Katrina evacuees stated claim when ordered off bridge at gunpoint

Plaintiffs and their children were staying at a hotel in New Orleans only from Algiers on the West Bank when Katrina hit and then the city flooded. By September 1st, the hotel they were in was running out of food and fuel, and the hotel asked them to evacuate. Their car was in the hotel’s flooded garage, so they decided to walk home over the bridge. They were ordered back into New Orleans at gunpoint by Gretna police, notwithstanding their attempt to show they lived where they were walking to. They sued under various theories, and they stated a denial of interstate travel and a Fourth Amendment claim that survives a motion to dismiss. Cantwell v. City of Gretna, 2007 U.S. Dist. LEXIS 88156 (E.D. La. November 30, 2007):

The defendants contend that the facts do not state a claim for relief for a violation of the plaintiffs’ rights under the Fourth Amendment. The defendants contend that the plaintiffs have not alleged any use of force and that the “threat of force” by pointing a gun as a deterrent does not allege a constitutional violation. The plaintiffs argue that the defendants violated a liberty interest guaranteed under the Due Process Clause of the Fifth and Fourteenth Amendment when they physically restrained them from crossing the bridge.

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“The first inquiry in any § 1983 suit” is “to isolate the precise constitutional violation with which [the defendants] are charged.” Baker v. McCollan, 99 S.Ct. 2689, 2692 (1979). Historically, “[t]he liberty preserved from deprivation without due process included the right generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Ingraham v. Wright, 97 S.Ct. 1401, 1413 (1977). “While the contours of the historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment.” Id. at 1413-14.

A seizure occurs when government actors have “by means of physical force or show of authority, … in some way restrained the liberty of a citizen.” Terry v. Ohio, 88 S.Ct. 1868, 1879 n.16 (1968). In Graham v. Connor, 109 S.Ct. 1865, 1871 (1989), the Supreme Court explicitly held that a claim that arises in the context of the restraint of liberty of a free citizen is properly characterized as one invoking the protections of the Fourth Amendment and is analyzed under the reasonableness standard. “Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Id.; see also Saucier v. Katz, 121 S.Ct. 2151, 2158 (2001) (analysis is under Fourth Amendment standard, not substantive due process principles).

The Due Process Clause is not implicated in this case. There are no issues concerning procedural due process, and a substantive due process analysis is not appropriate. Accordingly, the defendants’ motion to dismiss the claims under the Due Process Clause of the Fifth and Fourteenth Amendments is granted.

Notwithstanding, the plaintiffs have alleged facts beyond a speculative level that a violation of the Fourth Amendment could have occurred, based simply on the general rule prohibiting excessive force in restraining the liberty of a citizen. See Saucier v. Katz, 121 S.Ct. at 2159. Accordingly, the allegations plausibly suggest a right to relief, and the defendants’ motion to dismiss the Fourth Amendment claim is denied.