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This page includes posts from January 12-25, 2003 in the usual reverse
order. Each posting on the home page is perma-linked to these
archive pages.
January 25, 2003
Dust
I don’t
normally associate funerals with pleasant thoughts. Today’s event was an
exception.
My
brother-in-law’s grandmother died late last week, just one month short of
her 105th birthday.
On the several
occasions we met over the last twenty years,
Hanna Hughes was an unfailingly pleasant, charming lady. During a
Lutheran service that was truly a celebration, her family confirmed that
impression with several stories I hadn’t heard before.
She was a college
graduate, a rare achievement for women who came of age during World War I,
and taught in southern New Jersey schools for many years. Well after the
usual retirement age, she began a series of trips and other adventures all
over the world, culminating in a hot air balloon ride at age 97.
Her last years became
more restricted due to slowly failing health, but these limitations
apparently never affected how she treated others. The pastor told the
assembly how he used her approach to her life and her God as an inspiration
to others.
The service ended
with a scattering of a few of her ashes among the shrubbery in front of the
church she attended for the last few decades of her long life. Considering
all the places she’d been and all the people whose lives she touched, it
seemed perfectly appropriate that her final earthly remains would not be
kept in one place.
January 24, 2003
Random thoughts on the selling and buying of
newspapers
Eugene Volokh posted a few notes
this week about a sternly worded
Fourth Circuit Court of
Appeals decision, finding several deputy sheriffs and others liable for
violating a newspaper publisher's civil rights under 42 U.S.C. Section 1983.
Volokh described the holding and
commented as follows:
[T]he First Amendment prohibits government officials
from buying up (in order to destroy) all copies of a newspaper that
criticized them, even when the officials pay the stated price. I said:
"The question is not, in my view, open-and-shut, and the opinion doesn't
consider the counterarguments as much as it might have; but the result is
interesting, and should help prevent such behavior in future cases (like
the one in California, where a mayor did something similar to a free
newspaper)."
A Volokh reader named Kevin St.
John sent in
his own interesting remarks:
It seems to me that "taking" free newspapers and
purchasing papers are not analogous situations as far as liberty interests
are concerned....Its a funny world where a legal commercial transaction
undertaken by the government or its agents becomes a First Amendment
violation. And it makes for difficult line drawing.
My own thoughts about this case
are a bit mixed, in part because of my own experiences with the press, both
as a government attorney and as a columnist for a
local weekly newspaper for the last
four years.
The paper I write for has a
circulation about twice the size of St. Mary's Today, the newspaper
at issue in the litigation. I've received a great education by observing how
the full-time staff manages their business, from advertising, to layout, to
the exercise of news judgment.
I've also read a bit of
the online edition of St.
Mary's Today. The best way I can compare it to the paper I write for is
to paraphrase something my publisher once said: "We're a community paper. We
report about all the trees, but we tend to leave the bark on."
The St. Mary's paper, on the other
hand, seems to revel in peeling the bark off. Take a look at this segment on
its
campaign endorsements, for example.
In both cases, the newspapers
reflect the choices of their owners, which involve as much an economic
assessment as a political one. In neither case will any government these
papers cover ever be wholly pleased with the news coverage. It's an
impossible goal, and one the papers shouldn't be aiming for, anyway.
From the examples noted in the
Fourth Circuit decision, it's clear that the newspaper really got under the
skin of the county sheriff, several of his deputies, and a buddy who was
running for state's attorney. In pre-trial depositions and immediately after
the election day buy-and-grab, the deputies and other participants made no
secret of their contempt for the publisher and the slant his paper took on
their work.
Their anger was understandable,
even if not necessarily justified. What mystifies me most, however, is that
these fools would think that buying up all the papers on election day was a
good idea.
The purchase plan was simply
stupid, regardless of how one feels about the First Amendment issues.
Did they think they’d somehow not
pay a price for this high-handedness? What was going to happen with the next
edition, or for the next umpteen weeks thereafter? Did they want to extend
the publisher’s crusade against them until they were forced from office in
disgrace? Frankly, I can’t imagine a more effective method to keep the
newspaper pot stirring than this completely bone-headed scheme.
That said, the Fourth Circuit
seemed just a little too eager to smack down these foolish officials, and
Volokh is right that the legal issues were not nearly as cut and dried as
the court seemed to make it. Perhaps the judges (or their clerks) let their
outrage get the better of them.
For example, on almost every
occasion the opinion refers to the "seizure" of the purchased newspapers.
If that's true, I plan to go down
to WaWa soon and seize myself a
half-gallon of milk, but I'll be sure to leave the $2.39 at the cash
register.
In addition, the Court refers to
the Maryland Newspaper
Theft Act, which according to the opinion
prohibits "knowingly or willfully obtain[ing] or
exert[ing] control that is unauthorized over newspapers with the intent to
prevent another from reading the newspapers." [citation omitted.]
