Critiques of the Judiciary
Eighty percent of New Orleans was inundated by the flood waters that washed over its streets in the aftermath of Hurricane Katrina and forced affected residents to flee. Those with properties on higher ground had other options. The more affluent were able to contract with Blackwater and Shin Betmercenaries to protect their valuable assets while they complied with Mayor Nagin's evacuation orders. There were others, however, on high ground who chose to remain and protect their homes by themselves. Some of these holdouts resisted forced evacuation with little consequence, whereas others were singled out for particularly harsh treatment. New Orleans attorney Ashton R. O'Dwyer Jr. was among the latter.
The O'Dwyer "Problem"
On Sunday, September 11, 2005, twelve days after Hurricane Katrina struck New Orleans, a special meeting was convened in the Baton Rouge office of State Attorney General Charles C. Foti Jr., the chief law enforcement officer for the State of Louisiana. Among the attendees were State Supreme Court Justice Catherine D. "Kitty" Kimball, Louisiana State Bar Association President Frank X. Neuner Jr., and Chief Disciplinary Counsel of the Louisiana Supreme Court's Attorney Disciplinary Board, Charles B. Plattsmier Jr.
During the meeting, the discussion turned to the angry
anti-governmentremarks made by New Orleans attorney Ashton R. O'Dwyer Jr. when, in the aftermath of the storm, he was confronted by uniformed members of a militia who threatened to evacuate him by force from his well-provisionedSt. Charles Avenue home. His was among the 20% of New Orleans properties that were situated on relatively high ground and only minimally affected by the storm.
O'Dwyer's protests had been videotaped by the media and widely broadcast by the major networks on national news. The notoriety was considered unacceptable by the assembled state officials, who were shocked at the degree of agitation displayed by a
well-knownand respected attorney.
"Somebody has got to shut that guy up," Justice Kimball is alleged to have declared, "he's giving us all a bad name." In response, Plattsmier, an appointee of the Louisiana Supreme Court, allegedly agreed to take care of the O'Dwyer "problem" by contacting some of O'Dwyer's partners at the law firm of Lemle and Kelleher, L.L.P., where O'Dwyer had worked for 35 years.
Three days later, on September 14, 2005, one of O'Dwyer's law partners, Charles R. Talley, let slip during a telephone conversation with O'Dwyer, that he and at least one other law partner, Joseph L. "Larry" Shea Jr., had understood from Plattsmier that O'Dwyer's law license would be suspended if he continued to speak to the media and refused to give up his guns and vacate his property, and may already be suspended. The next day, another of O'Dwyer's partners, William R. Forrester Jr., hand delivered a letter [PDF] from Lemle and Kelleher's Chairman, Ernest L. Edwards Jr., warning that O'Dwyer's partnership in the firm could be terminated if he did not stop giving interviews to the press, or failed to cooperate with government authorities, or did not surrender his guns. The courtesy copy sent to Plattsmier suggested that Plattsmier was the source of the directive.
The terms of Edward's letter were particularly disturbing inasmuch as Edwards, a lawyer, obviously knew that they violated O'Dwyer's constitutional guarantee of free speech as well as his right to bear arms. (Forty-six percent of Louisiana households owned a firearm in 2006, according to data released by the National Center for Injury Prevention and Control, an arm of the federal Center for Disease Control and Prevention.) The next day, on September 16, 2005, O'Dwyer informed Talley during a telephone conversation that he is resigning from his partnership with Lemle and Kelleher. Talley confirmed that the firm's ultimatum had been at the request of Plattsmier. Talley and Shea are no longer associated with Lemle and Kelleher.
On September 17, 2005, O'Dwyer was visited by a delegation composed of State Bar Association President Frank Neuner and two members of the Louisiana Department of Justice, one of whom was Assistant Attorney General Burton Guidry. O'Dwyer learned that they had just come from inspecting the temporary jail facility at the Union Passenger Terminal and were now warning him that complaints about him had been made "at the highest levels of government." That same evening, O'Dwyer was host to 8 to 10 members of the New York City Police Department, who were on special assignment in New Orleans. They were the only police officers who responded to his invitation, posted at the Uptown 2nd District Police Station, to be dinner guests at his home. The invitation was an outgrowth of the camaraderie that O'Dwyer had enjoyed in evenings on his patio with Blackwater guards who were free from their duties at neighboring Uptown residences.
