The water level behind Oroville Dam, CA, recently went way up due to heavy rain, and the rarely used "emergency spillway" was used for the first time in the dam's 50+ year life. It sustained significant damage and authorities tweeted out, “Auxiliary spillway at Oroville Dam predicted to fail within the next hour. Oroville residents evacuate northward.” Officials' fear of a catastrophic flood prompted the evacuation of hundreds of thousands of people. Washington Post coverage concluded with a note that "Inmates at the Butte County Jail also had been moved to Alameda County, about 170 miles away." As of this writing, no such flood occurred, but for the sake of this question suppose one had, before the inmates were evacuated. Suppose that the guards saw (or were taken out by) some imminent danger and are out of the picture, though the inmates don't necessarily know why - they just notice water coming in and rising inside, relatively quickly. They don't know how high it will go; maybe nobody does. What rights do they have?

If they try to escape, is that a crime (e.g. attempted/actual Escape) they'll be prosecuted for later? If they succeeded, but were traumatized by it being an extremely dangerous situation and no longer trust the state to take care of them and provide the protection from those kinds of dangers that they thought was part of their duty, are they still practically required to go back into that situation, with the State getting a free pass? If they get out, for how long can they remain free (and if the jail is severely damaged, to where would they be required to go?)

At 20:14 in this Radiolab segment, an inmate who was first released due to prison overcrowding is described as having been "lost" during Hurricane Katrina, and the attorney general's office has no idea where that person is, end of story (?). There may be other, more direct answers based on actual situations of what happened after Katrina, or in some fires, etc.; it seems likely this sort of thing has actually happened when jailers faced a disaster without having or using sufficient advance notice.

The question is focused on California, but answers/examples from other jurisdictions might be interesting too.

  • 2
    "I don't trust the prison system" is thoroughly true for many people both inside and outside it right now. It's also irrelevant to whether those people are subject to imprisonment by law.
    – user4657
    Commented Feb 14, 2017 at 3:39
  • Inmates do have rights, of course, but as prisoners, they are wards of the state, so the state has the responsibility for their safety and to reincarcerate them if they "escape" or save themselves during a disaster such as a flood. Commented Feb 14, 2017 at 4:19
  • A basic rule of thumb in such a situation would be what happens after the prisoner escapes/becomes lost; if they submit themselves to the nearest law officer available there could be grounds to consider the situation unintentional/self-preservation; if they do not do it then it is the same as a regular escape.
    – SJuan76
    Commented Feb 14, 2017 at 9:29

2 Answers 2


It is a felony to escape from a jail; see California Penal Code section 4532. (Escapes from a prison are covered in section 4530).

However, California law recognizes a necessity defense when a crime is committed in order to avoid "significant bodily harm". (See the link for other important elements of the defense.) This defense would probably only be viable if after escaping, the inmate turned himself in as promptly as he reasonably could, once clear of the immediate danger of harm. He could go to any police station or law enforcement office; or he could call any police agency, explain the situation, and wait for them to come and arrest him. He would then presumably be taken to a different jail.

If the inmate thinks the jail is unsafe, he can sue the state in either state or federal court (the latter as a civil rights case). It's unlikely that a court would order his release on this basis; more likely, they would order the state to improve conditions in some specific way, and they might award monetary damages to the inmate if he is injured.

He also would probably not be able to stay out of jail during the suit. If the state arrests him, they'll put him in jail unless a court orders his release (or he's granted bail, or his case is otherwise resolved). If he hides to avoid arrest, then he's a fugitive. I seem to recall there's a general principle that fugitives don't have access to the courts.


The question of whether it would be a crime to escape in that situation boils down to the "necessity" or "choice of evils" justification which applies only in extreme circumstances but might apply here.

As others have noted, that defense would apply only so long as it is actually necessary to escape to stay alive, after which someone would have to surrender to the first available authority. But, even if someone was technically guilty of "escape" the circumstances would no doubt influence how prosecutorial discretion was exercised and would likely result in a shorter sentence for escape to the extent that there was a conviction for that offense and the judge had discretion to impose a mild sentence or a sentence concurrent with out sentences that the inmate is serving at the time.

If a result of the disaster the state had more inmates than it had a capacity to house in other facilities or by relocating inmates to facilities in other states under a contract arrangement and the state could not secure a legal waiver of the limits on how many inmates it could house at a particular authority, it might have to release inmates (systemwide) of its choice until it had enough room to house the remaining inmates. Usually, in a situation like that, the state tries to release inmates who are fairly close to their release date and have good disciplinary records while incarcerated.

