BerkeleyLaw Library

"The New Orleans Police Department's response to Hurricane Katrina holds important lessons for other police organizations. The increased interest generated by this disaster should prompt other departments to review and revise their existing disaster response plans. Following a brief history of the New Orleans Police Department, this paper examines the failure of planning and problems of execution in the department's response to the flooding after Katrina. A communications and coordination breakdown followed insufficient emergency planning and training in New Orleans, requiring the police force to reconstitute command on an ad hoc basis while leaning heavily on federal support. A comparison with the San Francisco Police Department's response to the 1989 earthquake shows similar gaps in disaster planning that, due to the limited nature of that event, did not become dire. The paper then discusses the standard of performance for police forces in disaster situations and tackles specific suggestions for police disaster response re-evaluation."—Abstract.

"Hurricane Katrina was an unprecedented physical and administrative disaster. In addition to the loss of life, human suffering and physical debris left in its wake, there was substantial financial and procedural disorganization in the provision of relief services due to fraud, understaffing, unclear guidelines, and general lack of preparation. This paper explores the problem of fraud after Katrina and offers a solution for providing aid more effectively in the event of a future disaster. This can be achieved through use of Electronic Benefits Technology (EBT) and the centralization of beneficiary demographic databases, which would require much broader information sharing among federal, state, and local governments and non-profits in order to provide faster and broader emergency services and safeguards against fraud.

"Problems will doubtlessly arise because vast information sharing decreases the privacy of victims and leaves them open to criminal prosecution and deportation. In addition, reliance on public databases to provide verification of identification for emergency benefits is likely to aggravate the ability of vulnerable populations, such as undocumented aliens, to obtain aid, which could result in the denial of services to actual residents in great need. An emergency system must therefore endeavor to use EBT and information sharing resources to speed intake and prevent fraud, while not neglecting these vulnerable populations by installing strict privacy regulations and providing victims with the assurance that their information will not be used for any adverse purpose. A fully interoperable EBT system together with advanced planning and increased staffing will almost certainly ensure that the next disaster will not be an administrative tragedy."—Abstract.

"It is likely that in some heavily damaged parts of New Orleans redevelopment will be restricted, either temporarily, or even permanently. The possibility of such restrictions immediately gives rise to the following question: Will restrictions on development in New Orleans effect compensable regulatory takings under the Fifth Amendment of the U.S. Constitution? In this paper, we try to answer that question, or to at least provide a framework for answering it. We conclude, although cautiously, that it is more likely than not that temporary restrictions will not effect compensable takings because property owners still have economically valuable interests, while it is more likely than not that permanent restrictions will result in compensable takings because of owner expectations and a lack of reciprocity of advantage.

"We have three primary goals. First, we summarize the proposal for redevelopment which explicitly allows for the possibility of moratoria on redevelopment in certain neighborhoods. Second, we situate the current case law on this issue within the larger context of takings jurisprudence. Understanding the courts' trends on this issue, if any are discernible, will be indispensable in trying to get a sense of how courts would rule in litigation that might arise out of regulating redevelopment in New Orleans. Third, we give an analysis of how current holdings on takings issues might apply to the situation in New Orleans. Because of the complexity of takings jurisprudence, and because of the somewhat unusual nature of the situation in New Orleans, it is difficult to make a confident prediction about how such claims would come out."—Abstract.

"After several decades of supporting the Mississippi River Gulf Outlet despite its economic inefficiency and negative environmental impacts, the United States Army Corps.of Engineers has been charged with the task of assessing various proposals to deauthorize the passage to deep-draft navigation. In reality the passage has been closed to deep-draft travel since Hurricane Katrina destroyed many of the levees bordering the MRGO and dumped a tremendous amount of material into the channel. Whereas continuing to dredge the channel in the past simply maintained the status quo, it would now be a very large undertaking with little legitimate justification considering that the MRGO's negative impact on the region was made perfectly clear by Hurricane Katrina. The Army Corps of Engineers is currently in the process of exploring various plans of action regarding the MRGO. The focus of this assessment is flood control, seen both as a product of wetland protection and direct storm surge channeling. Though the importance of wetland preservation in protecting the region from flooding may finally be afforded appropriate weight during this process, the correct policy must still be funneled through the politics of both Congress and the Corps. To a large extent, the politics of water projects have prevented the development of a comprehensive policy for flood prevention in the region and though Hurricane Katrina may have heightened Congress' sense of urgency in reevaluating the MRGO, it certainly did not alter the pitfalls inherent to the legislative process."—Abstract.

"Hurricane Katrina revealed fundamental problems with our nation's ability to respond to natural disasters. Not only did Katrina overwhelm governments at all levels in their abilities to respond to the disaster, but it also revealed their inadequate emergency preparation and response plans. There was a failure among local, state and federal levels to effectively optimize assistance and resources coming from other states and the federal government.

