S 1364 Session 110 (1993-1994)
S 1364 General Bill, By Lander, Hayes, Leventis and Wilson
A Bill to amend Section 1-3-480, Code of Laws of South Carolina, 1976, so as
to authorize the Governor, with the consent of Congress, to enter into
compacts and agreements for the deployment of the National Guard with
governors of other states concerning drug interdiction and related activities;
and to add Section 1-3-490 so as to adopt the National Guard Mutual Assistance
Counter-Drug Activities Compact to provide for mutual assistance and support
among the party states in the utilization of the National Guard in drug
interdiction, counter-drug and demand reduction activities.
04/14/94 Senate Introduced and read first time SJ-12
04/14/94 Senate Referred to Committee on Judiciary SJ-12
A BILL
TO AMEND SECTION 1-3-480, CODE OF LAWS OF SOUTH
CAROLINA, 1976, SO AS TO AUTHORIZE THE GOVERNOR,
WITH THE CONSENT OF CONGRESS, TO ENTER INTO
COMPACTS AND AGREEMENTS FOR THE DEPLOYMENT OF
THE NATIONAL GUARD WITH GOVERNORS OF OTHER
STATES CONCERNING DRUG INTERDICTION AND RELATED
ACTIVITIES; AND TO ADD SECTION 1-3-490 SO AS TO ADOPT
THE NATIONAL GUARD MUTUAL ASSISTANCE
COUNTERDRUG ACTIVITIES COMPACT TO PROVIDE FOR
MUTUAL ASSISTANCE AND SUPPORT AMONG THE PARTY
STATES IN THE UTILIZATION OF THE NATIONAL GUARD IN
DRUG INTERDICTION, COUNTERDRUG AND DEMAND
REDUCTION ACTIVITIES.
Whereas, as of April 13, 1994, the states of Arizona, Florida,
Louisiana, Minnesota, Mississippi, North Dakota, South Dakota,
Virginia, and Washington have passed legislation to enact the National
Guard Mutual Assistance Counterdrug Activities Compact; and
Whereas, South Carolina should also adopt this compact; and
Whereas, congressional consent is necessary for such compacts to
be binding and enforceable as between all party states; and
Whereas, it appears that such congressional consent may have
already been given under 4 U.S.C. Section 112; and
Whereas, after adoption of this compact by the General Assembly,
the governor should be authorized to meet with governors from other
states which have enacted the compact in order to determine if
congressional consent has in fact been given.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 1-3-480 of the 1976 Code is amended to read:
"Section 1-3-480. (A) The Governor, as Commander-in-Chief of the organized militia of this State and in accordance with
Title 32, United States Code, Section 112, may authorize or direct the
South Carolina National Guard to assist and support federal, state, and
local law enforcement agencies in drug interdiction, counter-drug counterdrug activities, and demand reduction. The
Governor may delegate his authority under this section to the Adjutant
General who is specifically authorized to enter into mutual assistance
and support agreements with law enforcement agencies operating
within this State for activities within this State.
(B) The Governor, with the consent of Congress, is hereby
authorized to enter into compacts and agreements for the deployment
of the National Guard with governors of other states concerning drug
interdiction, counterdrug, and demand reduction activities. In order
to facilitate such agreements, the General Assembly hereby ratifies the
National Guard Mutual Assistance Counterdrug Activities Compact,
codified at Section 1-3-490. Article I, Section 10 of the Constitution
of the United States permits a state to enter into a compact or
agreement with another state, subject to the consent of Congress.
Congress, through enactment of 4 U.S.C. Section 112, has given its
consent for states to enter such compacts for cooperative effort and
mutual assistance in the prevention of crime."
