S 429 Session 111 (1995-1996)
S 0429 General Bill, By Lander, Hayes, Leventis and Wilson
Similar(H 3758)
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.
01/31/95 Senate Introduced and read first time SJ-4
01/31/95 Senate Referred to Committee on Judiciary SJ-4
04/18/95 Senate Committee report: Favorable with amendment
Judiciary SJ-29
04/19/95 Senate Amended SJ-122
04/19/95 Senate Read second time SJ-122
04/20/95 Senate Read third time and sent to House SJ-21
04/25/95 House Introduced and read first time HJ-10
04/25/95 House Referred to Committee on Judiciary HJ-10
Indicates Matter Stricken
Indicates New Matter
COMMITTEE AMENDMENT ADOPTED
April 19, 1995
S. 429
Introduced by SENATORS Lander, Hayes, Wilson and
Leventis
S. Printed 4/19/95--S.
Read the first time January 31, 1995.
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.
Amend Title To Conform
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. Now, therefore,
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 member 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
his 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. This act takes effect upon approval by the
Governor and upon congressional consent as required in this
section. 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.
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