44-75.1:1 - Compact enacted into law; terms
§ 44-75.1:1. Compact enacted into law; terms.
The National Guard Mutual Assistance Counterdrug Activities Compact is herebyenacted into law and entered into by the Commonwealth of Virginia with allother states legally joining therein, in the form substantially as follows:
INTERSTATE COMPACT ON NATIONAL GUARD COUNTERDRUG OPERATIONS
ARTICLE I. PURPOSE.
The purposes of this compact are to:
1. Provide for mutual assistance and support among the party states in theutilization of the National Guard in drug interdiction, counterdrug anddemand reduction activities.
2. Permit the National Guard of this Commonwealth to enter into mutualassistance and support agreements, on the basis of need, with one or morelaw-enforcement agencies operating within this Commonwealth, for activitieswithin this Commonwealth, or with a National Guard of one or more otherstates, whether said activities are within or without this Commonwealth inorder to facilitate and coordinate efficient, cooperative enforcement effortsdirected toward drug interdiction, counterdrug activities, and demandreduction.
3. Permit the National Guard of this Commonwealth to act as a requesting or aresponding state as defined within this compact and to ensure the prompt andeffective delivery of National Guard personnel, assets, and services toagencies or areas that are in need of increased support and presence.
4. Permit and encourage a high degree of flexibility in the deployment ofNational Guard forces in the interest of efficiency.
5. Maximize the effectiveness of the National Guard in those situations whichcall for its utilization under this compact.
6. Provide protection for the rights of National Guard personnel whenperforming duty in other states in counterdrug activities.
7. Ensure uniformity of state laws in the area of National Guard involvementin interstate counterdrug activities by incorporating said uniform lawswithin the compact.
ARTICLE II. ENTRY INTO FORCE AND WITHDRAWAL.
A. This compact shall enter into force when enacted by any two states.Thereafter, this compact shall become effective as to any other state uponits enactment thereof.
B. Any party state may withdraw from this compact by enacting a statuterepealing the same, but no such withdrawal shall take effect until one yearafter the governor of the withdrawing state has given notice in writing ofsuch withdrawal to the governors of all other party states.
ARTICLE III. MUTUAL ASSISTANCE AND SUPPORT.
A. As used in this article:
"Demand reduction" means providing available National Guard personnel,equipment, support and coordination to federal, state, local and civicorganizations, institutions, and agencies for the purposes of the preventionof drug abuse and the reduction in the demand for illegal drugs.
"Drug interdiction and counterdrug activities" means the use of NationalGuard personnel, while not in federal service, in any law-enforcement supportactivities that are intended to reduce the supply or use of illegal drugs inthe United States. These activities include, but are not limited to:
1. Providing information obtained, during either the normal course ofmilitary training or operations or during counterdrug activities, to federal,state or local law-enforcement officials that may be relevant to a violationof any federal or state law within the jurisdiction of such officials;
2. Making available any equipment, including associated supplies or spareparts, base facilities, or research facilities of the National Guard to anyfederal, state or local civilian law-enforcement official for law-enforcementpurposes, in accordance with other applicable laws or regulations;
3. Providing available National Guard personnel to train federal, state orlocal civilian law-enforcement personnel in the operation and maintenance ofequipment, including equipment made available above, in accordance with otherapplicable laws;
4. Providing available National Guard personnel to operate and maintainequipment provided to federal, state or local law-enforcement officialspursuant to activities defined and referred to in this compact;
5. Operating and maintaining equipment and facilities of the National Guardor other law-enforcement agencies used for the purposes of drug interdictionand counterdrug activities;
6. Providing available National Guard personnel to operate equipment for thedetection, monitoring and communication of the movement of air, land and seatraffic; to facilitate communications in connection with law-enforcementprograms; to provide transportation for civilian law-enforcement personnel;and to operate bases of operations for civilian law-enforcement personnel;
7. Providing available National Guard personnel, equipment and support foradministrative, interpretive, analytic or other purposes; and
8. Providing available National Guard personnel and equipment to aid federal,state and local officials and agencies otherwise involved in the prosecutionor incarceration of individuals processed within the criminal justice systemwho have been arrested for criminal acts involving the use, distribution ortransportation of controlled substances as defined in 21 U.S.C. § 801 et seq.or otherwise by law, in accordance with other applicable law.
