California Penal Code § 409.5 PC – Unauthorized Entry into a Closed Emergency Area

Penal Code § 409.5 PC makes it illegal to enter an emergency area without permission. An “emergency area” is a location closed by law enforcement due to a disaster such as a storm, fire, earthquake, or accident. Violating this section is a misdemeanor punishable by up to 6 months in jail and a fine of up to $1,000.

Examples

• walking into an area secured off by emergency personnel after a storm without authority.
• unlawfully crossing a police department’s yellow tape following an accident.
• entering an area marked off by the fire department after a wildfire without permission.

The language of the code section states that:

(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.

(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.

Our California criminal defense attorneys will explain the following in this article:

• 1. What does PC 409.5 prohibit?
• 2. Are there legal defenses?
  • 2.1. No willful act
  • 2.2. Member of the press
  • 2.3. Exited the emergency area
• 3. What are the penalties?
• 4. Are there related offenses?

1. What does PC 409.5 prohibit?

A prosecutor has to prove the following elements of the crime to convict a defendant under this statute successfully:

1. an event such as a flood, storm, fire, earthquake, explosion, accident, or other disaster created a menace to public health or public safety,
2. a law enforcement officer or similar public official closed the area of the menace to unauthorized persons by means of ropes, markers, guards, or the creation of a command post,
3. the defendant willfully and knowingly entered the closed area/secured disaster area, and
4. the defendant willfully remained in the area after being told to leave.¹

For purposes of this statute, a “similar public official” includes:

• peace officers,
• officers of the Department of the California Highway Patrol,
• employees of the Department of Forestry and Fire Protection,
• officers of the marshal’s office or sheriff’s office,
• first responders,
• marine safety officers, and
• any officer or employee of the California Department of Fish and Game.²

Under California law, people act “willfully” when they act willingly or on purpose.³

Further, the term “knowingly” means that people knew that an area was closed to unauthorized persons due to an emergency and entered the area anyway.

Note that the language of PC 409.5 specifically provides an exemption where certain people are not guilty of this crime. PC 409.5d states:

“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.”

2. Are there legal defenses?

People accused of violating this statute can challenge the accusation with a legal defense. Three common defenses include accused persons showing that they:

1. did not act willfully or knowingly.
2. were exempt under the law as a member of the press.
3. left the emergency area after being told to leave.

2.1. No willful act

Recall that people are only guilty under this code section if they willfully and knowingly entered a closed emergency area. Therefore, it is always a defense for defendants to show that they did not enter a secured area on purpose. Perhaps, for example, they did not know that an area was closed off to the public or entered an area on accident.

2.2. Member of the press

The language of PC 409.5 specifically exempts certain members of the press and media from being prosecuted for this crime. A defense, then, is for an accused to show that he/she was acting as a member of the media at the time of the so-called “offense.”

2.3. Exited the emergency area

People are not guilty under this law if they entered a closed emergency area but then left the area after officials told them to do so. This means it is a defense for defendants to show that they exited an emergency after being asked or told to do so.

3. What are the penalties?

A violation of this code section is a misdemeanor offense.⁴

The crime is punishable by:

• custody in county jail (as opposed to state prison) for up to six months, and/or
• a maximum fine of $1,000.⁵

Note that a judge can award a defendant with misdemeanor (or summary) probation in lieu of jail time.

4. Are there related offenses?

Three other crimes often get charged in connection with Penal Code 409.5. These are:

1. sightseeing at the scene of an emergency – PC 402a,
2. trespassing – PC 602, and/or
3. resisting arrest – PC 148.

Sightseeing at the scene of an emergency – PC 402a

Under Penal Code 402a PC, sightseeing at the scene of an emergency is the crime where people:

1. linger at the scene of an emergency, and
2. do so in such a way that it hinders police and first responders from performing their functions.

As with PC 409.5, this statute exempts certain members of the media from committing a crime.

Trespassing – PC 602

Under Penal Code 602 PC, trespassing is the offense where people enter or remain on someone else’s property without permission or a right to do so.

Note that, depending on the facts of the case, if the police secure off a closed emergency area on someone’s property, and a person enters the area without authority, then a prosecutor could charge him/her with both:

• the unauthorized entry into an emergency area, and
• trespassing.

Resisting arrest – PC 148

Per Penal Code 148 PC, resisting arrest is the crime where people willfully resist, delay, or obstruct law enforcement officers or emergency medical technicians in the performance of their official duties.

As with crimes under PC 409.5, people must act willfully to be guilty of an offense under this statute. For example, a person does not resist arrest if he/she obstructs law enforcement officials by accident.

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