# Waganfeald v. Gusman

> Court of Appeals for the Fifth Circuit · March 12, 2012 · 674 F.3d 475

URL: https://www.frixlaw.com/law-library/cases/625170

## Case

- **Full name:** Robie J. WAGANFEALD; Paul W. Kunkel, Jr., PlaintiffsAppellees, v. Marlin N. GUSMAN, Orleans Parish Criminal Sheriff; William C. Hunter, OPCSO Chief Deputy, Defendants-Appellants
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** March 12, 2012
- **Citations:** 674 F.3d 475; 2012 U.S. App. LEXIS 5139; 2012 WL 762921
- **Precedential status:** Published
- **Opinion:** Opinion by Wiener
- **Judges:** King, Jolly, Wiener
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/625170

## How later opinions describe it (automated extraction)

- emphasizing “deference” owed officials in the “execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security” (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979))
- finding no clearly established law showing a defendant violated the plaintiffs’ rights, noting the plaintiffs “pointed us to no such authority, and we ... found none”
- stating that qualified immunity should be adjudicated at the earliest possible stage
- reversing the denial of a motion for judgment as a matter of law because the jury found liability despite an interrogatory response that precluded liability

## Opinion text

Case: 11-30081 Document: 00511784851 Page: 1 Date Filed: 03/12/2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 12, 2012

No. 11-30081 Lyle W. Cayce
Clerk

ROBIE J. WAGANFEALD; PAUL W. KUNKEL, JR.,

Plaintiffs-Appellees
v.

MARLIN N. GUSMAN, Orleans Parish Criminal Sheriff; WILLIAM C.
HUNTER, OPCSO Chief Deputy,

Defendants-Appellants

Appeal from the United States District Court
for the Eastern District of Louisiana

Before KING, JOLLY, and WIENER, Circuit Judges.

WIENER, Circuit Judge:
Plaintiffs-Appellees Robie J. Waganfeald and Paul W. Kunkel, Jr.
(collectively, “Appellees”) filed this action against several defendants, including
Defendants-Appellants Marlin N. Gusman, Orleans Parish Criminal Sheriff, and
William C. Hunter, Orleans Parish Criminal Sheriff’s Office Chief Deputy
(collectively, “Appellants”), under 42 U.S.C. § 1983 for violations of their Fourth,
Sixth, and Eighth Amendment rights. The Appellees also brought a false
imprisonment claim against the Appellants under Louisiana law. Appellees’
claims arise out of their incarceration in New Orleans at and around the time
that Hurricane Katrina struck the city. After trial, a jury found that Appellants
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No. 11-30081

were not liable for some of those claims, but (1) held Gusman liable for falsely
imprisoning Appellees, and (2) held Hunter liable for denying Appellees’
purported Sixth Amendment right to use a telephone following their arrest. We
reverse the jury’s verdict as to both claims for which Appellants were held liable.

I. Facts & Proceedings
A. Facts
The facts of this case are largely undisputed. On the evening of Friday,
August 26, 2005, Appellees, traveling by car from Houston, Texas to Toledo,
Ohio, stopped for the night in New Orleans. They checked into a hotel, then
proceeded to the French Quarter, some time after 1:00 a.m. on the morning of
August 27, and remained there for approximately four hours, consuming several
beers each. At approximately 5:00 a.m., two New Orleans police officers placed
Appellees under arrest for public intoxication under New Orleans Municipal
Code § 54-405. Appellees assert that they were not intoxicated when the arrests
took place, but instead that Kunkel fell to the ground when his bad knee gave
out as he stepped off a curb, and that Waganfeald was attempting to help
Kunkel to his feet.
At the time of the arrests, Hurricane Katrina was in the Gulf of Mexico
and was estimated to make landfall on Monday morning. For several days prior
to Katrina’s estimated landfall, Gusman and his staff prepared the Orleans
Parish Prison (“OPP”) to weather the storm with all staff and all prisoners–an
average daily population of 5,800–remaining inside the complex. At that time,
OPP comprised eleven main facilities which held inmates, as well as ancillary
buildings. In the event of serious flooding, Gusman’s plan called for staff and
prisoners to “vertically evacuate” to the upper floors of the OPP facilities. On the
morning of Sunday, August 28, a mandatory evacuation order was issued for