"Law-enforcement agency" means a lawfully established federal, state, orlocal public agency that is responsible for the prevention and detection ofcrime and the enforcement of penal, traffic, regulatory, game, immigration,postal, customs or controlled substances laws.
"Mutual assistance and support agreement" or "agreement" means anagreement between the National Guard of this Commonwealth and one or morelaw-enforcement agencies or between the National Guard of this Commonwealthand the National Guard of one or more other states, consistent with thepurposes of this compact.
"Official" means the appointed, elected, designated or otherwise dulyselected representative of an agency, institution or organization authorizedto conduct those activities for which support is requested.
"Party state" refers to a state that has lawfully enacted this compact.
"Requesting state" means the party state whose governor requestedassistance in the area of counterdrug activities.
"Responding state" means the party state furnishing assistance, orrequested to furnish assistance, in the area of counterdrug activities.
"State" means each of the several states of the United States, the Districtof Columbia, the Commonwealth of Puerto Rico or a territory or possession ofthe United States.
B. Upon the request of a governor of a party state for assistance in the areaof drug interdiction, counterdrug and demand reduction activities, thegovernor of a responding state shall have authority under this compact tosend without the borders of his state and place under the temporaryoperational control of the appropriate National Guard or other militaryauthority of the requesting state, for the purposes of providing suchrequested assistance, all or any part of the National Guard forces of hisstate as he may deem necessary, and the exercise of his discretion in thisregard shall be conclusive.
C. The governor of a party state may, within his discretion, withhold theNational Guard forces of his state from such use and recall any forces orpart or member thereof previously deployed in a requesting state.
D. The National Guard of this Commonwealth is hereby authorized to engage incounterdrug activities and demand reduction.
E. The Adjutant General of this Commonwealth, in order to further thepurposes of this compact, may enter into a mutual assistance and supportagreement with one or more law-enforcement agencies of this Commonwealth,including federal law-enforcement agencies operating within thisCommonwealth, or with the National Guard of one or more other party states toprovide personnel, assets, and services in the area of counterdrug activitiesand demand reduction, provided that all parties to the agreement are notspecifically prohibited by law to perform said activities.
The agreement shall set forth the powers, rights, and obligations of theparties to the agreement, where applicable, as follows:
1. Its duration;
2. The organization, composition, and nature of any separate legal entitycreated thereby;
3. The purpose of the agreement;
4. The manner of financing the agreement and establishing and maintaining itsbudget;
5. The method to be employed in accomplishing the partial or completetermination of the agreement and for disposing of property upon such partialor complete termination;
6. A provision for administering the agreement, which may include creation ofa joint board responsible for such administration;
7. The manner of acquiring, holding, and disposing of real and personalproperty used in this agreement, if necessary;
8. The minimum standards for National Guard personnel implementing theprovisions of this agreement;
9. The minimum insurance required of each party to the agreement, asnecessary;
10. The chain of command or delegation of authority to be followed byNational Guard personnel acting under the provisions of the agreement;
11. The duties and authority that the National Guard personnel of each partystate may exercise; and
12. Any other necessary and proper matters.
Agreements prepared under the provisions of this compact are exempt from anygeneral law pertaining to intergovernmental agreements.
F. As a condition precedent to an agreement becoming effective under thisarticle, the agreement must be submitted to and receive the approval of theOffice of the Attorney General of Virginia. The Attorney General of Virginiamay delegate his approval authority to the appropriate attorney for theVirginia National Guard subject to those conditions which he decides areappropriate. Such delegation must be in writing.
1. The Attorney General, or his agent for the Virginia National Guard asstated above, shall approve an agreement submitted to him under this articleunless he finds that it is not in proper form, does not meet the requirementsset forth in this article, or otherwise does not conform to the laws ofVirginia. If the Attorney General disapproves an agreement, he shall providea written explanation to the Adjutant General of the National Guard.
2. If the Attorney General, or his authorized agent, does not disapprove anagreement within thirty days after its submission to him, it shall beconsidered approved by him.
