Disaster Mythology and the Law

Lisa Grow Sun - J. Reuben Clark Law School, Brigham Young University

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More than five years have passed since Hurricane Katrina devastated the Gulf Coast, yet images from Katrina’s aftermath continue to haunt the American mind.  Many of the most shocking and disturbing images that remain with us today are not from photographs or news footage, but images constructed and seared in our collective consciousness by widespread and seemingly credible reports of chaos, anarchy, violence, and depravity enveloping New Orleans in Katrina’s ruinous wake.

New Orleans was, we were told, a city descending into anarchy—a place, according to the New Orleans Police Superintendent, where “little babies were getting raped” in the Superdome, a shelter of last resort1; a place, as New Orleans Mayor Ray Nagin recounted to Oprah Winfrey, where hurricane survivors had descended into an “almost animalistic state” after days of seeing dead bodies and “watching hooligans killing people, raping people.”2

The mainstream press—including some of the most respected media outlets—built on official accounts of lawlessness to paint an unrelenting picture of bedlam and atrocities in New Orleans.  According to a column in the New York Times, post-Katrina New Orleans was “a snake pit of anarchy, death, looting, raping, marauding thugs, suffering innocents, a shattered infrastructure, a gutted police force, insufficient troop levels and criminally negligent government planning.”3  The Financial Times of London likewise reported that, at the Convention Center, another shelter of last resort, “girls and boys were raped in the dark and had their throats cut and bodies were stuffed in the kitchens while looters and madmen exchanged fire with weapons they had looted.”4  London’s Evening Standard took a more literary tack, alluding to The Lord of the Flies in its descriptions of New Orleans.5  Fox News described “cops arriving on the scene, armed and ready to take on the armed thugs,” and “[t]hugs shooting at rescue crews.”6  A Fox News correspondent also asserted “there are so many murders taking place” and “[t]here are rapes, other violent crimes taking place in New Orleans.”7

When the media was not describing New Orleans as the anarchic turf of marauding thugs, it characterized New Orleans as a war zone.  The war being fought was not with nature—as one might assume—but between Katrina’s victims and their would-be rescuers. The Los Angeles Times, for example, reported in its lead news story that “National Guard troops took positions on rooftops, scanning for snipers and armed mobs as seething crowds of refugees milled below, desperate to flee.  Gunfire crackled in the distance.”8  In an article titled Troops Back from Iraq Find Another War Zone, and subtitled In New Orleans, ‘It’s Like Baghdad on a Bad Day, the Washington Post reported that “just the smell and feel of a war zone in the city put the soldiers on edge.”9  CNN’s Wolf Blitzer said of the National Guard’s arrival in New Orleans, “eight convoys and troops are on the ground at last in a place being described as a lawless, deadly war zone.”10

These images of anarchy and war were compelling in Katrina’s immediate aftermath, and they endure even today.  But they were not real. The reality on the ground was far different from the pictures painted in the press.  Although the living conditions in the Superdome and Convention Center were appalling—and those who had taken refuge there suffered greatly for want of food, water, and decent sanitation—the media and public officials greatly exaggerated the amount of lawlessness and violence occurring in New Orleans.  Almost a month after Katrina made landfall, major news outlets retracted much of their previous reporting, admitting that the reports of violence and crime were largely unsubstantiated.

Media mea culpas notwithstanding, why were public officials and the media so eager to report, and the public so quick to believe, tales of horrific violence and anarchy in post-Katrina New Orleans?  While these reports did not conform to the truth, they did conform to an enduring myth about the behavior of individuals in the aftermath of natural disasters: that antisocial behaviors such as violence and looting are common human reactions to natural disasters.

Sociologists have long identified substantial disconnects between public perceptions of post-disaster human behavior and the empirical assessments of that behavior.  The narrative of post-disaster behavior that resonates in the media and with most people reads like a typical disaster movie script: disaster victims are plunged into a lawless, chaotic world of looting, violence, and human depravity, where they either “flee in panic”—scrambling over other victims in a heartless attempt to save themselves—or curl up in fetal position, paralyzed by fear and unable to muster the will to go on.  Victims are rescued not by their own wits and ingenuity but by a trusted, commanding hero who rises above base human nature and steps into the void to lead and save the helpless masses.

