The Suspension Theory: Hurricane Katrina Looting, Property Rights, and Personhood

• Author: Casey E. Faucon
• Pages: 1303-1338

The author would like to thank Professor N. Gregory Smith for his guidance.

Page 1303

In anticipation of Hurricane Gustav, Mayor C. Ray Nagin announced, "Anyone caught looting in New Orleans will go directly to the Big House . . . . You will go directly to Angola Prison, and God bless you if you go there." ¹ In making that announcement, Mayor Nagin undoubtedly had the events following Hurricane Katrina in mind. Three years earlier, Hurricane Katrina engulfed the city of New Orleans. ² When the storm passed and the waters rose, New Orleans was in chaos. ³Media reports of people vandalizing and looting stores portrayed the image that the city had disintegrated into a state of anarchy. ⁴Looters ransacked the shops at Canal Place, burned parts of Saks Fifth Avenue, and took roughly $250,000 worth of liquor, cigarettes, and candy from three convenience stores on the 5900 block of Veterans Memorial Boulevard. ⁵

Such reports depicted the looters as heartless criminals who wrongfully took advantage of the disaster-stricken city. ⁶ Much less Page 1304 attention was given, however, to those looters who took from others as a means to survive the devastating aftermath of the hurricane. Those looters took non-perishable goods, clothing, flashlights, and generators. ⁷ Often, they left no wake of destruction in their paths and took only what was needed to survive.

Scholars and the general public alike perceive looting as immoral and debase or necessary and justified, depending on the circumstances. ⁸ Although some people regard the looting of "luxury goods" as unconscionable, others sympathize with and excuse looters who take only "necessity goods." ⁹ Perhaps the conscious distinction has less to do with society's moral perceptions of looting and more to do with society's perceptions of ownership. Professors Eduardo M. Penalver and Sonia Katyal argue that society negatively views "property outlaws" because such individuals undermine the stability that property laws strive to produce. ¹⁰ Looters, as a particular type of property outlaw, contribute to the fracturing of that stable foundation. ¹¹ Instead of Page 1305 dismissing property outlaws as rebellious, subversive characters, Penalver and Katyal suggest that society should embrace the property outlaw as an enabler of the "reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements." ¹²

This Comment demonstrates how, after natural disasters like Hurricane Katrina, society's reaction to looters depends upon the extent to which the looter disrupts the pre-existing property rights under Louisiana property law. To facilitate this discussion, this Comment uses a theory first articulated by renowned sociologists and group behavioral theorists Enrico Quarantelli and Russell Dynes-what this Comment terms the "Suspension Theory." ¹³This theory illuminates the causal relationship between property rights and societal reactions to looting in different situations. ¹⁴

Part I of this Comment introduces the Suspension Theory and critiques its applicability to natural disaster situations like Hurricane Katrina. Part II argues that the looting which occurred after Hurricane Katrina demonstrates that the traditional line between "natural disaster looting" and "civil disturbance looting" has given way to a new form of looting and discusses the theoretical and practical applicability of the Suspension Theory to this new form of looting. Part III discusses Louisiana movable property laws and analyzes how the Suspension Theory interacts with these laws in three different hypothetical looting scenarios reminiscent of the types of looting situations following Hurricane Katrina. Part IV argues that the application of the Suspension Theory shows the causal connection between the effect of looting on property rights and society's responses to looting. This Comment concludes with a brief discussion of why we-as a society and as individuals-make such a connection. Page 1306

I The Suspension And Redistribution Of Property Rights

Undoubtedly, looting is criminal behavior. ¹⁵ What is less apparent, however, is that the laws that make looting criminal are based on conceptions of property rights. ¹⁶ Through a structured system of ownership, property law-as an institution-promotes stability within a society by creating a predictable relationship between owners and non-owners. ¹⁷ Looters and other figures that "intentionally flout property laws" show a breakdown in that predictability. ¹⁸ Looters rearrange property rights by taking possession of goods, moving them around, and consuming, selling, or destroying them, thus disrupting the balance between owners and non-owners.

Despite the societal need for stability, individuals need property to survive. ¹⁹ This need for survival can cause those without property to challenge existing property rights. ²⁰ Penalver and Katyal go so far as to argue that the "propertyless person" should take for himself the property of others that he needs to survive. ²¹ This argument rings especially true after disasters like Hurricane Katrina that cause large-scale loss and create conditions of instability. ²² The need for human survival often softens the reality that looters are essentially thieves; society is more sympathetic to the looting of necessity goods, especially in the most desperate of times. ²³ Page 1307

Because society's perceptions of looting often prove to be factually dependent on the type of property taken and the circumstances in which the looting occurs, looting should be addressed from the viewpoint of how it affects the structure and organization that property law promotes at any particular time. Although violent, large-scale group looting could be interpreted as a mass protest against society's conception of ownership and order, ²⁴ a single looter acting without any violence or protest is perceived much differently. The scholarly discussions concerning looting must reflect this reactionary dichotomy. Professors Joseph Singer and Gregory Alexander argue that the stability of property law depends, ironically, on its malleability-on its "capacity to be modified or restrained to take into account the intersecting rights and needs of others." ²⁵ The scholarship that addresses looting should encourage such malleability in order to address the multiplicity of societal responses to looting.

A The Suspension Theory

One example of scholarship that addresses this needed malleability in natural disaster situations is a theory first articulated by Enrico L. Quarantelli and Russell R. Dynes-the Suspension Theory. ²⁶ Quarantelli and Dynes argue that after a natural disaster, a collective goal exists within the community to preserve lives. ²⁷ In order to further this goal, the normal structure and organization of a community is, theoretically, temporarily suspended. ²⁸ The underlying purpose of the Suspension Theory is to facilitate the transition from private ownership to "communal ownership" in order to provide for the community members who are most in need. ²⁹ Furthermore, in reality, in these types of disaster situations, community officials often tolerate and facilitate this transition, Page 1308 even if private resources are limited. ³⁰ The Suspension Theory is the theoretical justification for such action. Community members can break into stores to obtain food and other necessities in order to provide temporary shelter and meals for those left helpless without fear of public or criminal retribution. ³¹ According to Quarantelli and Dynes, the suspension of property laws almost "defines looting out of existence . . . but not quite." ³² This is because post-disaster looting is strictly limited (1) to community members and (2) for community ends. ³³ If outsiders take luxury goods for their own use, then the Suspension Theory does not work to remove criminal liability for those who break these two "rules." ³⁴

As described by Quarantelli and Dynes, the period during which property rights are suspended-or the suspension period- begins when the natural disaster first hits a community and ends when the community "restores to order." ³⁵ Depending on the extent of the devastation, the scope of the affected geographic area, and the particular community, the time needed to accomplish sufficient restoration will vary. ³⁶ This is especially true in larger, urban cities when city officials restore power more quickly to Page 1309 certain operational areas while businesses and schools do not begin to function again until much later. ³⁷

Absent from Quarantelli and Dynes' discussion on the issue of suspension and redistribution of property rights, however, is what the resulting ownership rights surrounding a looted good are when property rights "reinstate." Consider a community before a natural disaster strikes-complete with homes, businesses, and goods inside those homes and businesses. Then the disaster hits. Under the Suspension Theory, property rights are suspended at this moment in order to facilitate the most efficient and...