Katrina's house: the constitutionality of the forced removal of citizens from their homes in the wake of natural disasters.

• Author: Jorissen, Jonathan

Hurricane Katrina took the United States by storm in the most literal sense. Katrina, the sixth-strongest storm ever to strike the Atlantic basin, (1) grew even more devastating when it breached the levee system that protected the city of New Orleans from nearby bodies of water. (2) Just prior to Katrina's arrival, Mayor Clarence Ray Nagin, Jr., ordered the city's first ever mandatory evacuation. (3) Due to various circumstances, however, thousands of citizens were unable to comply. (4) Amid the ensuing destruction and devastation, Mayor Nagin granted law enforcement officials the power to remove these remaining citizens from their homes forcibly, should they refuse to leave peacefully. (5) This declaration raised more than a few eyebrows and occasioned the inquiry: can they do that? (6)

Mayor Nagin articulated health concerns from the flooding and fires as the impetus for the declaration. (7) From the survivors' viewpoint, however, countervailing considerations outweighed these potential health risks. Following Katrina's destruction, looting emerged as a grave concern. (8) With government officials overwhelmed by the clean-up and restoration efforts, some citizens understandably doubted the government's ability to protect what little property remained intact. (9) Others preferred the comfort of their own homes, even in such damaged states, to the uncertainty of surrounding shelters. (10) Still others remained in order to care for their pets that would be left behind in rescue efforts. (11) Whatever the reasons citizens had for staying, the mayor's declaration met with displeasure. Yet, in the face of losing everything, temporary or otherwise, these tragedy-stricken citizens could do nothing but voice displeasure. According to the Robert T. Stafford Disaster Relief and Emergency Act of 1988 ("Stafford Act"), (12) which directs the governmental response to natural disasters and states of emergency, (13) not only can the government forcibly evict citizens, it can do so without any repercussions whatsoever under the shield of governmental immunity.

Private property rights stand out as some of the most fundamental and cherished rights in the United States. (14) Indeed, the most central document of this nation's founding explains, "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." (15) The right not only to own property but to exert control over that property is so central to citizenship in this country that any infringement on that right must be carefully and vigorously scrutinized. (16) In light of the significance of the right to property, this Note examines whether the government should be able to evict citizens forcibly from their homes in the wake of natural disasters, and ultimately concludes that, as a general rule, the government should not be able to act thus. Private property interests can be protected without retarding the ability of the government to administer relief efforts by amending the Stafford Act to require a court's approval of mandatory evacuation declarations.

Natural disasters vary in form and impact. Some strike without warning, while others can be detected in advance. The scope of this Note will be restricted to forced evictions following all natural disasters. Part I addresses the Stafford Act generally, with specific attention paid to governmental immunity surrounding so-called "discretionary functions." In particular, this Part examines the potential for citizens to pierce the immunity shield when constitutional rights are involved. Part II addresses the competing governmental and individual interests present in the wake of natural disasters and emergencies. Obviously, the government's interest in maintaining order and preventing disease and death stands prominent. Private landowners, however, have a constitutionally granted right to the use and enjoyment of their property. Restrictions on this right cannot be made lightly. Part III addresses potential defenses for the forcible removal of citizens from their homes following natural disasters in order to illuminate possible solutions. For example, can the forcible removal of citizens under such grave circumstances fall under "takings" jurisprudence, or is it more appropriate to frame the situation through a public necessity lens? The implications of each potential classification will be examined briefly. Part IV concludes the Note by arguing for the restriction of governmental immunity in instances of natural disasters and emergencies. An extreme deprivation of property, even in dire circumstances, warrants some protection from arbitrary or abusive implementation. As such, the Stafford Act should be amended to include various safeguards aimed at protecting private landowners from being trampled by an entirely different sort of storm. (17)

1. THE STAFFORD ACT, GOVERNMENTAL IMMUNITY, AND DISCRETIONARY FUNCTIONS

   1. The Stafford Act

      The Constitution itself does not mention times of national crises. (18) Subsequent legislative activity, however, provides a fairly comprehensive discussion of such times. Previously known as the Disaster Relief Act of 1974, the Stafford Act represents "the intent of the Congress ... to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from such disasters." (19) The Act contains multiple methods to catalyze disaster relief. (20) Perhaps the most common of these, and the one involved in the Katrina inquiry, is the presidential declaration of a major disaster, which requires the governor of a state to determine first that a particular situation consists of such severity and magnitude as to render the local government insufficient to remedy it. After making this finding, the governor may request assistance from the federal government via the president. (21)

      The provisions of the Stafford Act number too many to recount here. Suffice it to say, the Act outlines the procedures for declaring emergencies, the interplay between federal and local governments, and the general rights of the government in such emergencies. (22) Most relevant to this Note, the Act exempts government officials from liability in their performance of discretionary duties:

      The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal government in carrying out the provisions of this chapter. (23) Quite explicitly, the Stafford Act grants immunity to federal agents. In the case of Katrina, however, the order authorizing forced removal came from the mayor--a state agent. While the interplay between state and federal government in disaster relief situations can be onerous, this Note simplifies the problem by arguing that the Stafford Act should be amended to encompass state officials. (24)

      For the purpose of this Note, it is also worth mentioning that the Federal Emergency Management Agency ("FEMA") (25) constitutes the major vehicle to facilitate relief under the Stafford Act. As a result of this distinction, FEMA frequently emerges as a post-natural disaster party to lawsuits. (26) The Stafford Act equips FEMA with, among other powers, the authorization to provide temporary housing assistance (27) and to remove disaster debris from both public and private spaces. (28)

      The relevance of the Stafford Act, then, stands quite evident as it relates to the present inquiry. As will be demonstrated herein, the Act's immunity clause, coupled with a lack of specificity regarding evacuation procedures, renders citizens helpless to defend themselves from forcible eviction from their homes.

   2. Governmental Immunity and Discretionary Functions (29)

      Having garnered a very basic understanding of the Stafford Act and its relevance to inquiries of the same present genre, this Note now turns to the impact of the Act's immunity clause. The concept of governmental immunity extends back to the feudal era in which the king could do no wrong. (30) Justice Holmes explained the concept of sovereign immunity as a practical conclusion drawn from the reality that the sovereign creates the law: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." (31) The policy rationale behind governmental immunity is compelling. (32) Certainly it would be undesirable to have the judiciary second-guessing governmental authorities' decisions, which are often made under duress and in response to pressure-filled situations. Yet, simultaneously, governmental agents cannot have unchecked authority to carry out their duties. Despite the abrogation of other common law immunities, governmental immunity remains intact, albeit slightly restricted. (33)

      Typically, as with the Stafford Act, governmental immunity applies only in cases involving discretionary acts. (34) As understood by the Supreme Court, two criteria must be met in order to deem an act discretionary. First, discretionary acts must "involve[] an element of judgment or choice." (35) Consequently, no discretionary function exception will be found when the act is mandated by statute. (36) Second, it stands imperative that the "judgment is of the kind that the discretionary function exception was designed to shield." (37) Since the exception was designed to prevent judicial scrutiny of administrative decisions, the exception can be said to protect only judgments and choices rooted in the interest of public policy. (38)

      Examples of discretionary functions as they pertain to the Stafford Act abound. When suit was...