Joseph ALFONSO, IV v. UNITED STATES of America
No. 13-30824
United States Court of Appeals, Fifth Circuit
May 12, 2014
In United States v. Doswell, we explained that the Supreme Court has held that a “person facing revocation of release possesses a due process ‘right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).‘” 670 F.3d 526, 530 (4th Cir.2012) (quoting Morrissey, 408 U.S. at 489, 92 S.Ct. 2593). Indeed, the majority recognizes that the district court‘s error in the present case “implicated one of Mr. Ferguson‘s core procedural rights” relating to the constitutional right to confrontation, and that the error was “more substantive than the type of technical or nominal error that originally motivated the harmless error standard.” Supra at 619. Because the error at issue violated Ferguson‘s due process right to a fair revocation hearing, I think that the lesser standard of harmless error set forth in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), is inadequate to evaluate the error‘s impact.
Nevertheless, applying the Chapman standard, I would conclude that the district court‘s error in the present case was harmless beyond a reasonable doubt. The evidence was overwhelming that Ferguson violated the terms of his supervised release by possessing marijuana with the intent to distribute. The district court credited the arresting officer‘s testimony that he smelled marijuana in Ferguson‘s vehicle, and that a search of the vehicle resulted in the discovery of what the officer concluded was marijuana, “packaged and quantified in a fashion consistent with an intent to distribute.” The arresting officer further testified that Ferguson admitted that he sold marijuana. Based on this record, which is particularly strong given Ferguson‘s statement to the arresting officer, I would hold that it is clear beyond a reasonable doubt that the court‘s erroneous admission of the laboratory report did not affect the judgment rendered in this case. See Chapman, 386 U.S. at 24, 87 S.Ct. 824.
Finally, I note my strong agreement with Judge Davis’ remarks in his concurring opinion cautioning prosecutors to follow carefully our opinion in Doswell. My view in this case that the district court‘s error was harmless does not affect my concern that the government must act diligently to ensure that revocation proceedings be conducted fairly in accordance with the plain requirements of
Peter M. Mansfield (argued), Assistant U.S. Attorney, Kevin G. Boitmann, Assistant U.S. Attorney, Andre Jude Lagarde, Assistant U.S. Attorney, U.S. Attorney‘s Office, New Orleans, LA, for Defendant-Appellee.
Before JONES, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Joseph Alfonso sued Louisiana national guardsmen under the Federal Tort Claims Act (“FTCA“) for alleged negligence arising from post-Hurricane Katrina activities undertaken while they were in federal-pay status.1 The FTCA permits recovery against the United States if the federal employees would be liable for the same conduct as private individuals under state law.2 The Louisiana Homeland Security and Emergency Assistance and Disaster Act (“LHSEADA” or the “immunity statute“), however, grants immunity to the state and its agents if they were engaged in emergency-preparedness activities.
Alfonso appeals on two principal grounds. First, he claims that the guardsmen were not engaging in emergency-preparedness activities and are therefore not immune. Second, he maintains in the alternative that the immunity statute is unconstitutional under a provision of the Louisiana Constitution that prohibits the legislature from granting immunity to the state in tort suits.3 The district court did not address the constitutional question, concluding that it was not implicated in the FTCA context.
We agree with the district court that under Louisiana law the guardsmen were engaged in emergency-preparedness activities and are therefore clothed with immunity. We disagree that the constitutional question can be avoided. Absent guiding caselaw from Louisiana, we decide that—only in this narrow circumstance—Louisiana‘s immunity statute is not unconstitutional as applied to the guardsmen who are put into the shoes of private individuals for purposes of the FTCA claim. For that reason, we affirm the judgment of dismissal.
I.
“We conduct a de novo review of orders granting the Government‘s motion to dismiss an FTCA complaint under
II.
Approximately two-and-one-half months after Hurricane Katrina, Alfonso was driving his pickup on a highway in St. Bernard Parish when he encountered a large amount of mud and lost control of his vehicle and was ejected, sustaining injuries and property damage. He claims that the Louisiana National Guard (the “Guard“) had carried truckloads of mud and dirt across the highway, resulting in the accumulation of mud.
