Did a Colorado governor have to expressly authorize lethal force each time the National Guard was activated?

Plain-English summary

Governor Bill Owens asked whether an order activating the Colorado National Guard had to separately state that Guard members could use lethal force to protect infrastructure critical to the state's life, health, or welfare. This opinion clarified an earlier Attorney General opinion that had recognized the Governor's authority to authorize such force.

Attorney General John Suthers concluded that separate wording was unnecessary. The Governor's constitutional position as commander-in-chief and statutory duty to protect life and property carried the implied powers needed to perform that responsibility. Authority to use lethal force when necessary to protect critical infrastructure was therefore implicit in every activation order.

The opinion did not declare every facility critical or authorize force without a necessity finding. It stated that whether a particular facility or location qualified as critical required case-by-case analysis.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion addressed in 2006

The Governor's office

The opinion treated the relevant authority as inherent in an activation order. The Governor did not have to repeat an express lethal-force authorization in each order.

National Guard leadership

The conclusion was limited to force necessary to protect infrastructure critical to life, safety, and immediate public health. It did not resolve which sites met that standard.

Emergency and infrastructure officials

Critical status depended on the particular facility or location. The opinion required that issue to be assessed case by case.

Common questions

Q: Did each activation order need a separate lethal-force clause? A: No. The AG concluded that the authority was implicit in activation.

Q: Did the opinion say force could be used at any facility? A: No. It addressed force when necessary to protect critical infrastructure and left the status of each location to a separate factual analysis.

Q: What legal authority supported the conclusion?
A: The opinion relied on the Governor's commander-in-chief authority, the duty to protect life and property in § 28-3-104, C.R.S. (2006), and In re Moyer.

Q: Was this the first opinion on the issue?
A: No. It clarified Formal Opinion 06-06, which had answered the broader authority question.

Background and statutory framework

Formal Opinion 06-06 had concluded that the Governor could authorize the Guard to use lethal force to protect critical infrastructure. Opinion 06-08 answered only whether that authorization had to appear expressly in every later activation order.

The duty in § 28-3-104, C.R.S. (2006), supplied the Governor's responsibility to protect life and property. The opinion cited In re Moyer, 85 P. 190 (1904), for the implied powers necessary to carry out that responsibility.

Citations and references

Statute:

• § 28-3-104, C.R.S. (2006)

Case:

• In re Moyer, 85 P. 190 (1904)

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-06-8-Whether-the-Governor-must-Expressly-Include-Such-Authorization-in-any-Activation-Order-or-Whether-Such-Authorizaton-is-Implicit-in-all-Activations-of-the-Colorado-National-Guard....pdf

Original opinion text

John w . S uthers

STATE OF COLORADO
DEPARTMENT OF LAW

Attorney General

Cynthia H. Coffman

Chief Deputy Attorney General

State Services Building

Office of the attorney General

1525 Sherman Street - 7th Floor
Denver, Colorado 80203
Phone (303) 866-4500

Daniel D. Domenico

Solicitor General

FORMAL
No. 06-08
OPINION
AG Alpha No. EX AD AGBCA
OF
November 21, 2006
JOHN W. SUTHERS
Attorney General

On April 6, 2006 the Governor requested an opinion concerning his power to authorize the Colorado National Guard to use lethal force when protecting infrastructure critical to the life, health or welfare of the State of Colorado. Formal Opinion 06-06 was issued on August 29, 2006 in the affirmative, relying on the Governor's inherent constitutional authority as commander-in-chief and his statutory duty to protect life and property, as well as the general laws authorizing civil law enforcement and the public to use lethal force in certain circumstances. The Governor has now requested clarification. Therefore, this opinion answers a more narrow question of whether the Governor must expressly include such authorization in any activation order, or whether such authorization is implicit in all activations. 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 21st day of November, 2006.

iO m jW . SUTHERS
Colorado Attorney General

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