HEALTH EMERGENCY 

Section VII01 Dissemination of information. The public health authority shall inform the people

of the State when a state of public health emergency has been declared or terminated, how to protect 

themselves during a state of public health emergency, and what actions are being taken to control the 

emergency. 

(a) Means of dissemination. The public health authority shall provide information by all 

available and reasonable means calculated to bring the information promptly to the 

attention of the general public. 

(b) Languages. If the public health authority has reason to believe there are large numbers 

of people of the State who lack sufficient skills in English to understand the information, 

the public health authority shall make reasonable efforts to provide the information in the 

primary languages of those people as well as in English. 

(c) Accessibility. The provision of information shall be made in a manner accessible to 

individuals with disabilities. 

Legislative History. In Section 701, the main text following the title “Dissemination of information” is 

adapted from 6 COLO. CODE REGS. § 1009-5, reg. 1 (WESTLAW through Aug. 2001). Subsection 

(a) is adapted from 2001 ILL. LAWS 73(3); ALASKA STAT. §§ 26.23.020, 26.23.200 (Michie 2000). 

Subsection (b) is adapted from CAL. ELEC. CODE § 14201(c) (West 1996). 

Section VII02 Access to mental health support personnel. During and after the declaration of a 

state of public health emergency, the public health authority shall provide information about and 

referrals to mental health support personnel to address psychological responses to the public health 

emergency. 

172 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

Legislative History. Section 702 is adapted from the Bioterrorism Readiness Plan: A Template for 

Healthcare Facilities (Prepared by APIC Bioterrorism Task Force & CDC Hospital Infections 

Program Bioterrorism Working Group).

ARTICLE VIII MISCELLANEOUS 

Section VIII01 Titles. For the purposes of this Act, titles and subtitles of Articles, Sections, and 

Subsections are instructive, but not binding. 

Section VIII02 Rules and regulations. The public health authority and other affected agencies are 

authorized to promulgate and implement such rules and regulations as are reasonable and necessary 

to implement and effectuate the provisions of this Act. The public health authority and other affected 

agencies shall have the power to enforce the provisions of this Act through the imposition of fines 

and penalties, the issuance of orders, and such other remedies as are provided by law, but nothing in 

this Section shall be construed to limit specific enforcement powers enumerated in this Act. 

Section VIII03 Financing and expenses. 

(a) Transfer of funds. The Governor may transfer from any fund available to the Governor 

in the State treasury such sums as may be necessary during a state of public health 

emergency. 

(b) Repayment. Monies so transferred shall be repaid to the fund from which they were 

transferred when monies become available for that purpose, by legislative appropriation 

or otherwise. 

(c) Conditions. A transfer of funds by the Governor under the provisions of this Section 

may be made only when one or more of the following conditions exist: 

(1) No appropriation or other authorization is available to meet the public health 

emergency. 

(2) An appropriation is insufficient to meet the public health emergency. 

(3) Federal monies available for such a public health emergency require the use of State 

or other public monies. 

(d) Expenses. All expenses incurred by the State during a state of public health emergency 

shall be subject to the following limitations: 

(1) No expense shall be incurred against the monies authorized under this Section, 

without the general approval of the Governor. 

(2) The aggregate amount of all expenses incurred pursuant to this Section shall not 

exceed [state amount] for any fiscal year. 

173 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

(3) Monies authorized for a state of public health emergency in prior fiscal years may 

be used in subsequent fiscal years only for the public health emergency for which 

they were authorized. Monies authorized for a public health emergency in prior 

fiscal years, and expended in subsequent fiscal years for the public health 

emergency for which they were authorized, apply toward the [state amount] 

expense limit for the fiscal year in which they were authorized. 

Legislative History. In Section 803, Subsections (a) and (b) are adapted from GA. CODE ANN. § 38-3-

51 (1995). Subsections (c) and (d) are adapted from ARIZ. REV. STAT. ANN. § 35-192 (West 2000). 

Section VIII04 Liability. 

(a) State immunity. Neither the State, its political subdivisions, nor, except in cases of gross

negligence or willful misconduct, the Governor, the public health authority, or any other 

State or local official referenced in this Act, is liable for the death of or any injury to 

persons, or damage to property, as a result of complying with or attempting to comply 

with this Act or any rule or regulations promulgated pursuant to this Act during a state of 

public health emergency. 

(b) Private liability. 

(1) During a state of public health emergency, any person owning or controlling real 

estate or other premises who voluntarily and without compensation grants a license 

or privilege, or otherwise permits the designation or use of the whole or any part or 

parts of such real estate or premises for the purpose of sheltering persons, together 

with that person’s successors in interest, if any, shall not be civilly liable for 

negligently causing the death of, or injury to, any person on or about such real 

estate or premises under such license, privilege, or other permission, or for 

negligently causing loss of, or damage to, the property of such person. 

