Sneaking Suspicions
Archives-- September 22-27, 2003

This page includes posts from September 22-27, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

September 26, 2003
Counting up who’s down

Today the Census Bureau issued a new 33-page report, Poverty in the United States: 2002. It is a deeply intriguing document, at least for those with any interest in social policy.

It’s also nearly impossible to summarize in a blog post, so I won’t.

For now I just want to point out a few things not mentioned in the first burst of media coverage.

The NYT, for example, centered its story on the official poverty rate rising from 11.7 to 12.1 percent from 2001 to 2002, which converts to 34.6 million people, up from 32.9 million the year before.

Nonetheless, the NYT article glossed over intergenerational differences in the poverty rate.

For seniors over 65, the poverty rate remained unchanged at 10.4 percent (3.6 million), while for children under 18, the rate remained at 16.7 percent (12.1 million). (Figure 2, Table 2, pages 5-6.)

In both total number and percentage terms, that’s a huge difference between two cohorts of about the same spread in years. In political terms, it certainly seems to provide brutal proof of the difference between those who can vote for their own interests, and those who must depend on others to vote on their behalf.

The NYT also noted the difference in poverty rates among racial groups, while neglecting to mention the numerical differences that cut against the initial impression that those percentages alone might impart.

Whites totaled over 22 million within the official poverty classification, while blacks totaled over 8 million (Table 1, page 2). Those two facts don’t appear in the NYT piece, but should have been included.

The report provides stark reminders of the potential benefits of maintaining intact family units.  Families with a female householder and no husband present made up half of all families in poverty, totaling 3.6 million. Families with male householders and no spouse present totaled an additional 564,000 of those under the poverty line (Page 7.)

The alternative measures of income for alternative poverty estimates (pages 18-20, Table 8 and Figure 7) produced some surprising results. Using one of these alternatives reduced the official poverty rate from 12.1 down to 7.8 percent, or a total of over 11 million people. This measure took into account money income plus realized capital gains or losses, less income and payroll taxes, plus the value of all non-cash transfers (school lunch subsidies, EITC, Medicare/Medicaid, e.g.). If the return on equity in one’s own home was counted, the number of people considered poor would drop even further. 

What these alternative measures mean to me is that if I apply a common sense understanding of how people sustain themselves in this country, there are about one-third fewer folks living in poverty than is officially recognized. 

Someone in a position to know was once quoted as saying that the poor shall be with us always, and that we should help them if we can.

This Census Bureau report should help those interested in following that guidance to understand the scale of the problem in America, and even more importantly, how the assistance thus far given may have been misdirected.

September 25, 2003
When is a week close enough?

According to an Eighth Circuit decision issued yesterday, sometimes an indictment only has to be within a week of being right in order to support a conviction.

On October 16, 2001, Herbert Harris was sitting inside a house when a group of Kansas City police officers joined him. The record doesn’t disclose what Harris was doing there other than sitting, but the police were there to execute a search warrant.

They noticed a 9-mm semiautomatic pistol was within Harris’ reach when they came into the building, which no doubt gave them some concerns.

Those concerns most likely were heightened when, after being given his Miranda warnings, Harris admitted to possessing the gun a week earlier, on October 9. In addition, he admitted that he was a convicted felon.

The eventual indictment charged Harris with a Federal gun possession charge, based on the events that took place “on or about October 16, 2001.”

That’s when things became interesting:

Despite the proximity of the weapon to Harris at the time of the search, the District Court did not find the pistol to have been in his constructive possession on October 16, 2001. … The court noted, however, that Harris admitted in writing to possessing the firearm on October 9, 2001, a date "on or about" October 16, and thus found him guilty of committing the offense alleged in the indictment….

I suppose this was the criminal law equivalent of a phrase I have often heard: "Close enough for government work.”

Harris didn’t think so, however, and made this seven-day differential the centerpiece of his appeal.

The circuit panel ruled against him:

A charge of firearm possession "on or about" a particular date includes possession on days "reasonably near the date alleged." [citation omitted]. Harris's admitted possession of the firearm on October 9, 2001 is reasonably near the October 16, 2001 date alleged in the indictment and therefore is conduct within the scope of the indictment….