SECTION 2. Chapter 3, Title 1 of the 1976 Code is amended by
adding:
"Section 1-3-490. The National Guard Mutual Assistance
Counterdrug Activities Compact is hereby enacted into law and
entered into by the State of South Carolina with all other states legally
joining therein, in the form substantially as follows:
THE NATIONAL GUARD MUTUAL
ASSISTANCE
COUNTERDRUG ACTIVITIES COMPACT
Article I
Purpose
The purposes of this compact are to:
(A)provide for mutual assistance and support among the party states
in the utilization of the National Guard in drug interdiction,
counterdrug and demand reduction activities;
(B)permit the National Guard of this State to enter into mutual
assistance and support agreements, on the basis of need, with one or
more law enforcement agencies operating within this state, for
activities within this State, or with a National Guard of one or more
other states, whether said activities are within or without this State in
order to facilitate and coordinate efficient, cooperative enforcement
efforts directed toward drug interdiction, counterdrug activities and
demand reduction;
(C)permit the National Guard of this State to act as a receiving and
a responding state as defined within this compact and to ensure the
prompt and effective delivery of National Guard personnel, assets and
services to agencies or areas that are in need of increased support and
presence;
(D)permit and encourage a high degree of flexibility in the
deployment of National Guard forces in the interest of efficiency;
(E) maximize the effectiveness of the National Guard in those
situations which call for its utilization under this compact;
(F) provide protection for the rights of National Guard personnel
when performing duty in other states in counterdrug activities; and
(G) ensure uniformity of state laws in the area of National Guard
involvement in interstate counterdrug activities by incorporating said
uniform laws within the compact.
Article II
Entry into Force and Withdrawal
(A) This compact shall enter into force when enacted into law by
any two states. Thereafter, this compact shall become effective as to
any other state upon its enactment thereof.
(B) Any party state may withdraw from this compact by enacting
a statute repealing the same, but no such withdrawal shall take effect
until one year after the governor of the withdrawing state has given
notice in writing of such withdrawal to the governors of all other party
states.
Article III
Mutual Assistance and Support
(A) As used in this article:
(1) `Drug interdiction and counterdrug activities' means the use
of National Guard personnel while not in federal service, in any law
enforcement support activities that are intended to reduce the supply
or use of illegal drugs in the United States. These activities include,
but are not limited to:
(a) providing information obtained during either the normal
course of military training or operations or during counterdrug
activities to federal, state, or local law enforcement officials that may
be relevant to a violation of any federal or state law within the
jurisdiction of such officials;
(b) making available any equipment, including associated
supplies or spare parts, base facilities, or research facilities of the
National Guard to any federal, state, or local civilian law enforcement
official for law enforcement purposes, in accordance with other
applicable law or regulation;
(c) providing available National Guard personnel to train
federal, state, or local civilian law enforcement in the operation and
maintenance of equipment, including equipment made available above,
in accordance with other applicable law;
(d) providing available National Guard personnel to operate
and maintain equipment provided to federal, state, or local law
enforcement officials pursuant to activities defined and referred to in
this compact;
(e) operation and maintenance of equipment and facilities of
the National Guard or law enforcement agencies used for the purposes
of drug interdiction and counterdrug activities;
(f) providing available National Guard personnel to operate
equipment for the detection, monitoring, and communication of the
movement of air, land and sea traffic, to facilitate communications in
connection with law enforcement programs, to provide transportation
for civilian law enforcement personnel;
(g) providing available National Guard personnel, equipment
and support for administrative, interpretive, analytic, or other
purposes;
(h) providing available National Guard personnel and other
equipment to aid federal, state, and local officials and agencies
otherwise involved in the prosecution or incarceration of individuals
processed within the criminal justice system who have been arrested
for criminal acts involving the use, distribution, or transportation of
controlled substances as defined in 21 U.S.C. 801 et seq. or otherwise
by law, in accordance with other applicable law.
(2) `Demand reduction' means providing available National
Guard personnel, equipment, support, and coordination to federal,
state, local, and civic organizations and agencies for the purposes of
the prevention of drug abuse and the reduction in the demand for
illegal drugs.
(3) `Requesting state' means the state whose governor requested
assistance in the area of counterdrug activities.
(4) `Responding state' means the state furnishing assistance, or
requested to furnish assistance, in the area of counterdrug activities.
(5) `Law enforcement agency' means a lawfully established
federal, state, or local public agency that is responsible for the
prevention and detection of crime and the enforcement of penal,
traffic, regulatory, game, immigration, postal, customs, or controlled
substances laws.