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residents of New Orleans, but that order did not apply to OPP staff and
prisoners.
Appellees’ arresting officers took them to the Intake and Processing Center
(“IPC”) at OPP, at which point Appellees’ money, valuables, and cell phones were
confiscated. Appellees were not given an opportunity to make bail, but instead
were placed in the Templeman III facility at OPP, which could house as many
as 1,200 pre-trial detainees. At the time, Gusman was in charge of OPP, Hunter
directed prison operations, and Warden Gary Bordelon oversaw Templeman III.
Normally, a number of telephones–both free and collect–were available for
inmate use in the IPC. Collect telephones were also available in the Templeman
III building. For security reasons, cell phones were not allowed in the prison
complex. After being booked, Appellees attempted to make phone calls using the
IPC telephones, but soon discovered that they were not working. That Saturday,
Hunter, who was responsible for the phone system, became aware that all of the
telephones at OPP were inoperable. Hunter instructed the telephone supervisor,
Donald Hancock, to report to the prison. Hancock examined the system that day
and determined that the telephone service provider’s lines were overloaded.
Because the problem was not with the OPP telephones themselves, prison
officials were unable to remedy the problem. Hancock reported his findings to
Hunter at some point that weekend. Sheriff Gusman testified that he was not
made aware of the problem with the phones. Gusman further testified that, in
theory, he or Hunter could have allowed the inmates to use their cell phones, but
Gusman emphasized that prison policy forbids cell phone use (even by most
deputies) because of security risks. OPP phones remained inoperable
throughout the weekend, and Appellees were unable to make any phone calls
during that time.
After being booked, Appellees were placed in separate cells in Templeman
III, where they remained as Hurricane Katrina approached and then hit New

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Orleans at approximately 6:00 AM on Monday, August 29, 2005. Initially, OPP
officials believed that the complex had weathered the storm unscathed. After
the levees were breached and the city flooded, however, the prison’s generators
stopped working, and its water and food supplies were contaminated. As
floodwater entered the Templeman III building, officers evacuated inmates to
higher floors. Appellees experienced insufferable conditions as the water rose
in their cells. Kunkel was locked in his cell until Wednesday evening;
Waganfeald was moved to a miniature gymnasium within OPP. Both Kunkel
and Waganfeald went without food and water for approximately three days. The
temperature was very high; there was no air circulation; the toilets did not flush.
In the midst of this chaos, Appellees believed that the prison guards had
abandoned them, and they had no way of making contact with the outside world.
Both men believed that they might die.
Appellees were finally moved from OPP on Wednesday, August 31, but this
did not mark the end of their ordeals. They were taken by boat to a highway
overpass, where they, along with thousands of other inmates, continued to
endure heat, hunger, and thirst. Appellees were then placed on buses and
transported out of New Orleans. For about a month, Kunkel endured further
deplorable conditions, first at Louisiana’s Hunt Correctional Institute, and then
at the Louisiana State Penitentiary at Angola, before being released on October
3, 2005. Waganfeald was taken to Cathoula Parish Prison and was released on
October 5, 2005. Other than an eye infection for which Kunkel received
treatment at Angola, Appellees did not suffer physical injuries, but both men
have reported psychological trauma as a result of these experiences.

