Compelling interest

Well it certainly could have gone worse. We were grateful to wake up Sunday and run the air conditioner rather than sit around in the dark waiting for updates on what businesses are open. After one line of thunderstorms early in the afternoon, it barely rained. New Orleans didn't experience even anything approaching tropical storm force winds. When people talk about the benefits of being on the western side of a land-falling storm, this is what they mean.  Or maybe God is just really happy with New Orleans. Let's ask Pat Robertson.

On the previous Tuesday, the wind caught by this Art for Art's Sake banner caused a larger electrical outage in the city than did anything associated with Hurricane Nate.



As the storm made its final approach, Mitch put on his bright blue embroidered L.L. Bean weather jacket and issued emergency instructions at this press conference.



Among those instructions was a 7pm to 7am curfew. People immediately complained, as they do. That evening, as it became clearer that the city was no longer under threat, and as local TV made a point of reporting that nobody downtown was actually observing the curfew anyway, the mayor went ahead and lifted it after about an hour.  The next day, though, he complained, as he does.

"We followed the protocols to a T," he said of the storm preparations. "One of the things that the public has a hard time understanding is the amount of time it takes actually to ramp up, and the kind of harm that can be caused if they're out when something untoward happens."

Condescension is a common habit among politicos. But you see it most frequently from authoritarians like Mitch. The public didn't have "a hard time understanding" what was going on Saturday. Aside from the LSU game, Nate and its potential hazards were the only thing on Channel 4 all day. Furthermore, adults living in New Orleans tend to know how to handle themselves in these situations. Imposing a mandatory curfew on them isn't just an inconvenience. It is a threat to the already fragile right of free citizens to move about unperturbed by law enforcement.

Theoretically, curfews on adults are subject to strict scrutiny. But you can see here there are circumstances where courts have acquiesced to some erosion of our freedom of movement.

Adult Curfews & Strict Scrutiny

Curfews directed at adults touch upon fundamental constitutional rights and thus are subject to strict judicial scrutiny. The U. S. Supreme Court has ruled that "[t]he right to walk the streets, or to meet publicly with one's friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered society." Papachristou v. City of Jacksonville, 405 US 156, 164, 31 L. Ed. 2d 110, 92 S. Ct 839 (1972).

To satisfy strict-scrutiny analysis, a government-imposed curfew on adults must be supported by a compelling state interest that is narrowly tailored to serve the curfew's objective. Courts are loath to find that an interest advanced by the government is compelling. The more justifications that courts find to uphold a curfew on adults, the more watered-down becomes the fundamental right to travel and to associate with others in public places at all times of the day.

The U.S. Supreme Court has ruled that this right may be legitimately curtailed when a community has been ravaged by flood, fire, or disease, or when its safety and Welfare are otherwise threatened. Zemel v. Rusk, 381 U.S. 1, 85 S. Ct. 1271, 14 L. Ed. 2d 179 (1965). The California Court of Appeals cited this ruling in a case that reviewed an order issued by the city of Long Beach, California, which declared a state of emergency and imposed curfews on all adults (and minors) within the city's confines after widespread civil disorder broke out following the Rodney G. King beating trial, in which four white Los Angeles police officers were acquitted of using excessive force in subduing an African-American motorist following a high-speed traffic chase. In re Juan C., 28 Cal. App. 4th 1093, 33 Cal. Rptr. 2d 919 (Cal. App. 1994).

"Rioting, looting and burning," the California court wrote, "pose a similar threat to the safety and welfare of a community, and provide a compelling reason to impose a curfew." "The right to travel is a hollow promise when members of the community face the possibility of being beaten or shot by an unruly mob if they attempt to exercise this right," the court continued, and "[t]emporary restrictions on the right… are a reasonable means of reclaiming order from anarchy so that all might exercise their constitutional rights freely and safely."

It is in no way clear that the "threat" posed by Nate rose to the status of a "compelling state interest" in forcibly keeping everybody inside.  It's perfectly reasonable for the city to recommend that people don't go out.  It was also a good idea to proactively barricade underpasses and roads along the lakefront in order to keep people from unwittingly driving into flood waters.

It's another matter altogether when we assume the right to stop and arrest people just for being outside.  Look what happens when police are allowed to think they can just do that.

The allegations first burst into public view two years ago with a lawsuit from former officer Daniel Swear alleging that he was forced to resign for speaking out against the quota system.

As that case heads to a December trial, documents filed in court this week provide a wealth of new information about the inner workings of a tight-knit police force of just over 100 officers.

In at least two instances, ranking officers were caught on tape talking about the department's “quotas."

A captain is accused of marking up a whiteboard to chart officers’ monthly arrests. Swear and two other officers say the same captain ordered them to hit the streets to gin up fees that would help make up for a potential $1 million budget shortfall.

The Gretna Police Department denies the allegations of arrest quotas. In court documents, its lawyers have cast all four of the people making the accusations as "former Gretna Police Department officers with axes to grind."

But regardless of how Swear’s case shakes out in court, his lawsuit provides a rare window into police practices in Gretna, which has been dubbed the arrest capital of the world for the eye-popping numbers of people who get booked there.

Maybe a budget shortfall is a "compelling state interest" too all of a sudden.   Is it too much to ask that the mayor of New Orleans at least consider these sorts of issues before shouting down at us all about our responsibilities during a minor weather event?

It has barely rained

Earlier today, the mayor and about 19 other city officials on the podium told us we had better be off the streets by 7 or else. Councilmember Ramsey responded to questions about a supposed double standard "curfew" applied to residents but not necessarily to tourists.