Keeping New Orleans "Safe"
After Hurricane Katrina struck New Orleans on August 29, 2005, the Louisiana Department of Corrections was faced with two immediate exigencies. The first concerned the evacuation of over 1,100 prisoners from the Jefferson Parish jail and the more than 6,500 prisoners from the Orleans Parish jail.
The Orleans Parish prison complex had been flooded by
five-to-eightfeet of water, and it was necessary to transfer small groups of prisoners via boat to the nearby Broad Street overpass, and over improvised scaffolding to the I-10freeway where buses transported them to either the state penitentiary at Angola or the Elayn Hunt Correctional Center at St. Gabriel. The evacuation and the chaos, deprivation and abuse that attended it, was completed in three days.
Without an available prison in the greater New Orleans area, the second exigency faced by the Louisiana Department of Corrections was to develop and operate a temporary jail where law enforcement agencies could take arrestees. Secretary Richard Stalder of the Department of Corrections, an appointee of Governor Kathleen B. Blanco, and Orleans Parish Sheriff Marlin N. Gusman jointly chose the location of the new lockup: the New Orleans Greyhound bus terminal and adjoining Amtrak train station, which together comprised the Union Passenger Terminal at 1001 Loyola Avenue.
The facility included ample office space, was readily accessible from major thoroughfares, and was already heavily fenced. Extra fencing was added by the Louisiana State Police to subdivide the area into about 16 containment pens. The completed jail, known alternatively as Camp Amtrak or Camp Greyhound, became fully operational on September 3, 2005. One of the first to report for duty was New
Orleans-basedAssistant U.S. Attorney Michael Magner, who coordinated the staffing of the facility and supervised the complaints and judicial appearances of arrestees. Police officers from New York City, who were experienced in running a jail, helped develop the procedures for receiving, processing and housing new prisoners. The prison remained in operation until October 17, 2005, during which time 1,284 arrestees had been booked. For much of the jail's six-weekexistence, Angola Warden Burl Cain of the Louisiana State Police served as Warden of Camp Amtrak.
Abduction and Torture
On Monday morning, September 19, 2005, O'Dwyer drove to Baton Rouge, Louisiana and filed the very first federal class action lawsuit on behalf of victims of Katrina in U.S. District Court for the Eastern District of Louisiana, Civil Action
No. 05-4181[PDF]. That evening, he entertained two house guests, one of whom would retire for the night in a hammock on his patio because the lack of air conditioning left the house too hot for comfortable sleep. Using a generator to power a refrigerator and small television set, O'Dwyer rounded out the day by watching television on his patio with a glass of wine.
What happened shortly after midnight is best described by O'Dwyer in his own words, below, as adapted from Civil Action
TUESDAY, SEPTEMBER 20, 2005
At 0005 hours on Tuesday, September 20, 2005, within 12 hours of his having filed a Class Action Lawsuit bearing Civil Action
No. 05-4181[PDF] on the docket of the United States District Court for the Eastern District of Louisiana against the United States of America, Governor Blanco, Mayor Nagin, former NOPD Police Superintendent Compass, and Criminal Sheriff Gusman, among others, plaintiff was lawfully occupying his property in uptown New Orleans, watching television (plaintiff had, by this time, procured a gasoline-poweredgenerator), and preparing to retire for the evening when, suddenly and without warning, a dark-coloredsports utility vehicle emblazoned with "Louisiana State Police" on the passenger side door blocked plaintiff's driveway, following which three or four individuals, who plaintiff believed to be Louisiana State Policemen (they were dressed in dark " swat-team-like" uniforms and armed to the teeth with side arms and automatic weapons) approached plaintiff in a very aggressive manner.
[Footnote: Plaintiff's efforts to determine the identities of these individuals through Louisiana Public Records Act requests have been "stonewalled" by the Louisiana Department of Justice, which plaintiff avers has conspired to obstruct justice and
cover-upthe crimes that were commited against him. See infra.]
Plaintiff told the officers that they were not authorized to be on his property and that they should get back on the sidewalk, which is public property. In response, one of the officers told plaintiff, "Sir, you are coming with us; you can either come with us voluntarily or we will remove you from here by force; now what's it going to be?" Plaintiff replied, "I will not resist, but you will have to remove me from my property by force."
Plaintiff was incredulous about his predicament since he was not guilty of breaking any laws, and he asked the officers repeatedly: "What's going on here? This is unbelievable! This is America; I'd expect this in the Soviet Union, Communist China, North Korea or Cuba, but not here in America. Who sent you here? Am I under arrest? If so, what is the nature of the charges against me? What's going on here? Why are you doing this to me? What have I done?"
The only responses to plaintiff's inquires were silence or "Shut the f*** up."
[Footnote: At the end of his
16½hour ordeal, plaintiff was handed a piece of paper, appended hereto and marked for identification as Exhibit No. 2 [PDF], suggesting that plaintitf had been arrested for "public intoxication", which is a lie. See infra. Additionally, plaintiff does not allow himself to become intoxicated, which condition demonstrates a lack of character in the intoxicated person. Before plaintiff would ever consume alcoholic beverages to the point of intoxication, he would retire. In support of his assertion that he was not intoxicated, plaintiff attaches hereto and makes part hereof the transcript of the Sworn Statement of Harold J. Gagnet dated November 4, 2005, a copy of which is marked for identification as Exhibit No. 3 [PDF]. Plaintiff avers that Mr. Gagnet's sworn testimony is completely true and correct.]
Upon information and belief, while plaintiff lay face down on the ground with his hands bound behind his back, one of the officers attempted to gain entry into plaintiff's residence but was stopped by a houseguest, namely Gerald Pipes Guice, who had come to visit plaintiff at his home, stayed for dinner, and opted to spend the night at plaintiff's residence rather than risk being arrested for a curfew violation while returning to his home on Hurst Street after 1800 hours. The reasons for the officer's attempt to gain entry into plaintiff's residence are unknown, but the officer clearly had no legal right to enter plaintiff's residence because he had no search warrant to plaintiff's knowledge, and no arrest had been made, or even announced.
[Footnote: Plaintiff avers that his allegations concerning what transpired following the arrival of the State Police on plaintiff's properly is supported by the transcript of the Sworn Statement of Gerald Pipes Guice dated November 4, 2005, a copy of which is appended here and marked Exhibit No. 4 [PDF]. Plaintiff avers that Mr. Guice's sworn testimony is completely true and correct.]
Plaintiff was then placed in the back seat of the sports utility vehicle and driven to the Union Passenger Terminal in downtown New Orleans which, upon arrival, appeared to plaintiff to have been rearranged into some sort of temporary detention facility. While enroute to the Union Passenger Terminal, plaintiff continued making inquiries to his kidnappers concerning his status, asking whether he was under arrest and, if so, what was the nature of the charges against him all to no avail.
Although plaintiff had sustained
non-permanent, but painful, bodily injuries when he was thrown to the ground at his residence, upon his arrival at the Union Passenger Terminal plaintiff still believed that what was happening to him was some sort of cruel joke, or hoax. Accordingly, when he was told to pose for a photograph, shirtless, with his hands still bound behind his back, he displayed a "Quasimodo" countenance, until instructed to "be serious." Plaintiff complied.
Plaintiff was then taken to a remote dark corner of the building where one of the officers who had him in custody and who plaintiff now believes may have been a member of the Donaldsonville Police Department began pepper spraying plaintiff in the face and over his entire body. The only articles of clothing plaintiff was wearing were a pair of white shorts and Topsiders [boat shoes]. After the first bout of pepper spray, plaintiff turned his head to the right and admonished his tormentor, "You didn't have to do that. My hands are cuffed behind my back, for goodness sake! Ashton O'Dwyer is now your worst enemy." These taunts were met with more and more pepper spray.
