Tuesday
Dec042007
Claims upheld in Katrina Lawsuit; Family prohibited access after storm - Turned Away by Redneck Police who Closed Bridge
Tuesday, December 4, 2007 at 10:22AM From The Times-Picayune Publishing Company
By Paul Purpura, West Bank bureau
A federal judge has tossed out three of five claims an Algiers family makes in a lawsuit alleging that police agencies unconstitutionally prohibited crossing the Crescent City Connection two days after Hurricane Katrina.
But in her ruling Friday, U.S. District Judge Mary Ann Vial Lemmon kept alive two of the Cantwell family's keystone arguments: the right to interstate travel, or travel from state to state, and the right to freedom against unreasonable restraint of liberty.
"It keeps the nucleus of their claim intact," said Thomas Milliner, the Cantwells' attorney. "I was very gratified to receive that decision."
The lawsuit names the Gretna Police Department; its chief, Arthur Lawson Jr.; the Jefferson Parish Sheriff's Office; the late Sheriff Harry Lee, who died in October; and the state Department of Transportation and Development, which oversees the Crescent City Connection. Officials with those three agencies jointly decided to close the bridge to pedestrians on Sept. 1, 2005.
That decision sparked five civil lawsuits: four in federal court and one in New Orleans civil district court. It also started a criminal probe that ended last month when a New Orleans grand jury declined to indict a Gretna police officer on a charge of illegal discharge of a firearm; he fired his shotgun into the air on the bridge to quell pedestrians who threatened to throw officers off the spans.
All of the civil lawsuits seek unspecified damages, and one seeks class-action status. Only the Cantwells' named all three agencies. All three defendants asked Lemmon to dismiss the Cantwell lawsuit. The jury trial is set for July 14.
"It's in the early stages," Kenneth Pickering, attorney for the Crescent City Connection, said of the lawsuit. "From the defense standpoint, three out of the five claims in the motion for summary judgment were granted. We'll have to proceed further on the other items."
Gretna's attorney, Franz Zibilich, and Sheriff's Office attorney Danny Martiny could not be reached for comment Monday.
Nine members of the Cantwell family, including five children as young as 8 months, rode out the storm at a Canal Street hotel, and two days later, they heard a radio report that people were crossing the Crescent City Connection on foot, according to their lawsuit.
That led the Cantwells to try to walk to their Delaronde Street home, get other vehicles and evacuate the state. They made it as far as the toll plaza in Algiers when they were turned back to the city by two police officers.
Lemmon dismissed the Cantwells' claims that police violated their Eighth Amendment right against cruel and unusual punishment and their 14th Amendment right barring reasonable search and seizure. She notes that the Cantwells did not argue that police violated their right to intrastate travel, though the defendants asked that such an argument be dismissed.
Lemmon, who is presiding over the four federal cases, tossed the intrastate-travel claim from a lawsuit filed Dec. 22, 2005, by Dorothy and Tracy Dickerson of New Orleans, finding that the U.S. Supreme Court has never ruled on the right of intrastate travel. Legal experts have said her ruling in the Dickerson case would affect others making the same claim.
But Lemmon kept alive the Cantwell argument that the police violated their right to interstate travel, writing that allegations they spell out in their lawsuit are "broad enough to give the defendants notice that the (Cantwells') claim encompasses a violation of their right to interstate travel."
Milliner said the Cantwells never planned to walk into Gretna or Jefferson Parish, and yet were stopped in Orleans Parish by a suburban deputy and a bridge police officer before they could leave the state.
"It was the first step of their evacuation," Milliner said of the walk to Algiers.
Kimberly Cantwell Sr., who planned to evacuate to his in-laws' home in Michigan but instead was forced into the Superdome, said he was "delighted" by Lemmon's ruling.
"Basic American freedoms are embedded in this case," he said.
Also intact is the Cantwells' claim that the police violated their right to be free of unreasonable restraint of liberty under the Fourth Amendment. This claim stems from the Cantwells' encounter with the Sheriff's Office deputy who they say aimed an M-16 assault rifle at Kim Cantwell Jr., and then forced the family back into New Orleans, Milliner said.
Pickering, representing the Crescent City Connection, said the argument alleging unreasonable restraint of liberty should not have affected his client. The lawsuit alleges a bridge police officer escorted the Cantwells to the east bank without leaving his vehicle.