B. Proceedings
Appellees filed suit on August 28, 2006, asserting claims under 42 U.S.C.
§ 1983 for violations of, inter alia, the Fourth Amendment (based on their

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allegedly unlawful detention), the Sixth Amendment (based on their inability to
contact counsel by telephone), and the Eighth Amendment (based on their
conditions of confinement). Their complaint also asserted claims for false
imprisonment under Louisiana law. The named defendants included Gusman,
individually and in his official capacity as Criminal Sheriff of Orleans Parish;
Hunter, individually and in his official capacity as Chief Deputy Criminal Sheriff
of Orleans Parish; Bordelon, individually and in his official capacity as Warden
of the Templeman III jail facility; various officers of the New Orleans Police
Department; the City of New Orleans; and Mayor C. Ray Nagin.
Appellees proceeded to trial against Gusman, Hunter, and Bordelon. On
October 14, 2010, the jury found Gusman liable for false imprisonment and
awarded compensatory damages of $200,000 to Waganfeald and $259,300 to
Kunkel. The jury found, however, that Gusman was not liable for the Fourth,
Sixth, and Eighth Amendment claims. The jury also rejected the claims against
Gusman in this official capacity, finding that his official policies were not the
moving force behind any violation of Appellees’ constitutional rights.
Additionally, the jury found Hunter liable for violating the Appellees’ Sixth
Amendment right to counsel, denied qualified immunity to Hunter, and awarded
each Appellee $100,000 for these violations. The jury rejected the remaining
claims against Hunter, and it exonerated Bordelon on all claims. The district
court then entered judgment later that month.
At the close of Appellees’ case and at the close of evidence, Appellants
orally moved for judgment as a matter of law. The district court denied each
motion. After the jury verdict was announced, Appellants moved for judgment
as a matter of law, or, in the alternative, a new trial. The district court denied
both motions, and Appellants timely appealed.

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II. Standard of Review
With regard to issues that were preserved in the district court, we review
its denial of judgment as a matter of law de novo, applying the same standard
as the district court.1 Judgment as a matter of law is proper “[i]f a party has
been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for
the party on that issue[.]”2 “[W]e will uphold a jury verdict unless the facts and
inferences point so strongly and so overwhelmingly in favor of one party that
reasonable men could not arrive at any verdict to the contrary.”3 Further, we
must review the evidence in the light most favorable to the jury’s determination,
and we may not reweigh the evidence or substitute the jury’s reasonable factual
inferences for our own.4

III. False Imprisonment Claim Against Gusman
The jury rejected all claims against Gusman relating to Appellees’
conditions of confinement and their inability to make telephone calls. The jury
found Gusman liable for false imprisonment, however, which under Louisiana
law consists of two elements: “(1) detention of the person; and (2) the
unlawfulness of the detention.”5 It is undisputed that Gusman detained the
Appellees, and thus, the question at issue is whether that detention was
unlawful.

1
Julian v. City of Houston, 314 F.3d 721, 725 (5th Cir. 2002).
2
Fed. R. Civ. P. 50(a)(1).
3
Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir. 2001).
4
Id.
5
Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669, 690 (La. 2006).

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The only basis urged by Appellees that their detention was unlawful is
Gusman’s failure to release them when they were not granted a probable cause
determination within 48 hours after their arrest. Under Louisiana law, a person
who is arrested and in custody is “entitled to a determination of probable cause
within forty-eight hours of arrest.”6 If such a determination is not timely made,
“the arrested person shall be released on his own recognizance.”7 This statute
tracks the United States Supreme Court’s decision in County of Riverside v.
McLaughlin,8 in which the Court held that a probable cause determination must
generally be made within 48 hours to comply with the Fourth Amendment.9 As
Appellees were arrested at approximately 5:00 a.m. on Saturday, August 27,
2005, this 48-hour period expired at 5:00 a.m. on Monday, August 29–just as
Hurricane Katrina struck the Gulf Coast. Appellees had received no probable
cause determination as of that Monday morning, but Gusman continued to
detain them.
Appellees insist that the 48-hour rule permits no exceptions, but the
United States and Louisiana Supreme Courts have indicated otherwise. In
Riverside, the United States Supreme Court stated that if a probable cause
determination is not made within 48 hours, “the burden shifts to the government
to demonstrate the existence of a bona fide emergency or other extraordinary
circumstance.”10 Likewise, interpreting the relevant state statute, the Louisiana
Supreme Court stated in Louisiana v. Wallace:

6
La. Code Crim. Proc. art. 230.2(A).
7
Id. art. 230.2(B)(1) (emphasis added).
8
500 U.S. 44, 56 (1991).
9
See Louisiana v. Wallace, 25 So.3d 720, 723-24 (La. 2009) (Louisiana statute codified
Riverside).
10
Id. at 57.

