By Ken MacVey.

There are just some legal matters that should not be put off — and sorting out the legal authority local public officials have in responding to a terrorist attack is one such matter. Once the attack is already underway, it’s too late to start.

The recent attack in San Bernardino on county public health employees illustrates the harsh, tragic, realities of a new era. It is an example not only of a terrorist attack on a community, but also an attack on local government itself. What is the legal framework for emergency response when both a community and its public officials are under attack?

The statutory cornerstone for emergency response is the California Emergency Services Act, Government sections 8550 et seq. The Act provides for emergency planning, including through what are called mutual aid regions, as described in sections 8600 et seq. These regions provide a framework for regional emergency response planning that establishes protocols in coordinating and sharing resources and personnel at the different levels of government. In turn, the Governor’s Office of Emergency Services has adopted the “California Terrorism Response Plan” as an annex to the State Emergency Plan. The Plan establishes a hierarchy of governmental actors and protocols from the federal to the local level in responding to terrorist attacks and their aftermath. Local governments can and do supplement this plan by adopting their own terrorism response plans. By participating in the Office of Emergency Services’ Standardized Emergency System in preparing local emergency plans, local governments can qualify for state disaster assistance funds for emergency response costs.

Government Code section 8610 further authorizes counties and cities to establish, by ordinance, “disaster councils.” These councils may establish plans for specific emergencies at the state and local level. The ordinance may expressly delegate emergency powers to designated public officials, such as a city manager. Section 8630(a) allows a declaration of local emergency to be made by the governing body of the city or county or by an official designated in the ordinance. The declaration cannot continue indefinitely — the governing body must review it every 30 days and terminate it “at the earliest possible date that conditions warrant.”

Section 8610 further allows an ordinance to authorize public officers and employees “to command the aid of citizens when necessary in the execution of their duties during a state of war emergency, a state of emergency, or a local emergency.” This broad power to command includes, for example, the power to impose a curfew to protect life and property if the curfew is in writing and given widespread publicity and notice, as discussed in section 8634. So long as the curfew power is not too vague or overbroad, or does not lend itself to arbitrary or discriminatory enforcement, the exercise of the power is likely to be upheld by the courts. The California Court of Appeal has upheld a city manager’s broad imposition of curfew zones to protect life and property because it was not discriminatory and did not target specific speech content. However, press representatives must be given unrestricted access to public area disaster sites unless law enforcement personnel reasonably determine that such access will interfere with emergency response, according to Penal Code section 409.5.

When there is a state of emergency, local governing bodies have a statutory duty to meet as soon as possible, according to Government Code section 8642. The meeting can be called by the body or the chief executive officer, but does not have to be held within the political subdivision. The Brown Act, in turn, allows the governing body to meet in a closed emergency session to address threats to the security of public buildings, services, or facilities pursuant to Government Code sections 54956.5, 54957(a), which modifies or suspends advance notice requirements for closed sessions in case of emergency or dire emergency.

The Legislature has recognized that the very existence of local government may be in jeopardy during an emergency and itself can be under attack. It has authorized local governing bodies to establish standby officers to continue government functions in case officials are killed, injured or are missing. The California Attorney General has issued an opinion that the incompatible office rules requiring office forfeiture may not apply when an official accepts a standby appointment.

The importance of acting quickly and effectively in an emergency without public officials looking over their shoulders is also acknowledged. Broad immunity for damages in responding to emergencies is given under section 8655. Broad protection against constitutional just compensation claims for property damage and takings incurred in responding to emergencies is also recognized by the California Supreme Court in a 1995 decision in Customer Co. v. City of Sacramento.

In short, the legal tools for local public officials to act quickly, effectively and decisively in response to terrorist attacks are there. But an emergency does not give an excuse to suspend core constitutional and legal principles. It cannot be a pretext for discrimination or high handed or fraudulent government conduct. Cool heads and good judgment should not be among the first casualties in a terrorist attack.

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MacVey_Ken-c1Kendall MacVey is a partner at Best Best & Krieger LLP and a member of the firm’s Emergency Law sub-practice group. He can be reached at