### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30081

ROBIE J. WAGANFEALD; PAUL W. KUNKEL, JR., Plaintiffs-Appellees
v. MARLIN N. GUSMAN, Orleans Parish Criminal Sheriff; WILLIAM C. HUNTER, OPCSO Chief Deputy, Defendants-Appellants

Appeal from the United States District Court for the Eastern District of Louisiana

Before KING, JOLLY, and WIENER, Circuit Judges. WIENER, Circuit Judge: Plaintiffs-Appellees Robie J. Waganfeald and Paul W. Kunkel, Jr. (collectively, “Appellees”) filed this action against several defendants, including D e f e n d a nt s - Ap p e ll a nt s M arlin N

. Gu s m an , O rl e ans Parish Criminal Sherif f , a n d William C. Hunter, Orleans Parish C r i m i nal Sheriff’s Office Chief Deputy (collectively, “Appellants”), under 42 U.S.C. § 1983 for violations of their Fourth, S i x t h , and Eighth Amendment rights. The Appellees also brought a false imprisonment claim a g a i n st the Appellants under Louisiana law. Appellees’ claims arise out of their incarceration in N e w Orleans at and around the time that Hurricane Katrina struck the city. After trial, a jury found that Appellants U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 12 , 20 12 Lyle W . Cayce Clerk Case: 11-30081 Document: 00511784851 Page: 1 Date Filed: 03/12/2012No. 11-30081

were not liable f

or some of those claims, but ( 1 ) h e l d Gusman liable f or falsely impriso ning Appellees, and (2) held Hunter liable for denying Appellees’ purported Sixth Amendment right to use a telephone following their arrest. We

reverse the jury’s verdict as to both claims for which Appellants were held liable.

I. Facts & Proceedings A. Facts The facts of this case are largely undisputed. On t h e evening of Friday, August 26, 2005, Appelle e s , traveling by car from Houston, Texas to Toledo, Ohio, stopped for the night in New Orleans. They checked into a hotel, then proceeded to the French Quarter, some time after 1:00 a.m. on the mor n ing of August 27, and remained there for approximately four hours, consuming several beers each. At approximately 5:00 a.m., two New Orleans police officers placed Appellees under arrest for public intoxication under New Orleans Mu n icipal Code § 54-405. Appellees assert that they were not intoxicated when the arrests t o o k place, but instead that Kunkel fell to the ground when his bad kn e e g av e out as he stepped off a curb, a n d that Waganfeald was attempting to help Kunkel to his feet. At the time of the arrests, Hurricane Katrina was in t h e Gulf of Mexico and was estimated to make landfall on Monday morning. For several days prior to Katrina’s est i m a t e d landfall, Gusman and his staff prepared the Orleans Parish Prison (“OPP”) to weather the storm with all staff and all prisoners–an average daily population of 5,800–remaining inside the complex. At that time, O P P c o m prised eleven main facilities which held inmates, as well as ancillary buildings. In the event of serious flooding, Gusm a n ’ s p l a n c alled for staff and prisoners to “vertically evacuate” to the upper floors of the OPP facilities. On the mornin g o f S u n d ay, August 28, a mandatory evacuation order was issued for

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residents of New Orleans, but that order did not a p p l y to OPP staff and prisoners. Ap p e ll e e s ’ arr e s ting officers took them to the Intake and Proce s s in g C e nt e r (“IPC”) at OPP, at which point Appellees’ money, valuables, and cell phones were confiscated. Appellees were not given an opportunity to make bail, but instead

were placed in the Templeman III facility a t OPP, which could house as many
as 1,200 pre-trial detainees. At the time, Gusman was in charge of OPP, Hunter directed prison operations, and Warden Gary Bordelon oversaw Templeman III. Normally, a number of telep h o n e s

