This story was co-published with The New Orleans Times-Picayune.
In the chaotic days after Hurricane Katrina, an order circulated among New Orleans police authorizing officers to shoot looters, according to present and former members of the department.
It's not clear how broadly the order was communicated. Some officers who heard it say they refused to carry it out. Others say they understood it as a fundamental change in the standards on deadly force, which allow police to fire only to protect themselves or others from what appears to be an imminent physical threat.
The accounts of orders to "shoot looters," "take back the city," or "do what you have to do" are fragmentary. It remains unclear who originated them or whether they were heard by any of the officers involved in shooting 11 civilians in the days after Katrina. Thus far, no officers implicated in shootings have used the order as an explanation for their actions. Only one of the people shot by police – Henry Glover – was allegedly stealing goods at the time he was shot.
Still, current and former officers said the police orders – taken together with tough talk from top public officials broadcast over the airwaves -- contributed to an atmosphere of confusion about how much force could be used to combat looting.
In one instance captured on a grainy videotape shot by a member of the force, a police captain relayed the instructions at morning roll call to cops preparing for the day's patrols.
"We have authority by martial law to shoot looters," Captain James Scott told a few dozen officers in a portion of the tape viewed by reporters. Scott, then the commander of the 1st district, is now captain of the special operations division.
Another police captain, Harry Mendoza, told federal prosecutors last month that he was ordered by Warren Riley, then the department's second-in-command, to "take the city back and shoot looters." A lieutenant who worked for Mendoza, Mike Cahn III, said he remembered the scene similarly and would testify about it under oath if asked.
Mendoza and Cahn said in separate interviews that Riley made the remarks at a meeting at Harrah's casino, where police had established a command post. Mendoza quoted Riley as saying: "If you can sleep with it, do it," according to a document prepared by prosecutors and provided to lawyers defending police officers recently charged with federal offenses.
Riley categorically denied telling officers they could shoot looters. "I didn't say anything like that. I heard rumors that someone else said that. But I certainly didn't say that, no."
"I may have said we need to take control of the city," Riley said. "That may have happened."
Riley also questioned the credibility of Mendoza, whom he fired in 2006 for alleged neglect of duties. Mendoza has since been reinstated; Riley has retired.
Scott declined comment but said through his attorney that a fuller version of the videotape places his remarks in a different context. But he would not disclose what else he said that day or characterize more completely what he meant.
The officer who shot the video, Lt. Sandra Simpson, would not permit reporters to see the complete recording. New Orleans police officials have said that they do not consider the tape a public record and that it is thus up to Simpson whether to allow the tape to be viewed.
Scott's address came at a moment of widespread confusion over whether authorities had imposed martial law, a phrase used by then-Mayor Ray Nagin on the radio. In fact, martial law does not exist under Louisiana's constitution. But experts in police training said the use of those words by politicians and in news reports may have fueled perceptions that the rules had changed.
In recent months, a team of reporters from The Times-Picayune, PBS Frontline, and ProPublica have examined department leaders' conduct as part of a broader look at police shootings after Hurricane Katrina. A documentary drawn from that work airs Wednesday evening on Frontline, which can be seen locally on WYES-TV at 8 p.m.
The confusion over whether martial law had been declared was widely reported at the time. But until now, it was not known that some within the police force interpreted it to authorize shooting of looters who posed no direct threat.
New Orleans police came under unprecedented pressures after the city flooded. Many of the department's police stations were submerged in water. The command structure broke down as the radio system and computerized communications failed. Officers went for days without sleep as they rescued trapped residents from rooftops. Commanders relied on sporadic face-to-face meetings to direct operations.
"During the Katrina days, we weren't living in the real world, we were living in a holocaust," said former police Lt. David Benelli, who was assigned to the Superdome and has since retired. "We were living in a situation that no other police department ever had to endure."
A mix of rumor and reality fueled concerns about the breakdown of civil order.
Nagin, the mayor, said in a televised interview days after the storm that there had been rapes and murders among the people taking shelter in the Superdome, a claim that turned out to be untrue. Police Superintendent Eddie Compass made similar statements.
On Aug. 30, 2005, Riley told the mayor he had heard an officer say on the radio, "I need more ammo. We need more ammo."
Sally Forman, the mayor's communications chief at the time, said this report -- which, it later emerged, did not come from NOPD -- had immediate impact.
Nagin, she recalled, directed Riley to "stop search and rescue and bring our force back to controlling the streets."
"The mayor said, 'Let's stop the looting, let's stop the lawlessness and let's put our police officers on the streets so that our citizens are protected,'" Forman said.
Nagin had one more message for the deputy superintendent, in Forman's recollection: "Let's stop this crap now."
"We will do that," responded Riley, according to Forman.
That same day, Nagin learned that a police officer, Kevin Thomas, had been shot in the head. Forman said "it made the mayor furious.''
"And that's when he said we need to declare martial law.''
Soon after, Nagin gave a radio interview in which he said he had called for martial law, adding to the confusion about the rules of engagement. Nagin declined to be interviewed.
Accounts vary of the meeting outside Harrah's at which Riley delivered his remarks. Some recall Riley speaking to a small group of senior officers; others remember it as a larger gathering.
Cahn, who reported to Mendoza during the storm, said the order was delivered on Aug. 31, the day after officer Thomas was wounded. Mendoza thought the instructions were given either Aug. 31 or Sept. 1.
