CHAPTER 400

FORMERLY

HOUSE BILL NO. 646

AN ACT TO AMEND SUBCHAPTER V, TITLE 20, DELAWARE CODE, RELATING TO THE DELAWARE NATIONAL GUARD.

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

Section 1. Subchapter V, Chapter I, Title 20,Delaware Code, is hereby amended by adding thereto a new section to read as follows:

"§178. Immunity from civil and criminal liability.

(a) Neither this State, nor the National Guard of the State, nor, except in cases of wilful misconduct, gross negligence, or bad faith, the officers, members, agents, or representatives thereof, engaged in any State duty pursuant to provisions of this Subchapter or of Chapter 31 of this Title, complying with or reasonably attempting to comply with this Subchapter, or any order, rule, or regulation promulgated pursuant to the provisions of this Subchapter, shall be liable, either civilly or criminally, for the death of or injury to persons, or for damage to property, as a result of such activity.

(b) The National Guard of the State and the officers, members, agents and representatives thereof, engaged in any State duty pursuant to the provisions of this Subchapter or of Chapter 31 of this Title, shall have the authority to enforce any and all laws of this State and any and all ordinances of any municipality wherein such service is performed and shall be considered as officers of this State and of such If the National Guard of the State or any officer, member, agent or representative thereof, is prosecuted by civil or criminal action, whether State or Federal, for an act committed or performed by such organization or person while engaged in any State duty pursuant to the provisions of this Subchapter or of Chapter 31 of this Title, all the expense of the defense of such action or actions, including, without limitation, attorney's fees, witnesses' fees for the defense, defendant's court costs, and all costs for transcripts of records and abstracts thereof on appeal by the defense, shall be paid by the State provided that the Attorney General of the State shall be first consulted in regard to, and approve of, the selection of the attorney for the defense; and, provided further, that the Attorney General of the State may, if he sees fit, assume the responsibility for the defense of such member and conduct the same personally or by any one of his assistants. The expenses of such defense shall be paid by the State Treasurer from any moneys not otherwise appropriated, upon warrants therefor signed by the Adjutant General and countersigned by the Attorney General.

() If, as a result of criminal or civil action based all, or in part, on Federal Law, the National Guard of the State or any officer, member, agent, or representative thereof, is subject to libility which would not result if the provisions of this Act were applicable, such agency or person shall be completely indemnified and held harmless by the State.

() For purposes of the Act, no officer, member, agent or representative of the National Guard of the State shall be held to have acted in bad faith, with gross negligence or with wilful midconduct if such person believed at the time of such act, that such act was reasonably necessary to comply with a lawful order of his superior; to accomplish his mission; to comply with the provisions of this Subchapter or Chapter 31 of the Title; or any order, rule, or regulation promulagated pursuant to the provisions of such Subchapter and Chapter; or protect himself, other persons or property.

(a) If any provision of the Act of application thereof to any person or circumstances is held invalid, such invalidity shall not affect ofther provisions or applications of this Act which can be given effect without the invalid provision or application, and to the end the provisions of this Act are declared to be severable."

Approved May 14, 1976