– b oth free and collect–were available for inmate use in the IPC. Collect telephones were also available in the Templeman III building. For sec urity reasons, cell phones were not allowed in the prison complex. After being booked, Appellees attempted to make phone calls using the IPC telephones, but soon discovered that they were not working. That Saturday, Hunter, who was responsible for the phone system, became aware that all of the teleph o n e s at O P P w e r e in o p e r ab le. Hunter instructed the telephone supervisor, Donald Hancock, to report to the prison. Hancock examined the system that day and determined that the telephone service provider’s lines were overloaded. Because the problem was not with the OPP telephones themselves, prison officials were unable to remedy the problem. Hancock reported his findings to Hunter at some point that weekend. Sheriff Gusman testified that he was not made aware of the problem with the phones. Gusman further testified that, in theory, he or Hunter could have allowed the inmates to use their cell phones, but Gusman emphasized that prison polic y f o rb i d s cell phone use (even by most deputies) because of security risks. OPP phones remained inoperable throughout the weekend, and Appellees were unable to make any phone calls during that time. After being booked, Appellees were placed in separate cells in Templeman III, where they remained as Hurricane Katrina approac h e d a n d then hit New

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Orleans at approximately 6:00 AM on Monday, August 29, 2005. Initially, OPP officials believed that the complex had weathered the st o r m u n s cathed. After the levees were breached and the city flooded, however, the prison’s generators stopped working, and its water and food supplies were contam i n ated. As floodwater entered the Templeman III building, o fficers evacuated inmates to hi gh e r f l oors. Appellees experienced insufferable conditions as the water rose in t h e i r cells. Kunkel was locked in his cell until Wednesday evening; Waganfeald was moved to a miniature gymnasium within OPP. Both Kunkel and Waganfeald went without food and water for approximately three days. The temperature was very high; there was no air circulation; the toilets did not flush. In the midst of this chaos, Appellees believed th a t t h e prison guards had abandoned them, and they had no way of making contact with the outside world. Both men believed that they might die. Appelle e s w e r e f

in ally m ove d f

rom OPP on Wednesday, August 31, but this did not m a r k the end of their ordeals. They were taken by boat to a highway
overpass, where they, along with thousands of other inmates, continued to endure heat, hunger, and thirst. Appellees were then placed on buses and transported out of New Orle a ns. For about a month, Kunkel endured further deplorable conditions, first at Louisiana’s Hunt Correctional Institute, and then at the Louisiana State Penitentiary at Angola, before being released on October 3, 2005. Waganfeald was taken to Cathoula Parish Prison and was released on O ctober 5, 2005. Other than an eye infection for which Kunkel r e c e iv e d treatment at Angola, Appellees did not s u f f er physical injuries, but both men have reported psychological trauma as a result of these experiences.

B. Proceedings Appellees filed suit on August 28, 2006, asserting claims under 42 U.S.C. § 1983 for violations of, inter alia , t h e Fourth Amendment (based on their

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allegedly unlawful detention), the Sixth Amendment (based on their inability to contact counsel by telephone ) , and the Eighth Amendment (based on their conditions of confinement). Their complaint also asserted clai m s f o r false imprisonment under Louisiana law. The named defendants included Gusman, individually and in his official capacity as Criminal Sheriff of Orleans Parish; H u nt e r , in divi du ally and in his official capacity as Chief Deputy Criminal Sherif f of Orleans Parish; Bordelon, individually and in his official capacity as Warden of the Templeman III jail fa c i l i t y; various officers of the New Orleans Police Department; the City of New Orleans; and Mayor C. Ray Nagin. Appellees proceeded to trial against Gusman, Hunter, and Bordelon. On October 14, 2010, the jury found Gusman liable fo r f a l s e imprisonment and awarded compensatory dam a g es of $200,000 to Waganfeald and $259,300 to Kunkel. The jury found, however, that Gusman was not liable f or the Fourth, Sixth, and Eighth Amendment claims. The jury also rejected the claims against Gusman in this official capacity, finding that his official polici e s were not the moving force behind any viol a t i o n of Appellees’ constitutional rights. Additionally, the jury found Hunt e r l i ab le for violating the Appellees’ Sixth Amendment right to counsel, denied qualified immunity t o H u nt e r , an d aw arded each Appellee $100,000 for these vi o l a t i ons. The jury rejected the remaining claims aga i n s t H u n t er, and it exonerated Bordelon on all claims. The district court then entered judgment later that month. At the close of Appellees’ case and at the close of evidence, Ap p e l l ants orally moved for judgment as a matter o f l aw. The district court denied each motion. After the jury verdict was announced, Appellants moved for judgment