The "on or about" language in the indictment provided the defendant sufficient notice that his written admission that he had possessed the weapon in question on October 9, 2001, could be used as direct evidence of the charged offense. We conclude there was no variance fatal to the government's case between the charge in the indictment and the evidence presented.

I wonder what would happen if a husband missed his wife’s birthday by a week, and he tried the same excuse the government did in this case.

Somehow I don’t think his appeal would be handled in quite the same way.


September 24, 2003
Maybe this time they’ll award attorney’s fees


When people sue cities and government officials for alleged civil rights violations under 42 U.S.C. Section 1983, the prevailing party can be awarded their attorney’s fees, unlike most American litigation. The specific authority for these awards is codified at 42 U.S.C. Section 1988.

Under many years of case law decisions, however, whether the prevailing party actually gains this supplemental award largely depends on whether it was the plaintiff or the defendant.

If the prevailing party is the civil rights plaintiff, pretty much all he or she has to do is either win or force a settlement, however modest (with some rare exceptions). 

If the prevailing party is the city government or its officials defending against the claims, however, they face an additional hurdle. The court must find that the plaintiff’s claims were meritless, or that the plaintiff continued to litigate the claims after any sane person would have concluded there was nothing to the case. 

That’s not how the statute actually reads, but that’s how it goes. 

There are some good policy arguments to support this statutory interpretation, but it can grate nonetheless. 

The hapless taxpayers typically bear the sometimes steep cost of defending these claims, usually without recourse against plaintiffs who should never have sued the city. That’s because most courts tend to be unwilling to find these lawsuits were meritless, even under fairly egregious circumstances. 

There’s always hope under the right circumstances, however. For the sake of the taxpayers of Whitehall, Ohio, for example, I hope they win their fees in a case decided by the Sixth Circuit this week.  

The owners of the Bambi Motel, Inc. and a few other properties filed a Section 1983 suit against the small town in mid-October, 1999. The lawsuit centered over the fact that the city had the nerve to bring a series of fire and building code enforcement actions against them.

Whitehall’s officials had their reasons. For example:

The City filed an action in the Environmental Division of the Municipal Court in Franklin County, Ohio, on November 22, 1995, against … the Bambi Motel, alleging numerous building code, fire code and licensing law violations, as well as seeking an injunction to abate a public nuisance allegedly resulting from drug trafficking, prostitution and other criminal activity occurring at the motel.

Several months later, the owner of the Bambi agreed to an injunction, complete with stipulated findings of legal violations, and agreed to either sell the property or demolish it within a few months. 

The Bambi Motel owner then blew the deadline. In subsequent court proceedings, a judge supported the city’s decision to follow through with the threatened demolition. 

The owners of a similarly troubled trailer park, facing similar enforcement action, brought their properties into compliance rather than see them razed. 

The civil rights suit claimed that Whitehall selectively enforced its building and fire codes against the plaintiffs, and sought injunctive relief under the Equal Protection Clause of the Fourteenth Amendment. 

The district judge ruled for the City, noting among other things that the plaintiffs had badly missed the statute of limitations for bringing the suit. Undeterred, the business owners appealed. 

Their claims fared no better before the appellate court. It upheld the dismissal based on long-standing precedent concerning the applicable statute of limitations. 

The unanimous panel also made no secret of how it felt about the merits of the plaintiff’s case:

[T]here is no basis whatever for their claim that their substantive due process rights were violated when the defendants rigorously enforced Whitehall’s building and fire codes in a specific area of town in order to shut down businesses around which drug dealers and prostitutes often congregated….

