The right to be rescued: disability justice in an age of disaster.

• Author: Weibgen, Adrien A.
• Position: IV. The Perfect Storm: Class Certification & Hurricane Sandy through Conclusion: Raising up the Right to Be Rescued, with footnotes, p. 2436-2469

4. THE PERFECT STORM: CLASS CERTIFICATION & HURRICANE SANDY

   1. Hurricane Sandy Hits

      Hurricane Sandy's path remained somewhat unpredictable in the days before it made landfall in New York, and as late as Friday, October 26, 2012, meteorologists and major news outlets were still describing a direct descent on New York City as just one of several possible scenarios. (179) Nevertheless, Governor Andrew Cuomo declared a state of emergency in New York State on that date, "mobiliz[ing] resources to local governments that otherwise are restricted to state use only and suspending] regulations that would impede rapid response." (180) Some New Yorkers who had succumbed to the hysteria preceding Tropical Storm Irene may have discounted the severity of the early reports about Hurricane Sandy, "lulled into a false sense of security" by the false alarm the earlier storm had posed. (181) Others were deterred from evacuating because they did not have any friends or family they could stay with--a limitation that is particularly common for PWDs whose mobility impairments require them to remain in accessible environments. (182) As the reports about Sandy's path of destruction grew more worrisome, the City began to take steps to prepare. On Sunday, October 28, Mayor Bloomberg issued a mandatory evacuation order of 375,000 people living in the city's low-lying areas. (183) In his address, the Mayor announced that the City's public transportation system would shut down later that evening, and that elevators in the high-rise public housing buildings in the areas that had been ordered to evacuate would also be shut down. (184) Although the Mayor described the various means through which residents would be notified to evacuate, he did not explain what evacuation assistance, if any, was available to those who might not be able to get out in time. (185) Paying scant attention to the challenges faced by elderly and disabled people who had been granted only a few short hours to evacuate before their elevators were shut off and public transportation ceased, the Mayor framed people's potential failure to leave as an irresponsible choice: "[T]hey are being, I would argue, very selfish. They are not only endangering their own lives, they're endangering the lives of others because in an emergency we aren't going to leave them to die. We're going to come in and save them." (186)

      In the days and weeks that followed, many would come to question the Mayor's assertion that the City would not leave anyone to die and would come to fault the City for its failure to ensure the safety of the residents who had been left behind. (187) The BCID court would later find that "paratransit began to shut down only half an hour after the Mayor issued the evacuation order, while subway and bus service remained open for at least eight more hours." (188) As the U.S. Attorney's Office of the Southern District of New York noted in a statement of interest, because Access-A-Ride requires PWDs to make advance bookings and its services were stopped altogether shortly after the Mayor's speech, "even individuals with disabilities who had planned ahead to be evacuated on October 28, well in advance of the landfall of Hurricane Sandy, could have been left effectively stranded." (189) However, in the immediate aftermath of the storm, the growing crisis of those abandoned in high-rise buildings had yet to come to the attention of many members of the public or many officials in charge of the City's emergency response. (190) Instead, electricity was restored to Manhattan much sooner than to the outer boroughs, (191) leading many people to conclude that the immediate crisis had largely ended only a few days after the storm. (192) Just shy of a week after Sandy, Mayor Bloomberg announced that "the city had been inundated with well-meaning people dropping off goods at relief centers" and "what would be the most helpful is [monetary] donations." (193) At this point, however, many people living in the outer boroughs including thousands of elderly and disabled people in nursing and adult homes the City had decided not to evacuate-remained trapped and in dire need of help. (194) As the New York Times would later conclude, "[a]gain and again, city officials publicly predicted that the crisis ... was on the verge of being resolved, contributing to a perception at City Hall"-and beyond--"that there was no need to mobilize an extensive effort to provide medical care" (195) and other assistance.