Ramsey: This mandatory curfew applies to everyone, tourists, citizens, etc. @wdsu

— Travers Mackel (@TraversWDSU) October 7, 2017

Mackel followed up on that with a question to the mayor about enforcement in the event that some businesses remained open or hosted any sort of "hurricane party."  Mitch, visibly aggravated, warned that anybody out on the streets when the wind picks up "might catch a stop sign to the head."  

It's about 7:30 right now, Nate has made a "first landfall" in Plaquemines Parish. The wind is barely blowing in New Orleans and the National Weather Service has dropped the hurricane warning for Orleans Parish. WWLTV just reported from Bourbon Street where there are plenty people milling about after curfew.  Good for them. But, um, can we come out too yet?

Nate is really moving

He's been screaming across the Gulf at 25-26 mph. If you blink you might miss him. So far the damage is minimal.  Nate's arrival has truncated the final hours of early voting in the municipal election. Other than that, there's not much to report. 

We did take what's become our traditional pre-hunkering meal out last night. This time we did Tujague's. This is the extremely garlicky and fantastic chicken bonne femme.

Thanks, but nah

"yadda yadda hunker down, lean forward, etc etc"



At the afternoon presser they just announced a 6pm curfew for tomorrow night.  Seems like NOPD already has plenty to do during these events without also having to enforce a nuisance directive like that. But it is the style now, so..

From the hurricanes' perspective, this is really the greatest season ever

They really are hitting everybody this year. And it seems like they know just where to hit everybody too.   Nate is forecast to come onshore as a fast moving and weak category 1 storm. Under most circumstances that's pretty good. But in our case, really, the fact that it's coming at all is a problem.

You may have heard about this drainage issue, for example.

With the Sewerage & Water Board’s drainage system improved but still at diminished capacity in the wake of the Aug. 5 flooding, and facing the possibility of a direct hit by Nate, Mayor Mitch Landrieu declared a state of emergency for the city.

City agencies are readying for the storm but also telling residents to be prepared for flooding in some areas.

“When you get 5 to 10 inches of rain in two or three hours, you’re going to expect to see some flooding,” regardless of how many pumps are operating, Landrieu said.

“An expectation of being dry 100 percent of the time when you live in New Orleans is not a reasonable expectation,” he added.

He's right about that one. To illustrate the point, yesterday our hurricane supply shopping list included a bottle of whiskey and a variety of beers. (We've got some Abita Pecan, some Miller Lites, and the Tin Roof with the LSU themed cans.) We aren't even planning to remain dry during the storm.  By the way, one of the odd things I noticed during Tuesday night's mayoral debate was Michael Bagneris's stated vision of "a dry city."  It raised all sorts of red flags.



In any case, we're probably not going to get that much rain.  Especially if the storm moves through as quickly as they're anticipating and if the track takes the easterly jog predicted as of this morning. We're frantically cleaning our storm drains just to be on the safe(r) side. That's good to know because, after the summer we've had, nobody is in any hurry to test the pumping system. 

As of Thursday, 108 of the 120 pumps that form the heart of the city’s drainage system were working. That’s four more than were working on Aug. 5.

Eight of the ones out of commission are the large drainage pumps used during storms, while four are small “constant duty” pumps only used for light rains.

As a result, eight of the 24 pump stations across the city are at between 50 percent and 96 percent of their theoretical maximum capacity, according to information from the S&WB.

"Theoretical maximum capacity" is a thing because of the continuing power limitations.  It's not only a function of how many pumps are in working condition. It's also about how many can be safely powered at one time. 

With three of its five turbines operational, the S&WB’s Carrollton power plant is now capable of producing or converting 39.25 megawatts of 25-cycle power, a standard used by about half the pumps in the city. Another 11 megawatts of the more standard 60-cycle power — used by the rest of the pumps — is available from 26 generators.

But that is not enough for the S&WB to run all its pumps at once, meaning officials could have to pick and choose where to direct power during a citywide storm. Logs from the Aug. 5 flood suggest that S&WB officials delayed turning on at least one pump station because power was not available.

Interim management team member Paul Rainwater cited the complicated dance the utility goes through during every storm to route power where it’s needed most and said of the pumps, “You don’t turn them on and run them full throttle all the time.”

If Johnese Smith were here she'd tell us a story about Captain Kirk yelling at Scotty to get him more power to the warp drive or something like that. Maybe that's what these guardsmen will be there to do.

There are actually more pumps to account for now than during this summer's thunderstorms. For the first time this year, the pumping capacity along the outfall canals will probably come into play. What kind of shape are they in? Who even knows?  You may also be curious, given the unusual speed at which Nate is approaching, how far along we are in the complicated process of closing the surge protection system altogether.

Anyone can see which gates are open or closed by using the Levee Information Management System, a software program  created by the Southeast Louisiana Flood Protection Authority-East.

All of them must be closed as a storm approaches the region. Even that isn’t simple, because those closures must follow a complicated procedure spanning 96 hours and involving personnel from more than 10 local, state and federal agencies, as well as the maritime industry. And because the plan must account for changes in tide and wind predictions, it has twists and turns that can make it look like a Rube Goldberg creation.

It all results in a complicated dance in which a misstep could result in parts of the city getting very wet.

“It is carefully choreographed,” said Bob Turner, the engineer who is the regional director of the Southeast Louisiana Flood Protection Authority-East.

“It’s somewhat unique in that the things you have to do in order to mitigate flood risk don’t always have strictly to do with flood control.”

In short, at the pumps and at the gates, we've got some carefully choreographed complicated dances going on to either power the pumps or seal off gaps in the system.  Ordinarily that might very well be reason to worry. Given the forecast, it looks like we'll probably be more or less okay. But, yes, by all means please be prepared to make whatever decision is the most prudent for you and your family. Beignet Fest can wait, you know.