"This paper advocates an amended Stafford Act to include three solutions that are crucial to strengthening national preparedness for future disasters. First, local jurisdictions and states should be required to develop comprehensive disaster preparedness and response plans, consistent with a national framework, that enable them to effectively manage complex disasters. Second, the federal government needs to harmonize its disaster-relief infrastructure and consolidate natural emergency preparedness and response functions in the Federal Emergency Management Agency within the Department of Homeland Security. Finally, the Stafford Act should include a contingency plan for a catastrophe so large it renders traditional emergency management impracticable.

"While these structural changes for national preparedness can be implemented by executive order as governmental reports and studies have suggested, this paper stresses the importance of enacting these recommendations in legislation. The Stafford Act is the touchstone of federal disaster relief. Updating the Stafford Act to include a national framework for disaster response, the federal infrastructure for disaster management under the leadership of DHS, and the framework for the nation's response to catastrophic incidents, will achieve clarity and permanency for all parties involved. Updating the Act as suggested will ensure that the country shall be primed and prepared for future disasters."—Abstract.

"In the aftermath of Hurricane Katrina, victims evacuating New Orleans for safer ground in Gretna, LA, were stopped by a Gretna Police blockade. A class action lawsuit seeks damages from the officers and the City of Gretna for, inter alia, infringement on the right to travel.

"While the complaint does not allege 42 U.S.C. ? 1983 claims against the City of Gretna, such a claim could succeed."—Synopsis.

"In the wake of Hurricane Katrina, Congress amended the Insurrection Act of 1807. The Act enables the President to deploy the military 'to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.' The amended Act expands the language of the original Act to include natural disasters, epidemics, or other serious public health emergencies, terrorist attacks or incidents, or other conditions. Opponents of the amendment, most notably all fifty governors, criticize the amendment as a presidential power grab aimed at suppressing the power of the states and increasing the role of the military in domestic affairs.

This paper argues that the amendment to the Insurrection Act does not affect the President's existing powers to deploy the military domestically. Instead, this paper argues that the amendment merely clarifies the situations that justify the use of the military to respond to domestic disorder. An analysis of the historical use of the Act and the Act's language indicates that justification for presidential action prior to the amendment focused on the extent, rather than the source of the domestic disorder. The changes made in October of 2006 provide explicit examples of situations that may lead to events of public disorder justifying the President's invocation of the Act's authority. In addition, political and historical limitations, along with limitations in the Act itself, will restrict presidential abuse of the power. Thus, the uproar over the recent changes to the Insurrection Act and the fears of martial law are unfounded."—Abstract.

"Just compensation is critical to post disaster recovery in the wake of a devastating flood, especially when prior shortcomings of the government might be partially to blame. Assessing the full extent of compensation given to private landowners may help for future disaster flood recovery and planning. Despite profound geographic, demographic, and legal differences between France, Louisiana, and California a comparison of their post-disaster compensation models proves useful to identify past, present, and future models of a similar problem of postflood redevelopment compensation outside of private insurance schemes.

"Inquiring into eminent domain concepts surrounding just compensation principles in France, Louisiana, and California provides a framework for addressing post-disaster homeowner compensation. France supplies a model that demonstrates strong flood disaster prevention and land use planning measures alongside a full recovery compensation scheme. In contrast, Louisiana and California do not have explicit disaster compensation frameworks. Existing Louisiana law offers an existing legal and moral framework that can be applied by the state entity currently deliberating on post-disaster compensation program. California, on the other hand, currently offers the most unforgiving compensation scheme, but also has the time to adopt tailored flood compensation and planning principles."—Abstract.

"Over 700,000 people were displaced after Hurricane Katrina, including 330,000 families. This paper examines some of the potential jurisdictional and practical problems many of these displaced families will face in relation to divorce and child custody matters. It specifically focuses on Louisiana divorce laws and recent modifications to these laws, as well as the conflict of laws issue faced by spouses in covenant marriages when attempting to dissolve their marriages outside of the state. This paper also focuses on the jurisdictional questions that arise when parents attempt to either petition for or modify a preexisting custody decree after displacement. It will examine the implications of federal and uniform laws governing child custody jurisdiction in situations where one of the parents has been displaced outside of Louisiana due to emergency evacuations."—Abstract.

"The vulnerability of California's Delta region to massive flooding stands as one of the state's most urgent policy issues. One of the state's few tools in place to curb urbanization in the Delta is the Delta Protection Act. Adopted in 1992, the Act created the Delta Protection Commission as the regulatory body charged with overseeing development in the Delta. Reflecting a spirit of political compromise, however, the Act limits the jurisdiction of the Commission to the Delta's primary zone while development in the secondary zone goes unregulated. The Delta Protection Commission was called into action for the first time in the fall of 2006 when the Yolo County Board of Supervisors approved a plan for residential development on land presumed to be within the primary zone. In February of 2007 the Commission voted to officially reject the development as a violation of the Delta Protection Act. The primary basis for the Commission's decision was that the Old Sugar Mill Project would 'expose the public to increased flood hazards.' The Commission's decision is, however, appealable in court, and, reflecting the Commission's grossly insufficient regulatory authority, it is uncertain whether the decision will withstand a legal challenge.

