By Matt Davis, The Lens staff writer
A U.S. District Court jury has awarded $649,300 to two Ohio men who spent almost six weeks in custody after Katrina, despite never being charged with a crime.
The federal-court jury found that Sheriff Marlin Gusman knew the men hadn’t had a probable cause hearing within 48 hours, as required by a 1991 Supreme Court Case, yet he refused to release them.
The jury also found that Chief Bill Hunter from the Sheriff’s Office violated the Constitution by failing to give the men a phone call to contact their friends and family. The jury decided that was worth $100,000 for each man.
The jury also found that Gusman falsely imprisoned the men, awarding $200,000 to one and $249,300 to the other.
The case is the first time a jury has sided with plaintiffs against Gusman in over a dozen cases brought against him over jail conditions during and after the storm.
The men had sought $1.3 million in damages.
“There’s no amount of money that could compensate us for what we went through,” plaintiff Paul Kunkel said, after the jury delivered its verdict today. “We’re just glad we live in the United States of America with a Constitution to protect our rights.”
Kunkel said he thinks about his ordeal every day, and he had a message for Gusman.
“I think he really did not look out for the prisoners,” Kunkel said. “We were abandoned, as far as we were concerned. I don’t think he cared if we lived or died. He totally disregarded the rights of American citizens.”
In a written statement, Gusman said he plans to appeal the judgment, though he didn’t cite the grounds for an appeal or the jury’s verdict.
“The people of New Orleans, who were familiar with the situation in the days and hours before , Katrina, understand that our priority on that day – and throughout the ensuing days and weeks – was the personal safety and transfer of more than 6,000 inmates in an unprecedented movement,” the statement reads. “All of those inmates arrived at their destinations without a single fatality or serious injury. State law provides for the Sheriff’s Office to take this type of action during states of emergency, which is exactly what was done.”
Kunkel, a teacher, and volleyball official Robie Waganfeald said they were falsely arrested by New Orleans police for public intoxication in the French Quarter at 5 a.m. on Aug. 27, 2005, two days before Katrina struck.
The men expected to be booked and released by the Sheriff’s Office, but they were caught in a bureaucratic maelstrom spawned by the storm. Both men were eventually released in early October.
Before the men were moved to other prisons around the state, Kunkel was locked in a cell with four other men for three and a half days without food, water or a functioning bathroom. Waganfeald was moved from a first-floor holding cell to a gymnasium on the second floor, with over 100 other prisoners, again, without food, water, or a functioning bathroom.
Both men thought Gusman’s deputies had abandoned them, leaving them to die in the jail.
“We have our civil rights and they shouldn’t be violated,” Waganeald said. “This is a huge sigh of relief but it’s been very stressful.”
Attorneys for the two men said Gusman should see the verdict as a sign that he needs to make reforms.
“This case was always about trying to get Sheriff Gusman to acknowledge that he’s got a broken system,” attorney John Murray said. “This will hopefully get him to pay attention. We’re just pleased that the jury recognized that we’re all accountable to the rule of law.”
Jurors took just short of three hours to reach a verdict in the case, and Gusman’s attorneys put up a vigorous fight in court.
In closing, Gusman attorney Freeman Matthews said his clients were absent from court to hear the closing arguments “because they have a job to do.”
Matthews argued that the jury should consider the reasonableness of the plaintiffs’ treatment under the circumstances of Katrina.
The sheriff could not be held responsible for the failure of the phone system, and it was impractical to let inmates use cell phones to call an attorney or their families, Matthews said.
“Nothing was intentional. The sheriff didn’t cause the problems in his jail. That was just the way it was,” Matthews said. “The plaintiffs are looking at the situation from their own little world, they’re not looking at the big picture. The big picture is, everybody was facing the same problems.”
Matthews said the sheriff and his deputies did “an outstanding job” of evacuating the jail without any deaths. “Obviously there was no intent to hurt anyone or to violate anybody’s rights,” he said
Matthews also argued that the plaintiffs hadn’t been truthful in saying they were falsely arrested for public intoxication, and he described their demands for damages as “greed.”
The plaintiff’s attorney took a different tack.
“The sheriff wants to make this about Katrina,” attorney Murray said, in closing. “This is not about Katrina. This is about a career politician who is in charge of one of the most powerful bureaucracies in Louisiana, who took an oath to uphold the constitution and through absolute indifference, did not do that.”
The defendants were denied a probable cause hearing within 48 hours because of a “system that has been broken for years,” Murray argued.
“This sheriff wants to blame everybody but himself,” Murray said. “They came into the jail with a cell phone and the ability to raise the pre-determined bail of $300, but we have a system in place that doesn’t allow that to happen.”
The sheriff told the court on Wednesday that he didn’t know the phones in his jail were down.
“It’s his job to know the phones are down,” Murray said.
Murray also drew attention to the sheriff’s decision not to call in more deputies for the storm, and the “perverse incentive” of a $22.39 per inmate per day payment to the sheriff from the city, to suggest that Gusman had a financial incentive to be indifferent to his inmates’ constitutional rights.
“The value of your civil rights, your freedom, is more important than saving some money on overtime,” Murray said. “The sheriff gets $22 a day for keeping people in the system…the incentive should be to get people out of the system.”
Attorney Brett Prendergast later offered a rebuttal to Matthews’ closing arguments, for the plaintiffs.
“It is unavoidable that we have politicians as elected sheriffs, but politicians spend thousands of dollars, they run countless commercials, because they’re seeking these positions of responsibility, like sheriff,” Prendergast said. “But then, when they get the responsibility, it becomes ‘It ain’t my fault. Pass the buck to somebody else.’ It makes you think that instead what they’re interested in is the power of having 1,200 employees and the perks of having a driver drive you around.”
Prendergast said his clients would have felt more secure with a deputy in sight, and not felt like they had been left in the jail to die.
“I’m sure being a sheriff’s deputy is not an easy job, but that’s part of what they signed up for,” Prendergast said.
Prendergast also argued that the sheriff showed deliberate indifference to the inmates once they had been evacuated from OPP, because only four of his 1,200 staff were devoted to freeing inmates by late September.
“He’s completely indifferent to these people,” Prendergast said. “All they represent to him is $22.39.”
Prendergast described the argument that the inmates were facing Katrina just like everyone else as “ludicrous.”
“There’s a vast difference between going through Katrina where you’re free, and being in a situation like Katrina where you’re completely dependent on someone who doesn’t care about you,” Prendergast said.
