(a)Members of the national guard ordered into the active service of the state, pursuant to § 58-1-106 , shall receive the same immunity afforded by law to state employees for acts done in the performance of their duty while at their post of duty. When an action or proceeding of any nature shall be commenced in any court by any person against any member of the national guard for any act done by the guard member in guard member's official capacity in the discharge of guard member's assigned duty under parts 1, 2 and 4-6 of this chapter, or an alleged omission by guard member to do an act which it was the guard member's duty to perform or against any person acting under lawful authority or orders or by virtue of any warrant issued by guard member pursuant to law, the governor shall designate
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(a) Members of the national guard ordered into the active service of the state, pursuant to § 58-1-106 , shall receive the same immunity afforded by law to state employees for acts done in the performance of their duty while at their post of duty. When an action or proceeding of any nature shall be commenced in any court by any person against any member of the national guard for any act done by the guard member in guard member's official capacity in the discharge of guard member's assigned duty under parts 1, 2 and 4-6 of this chapter, or an alleged omission by guard member to do an act which it was the guard member's duty to perform or against any person acting under lawful authority or orders or by virtue of any warrant issued by guard member pursuant to law, the governor shall designate counsel to represent and defend such guard member. All compensation of such counsel and all costs and expenses in connection with the action shall be payable from the funds appropriated to the military department. (b) Officers and enlisted personnel of the national guard who engage in voluntary aid and assistance shall receive the same immunity afforded by law to state employees for actions taken in the performance of their duty while at their post of duty. When an action is commenced in any court by any person against any officer or enlisted personnel of the national guard for actions in the course of voluntary aid and assistance, counsel shall be designated as provided by title 8, chapter 42 to represent and defend such guard member. All compensation of such counsel and all costs and expenses in connection with the action shall be payable from the funds appropriated to the military department. (c) (1) Notwithstanding § 39-11-605 or § 39-11-622(a)(2) , if a member of the national guard uses force against another, including by discharging a personally owned firearm, and a civil cause of action is commenced against the national guard member alleging that the use of force resulted in the death or injury of, or property damage to, the person commencing the action, the national guard member shall have civil immunity with respect to any person commencing an action that is based on the national guard member's use of force, if the court in which the action is filed determines the national guard member: (A) Used force against the person bringing the action that was justifiable self-defense, in accordance with § 39-11-611 , or justifiable defense of others, in accordance with § 39-11-612 ; (B) Was on duty or in uniform at the time force was used; and (C) If the use of force involved the discharge of a personally owned handgun, was authorized to possess or carry a handgun pursuant to § 39-17-1351 and authorized by the military department to carry a personally owned handgun while on-duty or in uniform. (2) (A) As soon as possible after the national guard member's use of force, the attorney general and reporter shall investigate and determine whether the national guard member's use of force complied with the requirements of subdivisions (c)(1)(A)-(C). If the attorney general determines that the use of force was justifiable, the national guard member shall receive legal counsel designated as provided by title 8, chapter 42, to represent the national guard member if any action is commenced by any person against the national guard member that is based upon the national guard member's justified use of force. (B) If the attorney general and reporter determines the national guard member's use of force was not justified and declines to provide legal counsel, the provision of § 39-11-622(b) shall be applicable and available to the national guard member. (3) If any civil or administrative action is brought against the national guard member that is based on the national guard member's use of force, the trier of fact shall first determine if the use of force complied with the requirements of subdivisions (c)(1)(A)-(C). If the trier of fact finds the national guard member's use of force did comply, the action against the national guard member shall be dismissed.