Federal Disaster, State Consequences? A Look At Disaster-Relief Law & Your Firm

“This storm is not yet over,” said President Obama during his trip to the headquarters of the American Red Cross in Washington, D.C. (via Huffington Post).

The storm Hurricane Sandy, which has killed a reported 40 people thus far, is moving inland. First dumping snow on the Appalachian Mountains and soon destined for the Great Lakes.

Meanwhile, New York City is recovering from what has been one of the worst weather disasters the city has ever seen. Destruction by flooding, fire, and failure of transportation services is devastating America’s financial capital.

Although U.S. financial markets will reopen today, it’s certainly not business as usual for professionals or the public.

“It’s very important for the public to … listen to your state and local officials. Follow instructions,” continued President Obama during his Red Cross talk (via Huffington Post).

“The more you follow instructions, the easier it is for our first responders.”

At first glance, the President’s speech seems evident. But, for law firm professionals, disaster relief legislation and those officials who carry out related national policies deserve a second look.

For example, recently the Wall Street Journal’s Jess Bravin reported on retired Supreme Court Justice John Paul Stevens’s effort to add a few words to the Constitution that would allow the federal government to use more state officials in carrying out national policies (via WSJ Law Blog).

Now, the question has been posed, what about the reverse? Can federal agents enforce state and local law, and if so, when?

On March 5, 2012, the Justice Department’s Office of Legal Counsel considered such a question and concluded, in a little-noticed opinion released earlier this year, that under certain circumstances federal agents can, in fact, make arrests for violations of state and local criminal laws when these agents are deployed to provide disaster or emergency relief.

There are still two limitations to this legal opinion. First, federal law enforcement must use funds strictly for purposes for which they were appropriated, i.e., for the emergency at hand.

“Federal agents, then, can’t enforce state or local laws, unless the federal laws that give them power expressly say so. (And chances are, they don’t.),” explains Joe Palazzolo for the WSJ Law Blog.

Second, an arrest by a federal agent must “bear a logical relationship to the appropriation sought to be charged,” a reflection on point number one.

However, practice of this policy may look different than the actual letter of the law. The opinion continues:

“In enacting the Stafford Act, Congress found that ‘disasters often disrupt the normal functioning of governments and communities’ and that ‘special measures, designed to aid the efforts of the affected States in expediting the rendering of aid, assistance, and emergency services, and the reconstruction and rehabilitation of devastated areas, are necessary.’ 42 U.S.C. § 5121(a); see id. § 5121(b).

Thus, for example, we think it likely that ATF could reasonably conclude that federal assistance in maintaining law and order by making arrests for violations of state criminal law in the aftermath of an emergency (as when FLEOs are deployed to prevent looting and maintain order in a populated area following a natural disaster) would advance those Stafford Act objectives.”

In addition, the opinion determines that any arrest “meeting an immediate threat to life and property,” complies with the Stafford Act objectives.

So, what does this mean for you and your clients?

Well, it means arrests by federal agents for violations of state or local laws are not only permissible, they are legal during any major disaster, such as was declared for New Jersey and New York yesterday.

And, although civil arrests for crimes such as failure to pay child support may not fit the bill, non-violent crimes like shoplifting during the aftermath of a major disaster might warrant federal attention.

It’s important that clients know their rights during a disaster such as Sandy. It’s also important that attorneys understand the nuances of law and disaster-related legislation at this time.

Circulate an inner-office memo regarding the implications of the Stafford Act for your city and State. Also consider circulating an informative memo to your clients whose business operations or day-to-day activities may be affected by emergency-relief law enforcement in the area.

Under the Stafford Act, your clients may qualify for:

  1. Individual assistance for individuals and households;
  2. Hazard mitigation assistance; or
  3. Public assistance to aid local government and certain nonprofit entities for certain emergency services.

Not only will your clients appreciate the due diligence, but your firm could also avoid sticky litigation issues regarding federal arrests for state and local crimes during disaster relieve efforts.

President Obama asked the public to “follow instructions” by law enforcement agents. After further consideration, this advice seems more like a legally-binding order than a casually-suggested comment.

-WB

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