Cahn, who is still a reserve lieutenant, said: "It was in Harrah's parking lot. We were having our morning meeting – the captains and their lieutenants were there. And Riley said, "It's time to take the city back. I'm giving you instructions to tell your men to shoot all looters."
"It was such an almost ridiculous order that Mendoza and I said there was no way that we were going to tell our guys that. You can't just decide arbitrarily that you're going to start shooting people for stealing things.
"For a commanding officer to tell you that I'm giving you this order – it's easy to think that officers would have taken that and run with it."
Mendoza, who is now in charge of the police academy, said he described the meeting at Harrah's to a group of federal prosecutors studying the department's training programs.
In an interview, Mendoza expanded on his statement to prosecutors. He said Riley arrived in the morning and asked all the police operating from Harrah's to gather beneath the casino's canopy. He estimated that 30 to 50 people were present.
Mendoza said he was "shocked" by the order to shoot looters and believed it might have confused less experienced officers. The remarks, he said, "could have easily damaged their understanding and ability to clearly recognize their responsibilities and follow state law."
Two current officers and one former officer, speaking on condition of anonymity, also remember Riley telling officers at Harrah's that they could shoot looters.
All quote Riley as speaking of the need to "take the city back." Like Mendoza and Cahn, they say they decided not to pass on the order.
Riley strongly denied issuing such an edict. "I absolutely deny it; it absolutely never happened," he said. As for Mendoza, he said: "I despise that guy. I fired him. I don't know where he's getting that foolishness from."
Kevin Diel, a former officer, said he saw Riley address a group of 40 to 50 officers at Harrah's on Sept. 2 or Sept. 3. Riley "walked up in a pair of blue jeans, his uniform shirt and a ball cap, and really just starting giving a pep speech, you know, kind of a morale-booster, saying that we were not gonna allow the looters to take the city," Diel recalled. "We were going to more or less protect the borders of it and march through downtown and take the city back."
Diel did not recall Riley explicitly saying that officers could shoot looters. After Riley left, Diel said, cops began analyzing the orders, and some wondered aloud whether the deputy superintendent expected officers to "go through the streets, you know, shooting looters?"
Experts said that even instructing officers to "take back the city" – the order Riley acknowledges giving – was dangerously ambiguous.
"Just sending out a general order, general statement about 'take back the city' with no specific guidelines is an invitation to disaster," said Samuel Walker, professor emeritus at the University of Nebraska at Omaha and author of 13 books on police, civil liberties, and criminal justice. "What do the officers think? We can do anything?"
Under standards set by the U.S. Supreme Court, Louisiana law and police department guidelines, officers are allowed to use deadly force when they have a reasonable belief there is a threat of "great bodily harm" to either the officer or another person.
"A statement, explicit or implied, that you take back the city and do whatever needs to be done is absolutely wrong, [a] complete invitation to disaster," he said.
It remains unclear whether the orders have any direct link to the shootings of civilians.
On Sept 3, 2005, a 1st District officer shot Matt McDonald in the back, killing the man. The officer said McDonald, a 41-year-old drifter, ignored orders to let go of a white plastic bag containing a handgun, which he allegedly brandished at police. McDonald's relatives are skeptical of the account.
Bryant Wininger, the narcotics squad lieutenant who shot McDonald, has since retired. He declined to respond to questions or to address whether he was present for Scott's statements about martial law and the shooting of looters.
It's also unclear what role the orders to shoot looters might play in the federal trials against officers accused of shooting unarmed civilians.
The lawyer for David Warren, the police officer who shot Henry Glover, said Warren had not heard the order.
But the lawyer, Michael Ellis, said the order was emblematic of the chaos of that time frame. When Warren fired his .223 rifle at Glover, he had just spent the night standing guard over a man charged with attacking Kevin Thomas, his fellow officer.
"He was guarding the defendant who had shot Kevin,'' Ellis said. "He looked through the window and could see that Oakwood Shopping Center was in flames and being looted by vandals, and all that goes into the equation of his mindset of the moment that he fired his weapon."
Defense attorneys representing two of the officers charged in the shooting of six civilians at the Danziger Bridge said their defenses will largely center on the contention that the shootings were justified -- that officers believed they were under fire.
"They weren't shooting looters. They were shooting at people who they thought were shooting at them," said Lindsay Larson III, one of the attorneys representing former officer Robert Faulcon.
Frank DeSalvo, attorney for Sgt. Kenneth Bowen, also accused of shooting people on the eastern side of the bridge, agreed. "Certainly, no one's defense is that martial law had been declared and we should shoot looters. They did what they did based upon what they were faced with at the time they arrived at the bridge," he said.
But DeSalvo left open the possibility that he would use Mendoza's statement, perhaps as a way to explain the environment in which officers were forced to make decisions.
"That is part of the information that they had with respect to the lawlessness in the city. People being shot and being raped. Supposed armed gangs of people running around shooting people," DeSalvo said. "It is relevant with how the fear was running through the department that a chief would say that. When he says, we have to take our streets back, that is what we are talking about. The streets had been taken away by armed gangs."
ProPublica's Lisa Schwartz, Sheelagh McNeill and Nicholas Kusnetz contributed to this report. View the original story at www.propublica.org/nola