The Act was passed to criminalize such events as the
St. Mary's Today seizure: mass censorship-oriented appropriations
of newspapers which cannot otherwise be punished as theft.
The Court opined that the acts of
the deputy sheriffs and their boss was a straightforward violation of this
criminal statute.
The problem with this argument is
that it's a makeweight at best, and simply wrong as a matter of logic.
It's a theft statute, after all.
Any purchase is authorized, is not theft, and therefore inapplicable to this
law. There's simply a world of difference between the unauthorized
acquisition of 1,300 papers and the unexpected purchase of the same number
by only a few people.
On the other hand, it’s not so
easy to defend the police on the First Amendment issue. For example, St.
John is right that the newspaper business model is based primarily on
advertising to as wide an audience as possible. A paper that has a dozen
purchasers, even if they buy 1,300 copies, is not what was intended. That
business concept has some relevance to the First Amendment considerations
here.
The testimony of the convenience
store clerk was probably the most damaging. The clerk noted the police
presence in his store, which his company had promoted with freebies over the
years, and explained that he assumed his work life would take a turn for the
worse if he didn’t let them buy all the copies.
St. John’s comment about a
publisher-imposed sales limit at the stores wouldn’t have meant much under
these conditions. There's an unmistakable element of coercion that is hard
to square with an innocent if totally misguided attempt to express anger at
the newspaper's reporting.
To the extent these idiots wanted
to do anything as dumb as this and somehow reduce the risk of litigation,
they would have been far better off limiting themselves to buying up the
copies sold in the newsboxes around the county. A metal box is not
intimidated by anybody, after all.
The fact is that other legitimate
options were available to the government officials, especially through the
Internet.
For example, I’ve made sure my
clients are aware of their option to publish facts on their government web
site, if they are upset about how a newspaper botched the reporting on their
activities. The county sheriff's office has its own
web site, and if there
was any defense to the newspaper's claims the site could have provided a
perfectly legitimate forum.
It will be interesting to see how
the current county government reacts to this decision. The sheriff involved
in the case is no longer in office. He completed his final term of office
last December. Maybe the commissioners will decide to cut the county's
losses. On the other hand, the newspaper's continued needling of county
government may act to spur an eventual appeal to the Supreme Court.
Given the high emotions involved
in this case, I don't hold out much hope for a quiet resolution.
Let’s go to the videotape
As noted
previously, I enjoy watching certain kinds of reality programming, such
as Police Videos,
COPS, and World’s Scariest Police
Chases.
The videotapes used
by these shows are important for reasons far beyond entertainment, of
course. The audiovisual record can eliminate many factual discrepancies before
they even start, leading to better plea-bargaining for both sides in
criminal cases, and a more convincing presentation to the court or a jury if
there’s no plea.
As I understand it,
the ability to watch one’s drunken attempts to pass field sobriety tests,
captured on the police car-cam, vastly increases the number of those quickly
entering a guilty plea in DUI cases.
In addition, the
tapes often protect officers from false claims of police brutality, as noted
in this
story from last fall. On the flip side, the prospect of being caught on
film might just deter some officers from doing some truly stupid things.
Two court decisions
issued this week, one from the
Tenth Circuit Court of
Appeals and the other from the
Illinois Appellate Court’s Third District, provide additional support
for the argument that police interviews of those they arrest should also be
videotaped as a matter of routine.
In the Tenth Circuit
case, Steven Jerome Hawthorne tried to escape the consequences of losing an
evidence suppression hearing relating to a charge of possession with intent
to distribute crack cocaine in Kansas City, Kansas.
The hearing centered
on his statements to police. He testified that after he was taken into
custody, he said he wanted a lawyer.
As the appellate
panel noted, upon making the request the interrogation is supposed to stop,
but there are additional considerations:
[T]he request for a lawyer must be unambiguous. If a
suspect makes an ambiguous statement about wanting a lawyer, the
interrogating officers have no duty to stop the questioning or even to
seek clarification from the suspect about his interest in seeing a lawyer.
[citation omitted].
The police officers
both testified that Hawthorne told them "I may want a lawyer"
just after he read the part of the Miranda
form that noted his right to speak with one. However, according to the
officers,
After he finished reading it, he said, "I don't want
a lawyer, I'll sign the form." …. He signed the Miranda rights waiver and
proceeded to make incriminating statements to the two officers. Agent
Violanti testified that once Defendant had executed the waiver, he never
expressed a desire to stop talking to the investigators, and he never
requested a lawyer.
Hawthorne lost his
suppression motion. He then received an enhanced sentence because the trial
judge determined that Hawthorne perjured himself during the suppression
hearing.
The Tenth Circuit
affirmed the decision, after an extensive discussion of the conflicting
testimony and the case law concerning the quality of expression required to
invoke Miranda rights.
