Civil Unrest in Baltimore: Understanding Government Powers During Declared State of Emergency
If you live or work near Baltimore City, or even if you follow national news, you know that tensions have been mounting in the two weeks since Freddie Gray’s death while in police custody. Those tensions began with questions into the circumstances surrounding Mr. Gray’s arrest and death, and then led to protests. Monday, after Freddie Gray’s funeral, many people became violent, throwing objects at police, looting, and setting fire to cars and in some cases, buildings.
In response to the unrest and rioting, and at the request of Baltimore Mayor Stephanie Rawlings-Blake, Maryland Governor Larry Hogan signed an executive order declaring a state of emergency in Baltimore City. As news reports correctly note, such a declaration allows Governor Hogan to activate the National Guard, who will send up to 5,000 troops to support local and state police troops as they respond to and help curb riotous and violent behavior in the city. In addition, Mayor Rawlings-Blake established a city-wide, week-long curfew from 10 p.m. to 5 a.m, and city schools, state offices, colleges and universities and courts within the city have issued shelter-in-place orders or been closed all-together.
The mounting tension and violence has been a city-wide cause for concern. However, the emergency declaration and National Guard activation may strike some as an extraordinary measure. Indeed, an emergency declaration is not a power we see exercised often in this context, although we have more commonly seen them in weather-related or public health-related events.
Yesterday’s declaration is a departure from the more typical declarations we have seen in recent history, as it is in response to civil unrest and activates the National Guard to help law enforcement. However, an emergency declaration can give the Governor broad powers to execute what is needed to maintain control and the safety of citizens during impending or actual public emergencies. These powers typically come from one of four places: the Maryland Constitution; the Maryland Emergency Management Act (MEMA Act); the Catastrophic Health Act (CHE Act); or provisions within in the Maryland State Code, including the Governors’ Subtitle. For example, yesterday’s declaration cited part of its authorizing power as coming from Title 14 and Section 13-702 of the Public Safety Article within Maryland State Code. Title 14 includes a broad grant of Governor’s powers generally, as well as some powers given under the MEMA and CHE Acts to execute a number of actions if necessary to protect the “public health, welfare, or safety” during a declared state of emergency. Such authority may include, among other things, the right to suspend any statute, rule, or regulation of the state; to compel evacuation of an affected area; to establish curfews; and to control entry and exit from an emergency area, as well as the movement of people in that area. Similarly, Section 13-702 (mentioned in yesterday’s executive order) specifically gives the Governor authority to order the State Militia into active duty in times of, or in reasonable apprehension of, circumstances such as public crisis, disaster, rioting, tumult, or breach of peace.
Another benefit to an emergency declaration is that it allows the Governor and other state agencies to more quickly respond with resources and support. During a declared state of emergency, for example, the Governor may appropriate and manage funds to respond to the emergency in a more streamlined way, including getting access to contingency funds from the state and federal government that may not otherwise be available, and authorizing the use of personnel, supplies, equipment, and other aid that may not be available under normal circumstances. In the case of yesterday’s declaration, the Governor authorized the Maryland Emergency Management Agency or other appropriate agency to “engage, deploy, and coordinate available resources” during the emergency period. This might include helping to coordinate additional officers from regional forces that are preparing to head to Baltimore City.
Though the powers granted during a declared state of emergency are extraordinary, it’s important to note that they are not unlimited. Governor Hogan himself said he did “not make the decision [to declare an emergency] lightly,” and did so only immediately after Mayor Rawlings-Blake requested the declaration. While judicious use is one safeguard, other mechanisms help balance these powers. For example, the powers discussed above only exist during declared states of emergency, and such declarations are usually time-limited in nature, or require re-authorization after a period of time (usually 30 days or less). The General Assembly can also pass a joint resolution rescinding the declaration. Furthermore, where practical, the policies or procedures put into place must be done with adequate public notice, and must only be done where reasonable or necessary to protect the lives, safety, and property of Maryland citizens.