CHAPTER 118

AN ACT TO AMEND PART II, TITLE 20, DELAWARE CODE, RELATING TO CIVIL DEFENSE BY CONFERRING ON THE GOVERNOR ADDITIONAL POWERS TO REGULATE AND RESTRICT ACTIVITIES OF PERSONS DURING A STATE OF EMERGENCY PROCLAIMED BY HIM; AND TO PROVIDE CRIMINAL PENALTIES FOR VIOLATION OF EMERGENCY DIRECTIVES OF THE GOVERNOR OR FOR THE COMMISSION OF OTHER ACTS DURING THE STATE OF EMERGENCY.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. §3102, Title 20, Delaware Code, is amended by adding thereto the following definitions:

"State of Emergency" means an emergency proclaimed as such by the Governor pursuant to §3125 of this title.

"Governor" means the Governor of this state, or in case of his removal, death, resignation or inability to discharge the powers and duties of his office, then the person who may exercise the powers of Governor pursuant to Article 3, Section 20 of the Constitution.

Section 2. Chapter 31, Title 20, Delaware Code, is amended by adding thereto a new subchapter to read :

SUBCHAPTER II. ADDITIONAL POWERS OF

GOVERNOR DURING STATE OF EMERGENCY.

§3125. Proclamation of State of Emergency

(a) In addition to the powers conferred upon the Governor by §3105 of this title, the Governor, after finding that a public disorder, disaster or emergency exists within this state or any part thereof which affects life, health, property or the public peace, may proclaim a State of Emergency in the area affected.

() The proclamation of a State of Emergency and other

proclamations issued under this subchapter shall be in writing and shall be signed by the Governor. They shall then be filed with the Secretary of State.

(c) The Governor shall give as much public notice as practical through the public press of the issuance of proclamations pursuant to this subchapter.

(d) The State of Emergency shall cease to exist upon the issuance of a proclamation of the Governor declaring its termination.

§3126. Restrictions which the Governor may impose during a State of Emergency; confict with other laws

(a) The Governor during the existence of a State of Emergency, by proclamation, may prohibit:

(1) any person being on the public streets, or in the public parks or at any other public place during the hours declared by the Governor to be a period of curfew;

(2) a designated number of persons, as designated by the Governor, from assembling or gathering on the public streets, parks, or other open areas of this state, either public or private ;

(1) the manufacture, transfer, use, possession or transportation of a Molotov Cocktail or any other device, instrument or object designed to explode or produce uncontained combustion;

(1) the transporting, possessing or using of gasoline, kerosene, or combustible, flammable, or explosive liquids or materials in a glass or uncapped container of any kind except in connection with the normal operation of motor vehicles, normal home use or legitimate commercial use;

(0) the possession of firearms or any other deadly weapon by a person in a place other than that person's place of residence or business except for law enforcement officers;

(1) the sale, purchase or dispensing of alcoholic beverages;

(2) the sale, purchase or dispensing of other commodities or goods, as designated by the Governor;

(3) the use of certain streets, highways or public ways by the public; and

(9) such other activities as he reasonably believes should be prohibited to help maintain life, health, property or the public peace.

(b) In imposing the restrictions provided for by this subchapter, the Governor may impose them for such times, upon such conditions, with such exceptions and in such areas of this state as he from time to time deems necessary.

§3127. Confict with other laws

(a) Whenever the restrictions imposed pursuant to this subchapter are more restrictive than are required by any other statute, local ordinance or regulations, the provisions of the restrictions imposed pursuant to this subchapter shall govern.

(b) Whenever the restrictions of any other statute, local ordinance or regulations are more restrictive than the restrictions imposed pursuant to this subchapter, the provisions of such statute, local ordinance or regulations shall govern.

§3128. Penalties

Except wherein specific penalties are prescribed in this subchapter, whoever violates any provisions of this subchapter or any provision of a proclamation issued pursuant to this subchapter shall be deemed guilty of a misdemeanor and shall be punished in the discretion of the court.

§3129. Destruction of property or injury of persons during State of Emergency penalty; liability for conduct of another

(a) During a State of Emergency, whoever maliciously destroys, or damages, any real or personal property or maliciously injures another shall be guilty of a felony.

() Whoever is found guilty of violating this section shall be imprisoned for not less than 3 years, nor more than 10 years.

(a) No person found guilty of violating this section shall be eligible for probation or parole during the first 3 years of his sentence.

(b) Any person over 16 years old who violates the provisions of this section shall be prosecuted as an adult.

(e) A person is guilty of an offense under this section committed by another person when:

(1) acting with the state of mind that is sufficient for commission of the offense, he causes an innocent or irresponsible person to engage in conduct constituting the offense; or

(2) intending to promote or facilitate the commission of the offense he:

(i) solicits, requests, commands, importunes, or otherwise attempts to cause the other person to commit it; or

(ii) aids, counsels, or agrees or attempts to aid the other person in planning or committing it; or

() having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so; or

(f) In any prosecution for an offense under this section in which the criminal liability of the accused is based upon the conduct of another person pursuant to this section, it is no defense that:

(1) the other person is not guilty of the offense in question because of irresponsibility or other legal incapacity or exemption, or because of unawareness of the criminal nature of the conduct in question or of the accused's criminal purpose, or because of other factors precluding the mental state required for the commission of the offense; or

(1) the other person has not been prosecuted for or convicted of any offense based on the conduct in question, or has previously been acquitted thereof, or has been convicted of a different offense or in a different degree, or has legal immunity from prosecution for the conduct in question.

Approved August 4, 1967.