Also, the prison operators have a legal duty to protect inmates that arises under the 8th Amendment as incorporated against the states thorough the 14th Amendment and usually enforced in a lawsuit for money damages or injunctive relief or both brought under Section 1983.

A case discussing the duty in the context of medical care (which applies equally in the case of a natural disaster) says this:

The Eighth Amendment imposes a duty on municipal actors to “provide humane conditions of confinement.” Makdessi v. Fields, 789 F.3d 126, 132 (4th Cir. 2015). In order to state a § 1983 claim under the Eighth Amendment for inadequate medical care when in confinement, a plaintiff must allege that municipal actors were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). “[T]here is a subjective and an objective component to showing a violation of the right. The plaintiff must demonstrate that the officers acted with ‘deliberate indifference’ (subjective) to the inmate’s ‘serious medical needs’ (objective).” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (quoting Estelle, 429 U.S. at 104).

According to the Supreme Court, the deliberate indifference standard lies “somewhere between the poles of negligence at one end and purpose or knowledge at the other” and equates to recklessness. Farmer v. Brennan, 511 U.S. 825, 835–36 (1994). Allegations that a municipal actor knew of and disregarded a substantial risk of harm are sufficient to state a claim for relief. See id. (“It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.”); Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004).

A more generous standard of liability for the prison operators (if I recall correctly, "negligence" rather than "deliberate indifference") applies in cases where the inmate is detained prior to conviction while awaiting trial, or for a purpose other than a criminal conviction (e.g. due to a mental health hold, protective custody, awaiting deportation where criminal immigration violations are not alleged, or curfew violations).

The standards for holding the governmental entity itself liable is different than the standard for holding the individuals operating the prison liable (and additional 11th Amendment issues of substance and forum come into play that require suit to be brought in state rather than federal court on such a claim when the governmental entity owning the facility is a state government) (per the same case linked above):

In order to state a § 1983 claim under the Eighth Amendment for inadequate medical care, a plaintiff must allege that a municipal actor was deliberately indifferent to his serious medical needs. See Estelle, 429 U.S. at 104. A municipality, however, may not be found liable under § 1983 “based on a theory of respondeat superior or simply for employing a tortfeasor.” Hill v. Robeson Cnty., N.C., 733 F. Supp. 2d 676, 683 (E.D.N.C. 2010); see also Riddick v. Sch. Bd. of Portsmouth, 238 F.3d 518, 522 (4th Cir. 2000). Rather, to state a § 1983 cause of action against a municipality, a plaintiff must plead “(1) the existence of an official policy or custom; (2) that the policy or custom is fairly attributable to the municipality; and (3) that the policy or custom proximately caused the deprivation of a constitutional right.” Pettiford v. City of Greensboro, 556 F. Supp. 2d 512, 530 (M.D.N.C. 2008) (citing Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994)); see also Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (holding that a plaintiff must allege that a constitutional violation was caused by a municipality’s “official policy or custom”).

The prison operators could also be subject to federal criminal charges for violating the civil rights of the inmates for abandoning them in a natural disaster, and quite possibly also various states charges related to official misconduct.

  • Did I read that right: The threshold of liability is higher for detainees than it is for convicts? I.e., before you have been convicted of a crime your jailers can exercise deliberate indifference to your needs (so long as they aren't negligent), but once you have been sentenced to imprisonment pursuant to criminal guilt your jailers cannot be so "reckless?"
    – feetwet
    Commented Feb 15, 2017 at 23:38
  • Thanks for answering. Regarding that defense would apply only so long as it is actually necessary to escape to stay alive, how high might the water have to rise before it might be reasonable for the inmate to start an attempt, recognizing that waiting too long might be deadly (but on the other hand, maybe the water won't get all the way up, and they'd be liable for attempted escape when the attempt later proved unnecessary)?
    – WBT
    Commented Feb 16, 2017 at 2:34
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    @feetwet I read that as, If you've been convicted, you have to prove deliberate indifference in order to win a suit; if you haven't, you only have to prove negligence, and it's easier to prove negligence than it is to prove deliberate indifference.
    – WBT
    Commented Feb 16, 2017 at 2:36
  • @WBT Re "How High" that would be up to a jury. Re response to feetwet, Just so. You are correct.
    – ohwilleke
    Commented Feb 16, 2017 at 2:40

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