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In the absence of a bona fide emergency or other extreme
circumstances, all persons arrested without a warrant for whom a
probable cause determination is not made within 48 hours must be
immediately released from custody on their own recognizance.11

This statement constitutes dicta, as Wallace did not involve an emergency, but
it nonetheless demonstrates that the Louisiana Supreme Court recognizes an
emergency exception to the 48-hour rule.12 Notably, the emergency exception in
Wallace is worded almost identically to the same exception in Riverside, the
decision that led to the creation of the Louisiana statute in the first place. It is
therefore plain that both the federal and the Louisiana 48-hour rules contain an
emergency exception. This aligns with common sense, because adopting
Appellees’ position that the 48-hour rule permits absolutely no exception could
lead to any number of absurd consequences. Thus, in determining whether
Appellees’ detention was unlawful, we apply the emergency exception to the 48-
hour requirement.
Gusman maintains that his detention of Appellees falls within this
emergency exception. He also contends that he is immune from liability for false
imprisonment under Louisiana’s discretionary immunity statute.13 Appellees
counter the latter point by claiming that Gusman waived his discretionary
immunity defense in the trial court and cannot raise it on appeal. In particular,
Appellees note that although Gusman raised discretionary immunity in his
answer and in his post-verdict Rule 50(b) and Rule 59 motions, he failed to raise

11
25 So.3d at 727.
12
See Hulin v. Fibreboard Corp., 178 F.3d 316, 328 (5th Cir. 1999) (“A federal court has
a duty to determine state law as it believes the State’s highest court would.”).
13
La. Rev. Stat. Ann. § 2798.1 (“Liability shall not be imposed on public entities or their
officers or employees based upon the exercise or performance or the failure to exercise or
perform their policymaking or discretionary acts when such acts are within the course and
scope of their lawful powers and duties.”).

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the issue in the pre-trial order or in his Rule 50(a) motion for judgment as a
matter of law.14 Appellees themselves may have waived this waiver argument
by failing to raise it in opposition to Gusman’s Rule 50(b) motion,15 but we do not
reach that issue, or the discretionary immunity argument at all. Rather, we
reverse the jury’s verdict on the simpler and more direct ground that Gusman’s
actions fall within the emergency exception to the 48-hour rule.16
The undisputed evidence in this case compels the conclusion that
Hurricane Katrina was a bona fide emergency within the meaning of the
emergency exception to the 48-hour rule. Indeed, if Katrina was not an
emergency, it is difficult to imagine any set of facts that would fit that
description. As the storm bore down on New Orleans, Gusman and his officers
had to provide for the security and safety of approximately 5,800 of their own
inmates, plus 130 more inmates who were transferred from St. Bernard Parish.17
The officers planned to evacuate inmates vertically in the Templeman III

14
See Maryland Cas. Co. v. Acceptance Indem. Ins. Co., 639 F.3d 701, 707-08 (5th Cir.
2011) (when a party fails to raise an issue in a Rule 50(a) motion, it waives the right to raise
that issue in a Rule 50(b) motion).
15
See Thompson and Wallace of Memphis, Inc. v. Falconwood Corp., 100 F.3d 429, 435
(5th Cir. 1996) (holding that when the party opposing the Rule 50(b) motion “did not raise the
waiver bar in opposing the [R]ule 50(b) motion, they may not raise that bar on appeal”); see
also Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 661 n.20 (11th Cir. 1993) (noting that even
if the defendant waived a particular defense by failing to include it in the pre-trial order, the
plaintiffs waived that waiver by failing to make the waiver argument in front of the district
court); but see Scribner v. Dillard, 141 F. App’x 240, 243 (5th Cir. 2005) (unpublished) (holding
that “waiver of waiver” per Thompson does not apply when defendants failed to raise defense,
not only in Rule 50(a) motion, but at any time prior to the verdict; the defense was therefore
considered waived).
16
The emergency exception presents no waiver issue: Gusman raised the exception in
the pre-trial order, the district court instructed the jury on it, and Gusman presses the issue
on appeal.
17
See La. Rev. Stat. Ann. § 15:706(c) (“The sheriff of the parish to which the prisoner
is conveyed shall keep the prisoner safe and secure”).

