Yes, if you enter an officially closed disaster area without authorization and then stay after being told to evacuate or leave. That two-part misdemeanor is in Penal Code section 409.5(c). It requires no theft, which separates it from looting, but entering is not permitted either: a closure applies to everyone the officers have not authorized to enter or remain.

Who can close an area

Under section 409.5(a), when a flood, storm, fire, earthquake, explosion, accident, or other disaster creates a menace to public health or safety, the area can be closed for as long as the menace lasts, using ropes, markers, or guards. The officers who can do this are those of the California Highway Patrol, police departments, and sheriff’s and marshal’s offices; designated peace officers of CAL FIRE, State Parks, and the Department of Fish and Wildlife; and publicly employed full-time lifeguards and marine safety officers acting in a supervisory position. A local health officer may close an area when the calamity creates an immediate menace to public health.

Under section 409.5(b), law enforcement, Fish and Wildlife, and CAL FIRE officers may also close the immediate area around an emergency field command post or other command post, including one set up for a riot or other civil disturbance, even if the post is not near the disaster itself.

What the prosecution has to prove

Section 409.5(c) applies to an unauthorized person who “willfully and knowingly enters an area closed” under subdivision (a) or (b) “and who willfully remains within the area after receiving notice to evacuate or leave.” That breaks down into four points:

  • The area was closed under section 409.5(a) or (b).
  • You were not authorized to be there.
  • You entered willfully and knowingly.
  • You willfully remained after receiving notice to evacuate or leave.

Because of the last point, the offense is not complete the moment someone steps past a rope. What notice was given, whether you received it, and what you did next all matter. Section 409.5 sets no penalty of its own, so the general misdemeanor rule in Penal Code section 19 applies: as much as 6 months in county jail, a $1,000 maximum fine, or both.

Exceptions for news media and livestock passes

Section 409.5(d) does not prevent a duly authorized representative of a news service, newspaper, or radio or television station or network from entering a closed area. That exception does not let the representative help someone who is not also an authorized media representative enter the closed area or travel within it, unless it is for that person’s safety.

Section 409.5(e) does not prevent a person holding a valid livestock pass from entering, unless a peace officer listed in subdivision (a) finds that the disaster would make entry unsafe for the pass holder or that the holder’s presence would interfere with the disaster response. Under Food and Agricultural Code section 2350, these passes come from county programs for qualifying commercial livestock producers and their managerial employees; they grant access to ranch property only to shelter, move, feed, water, or care for livestock, or to give local expertise when emergency personnel ask; and access to an area closed under section 409.5(a) may only be granted by the incident commander, a law enforcement official with jurisdiction, or their designee.

Other laws can still apply

Section 409.5 is not the only rule in an emergency. For example, refusing or willfully neglecting to obey a lawful order or regulation issued under the California Emergency Services Act is a separate misdemeanor under Government Code section 8665, carrying up to 6 months of imprisonment, a fine as high as $1,000, or both. Whether a particular evacuation order falls under that Act depends on the authority it was issued under.

Why this is not looting

Looting under Penal Code section 463 is built on an underlying property crime committed during, and within an affected county in, a declared state of emergency or local emergency, or under an evacuation order: burglary or theft, and inside a defined evacuation zone also trespass with intent to commit larceny or theft from an unlocked vehicle. Section 409.5 requires no taking and no intent to take anything. A person who goes into a closed fire zone only to check on their own home, with no intent to steal, is not looting; whether that person committed the section 409.5 offense depends on the closure and the elements above.

What to do if you are told to leave

If an officer tells you to leave a closed area, leaving promptly is the safe choice, and it bears directly on the remain-after-notice element. If you believed you were authorized, for example because an officer managing the closure let you through, or because you are an authorized news representative or hold a livestock pass, write down who authorized you, when, and where while the details are fresh.

To go over how the closure was set up, what notice was given, and what happened next, call the Law Offices of David S. Chesley at (800) 755-5174.