Additional taunts by plaintiff to his tormentors, like "You gutless dogs," were met with more pepper spray and a
flat-handedblow to the right side of the head from behind, to which plaintiff replied, "Is that the best you can do? You gutless dogs! If you were real men, you'd break my nose or break my jaw, but you won't do that, will you, you gutless dogs? Come on, hit me, hit me, hit me, hit me, hit me!" These taunts were met with more and more pepper spray.
Thereafter, another tormentor, who had also engaged in pepper spraying plaintiff, and who plaintiff avers is unfit to wear a badge, much less carry a gun, approached plaintiff very aggressively from the shadows at plaintiff's right front, armed with what appeared to be a 1
2-gaugepump shotgun with an 18-inchbarrel, which he then aimed directly at plaintiffs lower body. This tormentor then fired two to three rounds at plaintiff in rapid succession and at point-blankrange. Although plaintiff felt immediate pain in both thighs, he realized that he was still standing, and although bleeding from the right thigh, no bones were broken. Plaintiff was not sure precisely what was being fired at him, and although it hurt, whatever it was apparently wasn't lethal.
In response to being shot, plaintiff again taunted his tormentors by saying, "Is that the best you can do, you gutless dogs? If you were real men you'd aim that shotgun at my face, or better yet, you'd pull your side arms and put a bullet through my forehead, but you won't do that will you, you gutless dogs?" These taunts were met by additional shotgun blasts to both thighs. Plaintiff avers that, as of this time, he had been hit a minimum of four and possibly as many as seven times.
Plaintiff was then escorted by his tormentors to the back of the building and outside, where he was taken down a line of
Guantanamo-style, chain-linkfence "dog cages" which appeared to have fairly large numbers of people in them. Plaintiff was taken to a remote dog cage at the far end of the row of dog cages. There, the bonds to plaintiff's hands were released, and plaintiff was put in his own, personal dog cage.
Upon admonishing his tormentors that even the detainees at Guantanamo were treated better than he was being treated, one of them shouted, "He's a f****** Muslim. Shoot him, shoot him in the b****!" With that, plaintiff was shot twice more, once in each thigh, at
point-blankrange with the shotgun, and threatened with additional shots several more times by the same psychopath who had shot him previously. Plaintiff later recovered two bean bag rounds from the cement floor of his dog cage, learning for the first time what type of rounds had been fired at him.
Plaintiff then became very concerned for his personal safety and
well-beingbecause no one knew where he was, and his requests for the opportunity to make a telephone phone call had been rebuked. Plaintiff honestly believed that it was quite possible that he would be killed and his body dumped somewhere, and that he would become just another statistic, a "Victim of KATRINA."
Accordingly, in an effort to Iet other people at the detention facility know who he was, where he lived, and that he was being held illegally without any charges having been made against him, plaintiff began yelling his name and address and the circumstances of his kidnapping and false imprisonment, also repeatedly demanding his constitutional rights to know the nature of any charges against him, the right to make bail, the right to make a phone call and the right to speak with a lawyer. This yelling continued intermittently for the next several hours, until daylight.
During this period of time, plaintiff also initiated "negotiations" with his tormentors, thanking them for not injuring him more severely, and telling them that he would grant them a full release and "covenant not to sue," if only they would bring plaintiff paper and pencil to prepare a legal document which they could then peruse at their leisure, and identify who had ordered the illegal "hit" on plaintiff. In the meantime, during his rounds around the facility, one of plaintiff's tormentors finally told plaintiff, "You'll be allowed to make a phone call when you get to the State Penitentiary at Angola, which only added to plaintiff's great anxiety.
During the course of the next several hours, and continuing throughout the day, plaintiff's mucus membranes, skin and thighs were a "mess" due to the pepper spray and bean bag rounds, although plaintiff concedes that he was given one small plastic container of water which he used to attempt to wash pepper spray out of his eyes.
At daybreak, plaintiff was taken to another dog cage which was occupied by four or five other individuals, two of whom had been very brutally beaten about the face by
off-dutyNew Orleans Police Department officers at a barroom in the French Quarter the prior evening. When plaintiff saw what had happened to these individuals, he felt relieved at his own physical condition, although it was still not beyond the realm of possibility that plaintiff might be subjected to further brutality.
