“Mandatory” Evacuations – Are They Really Enforceable?

UPDATE: HB843, enacted by the General Assembly during the 2012 Session, specifically authorizes both voluntary and mandatory evacuations, and increases the penalty for violating any local emergency restriction or prohibition from a Class 3 to a Class 2 misdemeanor.  For more information, see the Emergency Management 2012 Legislative Update available on the SOG's Emergency Management website here.

As Hurricane Irene barrels toward the eastern seaboard and North Carolina’s coast, local communities and state and local officials are bracing for a potentially significant hit.  Hyde County has already declared a local state of emergency. It orders a mandatory evacuation for visitors and a voluntary evacuation for county residents beginning early Wednesday morning (today).  The evacuation order becomes mandatory for everyone in the county early Thursday morning (tomorrow).  Hyde’s declaration also authorizes local and state law enforcement to restrict access to Ocracoke Island.  Other local governments are likely to follow suit in the coming hours and days (depending on the track and intensity of the storm), ordering voluntary and mandatory evacuations, and restricting access to high-risk areas.

Local officials may order such measures, but can they enforce them?

If you search the North Carolina General Statutes for reference to a “mandatory evacuation," you won’t find this specific term.  Nor will you find the term “voluntary evacuation.”  What you will find is the authority of the governor (with the concurrence of the Council of State), during a state of disaster, to “direct and compel the evacuation of all or part of the population from any stricken or threatened area within the State, to prescribe routes, modes of transportation, and destinations in connection with evacuation; and to control ingress and egress of a disaster area, the movement of persons within the area, and the occupancy of premises therein” (G.S. 166A-6(c)(1)).  Mayors and Chairs of county boards of commissioners have similar authority within their respective jurisdictions under local state of emergency declarations (G.S. 166A-8, G.S. 14-288.12 for cities, andG.S. 14-288.13 for counties). These authorities are included among the broad powers granted to the governor, cities, and counties under state of emergency declarations.

So, does this mean the governor or a city or county can order a “mandatory” evacuation?  In my opinion, it does.  The language of these statutes specifically authorizes the governor and local officials to “direct and compel” the evacuation of people in a threatened or stricken area.  Webster’s Dictionary defines “compel” as “to drive or urge forcefully or irresistibly; to cause to do or occur by overwhelming pressure.”  Given the broad authority granted to the governor and city and county officials under the North Carolina Emergency Management Act (G.S. Chapter 166A) to take measures necessary to protect public health, safety, and welfare during a disaster, it is reasonable to interpret the authority to “direct and compel” evacuations to mean ordering “mandatory” evacuations.

How is a mandatory evacuation enforced?  North Carolina law does not go so far as the law of Texas, which specifically provides that a county judge or mayor of a municipality who orders a mandatory evacuation “may compel persons who remain in the evacuated area to leave and authorize the use of reasonable force to remove persons from the area.” (Tex. Government Code § 418.185)  Use of force is not specifically authorized under North Carolina law to compel evacuations.  However, a violation of restrictions and prohibitions imposed under a local state of emergency declaration is punishable as a Class 3 misdemeanor (G.S. 14-288.12 for cities, andG.S. 14-288.13 for counties) or, if imposed under a gubernatorial declaration, a Class 2 misdemeanor (G.S. 14-288.15).  An individual refusing to comply with a mandatory evacuation order, or any other restriction such as limited access to a stricken area, imposed during a declared state of emergency can be charged with either a Class 2 or Class 3 misdemeanor (depending on whether the individual is violating a gubernatorial or local declaration).  These provisions give state and local officials an enforcement mechanism – literally, the power to arrest – should such drastic measures be warranted.

Of course, state and local officials are not likely to order the mass arrest of individuals who refuse to heed a mandatory evacuation order.  This does not mean that mandatory evacuation orders should be ignored.  Local officials do not issue such orders lightly; evacuations are logistically complex operations that require careful coordination across local and even interstate jurisdictional boundaries.  The loss of income and disruption to visitors and residents is most often substantial.  Taking these factors into account, local officials order evacuations only when necessary in the face of a significant threat.  Reasons given by local officials to heed evacuation orders include:

• Possibility of injury and death during the storm;
• Increased safety risks to first responders and law enforcement who may be required to respond to 911 calls or rescue stranded disaster victims who failed to heed the evacuation order;
• Inability to respond to calls for assistance during the storm because of safety risks to emergency personnel (for example, Hyde County’s declaration states that public safety services will cease after sustained winds reach 50 mph; it is unsafe to operate emergency response vehicles under such conditions);
• Stretching already limited personnel and resources to provide assistance to individuals in the immediate aftermath of the storm;
• Threats to public safety from damaged and destroyed infrastructure such as roads and utilities; and
• Limited access to public service facilities, medical facilities, and essential businesses such as grocery and drug stores.

Those who choose to not comply with official warnings to get out of harm’s way, or are unable to, should prepare themselves to be fully self-sufficient for the first 72 hours after the storm.  For more information on preparing for a hurricane, check out the Red Cross’s Hurricane Safety Checklistand FEMA’s Ready America hurricane preparedness tips. To track the progress of Hurricane Irene, regular updates are posted on FEMA’s blogand through the National Weather Service’s email alerts. Additional emergency management and disaster relief agencies are listed on the SOG’s Knapp Library emergency management resource cite.

The picture above is the NOAA NWS NHC Irene Track 8/24/11, 11:00 AM EDT