The LHSEADA reads, in pertinent part,
Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents’ employees or representatives of any of them engaged in any homeland security and emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity.
Relying on deposition testimony and operation orders issued to the Guard in November 2005—the month of the accident—the district court found that “the Guard was engaged in debris removal and levee repair near the site of [Alfonso‘s] accident” as a “direct result of Hurricane Katrina,” and therefore was engaged in emergency-preparedness activity. These would constitute activities immune from liability because the LHSEADA applies when “an emergency situation existed, and [when] the defendant government was operating in a manner that promoted emergency preparedness and protection of persons and property.”4
Alfonso contends that this is erroneous because the Guard was working on raising levees, not repairing them, around the time of Alfonso‘s accident, and that does not qualify as emergency-preparedness activity. Indeed, the immunity statute “was intended to address actions taken pursuant to a particular emergency, not to general levee construction.” Banks, 990 So.2d at 34. But the district court did not clearly err in finding that the Guard was engaged in debris removal around the time and place of Alfonso‘s accident in response to the emergency created by Hurricane Katrina. Multiple orders were issued to the Guard less than two weeks before Alfonso‘s accident, instructing various units to “clear and grub” the nearby Arpent Canal levee and “conduct[ ] debris removal.” The 205th Guard battalion, which Alfonso admits was at the site of his accident on the following day, received an “Emergency Preparedness” order, ten days before the accident, instructing the battalion to “[c]ontinue clearing and grubbing” debris near the accident site and to “[u]se a dozer to push trash” to one side of the highway.
The court additionally relied on testimony from Colonel Douglas Mouton of the Guard, who oversaw the post-Katrina relief efforts of the Guard‘s 225th Engineer Group in St. Bernard Parish. Mouton testified that for the Guard to fulfill its responsibilities of making roads accessible and mitigating potential hazards, it needed to move a “tremendous amount” of debris and dirt from nearby streets, levees, and water structures. The Deputy Director of the St. Bernard Department of Homeland Security and Emergency Preparedness also confirmed the debris removal.
Alfonso further contends that the United States does not qualify for LHSEADA immunity because his accident occurred seventy-eight days after Hurricane Katrina, creating too tenuous a “temporal connection” between the storm and his accident to qualify the Guard‘s activity as “emergency preparedness.” The statute, however, contemplates no particular time limit, and at least one other district court has found post-Katrina activities later in time than the activities here to be covered by the act. See Lemoine v. United States, No. 07-8478, 2009 WL 2496561 (E.D.La. Aug. 13, 2009). The district court did not err in finding that sufficient temporal proximity existed between Hurricane Katrina and Alfonso‘s accident.5 The LHSEADA therefore applies.
Alfonso also argues that the LHSEADA is unconstitutional because it violates the state constitution, which provides, “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”
III.
Alfonso argues that the LHSEADA violates his right to access state courts as guaranteed by Article 1, Section 22 of the Louisiana Constitution because dismissal of both his federal and state cases pursuant to LHSEADA immunity leaves him with “no remedy for injury to his person and property.” That theory is erroneous in three respects. First, Section 22 guarantees a state citizen‘s right to access state courts, not federal district courts. Second, it is well established under Louisiana law that Section 22 does not bar the legislature from creating various areas of statutory immunity. Crier v. Whitecloud, 496 So.2d 305, 309-10 (La.1986). Third, the appeal in Alfonso‘s state-court case has yet to be decided.
Alfonso finally contends that the LHSEADA is unconstitutional because it violates his state and federal rights to due process and equal protection because it denies him an opportunity to be heard and because it creates a “class” of persons who cannot recover for injury resulting from emergency-preparedness activity. Alfonso offers no legal support for these propositions, and we note that if they were true, any immunity statute of any sort would be unconstitutional. We therefore reject them.
The judgment of dismissal is AFFIRMED.
JERRY E. SMITH
UNITED STATES CIRCUIT JUDGE