At approximately 1000 hours, plaintiff was taken from the dog cage to the main terminal building, where he was
finger-printed again without being advised of the nature of any charges against him, although duly demanded. Plaintiff's insistence that his fingerprints were already in the FBI database, since plaintiff was an officer in the U.S. Army Reserves, and since plaintiff was the holder of a concealed handgun permit, were ignored.
During the course of the day, plaintiff continued attempting to negotiate with his tormentors, trying to reason with them that he should be released immediately because he had done nothing wrong, and that continued incarceration would not deter him or others from committing any more crime, since no crime had been committed in the first place, and that no "rehabilitation" was either needed or being offered.
At approximately 1100 hours, a medical team of two persons visited plaintiff at his dog cage, asking if plaintiff required medical attention, which plaintiff politely declined as an act of defiance.
At approximately noon, plaintiff and the other individuals in the dog cage witnessed the transport of inmates from other dog cages by bus to the Louisiana State Penitentiary at Angola. Shortly after this transport of other inmates to Angola, plaintiff and the other individuals in his dog cage were advised that they would be released from custody later in the day, but not until 1700 hours, which made no sense whatsoever.
During the course of the day, plaintiff's skin was literally on "fire" as a result of the pepper spray, the heat and the humidity. The wounds to plaintiff's thighs made it painful to stand. The injuries to plaintiff's ribs made it painful to sit down or to try to get up after sitting down. There were no chairs or benches to sit on, and the concrete floor of the dog cage conducted heat from the sun, so that sitting on the concrete was like sitting on top of a hot stove. In short, it was a very miserable day.
At approximately 1500 hours, a hose was run into the dog cage and plaintiff was allowed to rinse off, which improved his physical condition only slightly.
At 1700 hours, plaintiff and his fellow inmates began being released, one by one. When plaintiff's turn came, his personal property consisting of a wrist watch was returned to him, and he was handed a piece of paper which is appended hereto and marked for identification as Exhibit No. 2 [PDF]. Plaintiff categorically states that at no time prior to being handed a copy of Exhibit No. 2 was he ever told that he had been arrested for anything, much less for "public intoxication." Plaintiff also categorically states that he was never intoxicated on September 19 or 20, 2005, and that he was never in public prior to being kidnapped at 0005 hours or thereabouts on the 20th.
Further, although he was illegally held in custody at the Union Passenger Terminal for
16½hours, he was never subjected to a field sobriety test, a breathalyzer or the drawing of blood. Even further, plaintiff has never been arraigned on any charge of "public intoxication" or on any other charge since the events of September 20, 2005. Plaintiff also avers that his demeanor, words and response to his kidnapping, torture and false imprisonment belie any assertion that he was intoxicated.
Police State Decree
After O'Dwyer returned home, he set about analyzing the circumstances surrounding his treatment at the hands of the law enforcement and preparing a lawsuit against all who had a role in his illegal abduction and torture. He also sought medical attention for his wounds. That evening, a New York City Police Captain who visited O'Dwyer to thank him for his earlier hospitality to his officers was shocked and dismayed when he learned of O'Dwyer's detention at Camp Amtrak by the Louisiana State Police.
Eventually, O'Dwyer's physical wounds would heal; the trauma of his experience at Camp Amtrak would not.
O'Dwyer's lawsuit against the state and the many individuals who were implicated in the brutal assault against his civil rights – and ultimately his ability to earn a living as an attorney – was adjudicated by Judge Helen "Ginger" Berrigan of the Federal District Court for the Eastern District of Louisiana.
