Wednesday, February 9, 2011

HR 504 Introduced – First Responder Immunity

Two weeks ago, Rep. Myrick (R, NC) introduced HR 504, the First Responders Fighting Terrorism Protection Act of 2011, though a copy was just recently made available on the GPO web site for public review.

In many ways this bill is similar to HR 495 that I reported on yesterday. It provides civil liability protections to specified law enforcement personnel who take ‘reasonable action’ in ‘good faith’ efforts to prevent or respond to a terrorist attack.

There are some significant differences, however. Ms Myrick’s bill tries to enumerate which ‘first responders’ are covered by the legislation. I must admit that it looks like a pretty extensive list of personnel, and it does include some individuals that I wouldn’t include in the term ‘first responder’ (“county or municipal district attorney”?). But such an exhaustive list will inevitably miss someone and courts are likely to see such an omission as a failure to cover people in that position.

More importantly, this bill would provide no protections to personnel in the private sector. It completely ignores the public making reports of suspicious activity, but more importantly it ignores private security forces. At critical infrastructure facilities, it will most likely be these private security personnel who will have the first contact with attacking terrorists.

I understand that there is some reluctance to provide legal cover to the actions of the mythical inept ‘Mall Cop’, but there are many serious security personnel working at near minimum wage jobs that will be called upon to make on-the-spot decisions about how to deal with suspicious activity at critical facilities. We would certainly hope that they would be adequately trained to protect civil liberties and properly respond to these incidents, but the failure of their employers to conduct such training should not deny them protections for civil liability for reasonable actions taken in good faith.

At the very least, security personnel at facilities whose security is regulated by federal law should be extended the protections provided in this legislation. We should be able to presume that the responsible federal agencies will ensure that the employers are providing at least the minimal training necessary to ensure that these security personnel will be able to identify reasonable actions.

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