As I read the case, I
kept thinking how much a videotape copy of the interview could have helped
settle the matter, if not keep it from becoming an issue in the first place.
The Illinois decision
proves the point, although with a slight twist.
Police arrested
Steven A. Howerton for first degree murder of one man and for the attempted
murder of another. The circuit court upheld a defense motion to suppress
incriminating statements Howerton made after he was taken into custody and
given his Miranda warnings.
Howerton’s
interrogation was videotaped, and the judge used the tape to rule in his
favor.
The state appealed,
but lost again in the Appellate Court.
The videotape showed
the story, and the appellate court could see the evidence just as well as
everyone else:
Any discrepancies between the officers' testimony and
the police videotape are resolved by the videotape, which we have viewed
in its entirety….
[T]he police videotape establishes that defendant
clearly and unequivocally invoked Miranda rights on five occasions
during the interrogation by Officer Shepherd.
Here’s what the
judges saw and heard Howerton say on tape:
-
"Take
me upstairs then if I'm under arrest. Either that or I want a lawyer
because--."
-
"Get me a lawyer. Take me upstairs, because there's nothing I can
tell you."
-
"Take me upstairs and let me get my lawyer because there's nothing
I can tell you."
-
"Well, can I have a lawyer then?"
-
"Just book me. I'll have to
get a lawyer and try it in court."
Based on this
evidence, the judges held there was no error in granting the defense’s
suppression motion.
For the sake of the
victims, it’s a shame that the Illinois police officer blew his assignment
and failed to respect Howerton’s rights. I also wonder about the
prosecutorial zeal that may have affected the judgment call about arguing
this part of the case. Even so, the correct result was reached on the
constitutional issue, and Howerton has the government’s videocamera to thank
for that result.
One hopes, of course,
that the Howerton case is by far the exception than the rule. In any event,
the routine use of videotape during police interrogations should help keep
most of these arguments over Miranda invocations or similar issues from ever
occurring.
That would serve the
ends of justice fairly well.
Extremely absentee ballots
Sometimes you just
can’t imagine some of the problems of democracy that state legislators will
decide need to be fixed.
In Louisiana, for example, Rep. Reggie Dupre thinks that dead people
should have their absentee ballots counted.
I don't mean to be
cruel, but those are extremely absentee ballots.
Current law in
Louisiana and most other places says that if a person dies after mailing in
the ballot, the vote shouldn’t count.
Delaware’s law is
pretty blunt about it:
Whenever it is made to appear by due proof to the
inspector and judges of election that any absentee voter, who has marked
and forwarded his or her ballot, has died, the voucher envelope containing
the ballot shall not be opened but shall be marked "REJECTED, dead," and
shall be preserved and disposed of as other rejected ballots.
15 Del.C.
Section 5517(b).
As one might imagine,
there’s a story behind this proposal:
The big problem, says Dupre, is that the law is only
enforced if election officials recognize the name on the absentee ballot
and know that the voter has died.
That happened last fall in Terrebonne Parish in
southeastern Louisiana. Election officials there came across the ballot
envelope signed by former Parish President Teddy Duhe, who had died of a
heart attack two days after voting.
Clerk of Court Robert Boudreaux and Registrar of
Voters Linda Rodrigue knew about Duhe's death, so they canceled his vote.
Then they wrote Dupre to say it wasn't fair because there was no way of
knowing if other dead people's ballots had gotten past them.
Janet McConnaughey,
the AP writer for the story, couldn’t help herself in repeating an old story
about Louisiana politics:
Dupre stressed there is a difference between this
kind of "graveyard vote" and the fraudulent casting of votes that gave
rise to jokes like the one about the woman who wanted to be buried in a
particular New Orleans suburb so she could stay politically active.
Nice to see that some
jokes are universal, with only the location changed to suit the storyteller.
I first heard that one many years ago, but the way I heard it, the joke was
about a ward in Wilmington famous for its sense of humor about the election
laws.
The debate on Rep.
Dupre’s bill should be lively, if not uplifting. I can imagine all sorts of
arguments being resurrected against the bill.
For example, should
the vote of a suicide with a sharp sense of public duty count, because he
mailed in the vote just before ending it all?
And what about the
prospect of party officials prowling the halls of nursing homes and hospital
emergency rooms, trolling for absentee ballots among those who will soon
not be among us?
Let’s just hope that
the Louisiana legislature treats this bill with the grave respect it
deserves, and that it doesn’t end up buried in some committee.
January 21, 2003
This window of correction is a drive-through
Sometimes it seems
that there are far too few opportunities for complete redemption. It’s a separate but
related question whether folks would seize these chances even if they
existed.
On occasion, however,
the law recognizes that one should be able to correct one’s errors.
The owners of several
KFC franchises in Mississippi recently took advantage of just this kind of
chance, using the “window of correction” allowed under the Fair Labor
Standards Act.
