Flood victims arrested in Allenstown

[COG]

Update

From the Monitor
September 12, 2008 - 7:02 am
By MEG HECKMAN
Monitor staff

Evacuation case before high court
Flood makes orders binding, town says

Allenstown officials want the state's high court to reinstate charges against a 60-year-old woman arrested while evacuating her flooded neighborhood last spring.

Evelyn Bernard was charged with disorderly conduct and failing to obey an emergency order after, the police said, she refused to leave her Riverside Park Drive home in April 2007. Bernard hired a lawyer, and a few months later, a judge dismissed the charges.

Yesterday's hearing didn't deal with the facts of the case. Rather, New Hampshire Supreme Court justices will decide when, or if, emergency personnel can forcibly evacuate homes during a flood.

Allenstown, through Assistant Attorney General Nicholas Cort, argued that the fire department had ordered a mandatory evacuation of Riverside Park Drive, giving emergency responders the authority to remove people from their homes.

Bernard's lawyer, Peter Leahy, disagreed, saying the Allenstown police overstepped their authority when they arrested Bernard. The law that town officials used to charge Bernard doesn't mention floods, he said, and a Hooksett District Court judge agreed.

"This is a small slice of a larger issue. It has to do with the rights of individuals," he said. "We jokingly said on the record at the hearing that you have the right to drown in your own home. The judge accepted that."

The charges were dismissed before Bernard's case went to trial. If it ever does, a judge would likely hear two different versions of events.

According to town officials, the afternoon of April 16, 2007, unfolded like this: Just before 3 p.m., Allenstown's fire chief ordered a mandatory evacuation of Riverside Park Drive. Four hours later, a police officer arrived to evacuate people by boat.

The police officer, court papers say, was told that Bernard and her husband, Paul, were refusing to leave their home. The officer drove a boat into the neighborhood, where according to court papers, he saw the Bernards pulling out of their driveway in their pickup truck.

The officer stopped the couple and told them they had to leave by boat because the road was closed, court papers said. Before she was arrested, Evelyn Bernard became "confrontational" and refused to leave, the files said.

Bernard tells a different story. She's lived in the low-lying neighborhood most of her life, and she and her husband knew it was time to leave. They loaded themselves and their dog into their Jeep and headed out of their driveway.

"We even got the thumbs up from a fire man that was standing across the street," she wrote in an e-mail earlier this week. "Three of our neighbors left right before us."

The Bernards tried to follow their neighbors, she wrote, but the police stopped them and told them they had to leave by boat. Bernard asked about her dog but said the police officer ignored her and ordered her into the boat. When she asked about the dog again, Bernard said, she was handcuffed and put into the boat without a life jacket.

"I didn't come back into the area," she said. "I didn't come back into my home. . . . The only thing that I did was try to leave my home, with my husband and my dog."

Yesterday, justices asked both attorneys questions about the nature of emergencies and pondered the different roles of firefighters and police officers during a disaster. Cort, the attorney arguing on behalf of Allenstown, said that floods are, in fact, disasters and that firefighters need the authority to move people out of harm's way.

"Police are primarily concerned with fighting crime," he said. "Firefighters are primarily concerned with fighting fires and other natural disasters."

If the justices agree with Cort's point of view, Bernard will face a trial in Hooksett District Court. If not, the charges will be permanently dropped. Either way, Leahy said, evacuation procedures are likely to remain a subject of debate.

"This is an area that, frankly, when I took this case I thought would be very well-developed," he said. "It's not."

Link to original article:
http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20080912/FRONTPAGE/809120302&template=single

Chris