Under California Penal Code section 409.5 PC, you commit the California crime of unauthorized entry into an emergency area if you enter and remain in an area that law enforcement officers have closed because of a disaster such as a
- earthquake, or
Like Penal Code 402 PC sightseeing at an emergency,2 this law—set forth in Penal Code 409.5 PC—exists to help ensure that emergency personnel can do their jobs without interference.
But this law is also ripe for abuse. Like Penal Code 409 PC failure to disperse, the crime of unauthorized entry into an emergency area is often charged against people who “ticked off” a law enforcement officer at a tense time—including people who themselves were the victims of police misconduct.
Penal Code 409.5: the legal definition of unauthorized entry into an emergency area
The legal definition of unauthorized entry into a closed emergency area consists of the following “elements of the crime”:
- An event such as a flood, storm, fire, earthquake, explosion, accident, or other disaster created a menace to public health or safety;
- A law enforcement officer, California Highway Patrol officer, or similar public official closed the area of the menace to unauthorized persons by means of ropes, markers or guards, OR a law enforcement officer closed the area around a command post created for the purpose of abating the emergency (which does not need to be near the actual emergency);
- You willfully and knowingly entered one of these closed areas; and
- You willfully remained in the area after being told to leave.3
Example: A severe wind- and rainstorm causes heavy damage to the town where Marco lives. Police close the downtown commercial area, where power lines have been downed and most buildings have been severely damaged.
But Marco owns a sporting goods store downtown, and he doesn't trust the police to prevent looting at his business. So at night he sneaks into the closed area with his own gun and stays at his store to protect it. As Marco expected, no police are around.
Marco willfully and knowingly entered a closed disaster area. But he did not remain in the area after being told to leave—no one told him to leave—so he is not guilty of entering a closed emergency area without authorization.
You act “willfully” when you act willingly or on purpose. You don't need to have intended to harm anyone, break the law or acquire any advantage.4
And “knowingly” means that you knew the area was closed to unauthorized persons due to an emergency. It does not mean that you knew that entering it anyway was a crime.5
Example: A gas main explodes near Scott's house, destroying several houses and injuring a few people. The police rope off the street where the explosion occurred.
Scott is currently taking a photography class and thinks it would be great to get some photos of the explosion scene. So he ducks under the police tape and walks toward the buildings destroyed by the explosion.
A firefighter tells him he needs to leave the scene immediately, but he keeps going. His presence doesn't prevent any emergency personnel from doing their jobs.
Scott is guilty of unauthorized entry at the scene of an emergency—even though he didn't intend or cause any harm.
Example: A serious earthquake strikes the city where Ellen lives. Ellen is struck on her the head by a picture frame that falls from her wall and loses consciousness.
Several hours later Ellen regains consciousness, but she is dazed and cannot remember what happened. She wanders outside and quickly reaches an area where rescue teams have set up a closed area to deal with some severely damaged houses and a few fires.
Ellen ignores the police tape and walks into the area, still in a daze. She also ignores an emergency rescue worker who tells her she needs to leave the area.
Because of Ellen's head injury, she was not acting willfully or knowingly, and so she is not guilty of PC 409.5 unauthorized entry into a closed emergency area.
Entering a closed emergency area without authorization in violation of California Penal Code 409.5 is a misdemeanor in California law.5
The potential penalties are:
- Misdemeanor (summary) probation;
- Up to six (6) months in county jail; and/or
- A fine of up to one thousand dollars ($1,000).7
One common legal defense to California Penal Code 409.5 charges is that you did not act willfully and knowingly. For example, you may not have realized the area was closed, or you may not have heard a person telling you to leave.
Also, there is an exception to California's law against entering a closed disaster area without authorization for members of the press. Authorized representatives of news services, newspapers or radio or television stations or networks may enter closed emergency areas without violating this law.8
According to Sacramento criminal defense attorney Neil Shouse:9
“It's not clear whether the members-of-the-press exception to Penal Code 409.5(c) applies to bloggers and internet news journalists, since the law was written with ‘old media' like newspapers and TV in mind. Nonetheless, if you were in an emergency area to gather information or photographs for any recognized news outlet, including internet-only outlets, there may be an argument that you should not be convicted of unauthorized entry into a closed emergency area.”
Call us for help…
For questions about the crime of Penal Code 409.5 PC unauthorized entry into a closed emergency area, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1 Penal Code 409.5 PC – Authority of peace officers, lifeguard or marine safety officer to close disaster area; exclusion from police command post area; unauthorized entry; exception. (“(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, marshal's office or sheriff's office, any officer or employee of the Department of Forestry and Fire Protection designated a peace officer by subdivision (g) of Section 830.2, any officer or employee of the Department of Parks and Recreation designated a peace officer by subdivision(f) of Section 830.2, any officer or employee of the Department of Fish and Game designated a peace officer under subdivision (e) of Section 830.2, and any publicly employed full-time lifeguard or publicly employed full-time marine safety officer while acting in a supervisory position in the performance of his or her official duties, may close the area where the menace exists for the duration thereof by means of ropes, markers, or guards to any and all persons not authorized by the lifeguard or officer to enter or remain within the enclosed area. If the calamity creates an immediate menace to the public health, the local health officer may close the area where the menace exists pursuant to the conditions set forth in this section. (b) Officers of the Department of the California Highway Patrol, police departments, marshal's office or sheriff's office, officers of the Department of Fish and Game designated as peace officers by subdivision (e) of Section 830.2, or officers of the Department of Forestry and Fire Protection designated as peace officers by subdivision (g) of Section 830.2 may close the immediate area surrounding any emergency field command post or any other command post activated for the purpose of abating any calamity enumerated in this section or any riot or other civil disturbance to any and all unauthorized persons pursuant to the conditions set forth in this section whether or not the field command post or other command post is located near to the actual calamity or riot or other civil disturbance. (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.”)
2 Penal Code 402 PC – Interference with personnel at scene of emergency; interference with lifeguard [related offense to unauthorized entry into a closed emergency area].
3 Penal Code 409.5 PC – Authority of peace officers, lifeguard or marine safety officer to close disaster area; exclusion from police command post area; unauthorized entry; exception, endnote 1 above.
4 Penal Code 7 PC – Words and phrases. (“The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: 1. The word “willfully,” when applied to the intent with which an act is done or omitted [as it is used in Penal Code 409.5(c) PC], implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”)
5 Penal Code 7 PC – Words and phrases. (“5. The word “knowingly” [as used in California's law against unauthorized entry into an emergency area] imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such act or omission.”)
6 Penal Code 409.5 PC – Authority of peace officers, lifeguard or marine safety officer to close disaster area; exclusion from police command post area; unauthorized entry; exception, endnote 1 above.
7 Penal Code 19 PC – Punishment for misdemeanors. (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor [including unauthorized entry into a closed emergency area] is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)
8 Penal Code 409.5 PC – Authority of peace officers, lifeguard or marine safety officer to close disaster area; exclusion from police command post area; unauthorized entry; exception. (“(d) Nothing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section.”)
9 Sacramento criminal defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on complex, high profile gang, murder, and firearms cases. Now, Shouse has turned the inside knowledge he gained as a prosecutor into extraordinary expertise in criminal defense law.