Fifth Circuit: Hurricane Trumps a Never-charged Arrestee’s Fourteenth Amendment Claim

Above: James Terry tells his story

The criminal justice system in New Orleans had long been a rickety, unwieldy, cobbled-together thing. Under the weight of Hurricane Katrina, it totally collapsed. As two New Orleans lawyers recalled a year later:

In the fall of 2005, we had no operational state Supreme Court, three of five courts of appeal were closed, and every district and municipal court in more than six parishes was closed for business. The federal Fifth Circuit temporarily operated out of Houston, Texas, and all divisions of the Eastern District of Louisiana were occasionally borrowing courtrooms in Baton Rouge.

Approximately 8,500 incarcerated prisoners and pre-trial detainees were being held in prisons and jails throughout Louisiana. They were cut off from all contact with their lawyers, and frankly almost unidentified in terms of why they were in jail and when they should be released.

In the midst of this chaos, Army veteran James Allen Terry, Jr., was arrested on September 14, 2005, for looting — in his own home!, and detained at the Elayn Hunt Correctional Center in St. Gabriel, a maximum-security state prison. In a makeshift bail hearing at the prison, his bond was set at $200,000; a scheduled hearing to show cause for his arrest simply never occurred. Thereafter, Terry sat in prison for seven months, during which time no indictment was filed, and his repeated letters to the warden went unanswered, as did repeated letters from his mother. He was never afforded access to a lawyer. Finally Terry got in touch with the ACLU National Prison Project, which intervened on his behalf. He was finally released on April 4, 2006, pursuant to a court order dropping all charges.

With the help of the ACLU of Louisiana, Terry filed a Section 1983 lawsuit against the warden, alleging violations of his First and Fourteenth Amendment rights of access to the courts and due process. Last month the Fifth Circuit held that Terry was not deprived of any First Amendment rights, and that as to the Fourteenth Amendment claim, the prison warden is entitled to qualified immunity. The court’s reasoning? Well, there was a hurricane, so who could be expected to know the law? Key excerpts:

Although [Terry] was not timely released pursuant to the normal operation of state law … the custody of those charged with crimes was hardly “normal” in the hurricane’s devastating aftermath. … [T]his court can take judicial notice of the damages to facilities, personnel shortages, and lack of coordination plaguing the provision of all public services in the area well into 2006. …

[T]his court has never considered, in such a situation, the duty of a prison warden forced to house pretrial detainees within a legal system thrown into disarray by natural disaster. We cannot ignore the implication favoring immunity in the context in which the normal operating rules must yield, because of necessity, to improvisation.

In light of the state of the law and the surrounding circumstances at the time of Terry’s incarceration, a due process violation would not have been sufficiently clear to a reasonable public officer, and thus the Warden is entitled to qualified immunity.

Full docket info: Terry v. Hubert, 5th Circuit, No. 09-30559, June 21, 2010.

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