Orleans Parish Sheriff Marlin Gusman appeared in U.S. District Court today to defend his office against a civil-rights lawsuit by two Ohio men who spent weeks in custody following Hurricane Katrina, despite never being charged with a crime.
The men were passing through New Orleans for a night on a road trip, but they ended up spending almost six weeks in jail.
The men claim they were falsely arrested by New Orleans police for public intoxication in the French Quarter at 5a.m. on Saturday, Aug. 27, 2005, two days before Hurricane Katrina struck.
Teacher Paul Kunkel and volleyball official Robie Waganfeald expected to be booked and released by the Sheriff’s Office, but they were caught in a bureaucratic maelstrom spawned by the storm.
Kunkel was locked in a cell with four other men for three and a half days without food, water or a functioning bathroom from Sunday night, Aug. 28, until Wednesday morning, Aug. 31.
“Eventually, when no guards showed up, we thought they’d left, and we were there and if nothing happened, we were going to die there,” Kunkel said in court today.
There was no air conditioning and no flushing toilet.
“You had five men living in temperatures well over 100 degrees, there was sewage water rising up from the first floor, the toilet was, I couldn’t even describe the smell, it was putrid, horrible,” Kunkel said.
Waganfeald was moved from a first-floor holding cell to a gymnasium on the second floor, with over 100 other prisoners.
“It was pitch dark at night. I’m around 100 people that I don’t know. I didn’t know if I was going to get beat to death,” Waganfeald testified.
Download their original legal complaint here.
On Aug. 30, Kunkel and Waganfeald were taken outside and given a small bottle of water each. They spent a few hours on the Broad Street overpass until they were bused to separate locations.
Kunkel spent five days sleeping under armed guard in the company of thousands of other prisoners in a field at the Hunt Correctional Center in St. Gabriel, he told the jury today, before being shipped to the Louisiana State Penitentiary at Angola. Waganfeald was sent to the Catahoula Correctional Center in Harrisonburg.
Both men were released in early October.
Neither man was ever charged with any crime.
Attorneys for the two men say the sheriff’s office broke with a 1991 Supreme Court case that says probable cause must be shown for an arrest within 48 hours or the defendant must be released.
“I told them look, I’m not a criminal. I’m a teacher. I didn’t do anything,” Kunkel said.
Kunkel described being menaced by an inmate in the cell after asking the inmate for a drop of water from an empty milk carton, which the inmates had been sharing, having collected the last few drops of running water from a faucet before the water stopped flowing.
“He goes, ‘You’ve already had yours. Don’t mess with me or I’ll go Mike Tyson on you,’ ” Kunkel said. “I don’t know if anyone has ever been without water for three days but your mind starts playing tricks on you, and all I could think about was water. I just wanted something to drink. I was praying for water. We thought the guards had abandoned us.”
The men say they were denied a phone call for at least eight days, and that they would easily have been able to post the $300 bail for the alleged offense, if only they had been asked, or if they’d been given the opportunity to consult with an attorney or call their families.
“They told us the phones are down, no one’s getting a phone call. Just keep your mouth quiet and maybe eventually you’ll get a phone call,” Kunkel said.
Gusman was asked today by attorneys for the plaintiffs whether he had personally observed the conditions on the third tier at the jail, where Kunkel was kept.
“I went, I didn’t go up on the tiers, but into the building, yes,” Gusman said.
Warden Gary Bordelon said that he had locked water for the inmates in a first floor room, but that he had forgotten about it and the water had been contaminated in the rising floodwaters.
Bordelon’s testimony evoked a chaotic scene at the jail as various commanders struggled to plan an evacuation. He also spent 30 hours in the water, trying to free prisoners on the first floor from cells with electronic locks.
“Was it overcrowded? Yes sir, it was. Was it uncomfortable? Yes sir it was,” Bordelon said. “But they were safe, and that was my intentions.”
Attorneys for the two men also say they should never have been taken to jail for such a minor alleged offense, and that officers could have given them a summons instead. The city’s criminal justice committee is currently considering such alternatives.
Gusman will go back on the stand Wednesday morning when the case continues before Judge Mary Ann Vial Lemmon.