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Fifth Circuit Tosses Jury Award for Tourists Jailed During Katrina

By Robyn Hagan Cain on March 13, 2012 | Last updated on March 21, 2019

It was bad to be one of the tourists stuck in New Orleans when Hurricane Katrina struck in 2005. It was even worse to be one of the tourists stuck in a New Orleans jail during the storm.

Robie Waganfeald and Paul Kunkel Jr., two Ohio tourists, were arrested for public drunkenness in New Orleans two days before Hurricane Katrina hit the Crescent City. They remained in jail for a month after the storm -- well beyond the 48-hour holding period limit.

Waganfeald and Kunkel sued Orleans Parish Sheriff Marlin Gusman for false imprisonment, and a jury awarded them over $650,000 in damages. Monday, the Fifth Circuit Court of Appeals tossed that award, finding that the storm emergency trumped the 48-hour rule, reports The Associated Press.

The pair claims they were locked up without food, water or working toilets as their cells filled with more than two feet of flood water when the storm his New Orleans. Kunkel claims he resorted to drinking polluted flood water after three days without water, according to the AP.

While the Fifth Circuit sympathized with the two men, agreeing that they "suffered terribly," it concluded that the emergency exception precluded recovery for false imprisonment. Judge Jacques Wiener wrote, "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. Indeed, if Katrina was not an emergency, it is difficult to imagine any set of facts that would fit that description."

Certainly, the courts must make exceptions to the 48-hour rule for emergencies, but the Fifth Circuit's conclusion in this case is absurd. Waganfeald and Kunkel were stuck in jail because they couldn't post the $300 bond to get out. They couldn't post the bond because the jail's phones were not working, and the jail wouldn't let them use their cellphones to make calls. (Sidebar: Those of us who were in Louisiana and Mississippi during the storm know that cell phones -- while spotty -- are far more reliable than landlines during a hurricane.)

Waganfeald and Kunkel claimed that William Hunter, an Orleans Parish deputy who is a defendant in the case, acted in an "objectively unreasonable manner" by refusing to permit them to use cellphones to make calls when the jail phones failed. The Fifth Circuit Court of Appeals disagreed, ruling, "Hunter faced the security risks that would generally follow from allowing prisoners to use cell phones, which were exacerbated by the emergency conditions that were present during the approach, landfall and aftermath of Katrina."

What do you think? Should the plaintiffs appeal? Spending a month behind bars for public drunkenness because a jailhouse phone doesn't work seems ridiculous, and worthy of a $650,000 jury award.

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