Are first responders who die from COVID-19 contracted on duty eligible for Mississippi's $100,000 line-of-duty death benefit?

Plain-English summary

Lincoln County's Sheriff asked whether a Mississippi first responder's death from COVID-19 contracted on duty would qualify the surviving family for the $100,000 Mississippi Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund payment.

The AG said yes, the term "cause of death" in Section 45-2-1 covers COVID-19 deaths. The reasoning runs through the federal definitions the Mississippi statute references.

Section 45-2-1 sets up the $100,000 benefit when a "covered individual" (law enforcement officer or firefighter, including volunteer firefighters, employed by an "employer" as defined) dies in the performance of official duties from a "covered cause of death." It excludes suicide and intentionally self-inflicted injury.

The key definition: "cause of death" means "any cause of death that would be covered under the Public Safety Officers' Benefits Act of 1976 or the Hometown Heroes Survivors Benefits Act of 2003, generally codified at 42 USCS Chapter 46." Mississippi's statute expressly incorporates federal law.

The federal PSOBA was renumbered in 2017 and is now at 34 U.S.C. § 10101 et seq. The death-benefits provision (§ 10281) covers death "as the direct and proximate result of a personal injury sustained in the line of duty." The federal regulations (28 C.F.R. § 32.3) define "injury" to mean a "traumatic physical wound (or a traumatized physical condition of the body) directly and proximately caused by external force (such as bullets, explosives, sharp instruments, blunt objects, or physical blows), chemicals, electricity, climatic conditions, infectious disease, radiation, virus, or bacteria . . . ."

That definition encompasses an "infectious disease" and "virus." COVID-19 is both. So the federal definition reaches COVID-19 deaths, and through the Mississippi statute's incorporation, so does Mississippi's death benefit.

The AG flagged a procedural caution. The Mississippi Department of Public Safety administers the Trust Fund, and DPS makes the factual determination on each claim. The AG opinion answers the legal question (yes, COVID-19 is a covered cause of death) but not the factual questions in any specific case (was this person a covered individual, was the death in the performance of duty, was the cause of death actually COVID-19 contracted in line of duty, etc.).

What this means for you

For Mississippi sheriffs, police chiefs, and fire chiefs

The opinion settles the legal question: a death from COVID-19 falls within the "covered cause of death" in Section 45-2-1, so a qualifying officer's or firefighter's COVID-19 death is not excluded from the $100,000 Death Benefits Fund on the ground that the cause was a virus. The opinion is equally clear that it does not decide any individual claim. Whether a particular claim qualifies is "a matter for the Department of Public Safety to determine."

For Mississippi first responder families

Under the opinion, COVID-19 is a covered cause of death for the Mississippi Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund, which pays $100,000 to the beneficiary of a covered law enforcement officer or firefighter (including a volunteer firefighter) who dies in the performance of official duties from a covered cause. The opinion does not decide whether any specific death qualifies; that determination belongs to the Department of Public Safety.

For attorneys representing public safety personnel and families

The opinion resolves the legal question: COVID-19 is within the "cause of death" definition because Section 45-2-1 incorporates the federal PSOBA, whose regulation, 28 C.F.R. § 32.3, defines "injury" to include conditions caused by "infectious disease" and "virus." It leaves open the statutory elements that turn on facts: whether the deceased was a "covered individual" as defined in Section 45-2-1(1)(c)-(d), whether the death occurred in the performance of official duties, and whether it was the "direct and proximate result" of the COVID-19 injury. The opinion states it cannot make those factual determinations.

Common questions

Q: What did the AG actually decide?
A: That the term "cause of death" in Section 45-2-1 "encompasses deaths sustained from COVID-19." That is the legal holding. The opinion does not decide whether any particular family's claim qualifies.

Q: What is the Mississippi Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund?
A: Under Section 45-2-1, it pays $100,000 to the beneficiary of a covered law enforcement officer or firefighter who, while performing official duties, dies from a covered cause of death, provided the death is not suicide and the injury is not intentionally self-inflicted. The Department of Public Safety administers it.

