\\jciprod01\productn\C\CRN\96-5\CRN502.txt unknown Seq: 1 11-JUL-11 13:01 DISASTER MYTHOLOGY AND THE LAW Lisa Grow Sun † Sociologists have identified a number of “myths”—widely shared mis- conceptions—about the ways people behave in the immediate aftermath of natural disasters. While these disaster myths have been the subject of inten- sive investigation by sociology scholars, they have been wholly neglected in legal scholarship. Yet these myths have important implications for disaster law and policy. This Article considers the legal implications of perhaps the most important disaster myth: that natural disasters produce widespread looting and violence. This Article examines a number of unfortunate legal consequences of this myth, including deployment of military troops in a law enforcement, rather than humanitarian, capacity; distortion of response pri- orities outlined in disaster plans; and imposition of restrictions on freedom of movement and other basic rights. This Article’s analysis suggests that the disaster myth of widespread looting and violence has engendered a legal and policy structure that frames natural disaster response too much as a law enforcement, rather than a humanitarian, problem. Ultimately, this Article concludes that the deleterious effects of the myth on our disaster laws can best be countered by constraining official discretion to overemphasize security risks in immediate-response decisions, rejecting calls to pass broad looting laws that can reflect and perpetuate the myth, and, perhaps, reforming the struc- ture of federal disaster agencies by removing the Federal Emergency Manage- ment Agency from the Department of Homeland Security and reestablishing it as a cabinet-level agency. I NTRODUCTION ................................................. 1132 R I. D ISASTER M YTHOLOGY ................................... 1137 R II. T HE M YTH OF L OOTING AND V IOLENCE .................. 1140 R A. The Content of the Disaster Myth .................. 1140 R B. The Persistence and Perpetuation of the Disaster Myth ............................................... 1148 R III. L EGAL C ONSEQUENCES OF THE M YTH OF W IDESPREAD L OOTING AND V IOLENCE ................................. 1152 R A. Disaster Mythology in Disaster Response: The Role of Discretion ....................................... 1154 R † Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University. The author thanks the law faculty at Brigham Young University for helpful comments at work-in-progress presentations; Professors Dan Farber, Robert Verchick, RonNell Ander- sen Jones, Howard Erlanger, Erin Ryan, Amanda Tyler, Ed Richards, Brigham Daniels, Gordon Smith, and David Moore for their excellent feedback; and BYU law students Ste- phanie Barclay, Melinda Bowen, Carla Crandall, James Dunkelberger, and Marcus Hintze for their research assistance. 1131 \\jciprod01\productn\C\CRN\96-5\CRN502.txt unknown Seq: 2 11-JUL-11 13:01 1132 CORNELL LAW REVIEW [Vol. 96:1131 1. The Military’s Role in Disaster Response ............ 1154 R a. Overview of the Military’s Role in Disaster Response ..................................... 1154 R b. The Military’s Humanitarian Response to Katrina ..................................... 1161 R c. The Myth Provokes a Legislative Response: Amending the Insurrection Act ................. 1163 R d. The Myth’s Effect on the Military’s Disaster Role: Helpful or Harmful? .......................... 1166 R 2. Distortion of Response Priorities in Disaster Plans .... 1173 R 3. Restrictions on Freedom ........................... 1178 R B. Reflecting and Perpetuating the Myth: The Passage of Looting Laws .................................... 1190 R C. Institutional Reform: Removing FEMA from DHS . . . 1203 R C ONCLUSION ................................................... 1207 R I NTRODUCTION More than five years have passed since Hurricane Katrina devas- tated 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 con- sciousness by widespread and seemingly credible reports of chaos, an- archy, 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 resort; 1 a place, as New Orleans Mayor Ray Nagin recounted to Oprah Winfrey, where hurricane survivors had descended into an “almost an- imalistic state” after days of seeing dead bodies and “watching hooli- gans 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 un- relenting picture of bedlam and atrocities in New Orleans. According to a column in the New York Times , post-Katrina New Orleans was “a 1 Oprah Reports , O PRAH . COM (Sept. 6, 2005), http://www.oprah.com/slideshow/ oprahshow/oprahshow1_ss_20050906/2; see Joseph B. Treaster & Abby Goodnough, Power- ful Storm Threatens Havoc Along Gulf Coast , N.Y. T IMES , Aug. 29, 2005, at A1, \\jciprod01\productn\C\CRN\96-5\CRN502.txt unknown Seq: 3 11-JUL-11 13:01 2011] DISASTER MYTHOLOGY AND THE LAW 1133 snake pit of anarchy, death, looting, raping, marauding thugs, suffer- ing innocents, a shattered infrastructure, a gutted police force, insuffi- cient troop levels and criminally negligent government planning.” 