SC Lawyer, March 2005, #4. Thinking the unthinkable.

• Author: By Sam Finklea

South Carolina Lawyer

2005.

SC Lawyer, March 2005, #4.

Thinking the unthinkable

South Carolina LawyerMarch 2005Thinking the unthinkableBy Sam FinkleaThe Homeland Security Act (HSA), 2002 Act No. 339, is the most recent and most comprehensive act of the General Assembly in responding to the post-9/11 world. The HSA contemplates the heretofore unthinkable - terrorist acts resulting in death or threat of death to thousands of South Carolinians.

State law has long assigned authority and responsibility for addressing physical disasters, war, riot and public health threats. In light of new threats posed by terrorist acts, the HSA changes state law in ways that may have some immediate impact. The HSA expands state grand jury jurisdiction, creates new authorization and requirements for wiretaps and changes code sections dealing with computer crime and bomb-making. Other provisions of the Act that may have substantial impact include provisions for mass quarantine, seizure and destruction of property, compulsory delivery of health care services, use of health care facilities, distribution of pharmaceuticals and suspension of professional licensing requirements.

Expansion of grand jury jurisdiction

The state grand jury was created in 1988. Prior to Act 339, its jurisdiction extended only to four types of crimes: narcotics and dangerous drugs, obscenity, crimes involving public corruption and election laws. S.C. Code Ann. § 14-7-1610. The legislature does not expand its jurisdiction lightly. Nonetheless, § 7 of the HSA authorized the state grand jury to investigate crimes involving terrorism or any conspiracy or solicitation to commit terrorism. Terrorism includes activities that:

(a) involve acts dangerous to human life that are a violation of the criminal laws of this state;

(b) appear to be intended to:

(i) intimidate or coerce a civilian population;

(ii) influence the policy of a government by intimidation or coercion; or

(iii) affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(c) occur primarily within the territorial jurisdiction of this state.

S.C. Code Ann. § 14-7-1630(A)(5). "Mass destruction" is not defined in § 7 of the HSA or elsewhere in the Code pertaining to the state grand jury. It is defined by inference in other sections of the HSA, specifically in §§ 13 and 39, which include the same definition of "terrorism" and follow it with a definition of "weapon of mass destruction":

(a) any destructive device as defined in item (7) [(a) a bomb, incendiary device, or any thing that can detonate, explode, be released, or burn by mechanical, chemical, or nuclear means, or that contains an explosive, incendiary, poisonous gas, or toxic substance (chemical, biological, or nuclear materials) including, but not limited to, an incendiary or over-pressure device, or any other device capable of causing damage, injury, or death; (b) a bacteriological weapon or biological weapon; or (c) a combination of any parts, components, chemical compounds, or other substances, either designed or intended for use in converting any device into a destructive device which has been or can be assembled to cause damage, injury, or death.];

(b) any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;

(c) any weapon involving a disease organism; or

(d) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life.

The intent of the assailant is the key to the applicability of this section. Although use of explosives could simply be criminal assault or provoked by passion or revenge (see, e.g., State v. Gaskins, 284 S.C. 105, 110; 326 S.E.2d 132, 136 (S.C., 1985)), the use of a bomb arguably evinces intent to intimidate or coerce. The criminal use of what one might refer to as an 'ordinary' "device capable of causing damage, injury, or death" such as a knife must be analyzed similarly; an assault with a knife could fall under this definition if, for instance, it were accompanied by videotapes of the assault, a political or religious message or other indicia of intent to intimidate or...