April 2011 | Special Edition: Dealing with Disasters - Emergency Preparedness
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"Fight or Flight:" On Enforcing Mandatory Evacuations

By David Bohannon

When a disaster strikes, sometimes the best response is to get away. This fact is clear to emergency management professionals who while planning for and advising impacted communities to evacuate also have to plan for how to maintain adequate staffing when self-interest may prompt them or their colleagues to flee. Nonetheless, many private individuals when advised to evacuate, and told doing so is voluntary, refuse to do so. At what point do the obligations of government officials to preserve life and public safety outweigh an individual's liberty to stay? And how far can, or should, officials go in compelling evacuation?

Legal Authority for Mandatory Evacuation
The authority to effect a mandatory evacuation has its roots in sovereign authority and the police power. Long before evacuating in face of a natural disaster was a concern, people were evacuating in the face of war or attack. The last time a US court had to address a mandatory evacuation during a time of war was in the aftermath of World War II1. But even this "war power" is rooted in the obligation of the sovereign to "protect the people2."

Similarly, the police power has long been recognized as rooted in the obligation to secure the public welfare. This obligation is expanded during an emergency, and accordingly, so are the powers—including suspending certain fundamental rights so as to allow actions like enforcing a mandatory evacuation3. Even without specific statutory authorization, some states, like Ohio, have found that to "preserve the public peace" a sheriff "may order the evacuation of persons…" and "may, in a reasonable manner, remove to a safe area any persons who refuse to evacuate voluntarily4."

Every state provides specific statutory authority to its Governor to take emergency actions during an attack or disaster5. Additionally, most states have adopted statutes specifically authorizing the use of police powers like evacuation during an emergency or disaster6. For example, the authority of a fire chief to order the evacuation of a building on fire, or in reasonable proximity to one on fire, is practically universal7. The statutes giving emergency powers to the Governors of the various states either specifically mention the authority to evacuate, or else use the language of "such powers/actions as necessary" to preserve public safety and welfare; and if a fireman can order an evacuation to preserve public safety and welfare, so can a Governor8.

Enforcing a Mandatory Evacuation
At common law, the normal penalties and consequences of disobeying a lawful order come into play for disobeying an evacuation order. In states like Maryland and California, these have been codified as criminal offenses9. So, a person who fails to evacuate is committing a crime and subject to arrest—meaning the police can seize their person and take them elsewhere, that is, evacuate them. This argument has been raised and implicitly accepted by the Louisiana courts in several of the lawsuits filed in the aftermath of Hurricane Katrina, wherein several authorities have been sued for false arrest, wrongful imprisonment and civil rights violations in the course of enforcing the various mandatory evacuation orders10.

In 2009, Texas passed legislation which explicitly allows authorities to "compel persons who remain in the evacuated area to leave and authorize the use of reasonable force to remove persons from the area11." However, this power to compel evacuation is not automatically exercised when an order to evacuate is issued, but must be exercised independently through a separate, concurrent order12.

Policy Implications of a Mandatory Evacuation
In "The Challenge of Mandatory Evacuation: Providing For and Deciding For," the authors identify two motivations for issuing a mandatory evacuation order: (1) to open the door to provide resources to evacuate to those who otherwise are without, and (2) the need to decide on behalf of those otherwise unable to13. The most practical reasons to issue a mandatory evacuation order are to open the door to additional resources for those otherwise unable to voluntarily evacuate, and to stress the urgency and seriousness of the situation to those otherwise unconvinced.

Actually enforcing a mandatory evacuation through force, however reasonable, is not likely to be effective or beneficial in the long run. Arresting people always raises issues. From the perspective of responders there are liability questions, and from the perspective of otherwise law-abiding citizens, there are the long-term consequences of having a run-in with the law. While the courts have been clear that seizing an individual to evacuate them, and the likely property loss implications of doing so, are shielded by various immunities, allegations of excessive use of force doing so are not14. Of more immediate concern, one of the key issues found to have prevented the evacuation by African Americans from New Orleans prior to Hurricane Katrina were the perceived racism and inequities in their relationship with civic institutions15. In that context, clearing an endangered community by force is not wise.