(2) During a state of public health emergency, any private person, firm or corporation 

and employees and agents of such person, firm or corporation in the performance of 

a contract with, and under the direction of, the State or its political subdivisions 

under the provisions of this Act shall not be civilly liable for causing the death of, 

or injury to, any person or damage to any property except in the event of gross 

negligence or willful misconduct. 

(3) During a state of public health emergency, any private person, firm or corporation 

and employees and agents of such person, firm or corporation, who renders 

assistance or advice at the request of the State or its political subdivisions under the 

provisions of this Act shall not be civilly liable for causing the death of, or injury to, 

any person or damage to any property except in the event of gross negligence or 

willful misconduct. 

(4) The immunities provided in this Subsection shall not apply to any private person, 

firm, or corporation or employees and agents of such person, firm, or corporation 

174 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

whose act or omission caused in whole or in part the public health emergency and 

who would otherwise be liable therefor. 

Legislative History. Section 804 is adapted from 2001 ILL. LAWS 73(15), (21). 

Section VIII05 Compensation. 

(a) Taking. Compensation for property shall be made only if private property is lawfully 

taken or appropriated by a public health authority for its temporary or permanent use 

during a state of public health emergency declared by the Governor pursuant to this Act.

(b) Actions. Any action against the State with regard to the payment of compensation shall 

be brought in the courts of this State in accordance with existing court laws and rules, or 

any such rules that may be developed by the courts for use during a state of public health 

emergency. 

(c) Amount. The amount of compensation shall be calculated in the same manner as 

compensation due for taking of property pursuant to non-emergency eminent domain 

procedures, as provided in [State to insert appropriate statutory citation], except that the 

amount of compensation calculated for items obtained under Section 505 shall be limited 

to the costs incurred to produce the item.

Legislative History. Section 805 is adapted from COLO. REV. STAT. § 24-32-2111.5 (LEXIS through 

2001 Sess.). 

Section VIII06 Severability. The provisions of this Act are severable. If any provision of this Act 

or its application to any person or circumstances is held invalid in a federal or state court having 

jurisdiction, the invalidity will not affect other provisions or applications of this Act that can be given 

effect without the invalid provision or application. 

Legislative History. Section 806 is adapted from the LAWRENCE O. GOSTIN AND JAMES G. HODGE, JR.,

THE MODEL STATE PUBLIC HEALTH PRIVACY ACT OF 1999. 

Section VIII07 Repeals. The following acts, laws, or parts thereof, are explicitly repealed with the 

passage of this Act: 

(a) [To be inserted in each state considering passage of the Act] 

(b) [To be inserted in each state considering passage of the Act] 

(c) [To be inserted in each state considering passage of the Act] . . . 

Legislative History. Section 807 is adapted from the LAWRENCE O. GOSTIN AND JAMES G. HODGE, JR.,

THE MODEL STATE PUBLIC HEALTH PRIVACY ACT OF 1999. 

175 
MODEL STATE EMERGENCY HEALTH POWERS ACT 

As of December 21, 2001

176 

Section VIII08 Saving clause. This Act does not explicitly preempt other laws or regulations that 

preserve to a greater degree the powers of the Governor or public health authority, provided such 

laws or regulations are consistent, and do not otherwise restrict or interfere, with the operation or 

enforcement of the provisions of this Act. 

Legislative History. Section 808 is adapted from the LAWRENCE O. GOSTIN AND JAMES G. HODGE, JR.,

THE MODEL STATE PUBLIC HEALTH PRIVACY ACT OF 1999. 

Section VIII09 Conflicting laws. 

(a) Federal supremacy. This Act does not restrict any person from complying with federal 

law or regulations. 

(b) Prior conflicting acts. In the event of a conflict between this Act and other State or local 

laws or regulations concerning public health powers, the provisions of this Act apply. 

Legislative History. Section 809 is adapted from the LAWRENCE O. GOSTIN AND JAMES G. HODGE, JR.,

THE MODEL STATE PUBLIC HEALTH PRIVACY ACT OF 1999. 

Section VIII10 Effective date. The provisions of this Act shall take effect upon signature of the 

Governor. [State to insert language appropriate to its legislative process.] 
ANNEX 3-- MIPT BOARD OF DIRECTORS

MIPT 

BOARD OF DIRECTORS 

Major General Donald F. Ferrell (USAF, Ret.) 

Chairman 

C. Michael Carolina 

Adjunct Professor 

College of Engineering, Architecture and Technology 

Industry Relations – Education and Research Foundation 

Oklahoma State University 

David Cid

President 

SALUS International, Inc. 

Ambassador Edwin G. Corr 

Associate Director 

International Programs Center 

University of Oklahoma

Linda Edmondson 

Community Volunteer 

Major General Robert A. Goodbary (USA, Ret.) 

Director

Military Relations 

Oklahoma State University 

Debby Goodman, Ph.D.

Professor 

University of Oklahoma

Edward F. Keller

Chairman and CEO 

Bank One, Oklahoma, NA 

Cheryl A. Vaught, Esq.

Partner 

Vaught & Conner 

177