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Forced evacuation mired in constitutional dilemma

The lines blur depending on who orders it and who will enforce it. And what do you do with those who resist?

REBECCA CATALANELLO and CURTIS KRUEGER
Published September 9, 2005

NEW ORLEANS - As police and soldiers patrolled the streets Thursday, many residents condemned the city's threat to clear everyone out of their homes.

"They can't do this," said Addie Hall, 29, an artist and bartender who has been volunteering to clean up the French Quarter. "I'm an American citizen. They're saying I have no rights."

She and others questioned whether the evacuation should extend to neighborhoods that escaped the flooding.

"Surely we can distinguish houses that are . . . compromised beyond habitation and those that are perfectly livable," said Roger Pilon, vice president for legal affairs at the Cato Institute in Washington, D.C.

But legal experts say the government has a well-established right to remove people from their homes for their own protection.

Police and National Guard soldiers have told residents they need to evacuate, and many have gone willingly, many of them elderly or sick. Others refuse to leave, but police have not arrested anyone for staying.

Some National Guard officials say they will not force people out unless the governor orders them. Military leaders say they also have not been ordered to conduct forced evacuations.

But police made it clear in orders barked from front porches and through closed doors that they would return - next time, getting tough.

That prompted some to leave, figuring it was better to leave now than to be dragged out later with little time to pack or plan.

"If the options are to leave voluntarily or have them force us to go, then we just decided to go on our own," said Bryan Jackson, 33, a bartender who stayed with three other adults in a house that was not damaged by the storm in the Uptown area of New Orleans.

"Some are finally saying, "I've had enough,' " U.S. Immigration and Customs Enforcement spokesman Michael Keegan said. "They're getting dehydrated. They are running out of food. There are human remains in different houses. The smells mess with your psyche."

Police said they scanned 80 percent of the city for voluntary evacuees, after which they planned to carry out Mayor Ray Nagin's order to forcibly remove remaining residents.

Many parts of the city are filled with disease-carrying water, broken gas lines and rotting corpses.

But some parts of the city have dry streets, intact roofs and even running water. Many residents there want to stay, and insist they have a right to do so.

Hall and some of her friends have organized and made T-shirts that say "RFQ" - Restore the French Quarter. They have cleaned their neighborhood since the day after the hurricane. They planned to spend Thursday cleaning debris on Esplanade Avenue and fixing the roof on a historic restaurant.

But warnings of forced evacuations prompted them to hunker inside instead.

"Why would you get rid of me?" asked Stephen James, a 50-year-old builder sporting an RFQ T-shirt. "I can rebuild."

Some legal experts are sympathetic with the mayor's plight: Removing people from crippled homes still standing in a potentially toxic soup of floodwater. Tests this week showed bacteria associated with sewage were 10 times higher than acceptable safety levels in the floodwater.

University of Florida law professor Michael Allan Wolf said a fundamental legal concept is "the obligation of the government to protect the public health, safety, morals and general welfare."

This concept has been used to move people to save them from disease or to move them from dangerous situations such as living beneath a dam that's about to break.

While some New Orleans residents are in dry houses, Wolf said, the government has other questions it must confront: "Where are these people going to be putting their human waste? Are these people self-sufficient?"

The Fourth Amendment to the U.S. Constitution prohibits "unreasonable searches and seizures." But even constitutionally guaranteed rights sometimes conflict, Wolf said, and occasionally "some rights have to yield to others."

"None of the property rights that we have is absolute," said Wolf. But in the streets of New Orleans, the unanswered question is: What happens next?

"Our understanding is that the mayor doesn't have the authority to direct us to remove people," Maj. Steve Nixon of the 45th Infantry Brigade of the Oklahoma National Guard told the Boston Globe.

U.S. Army Capt. John Sherrill of Oklahoma said the only people being forced to evacuate are those arrested for crimes.

But soldiers on Wednesday and Thursday appeared to be laying the groundwork for when that order comes.

"We're keeping in mind that these people are still Americans," Sherrill said, "and they still have the same inalienable rights as any American."

For police or soldiers, arresting people for staying in their own homes would be painful and unpopular.

"That's got to be one of the worst-case scenarios for law enforcement officials," said former Pinellas County Sheriff Everett Rice, now a state representative. "What are they going to do with those that resist? Shoot them?"

No one is suggesting that, of course. But after 10 days of suffering caused by Hurricane Katrina, some holdouts finally called it quits.

Dale Wolfe Noel, 58, was ready to go.

Noel sat under a medical tent outside the trashed New Orleans convention center, tears running down her face.

Born and raised in New Orleans, she'd been holed up at her Algiers house since Katrina rolled in. Family members left a few days ago but couldn't return because of military checkpoints, she said.

Asked what she'd been doing, she said: "Waiting on the Lord to straighten things out."

Information from the Associated Press and Times researcher Carolyn Edds was used in this report.

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