as a matter of law, or, in the alternative, a new trial. The district court denied both motions, and Appellants timely appealed.

5 Case: 11-30081 Document: 00511784851 Page: 5 Date Filed: 03/12/2012No. 11-30081 II. Standard of Review With regard to issues that were preserved in the district court, we review its denial of judgme n t as a matter of law de novo , applying the same standard

a s the district court. Judgment as a matter of law is proper “[i]f a p a r t y h a s 1 bee n fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue[.]” “[W]e will uphold a jury verdict unless the facts and 2 inferences point so strongly and so overwhelmingly in favor of on e p a r t y that reasonable men could not arrive at any verdict to the contrary.” Fu rther, we 3 must review the evidence in the light most favorable to the jury’s determination, and we may not reweigh the evidence or substitute the jury’s reasonable factual inferences for our own. 4

III. False Imprisonment Claim Against Gusman The jury rej e c t e d all claims against Gusman relating to Appellees’ conditions of confinement and their inability to make telephone calls. The jury found Gusman liable for false imprisonment, however, which under Louisiana law c o nsists of two elements: “(1) detention of the person; and (2) the unlawfulness o f t h e detention.” It is undisputed that Gusman detained the 5 Appellees, and thus, the question at i s s u e i s whether that detention was unlawful.

Juli an v. Ci ty of Ho uston , 314 F.3d721 , 725 (5t h Cir

. 2002)

. 1
Fed

. R. Civ. P. 50(a)( 1). 2
Cousi n v . Tra ns Uni on Corp

. , 246 F.3d359 , 366 (5t h Cir

. 2001)

. 3
Id. 4
Kenne dy v. She riff

of East Ba ton R ouge , 935 So. 2d 669, 690 ( La. 2006)

. 5 6 Case: 11-30081 Document: 00511784851 Page: 6 Date Filed: 03/12/2012No. 11-30081

T h e only basis urged by Appellees that their detention was unlawfu l i s Gusman’s failure to release them when they were not granted a probable cause determination within 48 hours after their arrest. Under Louisiana law, a person who is arrested and in custody is “entitled to a determination of probable cause within forty-eight hours of arrest.” If such a determination is not timely made, 6 “the arrested person shall be released on his own recognizance.” This statute 7 tracks the Uni t e d States Supreme Court’s decision in County of Riverside v. McLaughlin , in which the Court held that a probable cause determination must

8 generally be made within 48 hours to comply with the Fourth Amendment. As 9 Appellees were arrested at approximate l y 5 : 00 a.m. on Saturday, August 27, 2005, this 48-hour period expired at 5:0 0 a . m . o n Monday, August 29–just as Hurricane Katrina struck the Gulf Coast

. Appellees had received no probable

cause determ i n a t i o n as of that Monday morning, but Gusman continued to detain them. Appellees insist that the 48-hour rule permits no exceptions, but the United States and Louisiana Supreme Courts have indicated otherwise. In Riverside , the United States Supreme Court stated that if a probable cause determination is not made within 48 hours, “the burden shifts to the government to demonstrate the existenc e o f a b o na fide emergency or other extraordinary circumstance.” Likewise, interpreting the relevant state statute, the Louisiana 1 0 Supreme Court stated in Louisiana v. Wallace :

La. Cod e Cr im

. Proc

. art

. 230. 2(A)

. 6
Id. ar t. 230 .2( B)( 1) (em phas is add ed)

. 7
500 U .S

. 44, 56 ( 1991)

. 8
See Loui si ana v. Wal la ce , 25 So. 3d 720, 723- 24 (La. 2009) (Lou isi ana st atut e cod ifi ed 9 Riv ers ide).

