No. ( 2006 )

Question: Whether a governor, when activating the National Guard, must separately and explicitly authorize the use of lethal force for the protection of critical infrastructure, or whether such authorization is inherent in all activations.

Answer: The Governor need not separately or explicitly authorize the use of lethal force for the protection of critical infrastructure in activating the National Guard. Such force is implicit in any activation.

As discussed in Opinion No. 06-06, the Governor's express authority and obligation to protect life and property, see § 28-3-104, C.R.S. (2006), carries with it the implied powers necessary to carry out that responsibility. See In re Moyer, 85 P. 190 (1904). Accordingly, the power to use lethal force where necessary for the protection of infrastructure critical to life, safety and the immediate health of the public is implied in every activation order. Whether a particular facility or location is "critical" is a separate question requiring a case by case analysis.

Issued this 21^st day of November, 2006.