"Even if the Delta Protection Commission's decision is ultimately upheld in court, however, the Clarksburg situation demonstrates the irrationality, and unacceptability, of California's Delta land-use regulatory scheme. At present, developments that pose a clear risk to public safety and the long run health of both the Delta and state economy go unchallenged simply because certain land is designated as the secondary zone and, thus, falls within the exclusive jurisdiction of local governments. In order to alleviate this untenable situation California must create a dominant regulatory body with the authority to strictly oversee land-use throughout the Delta region."—Abstract.

"This paper examines the human and organizational failures that have plagued the design and construction of the new east span of the San Francisco-Oakland Bay Bridge, drawing comparisons to the failures of the New Orleans Flood Defense System before and during Hurricane Katrina. It also suggests what lessons can be learned from the successes of 'high reliability organizations,' so that more integrity and reliability can be built into the leadership and decision-making processes of future projects of this magnitude."

"Communities facing a substantial risk of natural disaster require individual landowner cooperation with detailed building codes to ensure safety. Beyond increasing public expenditures on enforcement action, I propose that limitations on personal property ownership through increases in minimum parcel sizes and restrictive covenants can also facilitate individual compliance with regulation. Deployment of such solutions in existing residential property will require substantial use of eminent domain and political will, most likely available in the immediate aftermath of a natural disaster."—Abstract.

"As the United States sees more and more property damage result from domestic disasters it quickly becomes apparent that the insurance industry as it exists cannot provide sufficient economic relief from natural disasters. This paper begins with a brief overview of the problem that Katrina has left the Gulf Coast and as a result the rest of the nation. Subsequently Katrina will be compared to other natural catastrophes in terms of economic issues.

"The second main portion of this article discusses the problem of catastrophe insurance. Two possibilities for reform are discussed. These are (1) a change to the tax structure that inhibits insurance companies from maintaining the large cash reserves required for catastrophe coverage and (2) a reformation of the National Flood Insurance Program (NFIP)."—Abstract.

"Many Mississippi homeowners who suffered property damage in Hurricane Katrina had insurance policies containing exclusions that denied recovery for damage caused by water. The Attorney General of Mississippi filed suit in response, attempting to declare these water damage exclusions void as against public policy. This paper examines the merits of the suit, addressing the central legal and economic reasons why the suit will likely be unsuccessful. The paper then proposes prescriptive measures, including changes to the National Flood Insurance Program and possible implementation of a federal comprehensive natural disaster insurance program, which may facilitate more efficient and widespread flood insurance coverage in the future."—Abstract.

"The awareness of federal, state and local governments of the potential for levees in New Orleans to fail and decimate poor neighborhoods of the city was widely reported following the hurricane Katrina disaster. Demographics in the areas likely to incur the most severe damage were known to be neighborhoods of predominately poor, black residents. In addition to understanding the likely geographical impact of the impending disaster, the federal government was aware of the extensive social science and legal challenges detailing the likelihood of minority citizens to experience the worst consequences and slowest recovery from natural disasters. Studies dating back to the 1950s and numerous reports of the Red Cross support this conclusion. FEMA itself was sued in federal court for its inadequate response to marginalized communities during hurricane Andrew in 1992. While the federal government may not be held legally responsible for its discretionary policies within the disaster relief context, the horror of hurricane Katrina surely calls for a long overdue re-thinking of the federal approach to assisting marginalized communities in disaster recovery. Social science, the practical problems raised within legal challenges, as well as successful strategies from other disasters and even within the Katrina tragedy offer numerous opportunities for such reform."—Abstract.

"In the wake of Hurricane Katrina, incarcerated New Orleanians suffered in ways that far exceeded initial understandings of the scope of the storm. New Orleans's criminal justice system was utterly debilitated by the storm, with courts closed, judges and attorneys evacuated, and evidence underwater and destroyed. The many thousands who had been imprisoned in New Orleans prior to the storm were transferred throughout the state, their contact with family, friends and attorneys severed.

Additionally, in the days and weeks following the storm, erroneous reports suggested that New Orleans had devolved into lawlessness. This reporting triggered an unwarranted amount of the general relief effort to be focused on law enforcement, and hundreds of arrests were made despite the fact that courts were still closed and attorneys still absent. The cumulative result of mass incarceration and judicial debilitation was widespread denial of fundamental constitutional and due process rights, including, notably, the essential right to challenge the legality of one's imprisonment through a writ of habeas corpus. For those who suffered so greatly as a result, possible remedies such as pardon and criminal record expungement should be explored and thoughtfully considered."—Abstract.