Q: Why does federal law matter to a Mississippi benefit?
A: Section 45-2-1 defines "cause of death" as any cause "that would be covered under the Public Safety Officers' Benefits Act of 1976 or the Hometown Heroes Survivors Benefits Act of 2003." The opinion explains that because the Mississippi statute expressly incorporates that federal law, the AG could analyze the incorporated federal "injury" definition, which reaches "infectious disease" and "virus."

Q: Are volunteer firefighters covered?
A: Yes. Section 45-2-1 defines a covered individual as "a law enforcement officer or firefighter, including volunteer firefighters," when employed by an employer as defined in the section.

Q: Who decides whether a specific claim is paid?
A: The Department of Public Safety. The opinion states that "whether a particular claim under the Death Benefits Fund otherwise qualifies for payment is a matter for the Department of Public Safety to determine," and that an AG opinion cannot make factual determinations.

Background and statutory framework

Mississippi created the Trust Fund to support the families of officers and firefighters who die in the line of duty. The statutory framework cross-references federal law to take advantage of the developed federal jurisprudence on what counts as a line-of-duty death.

The federal PSOBA was enacted in 1976. Its definition of "injury" in 28 C.F.R. § 32.3 is broad. It covers traumatic physical wounds and physical conditions caused by external force, chemicals, electricity, climatic conditions, infectious disease, radiation, virus, or bacteria. The infectious-disease and virus categories are what reach COVID-19.

The infectious-disease and virus categories in that definition are what reach COVID-19. The framework was already in place; the AG's 2021 opinion concluded it applies to COVID-19 as well.

Section 7-5-25 limits the AG to issuing opinions on prospective state law and bars the AG from interpreting federal law in a vacuum. But where Mississippi law expressly incorporates federal law, the AG can analyze the incorporated portions. The Majors (2019) and Strong (1984) opinions establish that pattern. So the AG could properly analyze the federal PSOBA "injury" definition for purposes of applying the incorporating Mississippi statute.

The factual administration of any specific claim falls to the Mississippi Department of Public Safety. The AG opinion settles the legal question; DPS evaluates each claim.

Citations and references

Statutes:
- Miss. Code Ann. § 7-5-25, AG opinions limited to prospective state law
- Miss. Code Ann. § 45-2-1, Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund
- Miss. Code Ann. § 49-5-105, federal endangered-species lists incorporated into state law (cited as analogous incorporation example)
- Miss. Code Ann. § 97-37-5, federal-law incorporation example regarding firearms
- 34 U.S.C. § 10101 et seq., Public Safety Officers' Benefits Act of 1976
- 34 U.S.C. § 10281, payment of death benefits
- 28 C.F.R. § 32.3, federal regulation defining "injury" for PSOBA purposes
- 18 U.S.C. § 925(a), (c), federal firearms-relief provision

Prior AG opinions cited:
- MS AG Op., Barton (May 17, 2021)
- MS AG Op., Criswell (Aug. 26, 2016)
- MS AG Op., Magee (Aug. 29, 2008)
- MS AG Op., Majors (May 24, 2019)
- MS AG Op., Snell (Mar. 16, 2018)
- MS AG Op., Strong (Oct. 18, 1984)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/11/S.Rushing-October-29-2021-COVID-19-and-First-Responder-Line-of-Duty-Death-Benefits.pdf

Original opinion text

October 29, 2021

The Honorable Steve Rushing
Lincoln County Sheriff
215 Justice Street
Brookhaven, Mississippi 39601

Re: COVID-19 and First Responder Line of Duty Death Benefits

Dear Sheriff Rushing:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

Are first responder deaths caused by COVID-19 covered under Mississippi Code Annotated Section 45-2-1, entitling the surviving families to line of duty death benefits?

Brief Response

The term "cause of death" within Section 45-2-1 encompasses deaths sustained from COVID-19. A claim for death benefits from Mississippi's Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund (the "Death Benefits Fund") must comport with the provisions of Section 45-2-1. Whether a particular claim under the Death Benefits Fund otherwise qualifies for payment is a matter for the Department of Public Safety to determine.