Id. at57. 1 0 7 Case: 11-30081 Document: 00511784851 Page: 7 Date Filed: 03/12/2012No. 11-30081

In the absence of a bona fide emergenc y or other extreme circumstances, all persons arrested without a warrant for whom a probable cause determination is not made within 48 hours must be immediately released from custody on their own recognizance. 1 1
This statement constitutes dicta, as Wallace did not involve an emergency, but it nonetheless demon s trates that the Louisiana Supreme Court recognizes an emergency exception to the 48-hour rule. Notably, the emergency exception in 1 2 Wallace is worded almost identically to the sa m e e x c e p t ion in Riverside , the decision that led to the creation of the Louisiana statute in the first place. It is therefore plain that both the federal and the Louisiana 48-hour rules contain an emergency exception. This ali g n s w ith common sense, because adopting Appellees’ position that the 48-hour rule permits absolutely no exception could l e a d to any number of absurd consequences. Thus, in determining w h e t h e r Appellees’ detention was unlawful, we apply the emergency exception to the 48- hour requirement. Gusman mai ntains that his detention of Appellees falls within this emergency exception. He also contends that he is immune from liability for false imprisonment under Louisiana’s discretionary immunity statute. Ap p ellees 1 3 counter the latter point by claiming that Gusman waived his discretionary immunity defense in the trial court and cannot raise it on appeal. In particular, Appellees note that although G u sman raised discretionary immunity in his

answer and in his post-verdict Rule 50(b) and Rule 59 motions, he failed to raise

25 So. 3d at 727. 1 1
See Hu li n v. Fibreboa rd Corp

. , 178 F.3d 316, 328 (5t h Cir. 1999) (“A fed eral cour t has 1 2 a d uty to det erm ine st ate lawas itbe lieves t he Sta te’ s highes t cour t wo uld. ”)

.

La. Rev. Sta t. Ann. § 2798. 1 (“ Liabili ty sha ll not be im pos ed on publ ic enti tie s or thei r 1 3 of f icer s or em plo yees bas ed upon the exerc ise or per for man ce or the fai lure to exerc ise or per for m thei r pol icym ak ing or dis cre tio nary act s wh en suc h act s are wi thin the cour se and sc opeof t heirla wf

ul pow ers andd utie s. ”)

. 8 Case: 11-30081 Document: 00511784851 Page: 8 Date Filed: 03/12/2012No. 11-30081

t he issue in the pre-trial order or in his Rule 50(a) motion for judgment as a matter of law. Appellees themselves may have waived this waiver argument 1 4 by failing to raise it in opposition to Gusman’s Rule 50(b) motion, but we do not 1 5 reach t h a t issue, or the discretionary immunity argument at all. Rather, we
reverse the jury’s verdict on the simpler and more direct ground that Gusman’s actions fall within the emergency exception to the 48-hour rule. 1 6 The undisputed evidence in this case compels the conclu s i o n t h at Hurricane Katrina was a bona fide emergency within the mea n i n g o f the emergency exception to the 48-hour r u l e . I ndeed, if Katrina was not an emergency, it is difficult to ima gi ne any set of facts that would fit that description. As the storm bore down on New Orleans, Gusman and his officers had to provide for the s e c u r ity and safety of approximately 5,800 of their own inmates, plus 130 more inmates who were transferred from St. B e rn ar d P arish. 1 7 The officers planned to e v a c u a te inmates vertically in the Templeman III

See Ma ryland Cas. Co. v. Ac cep tance Indem

. Ins. Co. , 639 F.3d 701, 707- 08 (5t h Cir. 1 4 2011) (w hen a par ty fai ls to rais e an iss ue in a Rule 50(a) mo tio n, it wa ives the right to raise thatis sueina Rule 50(b ) mo tio n).

