Different River

”You can never step in the same river twice.” –Heraclitus

October 10, 2005

A Park Bench, the Fifth Amendment, “Common Sense,” and Tyranny

Filed under: — Different River @ 8:19 pm

This sounds like a typical “weird and stupid news” story, but I think it actually reveals some serious faults in legal theory, the legal system, and the failure to take incentives into account (that is, of economic ignorance):

Woman Ticketed for Sitting on a Playground Bench with No Kids

(New York-AP, Sept. 27, 2005) – It’s an only in New York story. A woman was given a ticket for sitting on a park bench because she doesn’t have children.
The Rivington Playground on Manhattan’s East Side has a small sign at the entrance that says adults are prohibited unless they are accompanied by a child.

So, they have a park that bans adults, unless accompanied by a child. This is, of course, precisely the opposite of the rule that applies in many other places — such as amusement parks, and many other places whose prime beneficiaries are children. This reversal of the usual rule quite odd. Do they have a reason for this? We’ll see in a moment, but in the meantime:

Forty-seven-year-old Sandra Catena says she didn’t see the sign when she sat down to wait for an arts festival to start. Two New York City police officers asked her if she was with a child. When she said no, they gave her a ticket that could bring a one thousand dollar fine and 90 days in jail.

Now I’m not a lawyer, but I thought what a suspect said couldn’t be used against her unless they warned her that it could be. Isn’t that what a “Miranda warning” and the Fifth Amendment are all about? Isn’t a confession inadmissible in court in the absense of a Miranda warning? In which case, the prosecution ought to lose this case, since the only evidence they have that she was not accompanied by a child is that she said no when asked — and she was not advised of her rights before being asked, essentially, to confess to this crime. (Had she been so advised, she might have thought something was up and declined to answer.)

One objection might be that the Miranda requirement only applied to “real” crimes, like murder and rape, not petty crimes like sitting on a park bench without a child. But if that’s your position, you’re basically saying that vicious, violent criminal are entitled to more protection from the legal system than people who are mostly law-abiding but occassionally commit minor infractions. Is that really what you want?

Anyway, let’s continue:

The city parks department says the rule is designed to keep pedophiles out of city parks, …

Now that sounds like a good reason, doesn’t it? No one wants pedophiles to be with children, right? And children are in playgrounds, so keep the pedopbhiles out, right? So to do that, give tickets to adults in playgrounds who are not interacting with children, right. Raise your hand if you see the problem here. If a pedophile were trying to entice a child, wouldn’t that pedophile be near that child, talking with that child, and so on? Wouldn’t that pedophile appear to a passing police officer to be “accompanied” by that child? In that case, it is practically guaranteed that no pedophile would ever get a ticket for violating this law — and that everyone who ever got such a ticket would be a non-pedophile. Such as someone resting her feet before an arts festival.

This law accomplished nothing towards its objective. It is probably a product of what Jonathan Lynn and Antony Jay of “Yes, Minister” call the “Politician’s Syllogism”: Something must be done; this is something; therefore, we must do it. Whether it actually gets you toward solving the problem is irrelevant. What’s important is that we do something.

… but a parks spokesman told the Daily News that the department hoped police would use some common sense when enforcing the rule.

The spokesman told the paper that ticketing a woman in the park in the middle of the day is not the way you want to enforce the rule.

And this, in an innocuous guise, is a very serious problem: They passed a law and planned on enforcing it only selectively.

One of the key differences between a government of democratically-chosen laws and a government of tyrants is that in a government of laws, the laws are enforced with some degree of uniformity, whereas in a government of tyrants, the laws are enforced only when the dictator feels like it, and against whom the dictator feels like enforcing them. What they are soothingly calling “common sense” is really “selective enforcement.”

Imagine, for a moment, the potential for abuse of laws passed to be enforced only with “common sense.” They could pass laws prohibiting talking loudly, and enforce them only against people saying things with which the folksin charge disagree. They could pass laws prohibiting “lying on the internet” and enforce them only against people who criticize them. They could establish unreasonably low speed limits and enforce them only against Black drivers. They could pass tax laws so complex no one can avoid committing some violation — but they could audit onlytheir political enemies. Or, they could pass laws ostensibly aimed at pedophiles, and enforce them against innocent women on park benches — perhaps of the “wrong” ethnic group or something.

Once laws are enforced selectively, they are no longer laws. They are excuses for the people with the power to enforce them to harrass, intimidate, and persecute those they dislike, disagree with, or want to defeat.