Several people
accepted employment at the restaurants as managers. To provide an
appropriate incentive for performance, the salary was set at $300 per week,
with a monthly bonus of 2% of the gross sales volume at their particular
stores.
Because this is
retail, however, there were certain risks that also needed attention, not
least of which was the typical shortage often discovered at the cash
registers at the end of the day. To make sure the managers handled this
problem, any such recurrent losses were deducted from the bonus.
So far, so good.
Apparently deciding
not to leave well enough alone, however, the KFC owners decided to withhold
the register shortages from the weekly salary payments instead of the
monthly bonus checks. After all, if the managers only had to face the risk
of a cut in pay once a month instead of every week, they might not treat the
problem with the appropriate seriousness.
Nonetheless, this
kind of deduction is not among those permitted under the FLSA. If not
corrected, the employees’ exempt status under the Act would be in jeopardy,
which could have nasty and expensive side effects (overtime, anyone?).
Some months after
instituting this practice, the owners double-checked with their attorneys.
They advised their clients to stop the practice and go back to deducting the
shortages from the bonuses. For once, the owners took their lawyers’
suggestion, and went back to the prior system.
A few months later,
however, the managers sued the owners under the Act for their bone-headed
attempt at shrinkage control.
I take this as a sign
that there were other “issues” about their employment, and the FLSA suit was
a convenient means to express the managers’ discontent.
Five days before the
scheduled trial date, the store owners then tendered to the
manager-plaintiffs all the deductions made from the salary payments, plus
interest up to the date of trial.
The U.S. Department
of Labor regulations provided this “window of correction” under Section
541.118(a)(6). This rule gives employers a chance to maintain an employee’s
exempt status under FLSA by reimbursing improper deductions made either
inadvertently
“or… for reasons other than lack of work….”
Notwithstanding this
fairly late proffer, the District Court ruled against the KFC owners, and
ordered the payment of four months of overtime pay.
On appeal, the
plaintiffs relied upon amicus briefs filed by the Labor Department in other
circuit courts, that seemed to argue for limits on the Department’s own
regulation.
However,
the
Fifth Circuit sided with the restaurant owners.
In contrast to the
usual deference shown administrative agencies in the interpretation of their
own rules, the appellate court held that no such regard is required when the
regulation’s plain language offered all the understanding anyone would need:
The entire regulation reads coherently and plainly reaches any deductions
made for reasons other than lack of work.
Absent ambiguity, the Secretary’s interpretation is “entitled to respect”
under
Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944), “but only to the extent that those interpretations
have the ‘power to persuade,’”…. Though we afford the Secretary’s
interpretation its due respect under
Skidmore,
it is
insufficient to overcome the interpretation’s contradiction with the plain
language of the regulation, which allows the window of correction to be
invoked for the conduct at issue here. [citation and footnote omitted.]
As I see it, this
case makes an important point. If the Labor Department wants to alter a
regulation to limit its obvious broad scope, it should follow the
Administrative Procedures Act and amend the rule, and not rely instead upon
legal arguments in amicus briefs.
On the other hand,
even if the rule creating the window of correction is to remain as forgiving
as it now clearly is, there should nonetheless be some kind of time limit on
correcting the deduction and reimbursing the employees. Waiting until the
last minute to make the repayment just isn’t fair.
In this case, for
example, the proffer was made with only five days to go before trial. Under
Federal Civil Procedure Rule 68 and similar state rules for offers of
judgment before trial, however, there is a minimum ten-day requirement.
If the Labor
Department can’t work up the nerve to close the window of correction
completely, it could at least introduce a bit more evenhandedness in
determining how long the window will be kept open.
January 20, 2003
MLK memories
I was 14 when James Earl Ray shot and killed Martin
Luther King, Jr. At the time, we lived about 8 miles from Wilmington, in a
typical suburban development. Our junior high school stood at the top of one
of the higher hills in the area, with a clear view of the city.
While bike-riding with a buddy near the school not long
after the shooting, we saw an immense cloud of smoke rising from the city,
coming from many different places.
I learned soon after that the rioters set fire to many
homes and businesses, in their own neighborhoods and elsewhere, and that
some of the rioters tried to harm the firefighters trying to do their jobs.
In reaction to the riots, Governor Terry called in
National Guard troops to patrol Wilmington. The Guard stayed in the city for
months thereafter, and eventually became one of the prime reasons a
Republican won a rare victory in that fall's election for mayor.
Neither the rioters nor the governor showed any real
sign that they understood and accepted the message that Martin Luther King,
Jr. tried to convey.
January 20, 2003
Sure it’s a dummy thermostat--but it’s digital!
A WSJ story that ran
in
the statewide newspaper today wasted no time in puncturing one of life’s
little symbols of apparent influence for many of us.
It turns out that
the cynical folks who insist that the room thermostats in their office
buildings are fake are frequently correct.
