New York State Manual for judges , lawyers and doctors in terrorist attacks

The New York state court system and the state bar association published this month a guide for judges, lawyers and health professionals in large-scale emergencies like terrorist attacks, epidemics and mass contaminations. In trying to synthesize the law of calamity, it says that the patchwork of court decisions, agency rules and state and federal laws includes many guideposts for disasters “adopted at a time when recent emergencies could not have been foreseen.”

Some excerpts:

Response to an ‘Attack’

Unconsolidated Laws §9129 [(1) “in the event of attack,” the state civil defense commission may “(a) assume direct operational control of any or all civil defense forces”; (b) order the use of personnel and equipment where needed; (d) “take, use or destroy any and all real or personal property, or any interest therein, necessary or proper for the purposes of civil defense”; and (e) execute any of the civil defense powers and duties of counties or cities]; (2) [in the event of attack, a county or city (a) may compel evacuations (includes “anticipation” of an attack); (b) “shall control all pedestrian and vehicular traffic, transportation and communication facilities and public utilities.

Constitutional Restraints

The power of government officers to search and seize private property in the course of administrative regulation is subject to considerable constitutional restraints to ensure that the government action is taken for proper purposes and respects the property rights of the affected persons. These restraints are lessened when addressing public health concerns, and are essentially set aside when exigent circumstances require immediate action to protect the public health. Local health officers may take any reasonable actions where health conditions require that immediate action be taken; violations of individual property rights, if actionable, would generally be sorted out after the need for such actions has ended.

Allocation of Resources in Disasters

Among the most critical, and most sensitive, decisions that have to be made by medical professionals in response to public health disasters is how to allocate scarce resources to vulnerable populations. Epidemics — or biological, chemical or radiological disasters — could put overwhelming demands on the need for medicines, vaccines, medical devices (such as ventilators), and hospital facilities. There are no statutes or rules directly addressing which vulnerable persons should get priority to limited health resources, although federal and state antidiscrimination laws protecting various populations (e.g., the elderly and the disabled) could constrain government actions that would otherwise have a discriminatory impact.

Protection of Court Personnel

Screening of members of the public for contagious diseases is not practicable. If an epidemic of a contagious disease is so severe that members of the public generally would all be susceptible to infection, then the best approach, short of adjourning the case, may be to relocate the courthouse away from the infected area. Should a court proceeding be held entirely electronically, with no participants or members of the public physically appearing at the courthouse, there must be, at the very least, a complete audio-visual reproduction of the proceeding available to the public. See Jud. Law, §4 [“The sittings of every court within this state shall be public, and every citizen may freely attend the same. …”].

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