(6) `Official' means the appointed, elected, designated, or
otherwise duly selected representative of an agency, institution, or
organization authorized to conduct those activities for which support
is requested.
(7) `Mutual assistance and support agreement' means an
agreement between the National Guard of this State and one or more
law enforcement agencies or between the National Guard of this State
and the National Guard of one or more other states, consistent with the
purposes of this compact.
(8) `Party state' refers to a state that has lawfully enacted this
compact.
(9) `State' means each of the several states of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, or a
territory or possession of the United States.
(B) Upon the request of the governor of a party state for assistance
in the area of drug interdiction, counterdrug and demand reduction
activities, the governor of a responding state shall have authority under
this compact to send without the borders of his or her state and place
under the temporary operational control of the appropriate National
Guard or other military authorities of the requesting state, for the
purposes of providing such requested assistance, all or any part of the
National Guard forces of his or her state as he or she may deem
necessary, and the exercise of his or her discretion in this regard shall
be conclusive.
(C) The governor of a party state may, within his or her discretion,
withhold the National Guard forces of his or her state from such use
and recall any forces or part or member thereof previously deployed
in a requesting state.
(D) The National Guard of this State is hereby authorized to
engage in counterdrug activities and demand reduction.
(E) The Adjutant General of this State, in order to further the
purposes of this compact, may enter into a mutual assistance and
support agreement with one or more law enforcement agencies of this
State, with the National Guard of one or more other party states to
provide personnel, assets, and services in the area of counterdrug
activities, and demand reduction provided that all parties to the
agreement are not specifically prohibited by law to perform said
activities.
(F) The agreement must set forth the powers, rights, and
obligations of the parties to the agreement, where applicable, as
follows:
(1) the duration of the agreement;
(2) the organization, composition, and nature of any separate
legal entity created by the agreement;
(3) the purpose of the agreement;
(4) the manner of financing the agreement and establishing and
maintaining the budget of the agreement;
(5) the method to be employed in accomplishing the partial or
complete termination of the agreement and for disposing of property
upon such partial or complete termination;
(6) provision for administering the agreement, which may
include creation of a joint board responsible for such administration;
(7) the manner of acquiring, holding, and disposing of real and
personal property used in the agreement, if necessary;
(8) the minimum standards for National Guard personnel
implementing the provisions of this agreement;
(9) the minimum insurance required of each party to the
agreement, if necessary;
(10)the chain of command or delegation of authority to be
followed by National Guard personnel acting under the provisions of
the agreement;
(11) the duties and authority that the National Guard personnel
of each party state may exercise; and
(12) any other necessary and proper matters.
(G) As a condition precedent to an agreement becoming effective
under this part, the agreement must be submitted to and receive the
approval of the Office of the Attorney General of South Carolina. The
Attorney General of South Carolina may delegate his or her approval
authority to the appropriate attorney for the South Carolina National
Guard subject to those conditions which he or she decides are
appropriate. Said delegation must be in writing:
(1) The Attorney General, or his or her agent in the South
Carolina National Guard as stated above, shall approve an agreement
submitted to him or her under this part unless he or she finds that it
is not in proper form, does not meet the requirements set forth in this
part, or otherwise does not conform to the laws of South Carolina. If
the Attorney General disapproves an agreement, he or she shall
provide a written explanation to the Adjutant General of the National
Guard.
(2) If the Attorney General, or his or her authorized agent as
stated above, does not disapprove an agreement within thirty days after
its submission to him or her, it is considered approved by him or her.
(3) Whenever National Guard forces of any party state are
engaged in the performance of duties, in the area of drug interdiction,
counterdrug, and demand reduction activities, pursuant to orders, they
shall not be held personally liable for any acts or omissions which
occur during the performance of their duty.