The most practical reason to issue a mandatory evacuation order is to open the door to additional resources for those otherwise unable to voluntarily evacuate. This lack of resources was also identified as one of the key barriers to evacuation during Katrina16. The emergency management community has made great strides in planning for transportation disadvantaged populations, and involving marginalized communities since then. However, many of the resources necessary to carry out those plans are contingent on declarations of emergency and mandatory orders of evacuation.

In the end there are some people who will not want to evacuate, no matter how nicely they are asked, or how many buses may be available. As California has experienced in its many wildfires, some residents just don't see the urgency and prove lucky17. In such cases, the concern is less the life of the individual who refuses to leave, and more the life of the responders who may be called on later for a dramatic rescue that could have been avoided. North Carolina and Texas lead the way in this respect by providing that people who refuse an order to evacuate are civilly liable for the costs of a later rescue—while it making it clear that such a rescue may not come at all18. Combined with the infamous "magic marker" tactics of coastal Virginia, where citizens refusing to evacuate are given pens and instructed to write their social security numbers on themselves so that their remains can be identified, most folks will choose to leave when given the opportunity and resources to do so. If those who don't leave are made to bear the full burden of their choice to stay, there is no real advantage to arresting them and forcing them out. Like the crop of a rider, the threat is a better motivator than the actual use.

1 See Aleutian Livestock Co. V. United States, 119 Ct.Cl. 326, 96 F.Supp. 626 (1951).
2 Id., 628.
3 See Florida's Law Of Storms: Emergency Management, Local Government, And The Police Power, 30 STETSON L. REV. 837 (2001).
4 Ohio Op. Attny. Gen. No. 87-099
5 Emergency Management and Homeland Security Statutory Authorities in the States, District of Columbia and Insular Areas: A Summary, CRS RL32287 (2004).
6 Id. 4; See also Thames Shipyard and Repair Co. v. United States, 350 F.3d 247, 258 (2003).
7 See e.g. Thames supra. citing Alaska Stat.§18.70.075(a)(2) et al.
8 Id.
9 See MD Ann. Code PS §14-309 (making it a misdemeanor offense subject to a max of 1 year in jail and/or $1000 fine for failure to comply with an emergency order issued by the Governor); Cal. Code. Gov. §8665 (similar); NDCC, 37-17.1-05 (similar).
10 See e.g. Konie v. Louisiana, E.D.La. C-A-05-6310 (Feb 25, 2010) slip WL 812980.
11 V.T.C.A., Government Code §418.185.
12 Id.
13 Fairchild, Amy L. et al, The Challenge of Mandatory Evacuation: Providing For and Deciding For, Health Affairs 25, no. 4, 958 (2006).
14 See Thames and Konie supra.
15 See Elder, Keith, Et al, African Americans' Decisions Not to Evacuate New Orleans Before Hurricane Katrina: A Qualitative Study, Am J Public Health. 2007 April; 97(Supplement_1):S124-S129.
16 Id.
17 See Scott Gold, He refused to leave, then got lucky, LA TIMES, Oct. 26, 2007.
18 See V.T.C.A., Government Code §418.185; NC Gen. Stat. §166-A15.1 (2006).

About the Author

David Bohannon joined CHHS in October 2009. He is a graduate of St. John's College in Annapolis, MD and the University of Maryland School of Law. Mr. Bohannon has practiced law as a prosecutor in Anne Arundel County and Baltimore City, Maryland. He clerked for the Honorable Judge John M. Glynn and the Honorable Judge John Philip Miller, during each judge's term as Judge in Charge of the Criminal Docket of the Baltimore City Circuit Court. Mr. Bohannon has also worked as a courtroom clerk in the Baltimore City Circuit Court, a clerk with the Maryland House of Delegates Judiciary Committee, and as a district secretary in the Maryland House of Delegates. A California native, he has volunteered with public awareness campaigns for disaster preparedness; as a cast member at Disneyland, he was involved in emergency planning for the Park's Millennium New Year's Eve Celebration. Mr. Bohannon is currently working with the Maryland Department of Human Resources on emergency preparedness planning.

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