3 The Financial Times of London likewise reported that, at the Conven- tion 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. 8 The Los Angeles Times , for example, reported in its lead news story that “Na- tional Guard troops took positions on rooftops, scanning for snipers and armed mobs as seething crowds of refugees milled below, desper- ate to flee. Gunfire crackled in the distance.” 9 In an article titled Troops Back from Iraq Find Another War Zone , and subtitled In New Orle- ans, ‘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.” 10 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.” 11 3 Maureen Dowd, Op-Ed., United States of Shame , N.Y. T IMES , Sept. 3, 2005, at A21, available at http://www.nytimes.com/2005/09/03/opinion/03dowd.html?scp=1&sq=mau- reen%20Dowd%20United%20States%20of%20Shame&st=cse. 4 Guy Dinmore, City of Rape, Rumour and Recrimination , F IN . T IMES , Sept. 5, 2005, at 7. 5 See Robert Mendick, Gang Rule and Rape in Hurricane Dome . . . It’s Like a Mad Max Movie , E VENING S TANDARD (London), Sept. 2, 2005, at 6 (“It was like something out of Lord [o]f [t]he Flies —one minute everything is calm and civil, the next it descends into chaos.”). 6 Thevenot, supra note 2, at 33. \\jciprod01\productn\C\CRN\96-5\CRN502.txt unknown Seq: 4 11-JUL-11 13:01 1134 CORNELL LAW REVIEW [Vol. 96:1131 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 reports of lawlessness and violence “were greatly exaggerated.” 12 Almost a month after Katrina made landfall, major news outlets retracted much of their previous reporting, admit- ting that the reports of violence and crime were largely unsubstantiated. 13 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 postdisaster human behavior and the empirical assessments of that behavior. 14 The narrative of postdisaster behavior that resonates in the media and with most people reads like a typical disaster movie script: disaster victims are plunged into a lawless, cha- otic world of looting, violence, and human depravity, where they ei- ther “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. 15 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. 16 12 See Donna Britt, In Katrina’s Wake, Inaccurate Rumors Sullied Victims , W ASH . P OST , Sept. 30, 2005, at B1. 13 See id. ; Jim Dwyer & Christopher Drew, Fear Exceeded Crime’s Reality in New Orleans , N.Y. T IMES , Sept. 29, 2005, at A1, available at http://www.nytimes.com/2005/09/29/na- tional/nationalspecial/29crime.html?scp=1&sq=fear%20Exceeded%20Crime%27s%20Re- ality&st=cse; Susannah Rosenblatt & James Rainey, Katrina Takes a Toll on Truth, News Accuracy , L.A. T IMES , Sept. 27, 2005, at A16; Brian Thevenot & Gordon Russell, Rape. Mur- der. Gunfights. , T IMES -P ICAYUNE (New Orleans), Sept. 26, 2005, at A1 [hereinafter Thevenot & Russell, Rape. Murder. Gunfights. ]. 14 See generally E.L. Quarantelli, Foreword to H ENRY W. F ISCHER , III, R ESPONSE TO D ISAS- TER : F ACT V ERSUS \\jciprod01\productn\C\CRN\96-5\CRN502.txt unknown Seq: 5 11-JUL-11 13:01 2011] DISASTER MYTHOLOGY AND THE LAW 1135 The narrative of postdisaster human behavior found in sociologi- cal 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. 17 Given the prevalence of disaster mythology, it is disturbing—but hardly surpris- ing—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). 18 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 dis- aster law and policy. If sociologists are correct that many widely shared assumptions about postdisaster 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 the myths rather than the reality of human behavior in disaster situations, then we might also expect that current disaster laws and policies are subop- timal, 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 re- sponse measures that do reflect that mythology. The myths and their consequences therefore are eminently relevant to the ongoing devel- opment of both the disaster laws on the books and the structures in place for implementing those laws in times of emergency. This Article is the first to address the impact of disaster mythology on American disaster law. 19 Focusing on the disaster myth of wide- spread 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. 17 See infra note 38 and accompanying text. R 18 See supra notes 2–7 and accompanying text. R 19 Because most of the sociological research to date has focused on natural disasters and because U.S. disaster law has emerged largely in response to natural disasters, this Article focuses primarily on natural disasters as well. The major federal disaster relief stat- ute, the Robert T. Stafford Disaster Relief and Emergency Assistance Act, codified at 42 U.S.C. §§ 5121–5208, defines a “major disaster” as “any natural catastrophe . . . or, regard- less of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to war- rant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.” 42 U.S.C. § 5122(2) (2006).