Or, as the headline
bluntly put it,
Dummy thermostats give employees
illusion of control
Jared Sandberg wrote
a nicely ironic piece about an issue that plagues millions of office workers
throughout the country—who’s in charge of making this place feel right, and
how can they get it so wrong?
Sandberg says
there’s a reason for the deception:
The specialists are unrepentant. Fed up with of
complaints from sweaty men and shivering women, HVAC technicians install
dummy thermostats to give workers the illusion of control. In some leased
buildings, even the corporate tenants don't know the thermostats are
useless. Other times, it's the companies themselves, barraged with calls
from workers, who ask the landlord's HVAC technicians to "fix" things.
When I worked for a
city government years ago, our office building had just recently been
completed. It was “all shiny and new”.
The HVAC system,
however, sucked big time.
Somehow somebody
seemed to have forgotten about something called “heat gain,” from a source
others call “the sun.” Over time, folks attempted a series of personnel
maneuvers intended to produce assignments to offices that did not receive
the afternoon’s rays. There was no escaping the heat from that side.
The thermostats were
not controllable. Repeated calls for an explanation about why the place was
so off in temperature on a given day provided the same explanation—Honeywell
is in Atlanta, and our building’s HVAC computer was set up to match
Atlanta’s conditions at the same time of year.
Let’s just say that
Wilmington, Delaware is not Atlanta, Georgia—especially in
winter.
The state office
building where I spend much of my work time is over thirty years old, and
underwent a major renovation in the last ten years. The improvements
included fancy digital thermostats in each office along the outside walls
(most of the rest of the space is a cubicle warren).
The readouts show the
outside temperature, the room temperature, and the alleged settings of the
HVAC system.
The first two of
these readouts appear to be mostly accurate. I’m convinced the last one is
completely fake. In any event, changing the setting produces no noticeable
effect. After a few tries, most folks just give up.
Until the office
managers issued a stern memo outlawing them, there was a little boom market
in tiny space heaters for the place.
Summertime inspires
other self-help measures, such as taped cardboard along the edges of the
ceiling vents to re-direct the cold air flow away from the top of one’s
head.
This practice is also
frowned upon.
Some people express
their own mute commentary about the building’s HVAC system. They’ve taped a
small piece of paper over the thermostat, blocking the view of the LED
panel. From their perspective, there’s no point in looking at something they
simply don’t trust.
Altering one’s
clothing styles to suit the building remains an option. A few sweaters kept
at the office are sometimes handy during the winter.
Just the same, I
refuse to purchase short-sleeved dress shirts for the summertime.
Some traditions must
be upheld, after all.
January 19, 2003
Three Claudes for a taxing example of simple logic
It’s been a while
since any Claude-worthy headlines
leaped off the screen at me. Then again, I haven’t been spending quite as
much time in front of the computer, what with the holidays and conferences
and all.
Today’s NYT
came to the rescue, however, with a headline that might have seemed pretty
good during composition:
In the
Debate Over Tax Cuts, Both Parties See a Chance to Score Points
I will grant that the NYT headline writer expressed an absolute logical
truth--if there’s a debate, both sides will try to score points.
After all, if both
sides agree, or if one side recognizes that the other side will surely win
the debate, there won’t be a debate in the first place.
Therefore, I am not
at all surprised or even intrigued by this headline.
As is often the case,
the story was worth a better announcement. John Tierney did a nice bit of
reporting about the Bush Administration’s proposed tax cuts and the likely
sources of both support and opposition.
The piece begins in
the heartland of affluent Democratic liberalism, the DC suburbs of Chevy
Chase and Forest Hills, Maryland.
These are the kinds
of places where a standard four-bedroom colonial that needs a little work
sells for a cool $750,000 or so, minimum.
You know--just like
everyplace else.
Tucked well inside
the DC beltway, these particular zip codes provide great demographics for
hardback book sales of the type Tierney describes in the first paragraph:
The aisles were packed at Politics and Prose, a bookstore in one of
America's more affluent neighborhoods, when a billionaire's father arrived
to promote his book calling for higher taxes on the rich. The customers
there to buy copies of "Wealth and Our Commonwealth" loudly applauded
William H. Gates as he denounced greedy plutocrats and declared the estate
tax to be "the finest tax conceived by man."
Tierney then
describes another person found near the bookstore. His opinion is a bit
different from those lined up to express their solidarity against repealing
the estate tax that they’ve already paid their attorneys to protect them
against:
The closest encouraging word for the Bush plan came a few doors up
Connecticut Avenue at Besta Pizza, a tiny carryout shop owned by an
Egyptian immigrant, Tarek Zahow, who commutes to his 70-hour-a-week job
from a much less upscale neighborhood 15 miles out of town.
"Of course I'm for tax cuts," Mr. Zahow said. He said he supported the
White House's proposal, even though he realized the affluent would receive
most of the money, and favored eliminating the estate tax even if it
applied only to millionaires.
"I'm nowhere near a million in assets, but I might be someday," he
said. "I don't think it's fair to have a tax for just a few people. Charge
everyone the same."
Tierney writes that Republicans are
betting there are far more voters like Zahow than the kind who came to see
Bill Gates’ dad.
The Republicans are as capable of
misreading the public as the Democrats, but on this issue I think the GOP’s
assessment is correct.
January 18, 2003
Our friends at PETA
This
week our friends at PETA
demonstrated once again their remarkably ham-handed skills at public
relations.
And yes, that pun was
deliberate.
The animal rights
group planned to use pictures of EPA administrator Christie Whitman’s
Scottish terrier, Coors, as part of a billboard campaign against animal
testing. The group 0pposes the EPA's use of animals for toxicity testing of
various chemicals.
In a bad case of
timing, Coors died, and for once PETA did the right thing:
PETA canceled the campaign after Whitman notified the group that Coors
had been euthanized because she was suffering from cancer and was not
responding to treatment.
A simple announcement
of the cancellation of their ad campaign would have shown appropriate
respect for Whitman and probably gained PETA some valuable good press.
Never let it be said,
however, that PETA doesn’t know how to screw up these rare opportunities to
improve their image:
In a letter to expressing condolences to Whitman and her family, PETA
President Ingrid Newkirk wrote that the group presumed that the dog did
not suffer unnecessarily.
"Would that millions of animals deliberately poisoned in EPA
laboratories were as lucky," Newkirk added.
Geez.
Can you say “graceless”? Sure you can.
The PETA letter is especially tone-deaf
when one considers what EPA has already done toward meeting PETA’s goals,
without losing sight of the agency’s fundamental mission:
…Whitman said the EPA had spent millions of dollars for research on
alternatives to animal testing and had cut the use of animals to less than
10 percent of all tests.
I wonder sometimes why do-gooders are
frequently so bad at bringing others along to accept their policies, or at
least in finding useful ways to meet at least part of their goals. Maybe it
has something to do with the side effects of absolutism.
January 18, 2003
Why our dog likes Snow Days
Our dog Rocky enjoys romping in the
snow on the rare occasions the stuff makes its appearance around here.
In addition, he’s noticed an
additional benefit to snow days:
He's a smart dog.
January 17, 2003
Local signs of an upcoming fight
Sgt. Stryker's
old stomping ground is ramping up its work in support
of the upcoming fight with Hussein.
Apparently the Air Force is fine with letting the rest
of us know about it.
One of the
local
television stations carried a story about a
new record shipment of one thousand tons of material flying out of Dover Air
Force Base last week.
The shipments included over 30-thousand chemical warfare suits, hundreds of
shipments of food and supplies and even vehicles weighing as much as 50 tons
each.
The usual weekly shipments prior to September 11
averaged about one-tenth of the tonnage.
I assume that the reason we're learning about this is
to help build up public support for taking out the Iraqi dictator. After
all, it's not particularly likely that Hussein's boys are monitoring local
American TV stations for signs of impending doom.
Even so, it seems a bit odd to see this kind of
reportage. Doesn't really fit with the prior warnings about loose lips
sinking ships, and so forth.
January 17, 2003
A version of phone sex?
Our part of Delaware received 6 inches of snow this
morning. That may not seem like much to those living in the Frozen North, or
even Pennsylvania, but down here at the beach that's a lot of white stuff.
My bride is usually almost childlike in her delight at
seeing a snowstorm, and for the same reason as most kids--it could mean that
her school's out for the day. No
teaching--Yay!
This morning, however, her reaction seemed a bit more
adult.
She dialed up the college's number and listened
intently. A big grin crossed her face, along with a long, sustained "Yesss."
Then she re-punched the button, so she could hear the
message again. Another "Yess."
Then again. "Oooh."
I wonder if this is what happens during phone sex.
January 16, 2003
The Lynyrd Skynyrd Exception to the Fourth Amendment
The Tenth Circuit Court of Appeals issued
an opinion this week
that sets out a limited form of Lynyrd Skynyrd exception to Fourth Amendment
requirements for a warrant:
If police officers find themselves singing,
"Ooh that
smell, don't you smell that smell?", that fact combined with a few others
will excuse a warrantless entry into a home--that is, if the smell is the
unmistakable, powerful odor of methamphetamine cooking on the stove.
Joel Dean Rhiger and Carl Baker enjoyed shopping in
New Mexico. They didn't realize, however, that federal drug agents were
observing the pair as they purchased various materials used in the
manufacture of speed, including iodine, ice, phosphorus, and cotton balls.
The agents then watched the two men enter the home of
Randy
Brown. The police went unnoticed during their surveillance, even though the home sat on an
open mesa, with only an unattached garage on one side and a neighbor's house
trailer on the other.
Perhaps the three men inside Brown's home were
distracted.
In any event, after about an hour the police picked up
the scent of cooking methamphetamine. They called for assistance, and
a federal drug agent with significant experience in speed cases came
to the scene.
He testified to being "overcome" with methamphetamine
fumes. The officers took the next thirty minutes to confirm that the smell
could only be emanating from Brown's humble abode, including obtaining
consensual entry to the neighbor's trailer to eliminate that place as the
potential source.
The police then entered the Brown residence. They
turned off the heat, secured the "laboratory," and arrested the men. After
obtaining control of the premises, the officers then left the house and
obtained a warrant to conduct a more complete search of the home.
The others pled guilty, but Rhiger went to trial. The
jury ruled against him on all counts, and he appealed.
On the issue of the warrantless burst into the meth
lab, the appellate panel split 2-1. The majority felt that the police
officers' actions did not violate constitutional standards, because the
following factors provided the necessary exigent circumstances supporting
their actions:
-
the evidence of purchases of methamphetamine
manufacturing materials
-
the strong odor of cooking meth
-
the drug agent's testimony concerning the inherent
dangers of methamphetamine fumes, including the risk of the lab exploding
-
the danger to the budding lab techs themselves, the
officers, and the neighboring property.
The dissent pointed out that the officers took a
half-hour to search for a door key to the Brown residence before entering
the premises, while they also checked the neighboring home; there was only
one other property in the immediate vicinity; there was sufficient
opportunity to obtain a search warrant beforehand; the entry took place in
the middle of the day; and the officers had surrounded the property, leaving
no real chance for Rhiger or the others to escape.
Under these circumstances, I can see why the panel
divided on the warrantless entry issue. On the other hand, both the majority
and dissenting opinions refer to several other cases where the particular
dangers of meth labs were among the decisive elements that justified similar
searches. Speed is a much more dangerous chemical in its creation than a set
of marijuana plants under a growth lamp. Methamphetamine presents very real
and extreme risks to the officers and the drug makers, over and above the
danger to innocent neighbors.
Even so, this case's facts seem to push the outer edge
of justifying the police officers' busting of this particular laboratory.
Must have been some smell.
January 15, 2003
The NYT makes a Trent Lott-like comment
Today's NYT editorial concerning
admissions
policies at the University of Michigan law school seems to have included
its own Trent Lott-like comment.
To be blunt, I can think of no other way to explain the
editorial writer's statement about the University of Texas college
admissions policy that accepts those ranked in the top 10 percent at each of
that state's high schools:
That approach is necessarily flawed since its success depends on
perpetuating a system of largely segregated secondary schools.
I'd be really interested in knowing exactly what the
writer meant by this remark.
As it is, the NYT comes across as equally capable of
making incredibly stupid observations, complete with an unstated but
perceptible racist undertone, as Trent Lott did last December.
Did he or she actually intend to give the impression
that the only way hundreds if not thousands of individuals with
African-American or other minority group backgrounds could be drawn from the
top 10 percent of each Texas high school would be if the schools were
segregated?
In other words, did the NYT truly intend to be that
incredibly demeaning to a wide range of American high schoolers with a
variety of ethnic heritages other than Caucasian?
What an incredibly boneheaded thing for the NYT to
publish.
And deeply wrong, too, by the way.
If the NYT was serious in discussing the 10% plan, it
could point out that the plan is flawed because it appears to give
insufficient consideration for the unfortunate disparity in education
quality currently made available to Texas students. On the other hand, Texas
high schoolers have other means available to them to gain admission to Texas
colleges, so at least the 10% plan doesn't act as an insurmountable barrier
to a college education for those whose class rank is below that level.
In addition, the plan gives a boost to those seeking to
improve education in Texas schools. It certainly gives some folks in
well-off districts a selfish (or at least competitive) reason to insist that
all schools provide equal educational opportunities, without regard to who's
attending which school. Otherwise, their own children might lose out under
the plan. That doesn't necessarily reflect the better natures of some
Texans, but it's an undeniable incentive just the same.
Even so, the 10% plan is simply not dependent on
racially segregated schools or idiotic assumptions of group inadequacies for
its eventual success.
Jeez.
At least the NYT editorial writer is not in a position
of actual authority, as was the equally dense senior senator from
Mississippi.
January 15, 2003
Somebody’s a big fan of Milla Jovovich
This afternoon I returned from the
TRB Conference, and loaded the conference
CD into my computer. The disk included a handy copy of
Acrobat Reader 5.0, so that I would be
sure to be able to read each one of the several hundred technical papers
also included on it.
As if.
While staring at the screen as the
program loaded, the names of various files flashed before me.
Suddenly I noticed the startling
name given to one particular API file, entitled “Leeloo5.api.”