Applicable Law and Discussion

As a preliminary matter, pursuant to Section 7-5-25, an Attorney General's opinion can only be applied prospectively and can neither validate nor invalidate past action. MS AG Op., Magee at 1 (Aug. 29, 2008). Official opinions may not make factual determinations. MS AG Op., Barton at 2 n.2 (May 17, 2021). Furthermore, this office cannot "provide opinions to one entity [or individual] regarding duties of another . . . ." MS AG Op., Criswell at *1 (Aug. 26, 2016).

Established pursuant to Section 45-2-1, the Death Benefits Fund provides a payment of $100,000 to the beneficiary of a law enforcement officer or firefighter (including volunteer firefighter) who sustains a "covered cause of death," as that term is defined in Section 45-2-1, in relation to the performance of his or her official duties. Specifically, the Code requires the following:

The Department of Public Safety shall make a payment, as provided in this section, in the amount of One Hundred Thousand Dollars ($100,000.00) when a covered individual, while engaged in the performance of the person's official duties, dies or receives accidental or intentional bodily injury that results in the loss of the covered individual's life and such death is the result of a covered cause of death, provided that the death is not the result of suicide and that the bodily injury is not intentionally self-inflicted.

Miss. Code Ann. § 45-2-1(2)(a). The term "covered individual" is defined as "a law enforcement officer or firefighter, including volunteer firefighters, as defined in this section when employed by an employer as defined in this section; it does not include employees of independent contractors." The code section goes on to define the terms "firefighter" and "law enforcement officer." Miss. Code Ann. § 45-2-1(1)(c), (d).

Central to the question raised in your request, "cause of death" is defined as "any cause of death that would be covered under the Public Safety Officers' Benefits Act of 1976 or the Hometown Heroes Survivors Benefits Act of 2003, generally codified at 42 USCS Chapter 46." Miss. Code Ann. § 45-2-1(1)(e).

This office has long found that, pursuant to Section 7-5-25, it cannot, by official opinion, interpret federal law. See, e.g., MS AG Op., Snell at 2 (Mar. 16, 2018). However, when Mississippi law explicitly incorporates portions of federal law, we have analyzed those incorporated portions. MS AG Op., Majors at 2 (May 24, 2019) (explaining that Section 97-37-5 incorporates 18 U.S.C.A. Section 925(c) as an exemption but does not incorporate Section 925(a)); MS AG Op., Strong at *1–2 (Oct. 18, 1984) (discussing the incorporation of the United States' List of Endangered Native Fish and Wildlife into Section 49-5-105 and opining, "[b]y the express inclusion of the federal lists into the State statute, all the provisions of federal statute defining the species or subspecies appearing thereon and applicable to the federal lists are thereby incorporated in the State statute."). The term "cause of death," within Section 45-2-1, expressly incorporates federal law.

The federal Public Safety Officers' Benefits Act of 1976 ("PSOBA") was enacted as part L of Title I of the Omnibus Crime Control and Safe Streets Act of 1968 and originally classified to Chapter 46 of Title 42. In 2017, the PSOBA was editorially reclassified and renumbered and is now codified at 34 U.S.C. § 10101 et seq. Section 10281 is entitled "Payment of death benefits," and states, in pertinent part, that in any case where it is determined "under regulations issued pursuant to this subchapter, that a public safety officer has died as the direct and proximate result of a personal injury sustained in the line of duty," then payment will be made. 34 U.S.C. § 10281 (emphasis added). This section does not define the term "injury" but, instead, references regulations promulgated by the United States Bureau of Justice Assistance to implement the PSOBA.

28 C.F.R. § 32.3, the relevant federal regulation, defines the term "injury" for purposes of the PSOBA, as:

[A] traumatic physical wound (or a traumatized physical condition of the body) directly and proximately caused by external force (such as bullets, explosives, sharp instruments, blunt objects, or physical blows), chemicals, electricity, climatic conditions, infectious disease, radiation, virus, or bacteria . . . .

The definition of "injury" encompasses a physical condition of the body directly and proximately caused by an "infectious disease" and "virus," both of which appear to include COVID-19. Accordingly, the term "cause of death" within Section 45-2-1 encompasses deaths sustained from COVID-19.

Notably, a claim for death benefits must comport with the provisions of Section 45-2-1. Whether a particular claim under the Death Benefits Fund otherwise qualifies for payment is a matter for the Department of Public Safety to determine.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General