Article IV
Responsibilities
(A) Nothing in this compact shall be construed as a waiver of any
benefits, privileges, immunities, or rights otherwise provided for
National Guard personnel performing duty pursuant to Title 32 of the
United States Code, nor shall anything in this compact be construed
as a waiver of coverage provided for under the Federal Tort Claims
Act. In the event that National Guard personnel performing
counterdrug activities do not receive rights, benefits, privileges, and
immunities otherwise provided for National Guard personnel as stated
above, the following provisions shall apply:
(1) Whenever National Guard forces of any responding state are
engaged in another state in carrying out the purposes of this compact,
the members thereof so engaged shall have the same powers, duties,
rights, privileges, and immunities as members of the National Guard
forces of the requesting state. The requesting state shall save and hold
members of the National Guard forces of the responding state
harmless from civil liability, except as otherwise provided herein, for
acts or omissions which occur in the performance of their duty while
engaged in carrying out the purposes of this compact, whether
responding forces are serving the requesting state within the borders
of the responding state or are attached to the requesting state for
purposes of operational control.
(2) Subject to the provisions of subsections (3), (4), and (5) of
this article, all liability that may arise under the laws of the requesting
state or the responding states, on account of or in connection with a
request for assistance or support, shall be assumed and borne by the
requesting state.
(3) Any requesting state rendering aid or assistance pursuant to
this compact shall be reimbursed by the requesting state for any loss
or damage to, or expense incurred in the operation of, any equipment
answering a request for aid, and for the cost of the materials,
transportation, and maintenance of National Guard personnel and
equipment incurred in connection with such request, provided that
nothing herein contained shall prevent any responding state from
assuming such loss, damage, expense, or other cost.
(4) Unless there is a written agreement to the contrary, each
party shall provide, in the same amounts and manner as if they were
on duty within their state, for pay and allowances of the personnel of
its National Guard units while engaged without the state pursuant to
this compact and while going to and returning from such duty
pursuant to this compact.
(5) Each party state providing for the payment of compensation
and death benefits to injured members and the representatives of
deceased members of its National Guard forces in case such members
sustain injuries or are killed within their own state shall provide for
the payment of compensation and death benefits in the same manner
and on the same terms in the event such members sustain injury or are
killed while rendering assistance or support pursuant to this compact.
Such benefits and compensation shall be deemed items of expense
reimbursable pursuant to subsection (3) of this article.
(B) Officers and enlisted personnel of the National Guard
performing duties subject to proper orders pursuant to this compact
shall be subject to and governed by the provisions of their home state
Code of Military Justice whether they are performing duties within or
without their home state. In the event that any National Guard
members commits, or is suspected of committing, a criminal offense
while performing duties pursuant to this compact without his or other
home state, he or she may be returned immediately to this or her
home state and said home state shall be responsible for any
disciplinary action to be taken. However, nothing in this section
abrogates the general criminal jurisdiction of the state in which the
offense occurred.
Article V
Delegation
Nothing in this compact shall be construed to prevent the governor
of a party state from delegating any of his or her responsibilities or
authority respecting the National Guard, provided that such delegation
is otherwise in accordance with law. For purposes of this compact,
however, the Governor shall not delegate the power to request
assistance from another state.
Article VI
Limitations
Nothing in this compact shall:
(1) authorize or permit National Guard units or personnel to be
placed under the operational control of any person not having the
National Guard rank or status required by law for the command in
question;
(2) deprive a properly convened court of jurisdiction over an
offense or a defendant merely because of the fact that the National
Guard, while performing duties pursuant to this compact, was utilized
in achieving an arrest or indictment.
Article VII
Construction and Severability
This compact shall be liberally construed so as to effectuate the
purposes thereof. The provisions of this compact shall be severable
and if any phrase, clause, sentence, or provision of this compact is
declared to be contrary to the Constitution of the United States or of
any state or the applicability thereof to any government, agency,
person, or circumstance is held invalid, the validity of the remainder
of this compact and the applicability thereof to any government,
agency, person, or circumstance shall not be affected thereby. If this
compact shall be held contrary to the Constitution of any state
participating herein, the compact shall remain in full force and effect
as to the remaining party state and in full force and effect as to the
state affected as to all severable matters."
SECTION 3. The General Assembly finds that congressional
consent for the compact may already be in place under 4 U.S.C.
Section 112. However, if no such consent has been given under 4
U.S.C. Section 112, this compact shall not be of force and effect until
such congressional consent is given. The Governor is authorized to
meet with the governors of the other states that have enacted the
compact in order to determine if congressional consent has been given.
-----XX----- |