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Legal answers for New Orleans residents

Law experts weigh in on where authorities, citizens stand

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New Orleans (Louisiana)
Justice and Rights

WASHINGTON (CNN) -- A catastrophe such as Hurricane Katrina has shown how lines of authority can become blurred when it comes to handling an emergency. CNN spoke with a number of legal experts to discuss the law governing the removal of residents from New Orleans.

Q. Has martial law been declared in Louisiana?

A. No.

"People are using that term far too loosely," said Duke University School of Law professor Scott Silliman. "Martial law can only be imposed by a governor or the president of the United States when there is a total absence of any governing authority (meaning no courts, etc). Martial law allows the federal military to come in to preserve the country."

This has not happened.

Q. Who declares the authority to forcibly remove residents in New Orleans?

A. Louisiana Gov. Kathleen Blanco.

The governor is given broad authority under the Louisiana Homeland Security and Emergency Assistance and Disaster Act. It allows her to "direct and compel" the evacuation of all or part of the population from any stricken or threatened area within the state if life is at stake or if such evacuation is necessary for the mitigation of, response to, and recovery from a disaster.

A public health emergency prompted Gov. Blanco to declare a state of emergency on August 29, 2005. The declaration allows her to use the National Guard for purposes including law enforcement. Note that she does not have the power to use federal troops; only the National Guard. This police power is always found in state law and can be used for public health emergencies when lives are in danger. Gov. Blanco also has the authority to direct New Orleans Mayor Ray Nagin to use the National Guard and police to forcibly remove New Orleans residents because of the public health dangers arising from toxic waters, Silliman said.

Q. Does Mayor Nagin also have authority to remove New Orleans residents by force?

A. Yes.

The Louisiana Homeland Security Act gives essentially the same power to parish presidents -- the mayor of New Orleans is deemed the president of Orleans Parish -- as it does to the governor. According to University of Pittsburgh School of Law professor Bernard Hibbitts, parish presidents may "direct and compel the evacuation of all or part of the population from any stricken or threatened area within the boundaries of the parish if he deems this action necessary for mitigation, response or recovery measures."

The mayor's powers seem a bit more narrow than the governor's (no reference to "preservation of life"), but it's enough for Mayor Nagin to remove residents.

The act also says the parish president can control access to and from the affected area. Nagin relied on this act when enforcing his September 6 evacuation order.

Q. What happens if a resident refuses to leave his/her home?

A. Once either the mayor or the governor has issued a mandatory evacuation order, an individual could be arrested or removed from the scene, said Kenneth Murchison, law professor at Louisiana State University. In addition, Louisiana law appears to make a violation of the order a misdemeanor punishable by a maximum $500 fine or a maximum six month prison term in the parish jail.

Obviously, only the force permissible to make a misdemeanor arrest would be allowed, he said.

The district attorney would then have to decide whether to prosecute or to dismiss the charges.

While either the mayor or the governor could order the arrest and removal of people who violate an evacuation order, practically speaking, only the governor could accomplish this in New Orleans. The only law enforcement officers that the mayor controls are the New Orleans police, nearly a third of which are missing right now.

By contrast, the governor controls and commands the state police and the National Guard (even those from other states).

But, Murchison said, "It is inconceivable to me that a thousand or so police officers could arrest and remove the number of people who are said to be in New Orleans in less than a matter of weeks. Even if the governor wanted to force the people out, she would have to devote a substantial portion of her National Guard resources for an extended period of time. Of course, if most people leave without being arrested, either the police or the National Guard could probably remove a couple of hundred (survivors) in a relatively short period of time."

Q. Is there legal recourse for residents who refuse to leave?

A. In theory, if people refuses to be removed, they can go into a court and demand their right not to be removed, said Silliman. But, generally, "the police power of the state trumps an individual's right when there is a public health emergency."

CNN's Melissa McNamara contributed to this report.

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