It just so happens that
The Fifth Element is one of
our family’s favorite movies. Therefore, seeing this file name immediately
led me to conclude that the writer of that particular bit of code is a major
fan of Milla Jovovich, the lead actress in this sci-fi adventure, which also
starred Bruce Willis and Chris Tucker.
Here’s
the dialogue from one of her
first appearances in the film:
Korben Dallas: What's your name?
Leeloo: Leeloo Minai Lekarariba-Laminai-Tchai Ekbat De Sebat.
Korben Dallas: Good. That... that whole thing's your name, huh? Do
you have, uh... a shorter name?
Leeloo: Leeloo.
I wonder how many other similar
homages exist among the thousands of file names coined by software
developers.
Bound to be a bunch.
January 12, 2003
Transportation politics at the margins
In dollars and cents
terms, transportation politics takes place at the margins.
That fact tends to
reduce the partisanship in transportation debates, compared to the
discussion of other public policy concerns.
But not entirely.
By "at the margins,"
I mean that the way in which most of the money devoted to transportation is
spent is not a matter of serious debate or controversy. Personnel costs take
up a huge portion of the operating costs, as with most of government. The
existing systems also need maintenance and routine replacement, and
therefore much of both the non-personnel operating budget and the capital
portion of a transportation department’s budget is devoted simply to keeping
the existing massive infrastructure up and running.
Buses aren’t cheap,
and neither are roads and bridges.
In addition,
compliance with Federal mandates is typically a high-cost matter, and often
limits a state’s options in determining how to recover the costs of
compliance. For example, Federal regulations limit the fare that can be
charged riders of the State’s paratransit service, and also require the
service to be offered within a defined geographic distance along regular
transit routes. Nonetheless, the cost of paratransit per trip is typically
between 4 to 6 times the cost of regular transit.
When administrations
change, those involved with the transition are often a bit surprised to
discover how limited their options really are with respect to transportation
politics and the money devoted to this part of government. What changes are
made can reflect a new emphasis, but the reality is always a bit less than
imagined, both by the new leaders and their opposition.
For example,
today’s Washington Post noted that Governor-Elect Robert Ehrlich
selected a Republican delegate named Robert Flanagan as the head of
Maryland’s Transportation Department. In so doing, Ehrlich also signaled a
shift in transportation policy that was no secret to those following
Maryland transportation issues.
In contrast to
Governor Glendening’s general stress on transit, and his particular
opposition to a cross-county connector in the Washington metropolitan area,
both Flanagan and Ehrlich are keen on building the long-sought link to
Interstates 270 and 95.
With respect to that
particular project, its supporters cross party lines:
That attitude pleases Montgomery County Executive Douglas M. Duncan
(D), the intercounty connector's most vocal supporter. Noting that
Flanagan's district crosses the Howard line into Montgomery, Duncan said:
"We're looking forward to working with him."
Others are clearly
less enthusiastic:
But some worry that Flanagan is so pro-road that such alternatives as
bus lanes could be lost. "There needs to be a range of solutions," said
Del. Marilyn Goldwater (D-Montgomery).
The practical reality
remains limited, however. Maryland spends $3 billion per year on transportation, and most of it will
continue to be spent the same way it was in prior administrations. In
addition, the state’s ongoing budget concerns will also put a brake on any
significant shift in policy:
As it stands, Flanagan won't have much to work with. The state doesn't
have the money to pay for $27 billion in projects estimated to be needed
over the next 20 years, and Ehrlich plans to dip into the transportation
trust fund to help plug next year's $1.2 billion budget gap. Ehrlich has
said he is open to increasing the gas tax to pay for needed road projects,
but he does not plan a push this year.
Considering how long folks have been
debating this particular project, it’ll be interesting to see how much
political capital is spent during Ehrlich’s time in office to make sure the
connector is built, or to keep the shovel from ever making the first dig.
January 12, 2003
The Arts and the Internet
When traveling, we often look for
artwork or photography as a decorative souvenir of our visits. During our
recent trip to New Orleans, for example, we enjoyed the cartoons done by
Matt Rinard, a popular French
Quarter artist we knew nothing about until our vacation. We bought several
postcard examples of his funny caricatures, and they will soon grace our
home in their own frames.
Given my interest in Creole and Cajun
cuisine, for example, we just had to buy the Lightly Seasoned card,
shown below.
I was also pleased to discover today
that Rinard is taking advantage of the Internet, and selling his artwork
online. It gives me and his other new fans a chance to buy that other card
or two we forgot to purchase while we were in New Orleans, and saves Rinard
all the expense and bother of publishing a catalogue.
I love the Internet.
January 12, 2003
Blogging Break
I’m going to DC to attend an
international transportation convention.
This puts me in close proximity to about 9,000 people, many of whom consider
a plastic pocket pen protector to be the ultimate fashion accessory.
Blogging will resume upon my return
home. In the meantime, I’m looking forward to meeting a couple DC-area
bloggers during the trip.
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