Judge Berrigan dismissed O'Dwyer's claims against all named defendants except Justice Kimball, Disciplinary Counsel Plattsmier, and Louisiana State Troopers John Nelson and Christopher Ivy, although O'Dwyer reserved the right to sue other, as yet unnamed defendants. It was left to the Fifth Circuit Court of Appeals [PDF] to dismiss the claims against the remaining named defendants on the basis that O'Dwyer failed to establish "the requisite causal connection" between acts committed by them and the events of his arrest. An appeal to the U.S. Supreme Court also proved futile. In dismissing O'Dwyer's claims, the federal courts established that no one involved in the administration of justice or law enforcement would be held responsible for the illegal abduction and torture of citizen Ashton O'Dwyer, and by extension, other critics of the government who might follow in his footsteps. This is a characteristic of a police state.Carl Bernofsky
June 28, 2010
- Maureen O'Dwyer, et al. v. The United States of America, et al., Civil Action
No. 05-4181, [PDF] filed September 19, 2005, by Ashton R. O'Dwyer, Jr. and Joseph W. P. Hecker in United States District Court for the Eastern District of Louisiana, New Orleans Division.
- Ashton R. O'Dwyer, Jr. v. The State of Louisiana, et al., Civil Action
No. 06-7280, "Plaintiff's Court-Ordered Supplemental and Amended Petition" [PDF] filed April 23, 2007, by Ashton R. O'Dwyer, Jr. in United States District Court for the Eastern District of Louisiana, New Orleans Division.
- Ashton R. O'Dwyer, Jr. v. The State of Louisiana, et al., Civil Action No.
06-7280, "Affidavit of David R. Kent" [PDF] filed August 20, 2007, United States District Court for the Eastern District of Louisiana, New Orleans Division.
- Ashton R. O'Dwyer, Jr. v. John Nelson, et al., Case
No. 08-30052, (Appeal from the United States District Court for the Eastern District of Louisiana, Civil Action No. 06-7280), "Judgment" [PDF] filed February 19, 2009, United States Court of Appeals for the Fifth Circuit.
- Ashton R. O'Dwyer, Jr. personal communication.
- Jeffrey A. Schwartz and David Webb, "Hurricanes Katrina and Rita and the Louisiana Dept. of Public Safety and Corrections: A Chronicle and Critical Incident Review," Technical Assistance Report
No. 06P1035, National Institute of Corrections, May 10, 2006.
- "The Federal Response to Hurricane Katrina: Lessons Learned," (Appendices), http://www.crid.or.cr/digitalizacion/pdf/eng/doc17272/doc17272-h.pdf,
- "Prisoners of Katrina II: Exodus and the Sheriff," distopolitik [Blog], April 29, 2008, http://dystopolitik.blogspot.com/2008/04/prisoners-of-katrina-ii-exodus-and_29.html, accessed 05/23/2010,
- "Prisoners of Katrina Part III: Camp Greyhound," distopolitik [Blog], May 8, 2008, http://dystopolitik.blogspot.com/2008/05/prisoners-of-katrina-part-iii-camp.html, accessed 05/23/2010,
- Gordon Hutchinson and Todd Masson, The Great New Orleans Gun Grab: Descent into Anarchy, [PDF] Louisiana Pub. Co., Boutte, LA, 2007, Chapter 1, "Unwanted and Undeterred,"
- Dave Eggers, Zeitoun, McSweeney's Books, San Francisco, 2009.
- James Gill, "Emergency declaration could cover many sins," The Times-Picayune, New Orleans, December 12, 2007, Metro,
- James Gill, "Annoying, but still a U.S. citizen," The Times-Picayune, New Orleans, December 16, 2007, Metro,
- James Gill, "Some guys just can't get a break," The Times-Picayune, New Orleans, March 4, 2009, Metro,
- Gwen Filosa, "State ranks No. 1 with highest rate of death by gunfire; La. households with firearms 46 percent," The Times-Picayune, New Orleans, June 3, 2010, National,
Video clips, court documents and newspaper articles are reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
§ 107for a non-profit educational purpose.
HOLDOUT HARTLEY JUDGE WALTER NIXON JUDGE ROBERT COLLINS JUDGE THOMAS PORTEOUS JUDGES FOR SALE LOUISIANA SUPREME COURT KATRINA HOLDOUTS DISSIDENT ATTORNEY PROSECUTED JUDGES HELPING LAWYERS TILTING THE SCALES JUDGE BRENT BENJAMIN FIXING THE JUDICIARY
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