Report Title:

Civil Defense

Description:

Allows the use of deadly force by law enforcement officers when they are engaged in civil defense functions protecting vital facilities, critical infrastructure, or public properties from a potential or actual terrorist threat or act; assisting in operations, or actual terrorist threat or act.

THE SENATE

S.B. NO.

2913

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CIVIL DEFENSE.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. One of the policies and purposes of chapter 128, Hawaii Revised Statutes, is that all civil defense functions of the State be coordinated to the maximum extent with the comparable functions of the federal government including its various departments and agencies, with those of other states and localities, and with those of private agencies of every type, to the end that the most effective preparation and use may be made of all personnel, resources, and facilities for dealing with any disaster or emergency that may occur. The legislature finds that there is a need to further clarify the protections afforded those law enforcement officers when engaged in civil defense functions assisting in the protection of vital facilities or critical infrastructure from a potential or actual terrorist threat or when engaged in civil defense functions engaging in operations, assisting in operations, or otherwise responding to any potential or actual terrorist threat or act.

After the tragic attacks upon the United States on September 11, 2001, and the ongoing strife in the Middle East, the nation has been warned to expect the continuation of the war on terrorism and an increased risk of further terrorist attacks upon the United States and around the world. In addition to ongoing preparations and activities relating to natural and man-made disasters and emergencies, the State, counties, federal agencies, military, and private agencies and entities have been coordinating preparations for protection and response and the development of the Hawaii homeland security advisory system and procedures to be used by all participants in preparing for and responding to potential or actual terrorist threats or attacks.

With these new responsibilities, demands upon law enforcement officers engaged in the protection of vital facilities or critical infrastructure from a potential or actual terrorist threat or act, or when law enforcement officers are engaged in operations, assisting in operations, or otherwise responding to any potential or actual terrorist threat or act, have significantly increased the risk to these persons when engaged in this new role. However, the protections afforded these persons have not changed.

Pursuant to section 128-18, Hawaii Revised Statutes, except in cases of wilful misconduct, persons engaged in a civil defense function are not civilly liable for the death of or injury to persons, or property damage, as a result of any act or omission in the course of employment or duties for Civil Defense. Currently, members of the state militia, state National Guard, United States army, air force, navy, marines, coast guard, and members of national guard units from other states enjoy immunity from civil and criminal liability when they are engaged in a civil defense function. However, these protections are not extended to law enforcement officers engaged in a civil defense function assisting in the protection of vital facilities or critical infrastructure from a potential or actual terrorist threat or law enforcement officers engaged in a civil defense function engaging in operations, assisting in operations, or otherwise responding to any potential or actual terrorist threat or act, although asked to engage in the same, if not a more dangerous role.

Because of the current status of the law, law enforcement agencies are concerned over potential liabilities of their officers when responding to assistance requests from state civil defense and the military in support of critical infrastructure protection plans or responding to, or preparing for, a terrorist threat or attack. The proposed amendment adds another section to chapter 703, Hawaii Revised Statutes, justifying the use of deadly force in civil defense when a law enforcement officer is assisting in the protection of vital facilities, critical infrastructure, or public property from a potential or actual terrorist threat or act pursuant to a plan for the protection of facilities established pursuant to section 128-6(6), Hawaii Revised Statutes, or when law enforcement officers are engaging in operations, assisting in operations, or otherwise responding to any potential or actual terrorist threat or act.

SECTION 2. Chapter 703, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§703- Use of deadly force in civil defense. (1) Subject to the provisions of subsection (2), the use of deadly force is justified when, at the direction of the governor or director of civil defense, or their designee, in accordance with an existing plan established pursuant to section 128-6:

(a) A law enforcement officer is engaged in civil defense functions pursuant to chapter 128 by assisting in the protection of vital facilities, critical infrastructure, or public properties from a potential or actual terrorist threat or act pursuant to a plan for the protection of facilities established pursuant to section 128-6; or

(b) A law enforcement officer is engaged in civil defense functions pursuant to chapter 128 by engaging in operations, assisting in operations, or otherwise responding to any potential or actual terrorist threat or act.

(2) The use of deadly force is justified under this section when:

(a) The law enforcement officer believes that deadly force against another is necessary to protect the law enforcement officer or others from death or serious bodily injury;

(b) The law enforcement officer believes that deadly force against another is necessary to prevent the destruction of vital facilities, critical infrastructure, or public property specifically identified in a plan for the protection of facilities established pursuant to section 128-6; or

(c) The law enforcement officer believes that deadly force against another is necessary to prevent damage that is sufficient to incapacitate the operations of vital facilities, critical infrastructure, or public property specifically identified in a plan for the protection of facilities established pursuant to section 128-6.

(3) The provisions of this section are in addition to the other sections of this chapter and other rights and privileges provided by law."

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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BY REQUEST