G. Whenever National Guard forces of any party state are engaged in theperformance of their duties, in the area of drug interdiction, counterdrugand demand reduction activities, pursuant to orders, they shall not be heldpersonally liable for any acts or omissions which occur during theperformance 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 Guardpersonnel performing duty pursuant to Title 32 of the United States Code norshall anything in this compact be construed as a waiver of coverage providedfor under the Federal Tort Claims Act. In the event that National Guardpersonnel performing counterdrug activities do not receive rights, benefits,privileges and immunities otherwise provided for National Guard personnel asstated above, the following provisions shall apply:
1. Whenever National Guard forces of any responding state are engaged inanother state in carrying out the purposes of this compact, the membersthereof so engaged shall have the same powers, duties, rights, privileges andimmunities as members of National Guard forces of the requesting state. Therequesting state shall save and hold members of the National Guard forces ofresponding states harmless from civil liability, except as otherwise providedherein, for acts or omissions which occur in the performance of their dutieswhile engaged in carrying out the purposes of this compact, whether theresponding forces are serving the requesting state within the borders of theresponding state or are attached to the requesting state for purposes ofoperational control.
2. Subject to the provisions of subdivisions 3, 4, and 5 of this section, allliability that may arise under the laws of the requesting state or theresponding state, in connection with a request for assistance or support,shall be assumed and borne by the requesting state.
3. Any responding state rendering aid or assistance pursuant to this compactshall be reimbursed by the requesting state for any loss or damage to, orexpense incurred in the operation of, any equipment answering a request foraid and for the cost of the materials, transportation and maintenance ofNational Guard personnel and equipment incurred in connection with suchrequest; however, nothing herein contained shall prevent any responding statefrom assuming such loss, damage, expense, or other cost.
4. Unless there is a written agreement to the contrary, each party stateshall provide, in the same amounts and manner as if its National Guard unitswere on duty within their own state, for pay and allowances of personnel ofits National Guard units while engaged without the state pursuant to thiscompact and while going to and returning from such duty pursuant to thiscompact.
5. Each party state providing for the payment of compensation and deathbenefits to injured members and the representatives of deceased members ofits National Guard forces, in case such members sustain injuries or arekilled within their own state, shall provide for the payment of compensationand death benefits in the same manner and on the same terms in the event suchmembers sustain injury or are killed while rendering assistance or supportpursuant to this compact. Such benefits and compensation shall be deemeditems of expense reimbursable pursuant to subdivision 3 of this section.
B. Officers and enlisted personnel of the National Guard performing dutiessubject to proper orders pursuant to this compact shall be subject to andgoverned by the provisions of their home state code of military justicewhether they are performing duties within or without their home state. In theevent that any National Guard member commits, or is suspected of committing,a criminal offense while performing duties pursuant to this compact withouthis home state, he may be returned immediately to his home state and the homestate shall be responsible for any disciplinary action to be taken. However,nothing in this section shall abrogate the general criminal jurisdiction ofthe state in which the offense occurred.
ARTICLE V. DELEGATION.
Nothing in this compact shall be construed to prevent the governor of a partystate from delegating any of his responsibilities or authority respecting theNational Guard, provided that such delegation is otherwise in accordance withlaw. For purposes of this compact, however, the governor shall not delegatethe 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 underthe operational control of any person not having the National Guard rank orstatus required by law for the command in question.
2. Deprive a properly convened court of jurisdiction over an offense or adefendant merely because of the fact that the National Guard, whileperforming duties pursuant to this compact, was utilized in achieving anarrest or indictment.
3. Authorize the National Guard to directly engage in the personalapprehension, arrest and incarceration of any individual or the physicalsearch and seizure of any person. The National Guard may indirectly supportany such law-enforcement activities by an otherwise appropriatelaw-enforcement agency. The National Guard may engage in direct or indirectlegal searches and seizures of any property through the use of aerialsurveillance, provided that appropriate law-enforcement agents are present toprovide supervision of such activity.
ARTICLE VII. CONSTRUCTION AND SEVERABILITY.
This compact shall be liberally construed so as to effectuate the purposesthereof. The provisions of this compact shall be severable, and, if anyphrase, clause, sentence or provision of this compact is declared to becontrary to the Constitution of the United States or of any state or theapplicability thereof to any government, agency, person or circumstance isheld invalid, the validity of the remainder of this compact and theapplicability thereof to any government, agency, person or the circumstanceshall not be affected thereby. If this compact shall be held contrary to theconstitution of any state participating herein, the compact shall remain infull force and effect as to the remaining party states and in full force andeffect as to the state affected as to all severable matters.
(1993, c. 932; 1996, cc. 153, 566.)