See Thom

ps on and Wal la ce of Me mp his , Inc. v. Fal conw ood Corp

. , 100 F.3d 429, 435 1 5 (5t h Cir. 1996) (ho ldi ng that wh en the par ty opp os ing the Rule 50(b ) mo tio n “d id not rais e the wa iver bar in opp o s i n g the [R] ule 50(b ) mo tio n, they may not rais e that bar on app eal” ); see also Ross v. Bucke

ye Cel lulose Corp

. , 980 F.2d 648, 661 n.20 (11t h Cir. 1993) (no ting that even if the def

enda nt wa ived a par tic ular def ens e by fai ling to inclu de it in the pr e-t rial ord er, the plai ntif fs w aivedt hat wa iver by f ailing to mak e t he wa iver argum ent in fr ont of the dis tri ct cour t) ; but see Scri bner v. Di llar d , 141 F. App ’x 240, 243 (5t h Cir. 2005) (unp ublis hed) (ho ldi ng that “w aiver of wa iver” per Thom ps on doe s not app ly wh en def enda nts fai led to rais e def ens e, not only in Rule 50(a) mo tio n, butat any time p riorto the verd ict ; thedefe nsewas there for e cons ide redw aived).

The em ergenc y excep tio n pr es ents no wa iver iss ue: Gu sm an rais ed the excep tio n in 1 6 the pr e-t rial ord er, the dis tri ct court ins tru cte d the jury on it, and Gusm an pr es se s the iss ue on app eal.

See La. Rev. Sta t. Ann. § 15: 706(c) (“The s heri ff of the par ishto whi ch the pr iso ner 1 7 is conveye d sha ll ke ep the pr iso ner saf e a nd se cur e”)

. 9 Case: 11-30081 Document: 00511784851 Page: 9 Date Filed: 03/12/2012No. 11-30081

building to higher floors, if necessary. They also stockpiled food and water in the Templeman III building–on the first floor, unfortunately. OPP initially survived the storm without flooding, but this changed rapidly af

t e r the levees were breached. The water rising on the first floor of Templeman III quickly reached waist level, the generator went out, and food and water supplies were contaminated. The electronic system for controlling the cell doors ceased to function, and officers had to open the doors manually, which–for

some cells on the first floor–required the officers to dive in t o the water to manipulate the locking mech a n i s m . T he temperature grew very hot, and the officers allowed the inma t e s to break windows for purposes of air ventilation. The o f f i c e r s worked for many hours with inadequate food, water, and sleep. After the arduous process of evacuating the inmates was completed, the officers continued working to evacuate other individuals w h o w e r e stranded in the neighborhood. In l i gh t o f t h is clear emergency, we hold that the 48-hour rule

was suspended. Consequently, Gusman did not falsely imprison the Appellees by holding them without a probable cause determination rather than releasing them into the teeth of the storm on the morning of August 29, 2005. Appellees contend that they would not have received a probab l e cause determination within 48 hours of their arrest even in the absence of Hurricane Katrina, because the Municipal Courts did not operate on the weekends at that time. The jury, however, answered “No” to the following interrogatory: Do you find by a preponderance of the evidence that Sheriff Marlin Gusman, in his capacity as the Criminal Sheriff of Orleans Parish, had a policy, practice, o r custom of deliberate indifference to arrested individuals’ right to have a probable cause determination made b y a n i m p artial judge or magistrate within 48 hours of an arrest made without a warrant that was the moving force behind a violation of [Appellees’] constitutional rights?

