Can Mary get arrested?

by | Dec 14, 2021 | 2021 Wildfire Advent


Mary has a little lamb. In fact, she has twenty-seven of them. One day, a wildfire breaks out. Mary, her farm, and all her little lambs are in the evacuation zone. Mary’s lambs and all their moms won’t fit into her pickup truck, so she doesn’t want to go.

Can Mary be arrested if she doesn’t leave?

The short answer, at least in California, appears to be a resounding “Yes! Uhm, no?”

According to California Code, Penal Code – PEN § 409.5:

“(a) Whenever a menace to the public health or safety is created by a calamity including a flood, storm, fire, earthquake, explosion, accident, or other disaster, officers … may close the area where the menace exists for the duration thereof … to any and all persons not authorized … to enter or remain within the enclosed area. …

(c) Any unauthorized person who willfully and knowingly enters an area closed pursuant to subdivision (a) or (b) and who willfully remains within the area after receiving notice to evacuate or leave shall be guilty of a misdemeanor.”

Seems pretty clear. If Mary stays, she “willfully remains within the area after receiving notice to evacuate” and is committing a misdemeanor. Right?

Yes, but, apparently, as long as she stays on the farm, Mary can’t be arrested. California law allegedly(1) prohibits making evacuation orders mandatory. So authorities can’t actually make Mary leave her farm. However, if she steps off her property, it’s another story.

That said, Mary, rather than worrying about legalities, please worry about lives. Yours and those of others.

You see, if you delay evacuating, you may suddenly be trapped by the fire and unable to get out at all. And, if you are in danger, hard-working firefighters may divert from actually fighting the fire to try to help you out. That puts their lives at risk and may let the fire grow even larger, threatening even more people and lambs.

Then, again, the hard-working firefighters may not come to help you. You see, that’s part of what evacuation orders mean. In the words of Ken, a Texan volunteer firefighter speaking in the wake of Hurricane Harvey,

“… and maybe people need to get educated on how we go about it. People do not understand what a mandatory evacuation means. It’s not just … It’s like, ‘Look, from this point on, we’re not gonna be able to provide any services to you.’”

California’s standard evacuation terminology is a little different from Ken’s:

  • Evacuation Order: Immediate threat to life. This is a lawful order to leave now. The area is lawfully closed to public access.
  • Evacuation Warning: Potential threat to life and/or property. Those who require additional time to evacuate, and those with pets and livestock should leave now.

Cal Fire uses two additional terms, specifically related to wildfire:

  • Red Flag Warning: A weather event will occur within 24 hours that may result in extreme fire behavior.
  • Fire Weather Watch: Weather conditions could exist in the next 12-72 hours that result in high fire danger.

Mary, we hope that you and your neighbors have talked about how you can help each other to evacuate yourselves, your families and your lambs safely, and that you have safe places to go to. When you get a Fire Weather Watch, please refresh those conversations and agreements. Make plans definite when you get a Red Flag Warning. If you get an Evacuation Warning, load ‘em up!

We want you, your lambs, and their moms to survive the fire safely and comfortably. We certainly don’t want any of you to get arrested!


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(1) See, for instance, Frontline Wildfire Defense: Some Evacuation-Weary Californians Refuse to Budge or KCRA 3: Here’s what to know about evacuation orders in California