June 8, 2005

Enviro-Fascism in New Jersey

Filed under: — Different River @ 7:05 pm

Like many other Americans, I was brought up on the notion that one of the fundamental principles of America is the right to freedom of speech, even — perhaps especially — the right to publicly criticize the government. And on the converse notion that any society or form of government that does not allow public criticism of the government is unjust, illegitimate, and usually totalitarian. Which of course includes monarchism, communism, fascism, as practiced in, for example, Sparta, pre-reform Britain, Nazi Germany, the Soviet Union, and … New Jersey?

Yes, totalitarianism might be on the march in New Jersey. It seems that a certain individual in New Jersey decided to criticize the government of New Jersey, and certain officials of that government are threatening to take legal action against him. William Juliano was denied permission to build on some land he owns (and paid a lot of money for), and he put up a billboard criticizing the government agency that denied him permission. As Geoff Mulville of the AP reports:

PENNSVILLE, N.J. (AP) – Rather than simply welcoming drivers to the Garden State, a new billboard greeting people entering New Jersey over the Delaware Memorial Bridge slams the state’s business climate.

“Welcome to New Jersey. A horrible place to do business,” reads the billboard message.

The glaring, red capital letters represent the revenge – misguided, according to officials – of a developer upset with the state’s environmental regulators.

A previous owner received state approval for the truck stop in 1985. But the state now says the land is in a wetlands area and is unsuitable for either a truck stop or a Home Depot, which Juliano proposed building there last year.

Juliano says not being allowed to build what he wants is a symptom of bigger problems. He says the DEP has a staffer in charged of “delaying, hindering and, in general, causing havoc with their permitting process.” Other developers are leaving New Jersey because of the issue, Juliano said.

“At some point, we’ll have to consider action against him,”
[Environmental Protection chief Bradley] Campbell said, implying a potential legal fight.

Juliano believes the refusal to let him build is a violation of his civil rights. The state, he says, is taking his property rights without paying him.

Attorney Ronald Coleman, on whose blog I found this story and who has helped some bloggers protect their free-speech rights, wasn’t pulling any punches:

WHAT? Has the FEC chipped off some of its expression-regulation power to the New Jersey Department of Environmental Protection now? It’s not an entirely irrelevant question, because the news stories indicate that the businessman in question is feeling out governor-in-waiting Senator John Corzine about the issue. And it’s not like it’s Internet speech, so let the prior restraining begin!

March 2, 2005

Tax the Lawyers?

New Jersey has imposed a $75 annual tax (for the next three years only) on lawyers, doctors, dentists, chiropractors and professionals to fund medical malpractice insurance relief. The are also taxing all employers in the state $3 per employee. (I guess this is part of their “send jobs to other states” plan.)

True the form, the lawyers sued. Specifically, the New Jersey State Bar Association sued, claiming that applying this tax to lawyers violated their 14th Amendment right to equal protection. Last week, they were denied a temporary injunction against collecting the tax. (If they win, they can get their $75-$225 refunded.)

Now, my personal opinion is that this tax is silly. It’s not a coherent attempt to solve any real problem, because it will not affect anyone’s behavior with regard to malpractice. For example, every lawyer licensed in New Jersey has to pay, whether they are filing malpractice claims, defending doctors against them, writing wills, closing real estate transactions, fighting speeding tickets, prosecuting criminals, or keeping their license current while staying home with the kids.

Still, there is something poetic about seeing lawyers sue to get out of the $75 tax lots of other people have to pay, on the grounds that for lawyers to pay is “unequal.” ;-)

Better yet, RiskProf asks, “if the litigant does succeed would the winning lawyers get big legal fees and some coupons for the members of the bar?” ;-)

February 23, 2005

Is Your Property Yours?

Filed under: — Different River @ 6:34 pm

This is the question taken up yesterday by the Supreme Court. As you probably know, the Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

That last phrase refers to the state’s power of “eminent domain,” whereby they can take your property — if they pay you its fair market value — for “public use,” say, to build a new highway.

But can they take it for private use also? In other words, can the government forcibly take your house and sell it to someone else, just because they’d rather someone else have it instead of you? The answer, for the last 60 years, has been “yes.” They can take your house if they think someone else will make the neighborhood nicer, or if they think someone else will give them more tax revenue. (Say, if the “someone else” will build a store, and the sales tax they pay will be more than the property tax you pay.)

In other words, your property is yours only as long as the federal, state, county, and municipal governments all haven’t thought of anyone they think is more deserving of it than you are.

I was going to write a long involved post about this, but Kevin at The Smallest Minority beat me to it, and wrote basically everything I wanted to say. Read his entire post.

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