Blowing the Lid Off: Expanding the Due Process Clause to Defend the Defenseless Against Hurricane Katrina

This paper advocates an expanded reading of the Due Process Clause of the Fourteenth Amendment to include affirmative obligations to act. Specifically, this paper considers the government's failure to act during the threat of Hurricane Katrina a valid cause of action under a Section 1983 Civil Rights suit. State officials, local officials, and local government must be held accountable for their monumental failures during the storm. The government's mistreatment of its most vulnerable citizens-the poor, the elderly, and the sick-may constitute a due process violation under one of the exceptions to the no-duty rule generally imposed on the Due Process Clause of the Fourteenth Amendment.

A "more perfect Union" must act on its duties- both negative and affirmative-to protect the powerless against harm. Part II of this paper will provide a brief introduction to Section 1983 litigation, examining possible defendants and the type of relief available. Part III will discuss Fourteenth Amendment violations supported by two exceptions to the no-duty rule under DeShaney: the state- created danger rule and the special relationship exception. This part of the paper will also examine the government's failures leading up to the Katrina debacle in light of the two exceptions, arguing that either could be used to make the state and local officials liable under a due process claim.

Finally, this paper will conclude with a look ahead at government's response to the constant threat of hurricanes and whether anything has been learned from the events surrounding Hurricane Katrina.