In emergencies where public safety is at stake, such as in a natural disaster or serious accident, public officials are authorized by California law to close off areas deemed unsafe to the public.
Suppose you willfully venture into one of these areas and refuse to leave at the instruction of a public official. In that case, you could be charged with unauthorized entry into a closed emergency area defined under Penal Code 409.5 PC. You could be sentenced to up to six months in jail if convicted.
Simply put, this law prohibits unauthorized entry into an emergency area, such as entering and remaining in an area that law enforcement officers have closed due to a significant car accident, storm, fire, earthquake, or another disaster.
PC 409.5 says, “(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 of the Department of the California Highway Patrol, police departments… employee of the Department of Forestry and Fire Protection designated a peace officer by subdivision (g) of Section 830.2, an officer or employee of the Department of Parks and Recreation designated a peace officer, an officer or employee of the Department of Fish and Wildlife designated a peace officer, and a publicly employed full-time lifeguard or marine safety officer while acting in a supervisory position in the performance of their official duties, may close the area where the menace exists for the duration of the menace…If the calamity creates an immediate menace to public health.”
To prove someone guilty of violating PC 409.5, a prosecutor has to establish that a law enforcement officer or other public official closed the area of the menace to unauthorized persons and that they willfully and knowingly entered the closed area and willfully remained after being told to leave. Let's review this law further below.
PC 405.9 Explained
Under Penal Code 409.5, it is illegal for any person to enter or remain in a closed emergency area without permission from an appropriate public official. A “closed emergency area” is defined as any property deemed unsafe and off-limits to the public by law enforcement officers, firefighters, or other public officials authorized to close it off.
Public officials authorized to do emergency closures may include any of the following:
- California Highway Patrol officers;
- Local law enforcement (e.g., police, sheriff's dept.);
- Marshall's office;
- First responders (e.g., local fire dept. or EMT);
- Employees of the Department of Forestry and Fire Protection (i.e., forest rangers);
- Employees of the California Department of Fish and Game;
- Marine safety officers.
By law, any of the above may close off an area when “a calamity including a flood, storm, fire, earthquake, explosion, accident, or other disasters creates a menace to the public health or safety.”
To procure a conviction under PC 405.9, prosecutors must establish the following key elements:
- A calamity or disaster caused a menace to public health and safety;
- An authorized public official closed off the area to unauthorized persons via visible markers such as ropes, guards, or a command post;
- You “willfully and knowingly” entered the closed area; and
- You willfully remained in the closed area after an official instructed you to leave.
What Are the Exceptions?
Penal Code 409.5 lists two specific situations in which people, other than public officials, who enter closed emergency areas are exempt from prosecution. These include:
- Members of the press. Duly authorized representatives of news services, newspapers, radio and television networks may enter closed areas without being charged with a crime.
- Livestock Pass holders, with conditions. Livestock producers in California are often issued Livestock Pass documents that authorize them to enter closed areas to access their livestock in the event of fires or other natural disasters. These pass holders may enter closed areas by presenting their documents unless the officials deem that their presence would interfere with the disaster response.
What Are Some Examples?
EXAMPLE 1: John is at work when a serious earthquake hits the area. He can't reach his wife or kids by phone, so he heads home to check on them. He finds local police have cordoned off his neighborhood as a closed emergency area. John ignores the barrier and crosses it on foot to check his home.
An officer sees him and tells him to leave the area; John ignores him and continues toward his home. Despite his concerns and reasons for breaking the barrier, John can still be charged because he entered the closed area and refused to comply with orders to leave.
EXAMPLE 2: The same scenario, except when the officer confronts John, complies, and leaves the closed area. In this setting, John will not be charged with a crime because although he willfully entered the prohibited zone, he left when asked to do so.
What Are the Related Crimes?
Several California laws are related to Penal Code 209.5 PC unauthorized entry into a closed emergency area, including the following:
- Penal Code 602 PC – trespassing;
- Penal Code 601 PC – aggravated trespassing;
- Penal Code 148 PC – resisting arrest;
- Penal Code 416 PC – failure to disperse;
- Penal Code 402(a) – sightseeing at emergency scene.
What Are the Penalties for PC 409.5?
Violating Penal Code 409.5 PC is a misdemeanor offense, which means it carries a maximum possible sentence of up to six months in county jail and a fine of up to $1000, but the judge could grant probation rather than jail time.
Additionally, you could be charged with more serious crimes if your unauthorized presence in the emergency area resulted in injury, property destruction, or disaster response interference.
What Are the Defenses for PC 409.5?
Most defenses to charges of unauthorized entry into a closed area have to do with disproving one or more of the four elements of the crime. Some examples are discussed below.
Perhaps we can argue that the closed area was not clearly marked. If public officials didn't visibly cordon off the area with guards, markers, ropes, etc., you can't be convicted for crossing a line you didn't know was there.
Perhaps we can argue that your actions were not willful. In the first example above, suppose John crossed the boundary out of sheer concern for his family without noticing the closed area.
If he didn't hear the officer call him to leave, he could have had a valid defense against the charges because he wasn't willfully disregarding the orders of authorities. Perhaps you qualified for an exemption. E.g., you were a valid member of the press, or you held a valid Livestock Pass.
Perhaps we can argue that you left the area when asked. Even if you willfully violated the boundary, you're not guilty of a crime if you left the area at the officials' instruction. You can contact us for a case review via phone or the contact form. Eisner Gorin LLP is located in Los Angeles, California.