     As an initial matter, we note that the Fifth Amendment, and not substantive due process, is the basis upon which a plaintiff may challenge the government’s actions with respect to his property [citations omitted]. Moreover, to the extent that the plaintiffs … claim[] that their challenge [relates]… to the conduct of Whitehall officials—namely, the rigorous and allegedly selective enforcement of city regulations with the purpose of shutting down businesses suspected of contributing to a culture of crime—that challenge is wholly without foundation. There exists no “fundamental” right in our legal system to violate a municipality’s codes and regulations with impunity, and the conduct of Whitehall officials in enforcing those codes and regulations was neither “arbitrary” nor “conscience-shocking” in the constitutional sense. ... In fact, the government regularly uses the civil law to address problems that it could, perhaps more directly, address with the criminal law. … Finally, the plaintiffs cannot prevail on a claim of selective enforcement because they have not shown that they “belong[] to an identifiable group, such as . . . a particular race or religion, or a group exercising constitutional rights,” and who were targeted for law enforcement action as a result of that group status. [citations omitted].

If ever there were a case that supported a hefty attorney’s fees award against civil rights plaintiffs, surely this one fits the bill.

September 23, 2003
Annals of crime (with apologies to Broadway)

On occasion, while reading a case decision or other serious document, a lyric from a Broadway musical will suddenly come to mind—or at least a potential pun based on one.

Surely some visitors to this site must have also shared this experience.

I’m fully prepared to admit that this is a rare occurrence, but it actually does happen, I can assure you.

For example, today I read about the hapless Cameron Foster.

In early April, 2002, a police officer named Ehnes saw Foster sitting in his car on a city street. He also witnessed what looked exactly like a drug sale between Foster and another individual. Very shortly thereafter the officer retrieved a paper bag with about 22 grams of crack inside it, “in close proximity” to Foster’s car, and arrested him.

Foster appealed his eventual Federal conviction for possessing cocaine base with intent to distribute to the Eighth Circuit. Among other issues, he argued that the trial court committed a legal error in admitting into evidence a few inconvenient facts from his past.

Y’see, the prosecution just happened to know that on this same block on this same street in this same city in 1993, Foster was caught in a sting operation selling crack to undercover police officers, an offense for which he pled guilty.

Shortly before the trial on the 2002 incident, therefore, the government sought and obtained court permission to introduce into evidence the facts about the 1993 incident.

Foster didn’t argue that the paper bag of crack was not found in the street near his car, but he did argue that the trial court made a mistake in letting the facts from 1993 into the new case.

The appellate panel disagreed:

Foster's denial of any wrongdoing closely resembles a general-denial defense or a "mere presence" defense. Both defenses have long been recognized as placing intent or state of mind into question and allowing the admission of prior criminal convictions to prove both knowledge and intent.... The government needed to prove that Foster possessed the drugs Officer Ehnes found, and part of that burden required a showing that Foster knew the drugs were in the bag and that he had the intent to control the contents of the bag. [citation omitted]. Foster's prior conviction for selling crack cocaine on the very same city block tends to show not only knowledge of drugs and their illicit distribution, but of the area as well.

In addition to being relevant to material issues at trial, the prior conviction also satisfies the other tests for admission …: (1) it is similar, indeed virtually identical, to the crime charged; (2) the 1993 conviction was not so remote in time as to be inadmissible at trial in 2002 …; (3) the 1993 conviction resulted from a guilty plea and Foster does not argue that the evidence was insufficient to support his plea; and finally (4) as the District Court found, any danger of unfair prejudice from admitting the prior conviction does not outweigh its probative value….[citations omitted].

Under these circumstances, therefore, it was only natural to conclude that a single word change would make a certain song from My Fair Lady fit this situation quite nicely:

I have often walked down this street before
But the pavement always stayed beneath my feet before
All at once am I several stories high
Knowing I'm on the street where you deal.

Sorry, but that’s just how my mind works sometimes.

September 22, 2003
How can you complain about a permit revocation, when you never had the property zoned for that use in the first place?

When a city has turned down your application to rezone your parcel three separate times, it might occur to you that perhaps you should focus your efforts on some other idea.

That thought apparently didn’t occur to the folks who own Greenbriar Village, LLC.

In 1990 they bought a 10-acre piece of land in Mountain Brook, Alabama. At that time the parcel was zoned for residential use.

In most parts of Mountain Brook, that’s not necessarily a bad investment idea. The city’s current median house value is estimated at $336,300, in a 12-square-mile city with a population of over 20,000 and a median household income of greater than $100,000.

Even so, Greenbriar tried to have their land rezoned commercial, but the city turned them down in 1992.

Five years later Greenbriar tried again, this time to convert the land to the Greenbriar Village shopping center. The city said no, and this second decision to say no was upheld on appeal to the state courts.

The company then took a different tack. It applied for a land disturbance permit, which Mountain Brook granted in March 1998. The point of messing with the property was to make it more suitable for commercial purposes, even though the zoning remained resolutely residential.

Somehow the permit staff at Mountain Brook didn’t pick up on that fact, however:

Greenbriar used the Permit to clear the property, remove accumulated garbage and, later, move trees and earth. Under the authority of the Permit, Greenbriar has stockpiled tons of rock and fill material on the property over the last several years.

The City’s attorney eventually noticed the problem, and warned the developers not to take actions that were inconsistent with the current zoning.

Greenbriar tried again to have the land re-zoned in 1999, but the City said no a third time. Mountain Brook also tried to obtain a stop-work order against the developer, but there was a problem. The state court judge noticed that the land disturbance permit had no expiration date.

Stymied by its own permit rules, Mountain Brook passed an ordinance revoking any such land disturbance permits, effective 30 days after the ordinance became law.

After learning about the ordinance, Greenbriar sued the city in Federal court, alleging among other things that Mountain Brook failed to notify the developer directly about the new law. That fact probably didn’t go over well with the Federal District judge, either, who ruled against the City on procedural due process grounds based on the notice issue.

Last week, the Eleventh Circuit took a common sense approach, reversing the District Court’s decision against the city.

The appellate panel couldn’t help but notice that Greenbriar used its land disturbance permit history to force the equivalent change in zoning classification it had already failed three times to obtain directly. As it noted in a footnote:

The injunction, after all, is permanent and, in the future, Greenbriar undoubtedly will point to its land-clearing expenditures as "vesting" additional estoppel-based property rights, thereby demanding, via mandamus, a commercial zoning change.

Nonetheless, Greenbriar had its own legal problem, one that proved fatal to its claims:

[W]e examine whether Greenbriar held a federally protectable property right in the first place, because no procedural due process claim exists until a sufficiently certain property right under state law is first shown….

… Greenbriar exploited an admitted gap in the City’s code, ultimately obtaining from the district court a de facto commercial zoning change merely because the City was lax in maintaining a gap in its code, and, later, a little too tricky in notifying Greenbriar of its legislative efforts to eliminate it by sending notice to a Greenbriar principal, rather than to Greenbriar at its corporate address.

… Greenbriar therefore, at most, held an uncertain property right when the City violated its zoning-notice procedures. It was not "certain" until after the alleged due process deprivation occurred. Indeed, the "by-estoppel" property right was not even recognized until the district court announced it, and even at that on legal grounds different from those Greenbriar itself proffered.

… [U]ncertainty in the existence of a property right, especially one based on the exploitation of municipal code procedures that otherwise accorded no right to develop the property in question, does not add up to a federally protectable property claim….

Greenbriar therefore lacked a federally protectable property interest.

Thus ended the fourth attempt at "rezoning" this parcel.

I sometimes marvel at the drive and determination that real estate developers bring to their work. Nonetheless, sometimes that sense of wonder is tinged with an equal curiosity about how stubborn some folks can be.

September 22, 2003
Two Claudes, with a little violin music.
From a tiny little violin, in fact.

The New York Times qualified for a two-Claude award today, with its headline about the projected problems of the telemarketing industry due to the public's overwhelming response to new Federal legislation:

Call Centers Struggle in Face of Do-Not-Call Rules

Well, duh.

That would seem to be the bloody point of the new law, after all.

The bothersome marketing practices of some in the industry caused sufficient outcry to create the Do-Not-Call rules, which if effective would certainly cause a struggle for those doing the bothering.

One can always hope.

This Claude winner also deserves a little violin music--from a tiny little violin, in fact:


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


Home Page
Table of Essays
Table of Essays 2002
Links to the Weekly Archives

Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

© Frederick H. Schranck 2002-2003