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If Gusman had a general policy of detaining individuals beyond 4 8 hours without

a probable cause hearing, even in the absence of an emergency, that interrogatory would have to have been answered in the affirmative. In that situation, the municipal policy would certainly have been “a d o p t ed with ‘deliberate indiffer e n c e ’ to its known or obvious consequences.” Further, the 1 8 municipal policy woul d b e t he “‘moving force’ behind the constitutional violation,” as there would unquestionably have been a “direct causa l l ink”

1 9 2 0 between Gusman’s policy and the violation of the 48-hour rule. But, as the jury answered “No,” and Appellee s h av e not appealed that factual finding, they cannot rely on Gusman’s purported policy of violating the 48-hour rule even in non-emergency conditions. Gusman’s detention of Appellees was not unlawful because his actions fell within the emergency exception to the 48-hour rule. Thus, we must reverse the district court’s denial of Gusman’s motion for judgment as a matter of law. We thus do not reach Gusman’s additional a r gument that the jury’s verdict was internally inconsistent.

IV. Sixth Amendment Claim Against Hunter T he jury found that Chief Deputy Hunter acted in a manner t h a t w a s deliberately indifferent to Appellees’ asserted Sixth Amendment right to use a telephone to contact “an attorney and/or family and friends” following their arrest. The jury also rejected Hunter’s defense of qualified immunity. On appeal, Hunter contends that the district court erred by denying him qualified immunity b e c ause (1) there was no violation of Appellees’ Sixth Amendment

Snyderv . Tre

pa gnie r , 142 F.3d791 , 795 (5t h Cir

. 1998)

. 1 8
Id. 1 9
Piotrow skiv . City of Ho uston , 237 F.3d567 , 580 (5t h Cir

. 2001)

. 2 0
11 Case: 11-30081 Document: 00511784851 Page: 11 Date Filed: 03/12/2012No. 11-30081

r i gh t to counsel because that right never attached, no “critical stage” of the proceedings was reached, and Hunter d i d not act intentionally; and (2) even if there were such a violation, it had not been clearly established that refusing to allow pre-trial detainees to use cell phones when land lines are disrupted in an emergency violates the Sixth Amendment. “A public official is entitled t o qualified immunity unless the plaintiff demonstrates that (1) the defendant violated the plaintiff’s constitutional rights and (2) the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the violation.” A defendant viol a t e s clearly 2 1 established law only if “th e c ontours of [the] right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” For a legal principle to be clearly established, “we must be able to

2 2 point to controlli n g authority—or a robust consensus of persuasive authority—that defines the contours of the right in question with a high degree of part i c u l a rity” and that places the statutory or constitutional question 2 3 “beyond debate.” 2 4 When a defendant asserts qualified immunity , th e p l aintiff has the burden of proving that it is inapplicable. Qualified immunity should be adjudicated “at 2 5 the earliest possible s t a g e i n litigation,” but “if the issue is not decided until 2 6 trial the defense goes to the jury which must then determine the objective legal

Porterv . Epp s , 659 F.3d440 , 445 (5t h Cir

. 2011)

. 2 1
As hcroft v. al -Ki dd , 131 S

. Ct. 2074, 2083 (201 1) (int erna l brac ke ts and quot atio n 2 2
mar ks om itt ed)

.

Mo rgan v. Sw ans on , 659 F.3d359 , 371- 72 ( 5th Cir. 201 1). 2 3
al -Ki dd , 131 S. Ct. at208 3. 2 4
Attebe rryv . Noc ona Ge neralH osp . , 430 F.3d245 , 253 (5t h Cir

. 2005)

. 2 5
Id. ( quot ing Pearson v. Ca llaha n , 555 U. S. 223 , 232 (200 9))

. 2 6 12 Case: 11-30081 Document: 00511784851 Page: 12 Date Filed: 03/12/2012No. 11-30081

reasonableness of the officers’ conduct.” We have discretio n t o decide which 2 7 prong of the qualified immunity analysis to address first. 2 8 As a preliminary matter, Appellees contend that Hunter has waived qualified immunity. Hunter raised qualified immunity generally in his answer and proposed jury instructions, the district court instructed the jury on qualified immunity, and the jur y f o u n d that Hunter’s actions were not objectively reasonable in light of Appellees’ constitutional rights. Hunter did n o t r a ise qualified immunity in his pre-verdict motions for judgment as a m a t t e r of law under Rule 50(a), but h e did in his post-verdict motion for judgment as a 2 9 matter of law under Rule 50(b). In response to Hunter’s Rule 50(b) m o t ion, Appellees did not counter that Hunte r w aived qualified immunity but instead responded to the merits of that issue. Thus, Appellees have waived their waiver argument. 3 0 Appellees also contend that even if Hunter has not waived qualified immunity generally, he has waived his specific contentions that Appellees’ Sixth Amendment right to counsel never attached and that no “critical stage” o f t he proceedings was reached. In lieu of addressing this s p e c i fic waiver argument,

we hold that even if Appellees had a Sixth Amendment right to counsel during the period in question, Hunter did not act in an objectively unreasonable manner in light of clearly established law, so the district court should have granted him judgment as a matter of law on qualified immunity.

Mc Coy v. H

ern andez , 203 F.3d371 , 376 (5t h Cir

. 2000)

. 2 7
Mo rgan , 659 F.3dat371 ( cit ing Pearson v. Ca llaha n , 555 U. S. 223 , 236 (200 9))

. 2 8
F E D

. R. C IV

. P. 50(a). 2 9
See Thom

ps on and Wal la ce of Me mp his , Inc. v. Fal conw ood Corp

. , 100 F.3d 429, 435 3 0 (5t h Cir

. 1996) (wa iver of wa iver)

. 13 Case: 11-30081 Document: 00511784851 Page: 13 Date Filed: 03/12/2012No. 11-30081

There is no dispute that, duri n g t h e p eriod in question, telephones were made available to Appellees, but that it was not possible to place calls on these

or any telephones at the facility. Donald Hancock, the telephone supervisor for the Or l eans Parish Criminal Sheriff’s Office, testified that on the Saturday before Hurricane Katrina mad e l a n d f a l l, calls could not be placed from OPP because the telephone service provider’s lines were overload e d. He testified fur t h e r that because the problem was external, and the OPP telephones themselves were functioning properly, there was nothing he could have done to remedy the problem. Hancock timely reported his findings to Hunter and evacuated New Orleans that Sunday morning. When Han c o c k and Hunter

s poke again later that day, Hunter asked Hancock to return and con t i n u e working on the phones, b u t Hancock again informed Hunter that the problem was external and that there was nothing he could do. Appellees contend that in this situation, Hunt e r s h o ul d have allowed them to use their cell phones to make calls. In accordance with standard procedures, Appellees’ cell phones had been confiscated when they were booked into the prison. As noted, Gusman testified that inmates are not allowed to possess cell
p h o n e s because that would pose a “security risk.” He went on to explain t h a t allowing the use of cell phones would impair prison officials’ ability to record inmates’ calls, which is important because “inmates e i ther make threatening phone calls or try to continue t h e i r i l legal activity while in jail.” Gusman also stated that, for security reasons, even deputies are generally not allowed to c arry cell phones while on duty. Gusman testified that he was completely unaware of the problems with the OPP telephone system during the period in question, but he acknowledged that Hunter would have had the authority to allow prisoners to use their cell phones. There is no particularized, clear l y established law which would have instructed Hunter that, under the Sixth Amendment, he had to allow pre-trial

14 Case: 11-30081 Document: 00511784851 Page: 14 Date Filed: 03/12/2012No. 11-30081

detainees to use t h e i r c e l l phones when land lines were disrupted. Appellees have pointed us to no such authority, and we have found none. To the contrary,

we have ruled that prisoners have “no right to unlimited telephone use.” Other 3 1 courts hav e o b s e rv e d that “a prisoner’s right to telephone access is subject to rational limitations in the face of legitimate security interests of the penal institution.’” As a general m a t ter, “maintaining institutional security and

