Forced Evacuation

Forced Evacuation

With hurricane season here, state and local authorities have the lawful power to order mandatory evacuations to protect lives either before or after a natural or man-made disaster. But residents in the path of a storm may believe these orders force them to choose between following the law and protecting their property.

In late August, after Hurricane Harvey made landfall, authorities issued mandatory evacuation orders in parts of southeast Texas as flooding imperiled several areas. Less than two weeks later, with Hurricane Irma approaching, the Florida governor issued mandatory evacuation orders for the Florida Keys days before the storm was expected to make landfall.

One of the key considerations for authorities in any decision is whether it is safer to evacuate residents than to have them remain in place. When evacuation declarations are made, the effect on the populace can vary. The New York Times reported in October 2016, in anticipation of Hurricane Matthew lashing Florida, that emergency managers trying to persuade residents to evacuate can be like parents trying to cajole their children to do something: They rely on a blend of fear, tough love and their authority. About 5 percent of the population will typically ignore evacuation orders and remain in harm’s way, the newspaper noted.

Whether such individuals will face arrest can depend on the state or applicable statute. In Florida, for example, a person can face a second-degree misdemeanor charge — punishable up to 60 days in jail and a $500 fine. Courts have upheld these state statutes, along with the government interest in preserving life. Still, these criminal laws are seldom enforced. The “stick” municipalities often use to cajole compliance with evacuation orders is to convey to those who stay that there likely will be limited, if any, assistance by first responders if emergencies occur. Also, in some cases those who stick around are asked to mark themselves for identification in some way — just in case.

Mandatory evacuations are typically local and state decisions. However, the federal government has similar powers to enforce orders of public safety, particularly in wartime. Now widely recognized as a mistake, the forced internment of Japanese-Americans and others during World War II was regarded as an evacuation at the time.

About two-thirds of the detainees were Japanese-Americans who were born in the United States. People of Italian and German heritage were also detained. In 1944, the U.S. Supreme Court ruled 6 to 3 in Korematsu v. United States, a decision strongly disparaged and discredited by later legal scholars, that the government had the power to evacuate and intern American citizens. Justice Hugo Black, writing for the majority, included a paragraph that is still debated today: “It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

Posted 9/8/2017

American Bar Association

Ethics and Environmental Practice