Chapter 18 Managing Emergency Evacuations

• Library: Homeland Security and Emergency Management: A Legal Guide for State and Local Governments (ABA) (2018 Ed.)

CHAPTER 18 Managing Emergency Evacuations Angelyn Spaulding Flowers and Otto J. Hetzel

The question underlying all mandatory evacuations is ...

what happens if persons do not leave?

Evacuating is the mid-point of the evacuation process, not the beginning or the end. The process needs to begin with planning prior to the required evacuation itself, and extends through departure from the risk area, to sheltering in safer conditions. The process ends with re-entry to previously occupied areas. The evacuation process clearly needs to be carefully controlled and well organized. The purpose of this chapter is to provide state and local first responders and administrators, and particularly their legal advisors, with a perspective on some of the key practical operational aspects of the mass evacuation process as well as to identify potential legal issues that may arise in planning for and during implementation of evacuations. This chapter should be read in conjunction with Chapter 14, Emergency Management and Vulnerable Populations.

Mass evacuation conjures up images of individuals and families fleeing in advance of an impending disaster. Sometimes, the image is of strong-willed, independent-minded persons who refuse to acknowledge the obvious risks they are accepting for themselves by remaining in place. Frequently, they place their property interests before peril to their lives or those of their family members. Other times the scenarios are of persons who ultimately come under threat from flames or flood waters and then ask for high-risk rescues. Those rescues, however, imperil public safety responders who may put themselves at considerable jeopardy to protect persons who either failed to recognize, or disregarded, the realistic perils entailed by staying in place.

Sometimes the images are of cars, all heading in the same direction—out of the threatened area, to somewhere else—but impeding those who still must enter the risk-area to help rescue others needing assistance such as the disabled or infirm. It is also a vision of crowds waiting, sometimes in vain, for necessary public transportation to take them to safer venues. And, as occurred in New York City on 9/11, it includes visions of persons threatened with impending death in high-rise buildings, who cannot descend on their own, trapped by darkened, impassable stairwells and inoperative elevators.

There are a myriad of circumstances—both anticipated and unanticipated—that can give rise to the need to evacuate.¹ Coastal storm plans are often developed for evacuations necessitated by predicted or anticipated events where there is advance warning; they may be caused by weather or other large-scale events. The problem, however, is that where weather is involved, predictions are not always accurate. As was the case with Hurricane Katrina, many residents did not believe the warnings since a number of earlier hurricanes had not materialized as predicted. Earlier storms had veered off at the last minute. Because previous storms turned out to be not as intense or damaging as predicted many individuals did not credit the urgency of warnings in Katrina's case. Somewhat the same scenario occurred with Hurricane Sandy on the eastern seaboard. Sometimes residents asked, "how bad could it be?" They found out! Similar experiences more recently occurred with hurricanes Harvey and Irma.

There are also general evacuation plans or area plans for emergencies which occur without warning, for example, for terrorist events, chemical and oil spills, train accidents, or fires. In New York City, the area plans were to "coordinate evacuations of one or more neighborhoods due to large scale, no-notice incidents."

The Mass Evacuation Incident Annex² to the National Response Plan (NRP) issued by the Federal Emergency Management Agency (FEMA) lists key considerations in mass evacuation situations. These should be considered in planning for and evaluating the scope of legal and practical issues affecting potential evacuation scenarios.

> Lead time required to conduct mass evacuation
> Limits in weather forecasting
> Interdependencies between extraction options, shelters, and transportation
> Special needs populations, including children
> Animals (both service animals and household pets)
> Environmental contamination
> Victim decontamination
> Events with and without warning, and
> Critical infrastructure

This chapter highlights concerns related to the issuance of evacuation orders, the duty of care associated with the evacuation process, inclusion of service animals and pets in evacuations, handling homebound disabled, helping the disabled down from high-rise structures, transportation-related concerns, and sheltering.

EVACUATION ORDERS

First, there is the legal framework for evacuations. Typically, there are three issues in regard to evacuation orders themselves: authority for issuance, type of order, and consequences for failure to comply. The ability to order an evacuation is rooted in the inherent police power of the state or locality, specifically the authority to secure the public health, safety, and welfare. Many state statutes provide specific authority for the issuance of evacuation orders.³ In some jurisdictions, a fire or police chief can order evacuation, but in other jurisdictions that order must come from the state's governor.

The first major decision is when to issue an evacuation order and the type of order to be issued. Depending upon the applicable legal authority, government officials can issue a voluntary or a mandatory evacuation order. A voluntary evacuation order serves as a warning that a threat to life or property exists or is likely to involve a particular geographic area.⁴ When a voluntary evacuation order is issued, evacuation is not required, but is strongly recommended.

When a mandatory evacuation order is issued, on the other hand, evacuation is required: although in its enforcement a variety of legal and practical issues may arise. A mandatory evacuation order is issued when an immediate threat to life and property exists within a designated geographic area.⁵ In some instances, the distinction between voluntary and mandatory evacuations has less to do with the imminence of danger, and everything to do with the issuer of the order. For instance, in the State of Nevada, only the governor or the legislature can "compel" an evacuation. In the summer of 2013, however, as wildfires ravaged the state, evacuation directives came from the local police and fire officials.⁶ Despite the impending danger, these urgent directives lacked the legal authority that would make them mandatory and enforceable. Police and fire responders, however, treated them as mandatory given imminent threats of fire and concomitant potential injury, loss of life, and property damage, and enforced them as such. The question underlying all mandatory evacuations is what is meant by mandatory? Or in other words, what happens if persons do not leave ?

Mandatory evacuation directives present the competing interests of the obligation of government officials to protect life and maintain public safety against the individual's liberty to act independently and stay put.⁷ Knowing the economic costs associated with a mandatory evacuation, such as overtime pay for police, fire, and emergency personnel, may make some local governments hesitant to order a mandatory evacuation unless they are certain the event will strike.

Various jurisdictions have taken different approaches to consequences for failure to comply with an evacuation order. For example, in its 2011-2012 legislative session the State of North Carolina updated its emergency management statutes to statutorily authorize evacuation orders at the state and local...