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building to higher floors, if necessary. They also stockpiled food and water in the
Templeman III building–on the first floor, unfortunately.
OPP initially survived the storm without flooding, but this changed
rapidly after the levees were breached. The water rising on the first floor of
Templeman III quickly reached waist level, the generator went out, and food and
water supplies were contaminated. The electronic system for controlling the cell
doors ceased to function, and officers had to open the doors manually, which–for
some cells on the first floor–required the officers to dive into the water to
manipulate the locking mechanism. The temperature grew very hot, and the
officers allowed the inmates to break windows for purposes of air ventilation.
The officers worked for many hours with inadequate food, water, and sleep.
After the arduous process of evacuating the inmates was completed, the officers
continued working to evacuate other individuals who were stranded in the
neighborhood. In light of this clear emergency, we hold that the 48-hour rule
was suspended. Consequently, Gusman did not falsely imprison the Appellees
by holding them without a probable cause determination rather than releasing
them into the teeth of the storm on the morning of August 29, 2005.
Appellees contend that they would not have received a probable cause
determination within 48 hours of their arrest even in the absence of Hurricane
Katrina, because the Municipal Courts did not operate on the weekends at that
time. The jury, however, answered “No” to the following interrogatory:
Do you find by a preponderance of the evidence that Sheriff Marlin
Gusman, in his capacity as the Criminal Sheriff of Orleans Parish,
had a policy, practice, or custom of deliberate indifference to
arrested individuals’ right to have a probable cause determination
made by an impartial judge or magistrate within 48 hours of an
arrest made without a warrant that was the moving force behind a
violation of [Appellees’] constitutional rights?

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If Gusman had a general policy of detaining individuals beyond 48 hours without
a probable cause hearing, even in the absence of an emergency, that
interrogatory would have to have been answered in the affirmative. In that
situation, the municipal policy would certainly have been “adopted with
‘deliberate indifference’ to its known or obvious consequences.”18 Further, the
municipal policy would be the “‘moving force’ behind the constitutional
violation,”19 as there would unquestionably have been a “direct causal link”20
between Gusman’s policy and the violation of the 48-hour rule. But, as the jury
answered “No,” and Appellees have not appealed that factual finding, they
cannot rely on Gusman’s purported policy of violating the 48-hour rule even in
non-emergency conditions.
Gusman’s detention of Appellees was not unlawful because his actions fell
within the emergency exception to the 48-hour rule. Thus, we must reverse the
district court’s denial of Gusman’s motion for judgment as a matter of law. We
thus do not reach Gusman’s additional argument that the jury’s verdict was
internally inconsistent.

IV. Sixth Amendment Claim Against Hunter
The jury found that Chief Deputy Hunter acted in a manner that was
deliberately indifferent to Appellees’ asserted Sixth Amendment right to use a
telephone to contact “an attorney and/or family and friends” following their
arrest. The jury also rejected Hunter’s defense of qualified immunity. On
appeal, Hunter contends that the district court erred by denying him qualified
immunity because (1) there was no violation of Appellees’ Sixth Amendment

18
Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998).
19
Id.
20
Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001).

