What is the role of government in protecting people despite themselves?

The recent devastation wrought through most of the Eastern Seaboard of the United States by Superstorm Sandy in late October and early November this year — the deadly combination of a hurricane, a nor’easter and the unfortunate simultaneous timing of a high-tide surge — has been sobering. It affected millions of people. It caused flooding of homes and businesses. Strong winds downed trees that in turn downed wires, shutting down power grids and phone lines, causing fires and interrupting supply routes for essentials like food, water and gasoline. Today, almost a month after the storm, some people still do not have their power back.

Before the storm, some people were scoffing at the urgent weather forecasts, saying that this was just another hyperbolic, overblown prediction that would peter out into probably just a bit of rain, like the last time and the time before that.

Well, that didn’t happen.

Lives were lost. Swathes of property were damaged beyond salvage. Early estimates of the costs of the storm put it in the $50 billion or more range, including property damage, loss of business and the increase in living expenses. That does not count the emotional toll for those who have to piece their lives back together.

We received plenty of early warning that this catastrophic storm was coming. Most of us heard of the storm at least a week before it hit. News outlets and government authorities were advising people in the path of the storm to stock up on essentials and be prepared for emergencies. Hurricane Sandy made landfall at the New Jersey shore late Monday night into Tuesday morning (October 29 to 30). Before it hit, on Sunday (October 28) New Jersey Governor Chris Christie ordered mandatory evacuations of the barrier islands of the Jersey Shore.

Not everyone evacuated. One man, a reporter for the Courier-Post, chose not to go because his wife refused to go. His wife refused to evacuate because they had three cats, one of whom “throws a hissy fit when she has to get into a cat carrier,” and also one of their daughters and her children from Atlantic City, N.J., had decided to stay with them to ride out the storm. Their power went out, the floodwaters came halfway up their yard before the tide turned, they ran out of food and the bridge to the mainland was closed to traffic when they did think about leaving later. It could have been much worse, and was, for others. The man’s wife still refused to leave then because she was worried about what would become of the cats if they were not allowed to return. We have to wonder, why couldn’t they take the cats with them, hissy fit and all?

Partly in response to the reporter’s accounting of his and his wife’s reasons for staying put despite mandatory evacuation orders, the wife of a New Jersey first responder posted an open letter on her Facebook page addressed to the “jackasses” who deliberately chose to ignore evacuation orders and then later needed rescuing, needlessly risking the lives of first responders. This woman made a distinction between those who could not help being stranded and thus needing rescue and those who chose to remain in what was clearly predicted to be a dangerous situation.

So just how much action should government take to rescue those who willfully expose themselves to danger? And should there be some enforcement mechanism or penalty for those who violate mandatory evacuation orders in the face of predictable disasters or catastrophes?

In New York, anyone “who knowingly violates any local emergency order of a chief executive … is guilty of a Class B misdemeanor,” which can result in up to three months of jail time, per N.Y. Exec. Law §24(5); N.Y. Penal Law §70.15(2). Pennsylvania and New Jersey do not currently provide criminal sanctions for failure to obey a mandatory evacuation order. In North Carolina, anyone “who willfully ignores a warning regarding personal safety … is civilly liable for the cost of a rescue effort to any governmental agency or nonprofit agency conducting a rescue on the endangered person’s behalf,” per N.C. Gen. Stat. §166A-19.62. In addition to statutory provisions, those needing rescue may be civilly liable if their rescuers come to harm in the course of the rescue attempt and, concomitantly, may not sue for harm to themselves caused by rescuers as they have assumed the risk of any harm that occurred.

We think that government exists to provide services that individuals and private entities cannot or will not provide. In exchange for certain services, especially essential ones such as emergency and rescue services, we pay taxes and give up a certain amount of freedom for the greater good. We are a nation of laws, and that means that laws, once properly enacted, apply to all of us. While we could have a side conversation about compliance and selective enforcement of laws, we should all be able to agree that laws addressing emergency situations should be obeyed because they are intended to protect the public at large, to ensure that rescue services are properly funded and to protect first responders and emergency personnel from unnecessary harm and from liability if something goes wrong in the course of providing services.

Without this balancing of needs — to help those in danger, to pay for emergency services and to protect emergency personnel so that they can do their jobs effectively — we are left to our own individual resources when a disaster like Superstorm Sandy blows through our lives. In return for having these protections available when needed, we, as members of the public, need to uphold our part of this pact. That means we need to effectively fund emergency response systems and to heed mandatory evacuation orders if at all possible. A cat that throws a hissy fit when caged does not justify ignoring an evacuation order. And we need to hold those who willfully disregard such orders liable for their actions, even if the predicted emergency isn’t as bad as expected.

In a related matter, in Tennessee in October 2010, firefighters refused to put out a house fire because the property owner had not paid an annual $75 fire protection subscription fee. Firefighters stepped in when the fire threatened to spread to a neighboring household that had paid the fee, but allowed the first house to burn down. No lives were lost. The property owner’s son was so angered by the decision to allow the house to burn that he sought out the fire chief and punched him in the face. Although there was no mandatory order in this case, it illustrates what can happen when you opt out of an emergency services system and are left with only your individual resources to rely upon. We do not advocate that rescues should not be mounted as occurred in this case, but we do believe that there should be a meaningful penalty for opting out of a system that aims to protect us all, because such systems work most effectively when everyone commits to them from the beginning, not just after it is needed.

While New York City Mayor Michael Bloomberg told his constituents that no one would be prosecuted for failing to evacuate, when such conduct puts others in danger, including first responders and other members of the public who try to mount rescues, we believe a penalty should be imposed.

Some people have opined that first responders should not have to rescue those who choose to place themselves in danger. We disagree. In the heat of an emergency it can be difficult, if not impossible, to assess who needs rescue because of their poor decision-making and who needs rescue because of factors beyond their control. We should not ask first responders to make these assessments and make rescue contingent on whether the victims exercised good judgment. How, for instance, does a first responder make that assessment on the fly? Are you going to order first responders to allow someone to die or come to further harm because he or she made some stupid decisions? First responders’ duty is to save people, not judge them. Judgment can come after the emergency is over, in a court of law if need be.

Those who willfully fail to heed an emergency evacuation order — that is, they had the means to leave without harm coming to themselves or others but chose to stay — should do so with a clear understanding that they will be held accountable for that choice. We propose a two-tiered system: a nominal fine for those who choose to remain in the path of danger and a fine to cover the cost of services for those who then need to be rescued. Mandatory evacuation orders should carry weight, and one effective way to emphasize the gravity of the situation is to attach a monetary penalty to failure to heed the order. Such monetary fines would then also help adequately fund these services.

Events like Superstorm Sandy remind us that government plays a vital role in our society. While we can argue about taxes and on the proper allocation of these funds, we must accept that disasters and catastrophes will come, sooner or later, and that means we should all strive to have the resources in place to respond to them, and clear rules and incentives to encourage people to act sensibly to protect themselves and the people who might be called upon to rescue them.

YL EDITORIAL BOARD

Peter C. Buckley, Chairman
Leigh Ann Buziak
Kristine L. Calalang
Shaune Ferrara
Teresa Jurgensen
Michael O’Connor
Amber Racine
Preston Satchell
Royce Smith
Rob Stanko
Marisa Tilghman
Djung Tran
Nakul Warrier
Meredith Wooters


The Editorial Board of Young Lawyer is composed of members of the legal profession. They serve voluntarily and are independent of Young Lawyer. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. Members of the legal community are invited to contribute signed op-ed pieces.