The narrative of post-disaster human behavior found in sociological studies is both far less dramatic and far more encouraging: disaster survivors engage in overwhelmingly prosocial behavior and victims-turned-resourceful-first-responders rationally assess danger and work assiduously to save their neighbors and communities.  Given the prevalence of disaster mythology, it is disturbing—but hardly surprising—that the public narrative of post‑Katrina New Orleans took a page from a disaster-movie script rather than a sociology textbook (other than the much bemoaned and conspicuous absence of a strong, authoritative hero who saved the day).

While these “disaster myths” have been the subject of intensive investigation by sociology scholars, they have been wholly neglected in legal scholarship.  Yet these myths have important implications for disaster law and policy.  If sociologists are correct that many widely shared assumptions about post-disaster human behavior are myths with little basis in fact, and that these myths exert a powerful hold on the American mind, we might expect that existing laws reflect and perhaps even perpetuate these myths.  Moreover, if both existing laws and the implementation of those laws are grounded in myths rather than in the reality of human behavior in disaster situations, then we might also expect that current disaster laws and policies are suboptimal, likely mismatched to the task of minimizing community and societal disruption and the concomitant human suffering.  Even those laws that do not necessarily reflect disaster mythology may, nonetheless, allow responding officials the discretion to implement suboptimal response measures that do reflect that mythology.  The myths and their consequences, therefore, are eminently relevant to the ongoing development of both the disaster laws on the books and the structures in place for implementing those laws in times of emergency.

My article is the first to address the impact of disaster mythology on American disaster law.  Focusing on the disaster myth of widespread looting and violence, I suggest that this myth has engendered a legal and policy structure that frames natural disaster response too much as a law enforcement, rather than a humanitarian, problem.  From calls to expand the role of the military in disaster law enforcement, to diversion of police from search and rescue missions to antilooting patrols, to disaster-spurred restrictions on movement, to the passage of looting laws, we overemphasize law enforcement concerns and security risks at the expense of humanitarian efforts to provide needed aid to disaster survivors, to allow survivors themselves to help their neighbors and rebuild their lives, and to mitigate harms from future disasters.

My article undertakes a careful evaluation of these consequences of the myth of looting and violence for our system of legal response to disasters.  Initially, I examine three contexts in which the disaster mythology of looting and violence substantially affects the development or implementation of legal disaster response and for which it may be advisable to legally constrain, in advance, the discretion of politically accountable decision makers in order to counter the effects of disaster mythology.

First, disaster mythology may influence the scope and form of military involvement in disaster response by shaping official perceptions about whether the legal prerequisites for military intervention have been satisfied.  More specifically, the mythology may make it more likely that the President will deploy federal troops in a law enforcement capacity by invoking the Insurrection Act,11 and—in the absence of that invocation—less likely that the President will be willing to commit federal troops to humanitarian missions.  Second, belief in exaggerated reports of looting and violence distorts implementation of response priorities outlined in disaster plans.  Third, exaggerated fears of looting and violence lead public officials to implement restrictions on freedom and freedom of movement, many of which are authorized in state disaster laws, that may be counterproductive to relief efforts by, for example, delaying return of evacuees to their homes.  Such fears may also encourage excessive use of force by police.  Because reports perpetuating the myth of widespread looting and violence seem to peak during the immediate-response phase and then begin to recede, I argue that amending disaster legislation and emergency-response plans during times of calm to limit official discretion to overemphasize security risks in immediate-response decisions may help counter the deleterious effects of the myth.

The aftermath of Hurricane Katrina demonstrates this need to counteract the influence of the myth by constraining official discretion.  After Katrina, exaggerated reports of looting and violence, spurred by disaster mythology, hampered response efforts at every level of government.  In response to the overblown reports of looting and violence, President Bush considered invoking the Insurrection Act to federalize the National Guard and to invest those troops and federal regular troops with law enforcement authority to respond to the reported lawlessness.  Then, when political considerations dissuaded the President from taking these actions, concern that federal troops would encounter law-and-order difficulties on the ground apparently delayed deployment of federal troops to New Orleans to perform humanitarian missions, such as search and rescue.

Moreover, the exaggerated reports of looting and violence had concrete, detrimental effects on the prioritization and implementation of immediate-response measures called for in federal, state, and local disaster plans.  New Orleans mayor Ray Nagin diverted 1,500 New Orleans police from search and rescue missions to antilooting patrol, a decision that may have exacerbated Katrina’s death toll, which eventually reached at least 828 in New Orleans alone.