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right to counsel because that right never attached, no “critical stage” of the
proceedings was reached, and Hunter did not act intentionally; and (2) even if
there were such a violation, it had not been clearly established that refusing to
allow pre-trial detainees to use cell phones when land lines are disrupted in an
emergency violates the Sixth Amendment.
“A public official is entitled to qualified immunity unless the plaintiff
demonstrates that (1) the defendant violated the plaintiff’s constitutional rights
and (2) the defendant’s actions were objectively unreasonable in light of clearly
established law at the time of the violation.”21 A defendant violates clearly
established law only if “the contours of [the] right are sufficiently clear that
every reasonable official would have understood that what he is doing violates
that right.”22 For a legal principle to be clearly established, “we must be able to
point to controlling authority—or a robust consensus of persuasive
authority—that defines the contours of the right in question with a high degree
of particularity”23 and that places the statutory or constitutional question
“beyond debate.”24
When a defendant asserts qualified immunity, the plaintiff has the burden
of proving that it is inapplicable.25 Qualified immunity should be adjudicated “at
the earliest possible stage in litigation,”26 but “if the issue is not decided until
trial the defense goes to the jury which must then determine the objective legal

21
Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011).
22
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (internal brackets and quotation
marks omitted).
23
Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011).
24
al-Kidd, 131 S.Ct. at 2083.
25
Atteberry v. Nocona General Hosp., 430 F.3d 245, 253 (5th Cir. 2005).
26
Id. (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

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reasonableness of the officers’ conduct.”27 We have discretion to decide which
prong of the qualified immunity analysis to address first.28
As a preliminary matter, Appellees contend that Hunter has waived
qualified immunity. Hunter raised qualified immunity generally in his answer
and proposed jury instructions, the district court instructed the jury on qualified
immunity, and the jury found that Hunter’s actions were not objectively
reasonable in light of Appellees’ constitutional rights. Hunter did not raise
qualified immunity in his pre-verdict motions for judgment as a matter of law
under Rule 50(a),29 but he did in his post-verdict motion for judgment as a
matter of law under Rule 50(b). In response to Hunter’s Rule 50(b) motion,
Appellees did not counter that Hunter waived qualified immunity but instead
responded to the merits of that issue. Thus, Appellees have waived their waiver
argument.30
Appellees also contend that even if Hunter has not waived qualified
immunity generally, he has waived his specific contentions that Appellees’ Sixth
Amendment right to counsel never attached and that no “critical stage” of the
proceedings was reached. In lieu of addressing this specific waiver argument,
we hold that even if Appellees had a Sixth Amendment right to counsel during
the period in question, Hunter did not act in an objectively unreasonable manner
in light of clearly established law, so the district court should have granted him
judgment as a matter of law on qualified immunity.

27
McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).
28
Morgan, 659 F.3d at 371 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
29
FED. R. CIV. P. 50(a).
30
See Thompson and Wallace of Memphis, Inc. v. Falconwood Corp., 100 F.3d 429, 435
(5th Cir. 1996) (waiver of waiver).

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There is no dispute that, during the period in question, telephones were
made available to Appellees, but that it was not possible to place calls on these
or any telephones at the facility. Donald Hancock, the telephone supervisor for
the Orleans Parish Criminal Sheriff’s Office, testified that on the Saturday
before Hurricane Katrina made landfall, calls could not be placed from OPP
because the telephone service provider’s lines were overloaded. He testified
further that because the problem was external, and the OPP telephones
themselves were functioning properly, there was nothing he could have done to
remedy the problem. Hancock timely reported his findings to Hunter and
evacuated New Orleans that Sunday morning. When Hancock and Hunter
spoke again later that day, Hunter asked Hancock to return and continue
working on the phones, but Hancock again informed Hunter that the problem
was external and that there was nothing he could do.
Appellees contend that in this situation, Hunter should have allowed them
to use their cell phones to make calls. In accordance with standard procedures,
Appellees’ cell phones had been confiscated when they were booked into the
prison. As noted, Gusman testified that inmates are not allowed to possess cell
phones because that would pose a “security risk.” He went on to explain that
allowing the use of cell phones would impair prison officials’ ability to record
inmates’ calls, which is important because “inmates either make threatening
phone calls or try to continue their illegal activity while in jail.” Gusman also
stated that, for security reasons, even deputies are generally not allowed to carry
cell phones while on duty. Gusman testified that he was completely unaware of
the problems with the OPP telephone system during the period in question, but
he acknowledged that Hunter would have had the authority to allow prisoners
to use their cell phones.
There is no particularized, clearly established law which would have
instructed Hunter that, under the Sixth Amendment, he had to allow pre-trial