3 2 preserving internal ord e r and discipline are essential goals that may require limitation or retraction of the retained c o n s titutional rights of both convicted prisoners and pretrial detainees.” Thus, prison officials a r e “ a c c orded 3 3 wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” 3 4 I n t h i s case, Hunter faced the security risks that would generally foll o w from allowing prisoners to use cell phones, w hich were exacerbated by the emergency conditions t h a t were present during the approach, landfall, and

a ftermath of Katrina. Inmates were unable to use the land-line teleph o n e s i n the OPP not because of any action that Hunter took, but because of overloaded external lines, a situation beyond any control of law enforcement. Distributing

Lopez v. Re

yes , 692 F.2d15, 17 (5t h Cir

. 1982)

. 3 1
Do uglas v. Gu sm an , 567 F.S upp .2d 877, 886 (E. D. La. 2008) (quo ting Was hington v. 3 2 Reno , 35 F.3d 1093, 1100 (6t h Cir. 1994) ); see also Benzel v. Gr am ma r , 86 9 F

. 2 d 1 1 0 5 , 1108 (8t h Cir

. 1989) ( sam e).

Bel l v. W

olf is h , 441 U. S. 520 , 546 (197 9). 3 3
Id. at 547; see also id. (s ecur ity cons ide rat ions “ar e pec uliar ly wi t h i n the pr ovince 3 4 and pr ofe ss ional expe rti se of cor rec tio ns off icia ls, and, in the abs ence of sub st antia l evide nce in the rec ord to indi cat e that the off icia ls have exaggerat ed thei r res pons e to thes e cons ide rat ions , cour ts sho uld ord inari ly def er to thei r expe rt judgm ent in suc h mat ter s. ”) (quo ting Pel l v. Proc u n i er , 417 U. S. 817, 827 (197 4)) ; Whi tley v. Al bers , 475 U. S. 312, 322 (198 6) (“ pr ophyl act ic” pr iso n se curity me asu res are enti tle d to def ere nce, eve n i f ther e exis t “ar guably s uper ior alte rnat ives ”)

. 15 Case: 11-30081 Document: 00511784851 Page: 15 Date Filed: 03/12/2012No. 11-30081

cell phones to approximately 5,930 inmates, or even just the 1,200 pre-trial detainees in Templeman III, would have been a creative and potentially beneficial option, but it would also have added to prison officials’ unprecedented logist i c a l b urden as well as the potential security risks. Before Hurricane Katrina struck, prison officials had no reason to assume that the telephone lines

wo u l d b e overloaded for a significant length of time; after the prison flooded, they were overwhelmed with more urgent emergency tasks. The unprecedented emergency conditions would also have made it very difficult if not impossible for
any counsel that Appellees might have reached to provide mea n i n gful assistance. We do not suggest (o r d e n y) that there is a blanket emergency exception to the Sixth Amendment right to counsel. Rather, we hold only that in light of the security risks and unique emergency conditions he faced, Hunter did not act in an objectively unreasonable manner under clearly established law. The district court therefore erred by not granting Hunter qualified immunity as a matter of law.

V. Conclusion There is no doubt that Appellees suffered terribly while held in custody after Hurricane Katrina struck New Orleans. It is equally clear, however, that (1) Gusman’s failure to release Appellees falls within the emergency exception to the rule that a probable cause determination must be made within 48 hours, and (2) Hunter’s failure to allow Appellees to use cell phones was not objectively unreasonable in light of any clearly established law. We therefore reverse and vacate the judgment of the district court, and remand with instructions to enter judgment in favor of Gusman and Hunter on all claims asserted by Appellees. REVERSED, VACATED, and REMANDED WITH INSTRUCTIONS.

16 Case: 11-30081 Document: 00511784851 Page: 16 Date Filed: 03/12/2012