After the Storm

Hurricane Katrina and the failure of public policy.

Jacob Sullum, Jesse Walker, Ronald Bailey, Kerry Howley, Jeff Taylor & David B. Kopel from the December 2005 issue

(Page 3 of 6)

The aftermath of the hurricane featured prominent stories of citizens defending lives and property. Most of New Orleans lies on the north side of the Mississippi River, while the neighborhood of Algiers is on the south. The Times-Picayune detailed how dozens of neighbors in one part of Algiers had formed a militia. After a carjacking and an attack on a home by looters, the neighborhood recognized the need for a common defense; residents shared firearms, took turns on patrol, and guarded the elderly. Although the initial looting had resulted in a gun battle, once the patrols began the militia never had to fire a shot. Likewise, the Garden District of New Orleans, one of the city's top tourist attractions, was protected by armed residents.

The good gun-owning citizens of New Orleans and the surrounding areas should have been thanked for helping to save some of their city after Mayor Nagin, incoherent and weeping, had fled. Yet instead these citizens were victimized by a new round of home invasions and looting, these government-organized, for the purpose of firearms confiscation.

The mayor and Gov. Kathleen Blanco do have the legal authority to mandate evacuation, but failure to comply is a misdemeanor; so the authority to use force to compel evacuation goes no further than the power to effect a misdemeanor arrest. The pre-emptive confiscation of every private firearm in the city far exceeded any reasonable attempt to carry out misdemeanor arrests for persons who disobey orders to leave.

Louisiana statutory law does allow some restrictions on firearms during extraordinary conditions. One statute says that after the governor proclaims a state of emergency (as Blanco did), "the chief law enforcement officer of the political subdivision affected by the proclamation may...promulgate orders...regulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition." But the statute does not, and could not, supersede the Louisiana Constitution, which declares that "the right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person."

The power of "regulating and controlling" is not the same as the power of "prohibiting and controlling." The emergency statute actually draws this distinction in its language, which refers to "prohibiting" price gouging, sale of alcohol, and curfew violations but only to "regulating and controlling" firearms. Accordingly, the police superintendent's order "prohibiting" firearms possession was beyond his lawful authority. It was an illegal order.

A week after the confiscations began, the National Rifle Association (NRA) and the Second Amendment Foundation (SAF) filed a joint lawsuit in federal court. The parties were represented by Stephen Halbrook, one of the nation's leading Second Amendment attorneys. (Documents from the suit can be found at stephenhalbrook.com.)

Attorneys for Orleans Parish (New Orleans) and St. Tammany Parish (which also confiscated guns) capitulated, under the judge's threat that he would issue a preliminary injunction against them. The parishes and the plaintiffs signed a consent decree in which the parishes asserted (implausibly) that there was never an official government policy of confiscating guns, and also admitted that they had no authorization to confiscate guns pursuant to Louisiana's emergency powers statute. The parties agreed to accept that the court's injunction forbids them from confiscating guns, and orders them to return all guns which have been confiscated.

There will doubtless be many lawsuits that will seek to discover precisely which uniformed looters were responsible for the theft of which guns. (Like the other looters, the uniformed thieves did not give their victims receipts. ) And all over the country next year, there will be bills introduced in state legislatures to make sure that emergency powers cannot be abused to confiscate guns when good people need them most.

After Katrina struck, we saw an awful truth in New Orleans: There is no shortage of police officers and National Guardsmen who will illegally threaten peaceful citizens at gunpoint and confiscate their firearms. We also saw some noble truths: that citizens with firearms will defend law and order even when the government fails. And that our federal courts, as well as civil rights organizations such as NRA and SAF, continue to play an important role in defending constitutional rights against the depredations of lawless "law enforcement" officers.

Dave Kopel ([e-mail]) is research director of the Independence Institute.

Escape From FEMAville
Housing evacuees is no job for the feds.
Kerry Howley

Before, during, and after Hurricane Katrina, federal and local authorities proved incapable of reacting to dire predictions of destruction, learning from previous catastrophes, or letting more capable organizations lend a hand. An agency led largely by public relations executives rather than emergency management personnel, the Federal Emergency Management Agency, botched even the one disaster it should have been able to cope with: a P.R. nightmare. On September 4, FEMA Director Michael Brown (who resigned eight days later) said the agency was "pulling out all the stops" for its next task, temporary housing.

Not surprisingly, FEMA caught flak for moving slowly on housing as well. But if the history of centralized refugee housing is any indication, the agency's sloth may help more than it harms. FEMA said shelter would take the form of trailers, military bases, and at least four cruise ships. In interviews with The New York Times, Freedom Tower planner Daniel Libeskind suggested a "low-cost modular shelter" he'd designed, and architect Shigeru Ban pitched temporary housing made of cardboard tubes and plastic beer crates.

This is bad. There are few surer ways to make people sick, hopeless, and helpless than to pack them into camp-like conditions for an indefinite period. Katrina's displaced persons are not technically "refugees" (as the law defines the term), and there's a levee-sized space between any international refugee and a New Orleans native waiting for his home to emerge from five feet of toxic water. But current international practices are a how-to guide for turning temporary refugee situations into interminable hellholes.

"Warehousing" is the risk aid workers run when they throw up ad hoc housing with no clear plan to dismantle it. Merrill Smith, editor of World Refugee Survey, published by the U.S. Committee for Refugees and Immigrants (USCRI), defines it as "the practice of keeping refugees in protracted situations of restricted mobility, enforced idleness, and dependency--their lives on indefinite hold." For refugees in Africa and Asia during the last 20 years, the transition from camp to resettlement has taken longer than at any point in history. To some extent, this is a result of donors' pouring aid into camps rather than integration, keeping refugees contained rather than compensating host countries for absorbing them. Smith describes the change as a shift from "viewing refugees as agents of democracy to seeing them as passive aid recipients."