      As much of the city began to breathe a sigh of relief, the harmful effects of the storm on the people who had been abandoned continued to multiply. Many high-rise buildings had lost all heat, water, and electricity, shutting down elevators for days and weeks on end. (196) Although the City's emergency response teams and representatives from FEMA and the Red Cross set up relief centers in impacted neighborhoods, more than ten days passed before City officials coordinated door-to-door canvassing efforts inside buildings to identify elderly, sick, and disabled people in need of assistance. (197) Fellow residents helped to meet the needs of many of their neighbors, (198) seeing them through until official emergency responders at last made their way to the scene. But in many buildings, all but the most profoundly disabled and elderly residents had already evacuated, (199) and those who remained were not well equipped to help each other. (200) Untrained volunteers stepped in to fill the gaps that official response teams had left behind, coordinating major grassroots relief efforts to knock on doors, deliver necessary supplies, and help residents coordinate emergency medical evacuations where needed. (201) In many instances, the situations that volunteers encountered behind closed apartment doors were grim. Many elderly and disabled people were lacking basic necessities such as food and water. (202) Others had run out of necessary medications, or had begun to miss vital dialysis, chemotherapy, and other medical appointments. (203) Still others had been isolated from the friends, relatives, and aides who typically cared for them (204)--people who were unable to reach those who were trapped as a result of the shutdown of public transportation (205) and the severe gas shortages that hindered car travel in the weeks after Sandy. (206) Although the volunteers helped to meet many residents' immediate and critical needs, (207) most volunteers had no training in medical care or emergency response and had few, if any, qualifications, apart from their willingness to assist. (208)

      The City eventually coordinated a canvassing effort to send health care professionals and members of the National Guard to high-rise buildings that remained without power, (209) but at that point, countless people had been living in perilous circumstances and sheer misery almost two weeks. (210) They would continue to do so until their heat, water, and power was fully restored. (211) Residents subsisted on canned food and military protein packs. (212) People were not able to bathe and were forced to defecate in buckets. (213) The scale of human suffering for all of the people compelled to live in high-rise caves during this period was extreme, but it was clear that PWDs were disproportionately likely to have suffered as a result of official neglect. (214)

      Many questions would be raised in the months that followed. Why were people left behind? Why had so many failed to evacuate? Who was responsible? How could the City make sure that this would never happen again? And quietly, a lawsuit that would help to answer some of these questions began to move ahead. On November 7, 2012, United States District Judge Jesse M. Furman issued the opinion and order certifying the proposed class in BCID v. Bloomberg. (215) Writing from his home office (216) because the downtown federal courthouse was shut down as a result of Hurricane Sandy, (217) Judge Furman affirmed that the plaintiffs had standing to pursue the case and could do so as a unified class. (218)

   2. Standing To Sue and Class Certification

      Judge Furman has stated that his decision was in no way influenced by Hurricane Sandy and that the issuance of the order at a moment when disabled New Yorkers remained trapped in their apartments was purely coincidental. (219) Nevertheless, in finding that the plaintiffs had standing to pursue the case, Judge Furman spoke directly to the manner in which Hurricane Sandy had brought the plaintiffs' contentions of harm into sharp relief. Discounting the defendants' emphasis on concrete injuries that the individual named plaintiffs may or may not have suffered as a result of the City's emergency planning and procedures, Judge Furman held that "that contention misses the point.... The gravamen of plaintiffs' claims is, first and foremost, that they have been, and continue to be, deprived of benefits afforded to other citizens-namely, the benefits of an adequate emergency preparedness program." (220) Because plaintiffs alleged a present injury-lack of access to an effective emergency plan--they had standing to bring the case.

      Judge Furman also found that the plaintiffs had standing "based on the threat of future harm and the fear and apprehension caused by it." (221) Speaking directly to the disaster unfolding outside, he wrote:

      It is, of course, not possible to know with certainty if or when disaster will strike the City, but--as the tragic events of the past few weeks make abundantly clear--it is beyond "mere conjecture" that another disaster, whether natural or manmade, will occur and that it will seriously affect members of the proposed class. (222) Judge Furman further underscored the urgency of the plaintiffs' claims by finding that "a court would be in no better position later than now to resolve the claims presented. Indeed, to conclude otherwise would be perverse, as it would mean that plaintiffs could bring their claims only after their worst...