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detainees to use their cell phones when land lines were disrupted. Appellees
have pointed us to no such authority, and we have found none. To the contrary,
we have ruled that prisoners have “no right to unlimited telephone use.”31 Other
courts have observed that “a prisoner’s right to telephone access is subject to
rational limitations in the face of legitimate security interests of the penal
institution.’”32 As a general matter, “maintaining institutional security and
preserving internal order and discipline are essential goals that may require
limitation or retraction of the retained constitutional rights of both convicted
prisoners and pretrial detainees.”33 Thus, prison officials are “accorded
wide-ranging deference in the adoption and execution of policies and practices
that in their judgment are needed to preserve internal order and discipline and
to maintain institutional security.”34
In this case, Hunter faced the security risks that would generally follow
from allowing prisoners to use cell phones, which were exacerbated by the
emergency conditions that were present during the approach, landfall, and
aftermath of Katrina. Inmates were unable to use the land-line telephones in
the OPP not because of any action that Hunter took, but because of overloaded
external lines, a situation beyond any control of law enforcement. Distributing

31
Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982).
32
Douglas v. Gusman, 567 F.Supp.2d 877, 886 (E.D.La. 2008) (quoting Washington v.
Reno, 35 F.3d 1093, 1100 (6th Cir.1994)); see also Benzel v. Grammar, 869 F.2d 1105, 1108
(8th Cir. 1989) (same).
33
Bell v. Wolfish, 441 U.S. 520, 546 (1979).
34
Id. at 547; see also id. (security considerations “are peculiarly within the province
and professional expertise of corrections officials, and, in the absence of substantial evidence
in the record to indicate that the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert judgment in such matters.”)
(quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)); Whitley v. Albers, 475 U.S. 312, 322
(1986) (“prophylactic” prison security measures are entitled to deference, even if there exist
“arguably superior alternatives”).

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cell phones to approximately 5,930 inmates, or even just the 1,200 pre-trial
detainees in Templeman III, would have been a creative and potentially
beneficial option, but it would also have added to prison officials’ unprecedented
logistical burden as well as the potential security risks. Before Hurricane
Katrina struck, prison officials had no reason to assume that the telephone lines
would be overloaded for a significant length of time; after the prison flooded,
they were overwhelmed with more urgent emergency tasks. The unprecedented
emergency conditions would also have made it very difficult if not impossible for
any counsel that Appellees might have reached to provide meaningful
assistance. We do not suggest (or deny) that there is a blanket emergency
exception to the Sixth Amendment right to counsel. Rather, we hold only that
in light of the security risks and unique emergency conditions he faced, Hunter
did not act in an objectively unreasonable manner under clearly established law.
The district court therefore erred by not granting Hunter qualified immunity as
a matter of law.

V. Conclusion
There is no doubt that Appellees suffered terribly while held in custody
after Hurricane Katrina struck New Orleans. It is equally clear, however,
that (1) Gusman’s failure to release Appellees falls within the emergency
exception to the rule that a probable cause determination must be made
within 48 hours, and (2) Hunter’s failure to allow Appellees to use cell phones
was not objectively unreasonable in light of any clearly established law. We
therefore reverse and vacate the judgment of the district court, and remand
with instructions to enter judgment in favor of Gusman and Hunter on all
claims asserted by Appellees.
REVERSED, VACATED, and REMANDED WITH INSTRUCTIONS.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/625170. Public record. Not legal advice.