In April 2007, flooding in Allenstown was so severe that the fire chief declared a state of emergency in portions of the town. The chief instructed his officers to enforce a mandatory evacuation of the area. Mrs. Bernard refused to leave by boat as ordered by fire officers. When told that she would be arrested if she continued to refuse, she told them to arrest her.
The State filed a complaint, pursuant to RSA 154:9, alleging that Mrs. Bernard failed to obey a fire officer’s command at the scene of an emergency. That statute provides: “If any person present at a fire, emergency or service call … shall refuse or neglect to obey the commands of … any member of the fire department, …such person shall be guilty of a violation.”
The authority for fire department personnel to order evacuation is found at RSA 154:7, II(b): “While any duly constituted fire department recognized by the state fire marshal is responding to or operating at a fire, service call or other emergency, the officer in charge shall have the following authority: … (b) [t]o order any persons to leave any building or place in the vicinity of such scene for the purpose of protecting such persons from injury or remove persons interfering with duties.” (emphasis added.)
Mrs. Bernard challenged the complaint by arguing that a flood is not an emergency under the statute and therefore she was not guilty of a violation. The trial court agreed and dismissed the complaint. The State appealed to the Supreme Court.
The Court agreed with the State that a flood is an emergency by pointing out that the legislature defines “other emergency” to include “any other real emergency which does not directly involve the extinguishment of an actual fire.” RSA 154:7, I (c). (emphasis added.) The Court held that the plain meaning of the phrase “other emergency” includes floods.
Mrs. Bernard pointed out that a police officer may not lawfully order a person to leave his or her own home during a flood, and asked the Court to read the same language into RSA Chapter 154. The Court refused, pointing out that RSA 154:7, II(b) specifically grants authority to a fire officer “[t]o order any person to leave any building or place.” (emphasis added.) The Court observed, “[h]ad the legislature intended to limit the authority of fire departments as it did with peace officers in RSA 644:2 [disorderly conduct], it could have done so.”