Additionally, the rumors of violence and gang activity in shelters of last resort, such as the Superdome and Convention Center, delayed delivery of critical aid to hurricane survivors.  Rather than delivering supplies to those shelters as quickly as the provisions became available, responders waited until military escorts could arrive to accompany the deliveries.  For example, after amassing supplies of MREs and other food to deliver to the Convention Center, the National Guard assembled an armed escort of one thousand soldiers and two hundred fifty police officers.  National Guard Lieutenant Colonel Jacques Thibodeaux had been told to expect “lawlessness, no food and water, desperation.”  Indeed, the caravan was “expecting a war zone,” reported Mark Smith, spokesman for the Louisiana Governor’s Office of Homeland Security and Emergency Preparedness.12  The caravan was greeted instead by cheering crowds, the Convention Center was secured within thirty minutes, and a search of all nineteen thousand people produced only thirteen weapons.

Myth-influenced reports of massive looting and horrific violence in Katrina’s aftermath also led local officials to impose drastic restrictions on basic freedoms, including freedom of movement.  One of the most shocking examples of such restrictions was the decision by suburban police in Gretna, Louisiana to blockade one of the primary escape routes from New Orleans, the Crescent City Connection Bridge, to prevent survivors—whom they viewed as potential looters and rapists—from evacuating the city on foot and taking refuge in adjacent communities.   Additionally, both New Orleans Mayor Ray Nagin and Jefferson Parish President Aaron Broussard reportedly purported to declare martial law in their jurisdictions.   Nagin apparently told police to “do ‘whatever it takes’” to restore law and order and said that “[m]artial [l]aw means that officers don’t have to worry about civil rights and Miranda rights in stopping the looters.”13  Such declarations may well have encouraged police to view Katrina survivors primarily as potential criminals and emboldened police in their use of excessive—even deadly—force in confronting those survivors they encountered on the streets.

Even in more mundane disasters, the myth of widespread looting and violence rears its head.  Local officials often delay evacuees’ return to their homes until sufficient manpower is available to police the area for potential looting.  Indeed, many state and local disaster plans specifically cite looting as a reason for continuing to secure the area after a disaster and as a factor to be considered in determining the timing of evacuee reentry.  Likewise, local officials often impose curfews in disaster-stricken areas to forestall looting.

Consequently, I suggest that our legal system of disaster response should counter the deleterious effects of the disaster myth by limiting the discretion of federal and state officials to elevate law enforcement over humanitarian concerns.  First, we should reject calls to expand the role of the military—particularly the federal military—in disaster law enforcement.  Second, to prevent exaggerated fears of violence and looting from interfering with federal disaster aid, the federal Stafford Act’s14 provisions on major disaster assistance should be amended to preclude the President from delaying or withholding federal aid, including military humanitarian aid, based on unsubstantiated reports of looting and violence.  Third, state and local disaster laws and plans likewise should be amended to prohibit prioritization of law enforcement over other response missions, to clearly establish the priority of life-saving over property protection, and to preclude delays in delivery of aid based on security concerns absent credible, reliable, verified evidence that such concerns are valid.  Fourth, state disaster laws should also be amended to prevent invocation of inflated looting fears to justify restrictions on movement such as blockades, curfews, vague declarations of “martial law” that purport to suspend constitutional rights, and orders delaying evacuees’ return to their homes.  These reforms will help limit the detrimental effects that the myth of looting and violence otherwise has on disaster response.

The next section of my article demonstrates that the disaster myth of looting and violence has spurred the adoption of many state laws criminalizing looting.  Although looting laws may serve some limited functions, their passage diverts attention from more important legislative responses to disasters, such as the adoption of mitigation measures.  Furthermore, such laws perpetuate the myth both by suggesting that looting is frequently a major problem and by failing to distinguish between antisocial looting (opportunistic criminal behavior preying on the vulnerabilities of other disaster victims) and arguably prosocial looting, or what sociologists describe as appropriating behavior (that is, disaster victims “requisitioning” needed survival supplies that are not otherwise readily available).  By equating all post-disaster looting, these looting laws inflate the amount of perceived antisocial behavior.  Such laws may even encourage vigilantism and overly aggressive law enforcement by entrenching the primacy and inviolability of private property rights during disasters.  Therefore, I suggest that we should experiment with public education campaigns to reduce pressure on officials to adopt looting laws or, at least, to encourage adoption of looting laws that affirmatively grapple with the distinction between antisocial and prosocial looting.