"It's not alleged that anyone from the Crescent City Connection spoke to them (the Cantwells) in any way," Pickering said.
A federal judge has tossed out three of five claims an Algiers family makes in a lawsuit alleging that police agencies unconstitutionally prohibited crossing the Crescent City Connection two days after Hurricane Katrina.
But in her ruling Friday, U.S. District Judge Mary Ann Vial Lemmon kept alive two of the Cantwell family's keystone arguments: the right to interstate travel, or travel from state to state, and the right to freedom against unreasonable restraint of liberty.
"It keeps the nucleus of their claim intact," said Thomas Milliner, the Cantwells' attorney. "I was very gratified to receive that decision."
The lawsuit names the Gretna Police Department; its chief, Arthur Lawson Jr.; the Jefferson Parish Sheriff's Office; the late Sheriff Harry Lee, who died in October; and the state Department of Transportation and Development, which oversees the Crescent City Connection. Officials with those three agencies jointly decided to close the bridge to pedestrians on Sept. 1, 2005.
That decision sparked five civil lawsuits: four in federal court and one in New Orleans civil district court. It also started a criminal probe that ended last month when a New Orleans grand jury declined to indict a Gretna police officer on a charge of illegal discharge of a firearm; he fired his shotgun into the air on the bridge to quell pedestrians who threatened to throw officers off the spans.
All of the civil lawsuits seek unspecified damages, and one seeks class-action status. Only the Cantwells' named all three agencies. All three defendants asked Lemmon to dismiss the Cantwell lawsuit. The jury trial is set for July 14.
"It's in the early stages," Kenneth Pickering, attorney for the Crescent City Connection, said of the lawsuit. "From the defense standpoint, three out of the five claims in the motion for summary judgment were granted. We'll have to proceed further on the other items."
Gretna's attorney, Franz Zibilich, and Sheriff's Office attorney Danny Martiny could not be reached for comment Monday.
Nine members of the Cantwell family, including five children as young as 8 months, rode out the storm at a Canal Street hotel, and two days later, they heard a radio report that people were crossing the Crescent City Connection on foot, according to their lawsuit.
That led the Cantwells to try to walk to their Delaronde Street home, get other vehicles and evacuate the state. They made it as far as the toll plaza in Algiers when they were turned back to the city by two police officers.
Lemmon dismissed the Cantwells' claims that police violated their Eighth Amendment right against cruel and unusual punishment and their 14th Amendment right barring reasonable search and seizure. She notes that the Cantwells did not argue that police violated their right to intrastate travel, though the defendants asked that such an argument be dismissed.
Lemmon, who is presiding over the four federal cases, tossed the intrastate-travel claim from a lawsuit filed Dec. 22, 2005, by Dorothy and Tracy Dickerson of New Orleans, finding that the U.S. Supreme Court has never ruled on the right of intrastate travel. Legal experts have said her ruling in the Dickerson case would affect others making the same claim.
But Lemmon kept alive the Cantwell argument that the police violated their right to interstate travel, writing that allegations they spell out in their lawsuit are "broad enough to give the defendants notice that the (Cantwells') claim encompasses a violation of their right to interstate travel."
Milliner said the Cantwells never planned to walk into Gretna or Jefferson Parish, and yet were stopped in Orleans Parish by a suburban deputy and a bridge police officer before they could leave the state.
"It was the first step of their evacuation," Milliner said of the walk to Algiers.
Kimberly Cantwell Sr., who planned to evacuate to his in-laws' home in Michigan but instead was forced into the Superdome, said he was "delighted" by Lemmon's ruling.
"Basic American freedoms are embedded in this case," he said.
Also intact is the Cantwells' claim that the police violated their right to be free of unreasonable restraint of liberty under the Fourth Amendment. This claim stems from the Cantwells' encounter with the Sheriff's Office deputy who they say aimed an M-16 assault rifle at Kim Cantwell Jr., and then forced the family back into New Orleans, Milliner said.
Pickering, representing the Crescent City Connection, said the argument alleging unreasonable restraint of liberty should not have affected his client. The lawsuit alleges a bridge police officer escorted the Cantwells to the east bank without leaving his vehicle.
"It's not alleged that anyone from the Crescent City Connection spoke to them (the Cantwells) in any way," Pickering said.
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