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Fifth Circuit Reverses $659,300 Katrina-Related Jury Award

by Matt Clarke

In March 2012, the Fifth Circuit Court of Appeals reversed a $659,300 jury award in favor of two men who were arrested for public intoxication in New Orleans two days before Hurricane Katrina struck, and were then incarcerated for a month – sometimes under deplorable living conditions.

Robie J. Waganfeald and Paul W. Kunkel, Jr. were driving from Houston to Toledo when they stopped in New Orleans on August 26, 2005. They visited the French Quarter for about four hours and were arrested for public intoxication. Both men claimed they were not drunk, but that Kunkel fell down when his bad knee gave way as he stepped off a curb and Waganfeald was trying to help him regain his footing. Regardless of their guilt or innocence, what ensued was a nightmare by any standards.

The men were taken to the Orleans Parish Prison (OPP) where they were stripped of their wallets and cellphones, booked and given access to the jail’s landline phones. The problem was that Hurricane Katrina was about two days from making landfall. This pending disaster resulted in so many people using their phones that the circuits overloaded, and the phones in OPP and other parts of New Orleans stopped working.

Chief Deputy Sheriff William C. Hunter contacted OPP’s telephone supervisor but was informed that the problem with the phones was external to OPP and nothing could be done within the jail to fix it. Therefore, Waganfeald and Kunkel were unable to contact an attorney or arrange for a preset $300 bond to be posted.

Orleans Parish Sheriff Marlin N. Gusman had prepared for a possible hurricane emergency by stockpiling food and water on the first floor of OPP and ordering jail staff to evacuate vertically to higher floors in the event of flooding. OPP initially withstood the hurricane, but the facility flooded after the levees were breached. Although prisoners were evacuated to higher floors, the stockpiles of food and water were contaminated and the jail’s emergency generator stopped working.

Waganfeald and Kunkel, along with thousands of other prisoners, had to endure three days at OPP in sweltering heat with no air circulation, no functioning toilet, no food and no potable water. [See: PLN, April 2007, p.1].

The OPP prisoners were evacuated on August 31, 2005, but this did not end their suffering. They were taken to an unflooded freeway overpass where they were held without adequate food, water or sanitary facilities. Finally, they were bused to other parish jails or state prisons where conditions were still terrible but food, water, sanitation and medical facilities were available. Both Waganfeald and Kunkel remained imprisoned for another month before they were released in October 2005. Many other prisoners were held beyond their release dates due to Katrina and the storm’s aftermath. [See: PLN, May 2007, p.18].

Kunkel and Waganfeald filed a civil rights suit under 42 U.S.C. § 1983, which included a pendent state claim for false imprisonment. The jury found that Gusman had falsely imprisoned the pair by holding them more than 48 hours without bringing them before a magistrate in violation of Louisiana law, and that Hunter had violated their right to counsel by not providing them with a working phone to contact an attorney. The jury awarded a total of $659,300 – $300,000 to Waganfeald and $359,300 to Kunkel. The defendants appealed.

On March 12, 2012, the Fifth Circuit held there was an emergency exception to the 48-hour rule, and that Katrina was just such an emergency. “The undisputed evidence in this case compels the conclusion that Hurricane Katrina was a bona fide emergency within the meaning of the emergency exception to the 48-hour rule,” the Court of Appeals wrote. “Indeed, if Katrina was not an emergency, it is difficult to imagine any set of facts that would fit that description.”

The appellate court also found that Hunter had attempted to give Waganfeald and Kunkel access to phones, was not required to provide them with cell phones when the OPP landlines stopped working, and opined that they probably couldn’t have obtained help from a lawyer just before the hurricane struck anyway. Further, Hunter was entitled to qualified immunity.

Thus, although the Fifth Circuit acknowledged the two men had “suffered terribly,” the jury verdict and $659,300 award were vacated and the case remanded with instructions to enter judgment in favor of Gusman and Hunter. See: Waganfeald v. Gusman, 674 F.3d 475 (5th Cir. 2012), cert. denied.

Previously, in June 2010, the Fifth Circuit had held that emergency conditions at a Louisiana prison following Hurricane Katrina helped excuse the failure of a warden to release a prisoner for three months after the deadline for filing an indictment against him had passed. [See: PLN, Nov. 2010, p.44].

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Related legal case

Waganfeald v. Gusman