Finally, I consider how the disaster myth of looting and violence affects the way in which we should structure the administrative agencies charged with disaster response.  In particular, I suggest that, to facilitate rooting out the disaster myth and the overemphasis on law enforcement it spurs, both the federal and state governments should be wary of submerging agencies charged with mitigating and responding to natural disasters in larger homeland security agencies focused primarily on terrorism.  Housing natural disaster response agencies in bureaucracies charged primarily with responding to terrorism risks will likely make it more difficult to reorient natural disaster response away from law enforcement and toward humanitarian concerns.  Accordingly, the prevalence of the disaster myth should give us pause about continuing to house the Federal Emergency Management Agency (FEMA) within the Department of Homeland Security (DHS).

The true nightmare of Katrina was not the anarchy and violence reported to have consumed the city; rather, it was the painfully slow and often misguided response—spurred in part by the disaster myth of widespread looting and violence—that compounded the suffering of Katrina’s victims and all but guaranteed that disaster would become catastrophe.  If we are to avoid that nightmare scenario in future disasters, we must reform both the design and implementation of our disaster laws to avoid the overemphasis on security and law enforcement that the disaster myth encourages.

Moreover, by continuing the dialogue between disaster sociology and disaster law that this Article has begun, we can help ensure that our legal framework for natural disaster response is designed and implemented based on accurate assessments of post-disaster human behavior.  As we take the necessary steps to counter the deleterious impact of disaster mythology on our legal system of disaster response, we will be better prepared to meet the challenge of minimizing human suffering in the face of future natural disasters that will surely come.

Acknowledgments:

Lisa Grow Sun is an Associate Professor of Law at the J. Reuben Clark Law School at Brigham Young University.

This editorial is based on Lisa Grow Sun’s article, Lisa Grow Sun, Disaster Mythology and the Law, 96 CORNELL L. REV. __ (forthcoming 2011).

  1. Oprah Reports, Oprah.com (Sept. 6, 2005), http://www.oprah.com/slideshow/oprahshow/oprahshow1_ss_20050906/2.
  2. Brian Thevenot, Myth-Making in New Orleans, Am. Journalism Rev., Dec. 2005–Jan. 2006, at 30, 34 (internal quotation marks omitted).
  3. Maureen Dowd, Op-Ed., United States of Shame, N.Y. Times, Sept. 3, 2005, at A21, available at http://www.nytimes.com/2005/09/03/opinion/03dowd.html?scp=1&sq=Maureen%20Dowd%20United%20States%20of%20Shame&st=cse.
  4. Guy Dinmore, City of Rape, Rumour and Recrimination, Fin. Times, Sept. 5, 2005, at 7.
  5. See Robert Mendick, Gang Rule and Rape in Hurricane Dome . . . It’s Like a Mad Max Movie, Evening Standard (London), Sept. 2, 2005, at 6 (“It was like something out of Lord Of The Flies—one minute everything is calm and civil, the next it descends into chaos.”).
  6. Thevenot, supra note 2, at 33.
  7. Id.
  8. Ellen Barry et al., New Orleans Slides into Chaos; U.S. Scrambles to Send Troops, L.A. Times, Sept. 2, 2005, at 1.
  9. Ann Scott Tyson, Troops Back from Iraq Find Another War Zone: In New Orleans, ‘It’s Like Baghdad on a Bad Day, Wash. Post, Sept. 6, 2005, at A10.
  10. Jaime Omar Yassin, Demonizing the Victims of Katrina, Extra!, Nov.–Dec. 2005, http://www.fair.org/index.php?page=2793.
  11. 10 U.S.C. §§ 331–335 (2006).
  12. Katy Reckdahl, The Myths of New Orleans, Tucson Weekly, Aug. 24, 2006, http://www.tucsonweekly.com/tucson/the-myths-of-new-orleans/Content?oid=1085005 (internal quotation marks omitted).
  13. Select Bipartisan Comm. to Investigate the Preparation for & Response to Hurricane Katrina, Supplementary Report, at 51 (2006), reprinted in, A Failure of Initiative, H.R. Rep. No. 109–377, app. 8, at 486 (2006).
  14. 42 U.S.C. §§ 5121–5208 (2006).

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