Did a sheriff falsely imprison two people accused of public intoxication by failing to release them when a hearing to determine whether or not there was probable cause to hold them was not held because a hurricane hit? Did a jailer deny the people access to counsel by not allowing them to use their cell phones to call for legal help? A New Orleans federal jury said "yes." Fifth Circuit Judge Jacques L. Wiener, Jr, writing for a panel including judges Carolyn Dineen King and E. Grady Jolly, held in Waganfeald v. Gusman that the answer to each question is "no." Louisiana Code of Criminal Procedure article 230.2(B)(1) says that a defendant shall be released if probable cause to hold a defendant is not found by a magistrate in 48 hours. It does not have an exception for emergencies in its text. The leading Louisiana case interpreting this statute, State v. Wallace, 2009-KK-1621, (11/09/09); 25 So.3d 720, includes an exception for emergencies and extreme circumstances in its decree. This was brought out in oral argument in Waganfeald. The statute codified County of Riverside v. McLaughlin, 500 U.S. 44 (1991), which, in its dicta, includes an exception for emergencies. the Fifth Circuit ended up deciding that there was an emergency exception, and that Hurricane Katrina was an emergency. The Fifth Circuit decided that the jailer had not deprived the defendants of counsel first, because these probable cause hearings were not a "critical stage" of the criminal proceedings, that is, a stage of the proceedings at which the right to counsel had attached and second, because the jailer didn't keep the defendants from accessing the phones, it was just that the phone equipment outside of the jail that the phones were attached to was down, which wasn't the jailer's fault.
In essence, what happened to the defendants was horrific, but being in New Orleans during Katrina was horrific. The Fifth Circuit decided that the horror wasn't because of the sheriff or the jailer.
The complaint in the trial court for this case is here.
The defendants were arrested in August 26, 2005. One was released October 3, 2005, the other October 5, 2005. With the benefit of hindsight, instead of complaining about staying one second after 48 hours, it might have been well-advised to argue in the alternative that the emergency that required their overlong hold did not go on for 37 or 39 days. The plaintiffs' strategy of arguing that the statute admitted of no exception ended up working against them in the appeals court (One of the male appeals court judges appeared hostile to the statute itself as it might be applied to a serial killer.).