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
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
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.)
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
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
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
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
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.
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
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
I suppose this was the criminal law
equivalent of a phrase I have often heard: "Close enough for government
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
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
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
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
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
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.
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
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:
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
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
For example, today I
read about the hapless
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.
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
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
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
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].
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
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
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
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,
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
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
… 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.
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
Centers Struggle in Face of Do-Not-Call Rules
That would seem to be the bloody point of the new law,
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
tiny little violin, in fact: