Can the law force you to evacuate in a disaster?

By Rudy Yuly

You may think that, with autumn upon us, fire season is officially over. But you’d be wrong. Early fall is actually an extremely dangerous time of the year for wildfires across the country—and in California especially—as dry conditions typically persist well into October. Fuel is abundant, and as the Santa Ana winds pick up, they can whip existing blazes (there are currently 3“uncontained large fires” in Southern California) into a frenzy.

Wildfires in the West. Floods in the South. Hurricanes in the East. If natural disasters—many of them reaching epic proportions like California’s Blue Cut fire, as well as Louisiana’s recent Thousand Year Flood—seem to be more common, it’s because they are more common.

Whether climate change or something else is the culprit (and there are still fluctuations, as evidenced by this year’s unusually quiet hurricane season), the increase has been dramatic. The Reagan administration averaged 28 FEMA disaster declarations a year. That rose to 43 under the first President Bush. It rose again to nearly 90 under President Clinton. It hit 130 under the second President Bush. And it’s peaking at over 140 disaster declarations each year under President Obama.

If you think that’s because each new president has been more trigger happy than the previous one when it comes to disaster declarations, think again. A federal disaster declaration can only be made as a response to a direct, urgent request from an affected state. And it’s automatically issued by the president when it meets the requirements of the federal Stafford Act.

Voluntary vs. mandatory evacuations

More disasters mean more evacuation orders. But when disaster looms, it’s not the federal government that issues those evacuation orders. That power is left solely to the states.

Those orders come in two flavors: voluntary and mandatory. There’s wide agreement that states have the power to declare a mandatory evacuation, including the power to use “reasonable force” to enforce it.

What’s less clear is what that enforcement actually means. As one Florida official pointed out, officials can’t really force anyone to leave. During a disaster, pretty much every available state cop, fireman, local official, and National Guard soldier is going to have their hands full helping people who want to get out of harm’s way.

That doesn’t mean states don’t try, using whatever resources they have available, to get stubborn residents to flee. In California, citizens who fail to evacuate have been threatened with arrest; meanwhile, in the face of Hurricane Sandy, New Jersey Governor Chris Christie tried public shaming, announcing that residents who stayed put were “stupid and selfish.”

Other tactics have also been tried: Virginia used psychology, passing out marking pens to stubborn residents and advising them to write their Social Security numbers on their bodies, to better identify their remains. North Carolina and New York passed laws making failure to comply misdemeanor offences. In Connecticut, holdouts are asked to sign waivers exempting them from rescue—and to provide the state with information on next of kin.

What happens if I stay?

Although states have uncontested legal authority to make an evacuation mandatory, enforcement is nearly impossible. So what are the consequences of stocking up on water, duct tape, food, and candles, and hanging tough through a disaster?

If you make it through alive with your house intact, consider yourself lucky. There probably won’t be any legal ramifications to your decision to stay behind. While you can be prosecuted for amisdemeanor in California (and also Maryland, North Carolina, and New York), chances are authorities are going to have much more important things to do in the aftermath than slap your wrist.

But what about insurance? Will staying behind affect your coverage?

There’s no one answer to that question, since individual coverage varies so much, and each insurance company has its own rules and policies. The only way to know is to ask your insurance company well in advance if not obeying an evacuation order affects your coverage.

Depending on the answer you get, you may be able to tailor your coverage with additional riders to keep yourself covered. You’ll want to get your insurance company’s answers in writing and perhaps have an insurance attorney review them, along with any policy changes. You don’t want to engage in a game of hearsay when your house is under water or been reduced to a charred foundation.

Many people who have decided to stay suddenly have a profound change of heart when they can feel the heat of an encroaching wildfire or find themselves sitting on their roof with their feet getting wet.

Californians can at least still depend on the state to rescue them, and not be faced with a ruinous bill. That’s not always the case. In both North Carolina and Texas, you’re civilly liable for all the costs of your rescue—with no guarantee any rescue attempt will be mounted on your behalf. And a bill like that, on top of all the other losses you’re facing, might be a personal disaster on par with the natural one you’ve unnecessarily endured.

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