April 16, 2004
Maybe they just changed their minds?

Martha Burk may have dropped the idea of picketing Augusta National this spring, but her First Amendment lawsuit against Augusta Georgia remains alive.

Yesterday a divided Eleventh Circuit panel upheld Burk’s facial validity challenge to Augusta’s ordinance requiring a permit for demonstrations or similar events. The statute was modeled closely after the Chicago Park District ordinance unanimously upheld by the U.S. Supreme Court in 2002, but that didn’t deter two of the Circuit Court judges.

What’s a bit odd is that nowhere in any of the three opinions (majority, concurring, and dissent) is there any indication that Burk had already lost an appeal to the same court, back when she and her companions were trying to parade directly in front of the famous golf course during the 2003 Masters Tournament.

When Burk first filed suit in the District Court, she challenged the ordinance both on its face and as it was applied to her attempt to picket last spring. The district judge turned down her claims.

Burk then appealed her case, and also sought an emergency stay of the District Court’s decision. The Circuit denied the stay request, and she staged her protest at the location approved by the local officials, several hundred yards from the entrance.

Since the plaintiffs dropped their as-applied claim, the Circuit Court reviewed the ordinance in a legal vacuum, devoid of any actual context.

While I realize that the Supreme Court has repeatedly upheld the use of the courts to seek advisory opinions in First Amendment cases like this one, I still don’t think that’s necessarily a good idea. And as my prior posts from last spring on this issue show, I’m not saying this because I thought that the actual permit decision made in the case was a classic application of unquestionable good sense to a difficult situation. I didn’t.

The majority distinguished the Chicago case from the Augusta ordinance by highlighting the fact that the Second City law created a permit requirement for all public assemblies of more than 50 people, “regardless of purpose.” In contrast, the Augusta provisions only applied to “communicative activity…. The Ordinance regulates only political speakers, leaving soccer-players, sidewalk performers, and tailgating groups untouched.” The panel applied “strict scrutiny” to the ordinance, and as usual that level of analysis proved fatal to the local statute.

The concurring opinion went even further. Judge Barkett stressed the ordinance’s provisions vesting the Sheriff with the authority to deny a permit based on his determination that the event will “raise public safety concerns,” and concluded that the law gave the Sheriff “unbridled discretion.”

Judge Roney’s dissent stressed the similarities between the Augusta ordinance and the Chicago ordinance, and also drew “special attention” to the legislative intent directly stated in the ordinance:

It is the specific intent of the Commission in passing this ordinance to regulate only the time, place and manner of such events and not to regulate the specific content or message of any speech by any applicant hereunder. Only public safety and other concerns as stated herein shall be considered by the Sheriff in the decision to issue or deny a permit hereunder.

The judge also made an important point about the distinction the majority made relating to the number of participants required to trigger the two permit ordinances:

[T]he decisions of local legislative bodies as to what constitutes a threshold number to require a permit intended to protect the safety of a community’s citizens should not be arbitrarily rejected. Each community is different as to the configuration of streets, sidewalks, public parks, traffic flow and other relevant considerations which are not apparent in a facial challenge to an ordinance. The plaintiff does not here make an “as applied” challenge to the Ordinance.

It will be interesting to see what the local government’s response will be to this decision. They could request re-argument en banc, based in part on the issue of whether the panel majority made too fine a distinction between two remarkably similar permit ordinances. Considering how recently the Supreme Court addressed the Chicago case, they appear to have some reasonable grounds to press the issue.

On the other hand, the fact that the 2003 protest was a complete fizzle might also encourage the county commission to step back, pay the other side’s legal fees, and move on to other, more pressing matters.

After all, the legislative and executive branches of government normally focus on real issues, instead of theoretical ones.

April 14, 2004
Misplaced disincentive

Those who lobby for the passage of legislation often refer to the proposed law’s incentives and/or disincentives in guiding public behavior toward a desired result.

Seat belt requirements are a simple example of a disincentive law, aimed at promoting the safety devices’ use by penalizing those who fail to buckle up.

The tax code’s charitable deduction is a straightforward incentive. After all, from an income tax perspective there’s nothing inherently noteworthy about the fact that someone donates some of their cash. Congress is simply encouraging charitable acts by providing the tax benefit.

Nonetheless, the incentive/disincentive concept doesn’t work in other contexts.

For example, earlier this year I prosecuted five cases before the Delaware Board of Cosmetology and Barbering, which licenses and regulates those in the beauty business.

In each case, the license holder had been convicted of a felony, thus triggering the state law that subjected them to possible discipline before the Board, up to and including revocation.

I presented the facts, and in keeping with office policy did not suggest a particular penalty.

The Board listened carefully to the statements of the licensees who appeared. After careful deliberation, they voted to put the convicted felons on probation, with terms matching the current criminal probation the respondents were still serving. On the other hand, the Board had no difficulty revoking the licenses of those who didn’t bother to attend their hearing.

When preparing for these cases, I confirmed that if these same folks had been convicted of their felonies first, the Board would not have heard their case. That’s because the current state law prohibits felons from being granted a license in the first place.

That kind of felony bar is common to all of Delaware’s dozens of boards and commissions that license a wide range of professions and trades.

What’s truly odd about barbering and cosmetology is that these and a few other skills are taught in the state’s prison system, or were until recently.

This is a good example of a bad disincentive law.

I really don’t believe that those who commit most of the state’s felonies do much thinking about their potential inability to enter most of the licensed trades and professions before they commit their criminal acts. On the other hand, the felony bar does a great job of blocking some folks’ chances at reaching and staying on the straight and narrow.

State Senator Karen Peterson decided to do something about it, and introduced Senate Bill 229 in the General Assembly.

Here’s how the News-Journal described the legislation in a supporting editorial today: 

S.B. 229, which has passed the Senate, would grant regulatory boards more leeway in issuing licenses to ex-convicts. The boards would be able to deny, suspend or revoke a person's license only if the crime for which he or she was imprisoned had a strong relationship to the profession. The bill would give the regulatory boards six months to develop rules governing what qualifies as a felony "substantially related" to the profession. Sen. Peterson rightfully thinks it makes sense that the regulatory boards make that determination.

Works for me, too.

April 13, 2004
The clash of cultures continues—this time in Tennessee

Last year I wrote two posts about a classic example of the clash of cultures that sometimes occurs in my little state.

Those whose only experience in Delaware is the occasional passage through its toll highways might not realize how deep the divisions are between the suburban upstate and the predominantly rural downstate.

The burning issue last year?

A bill that would have prohibited dogs from riding in the back of pick-up trucks.

As predicted, the upstate proposal died in the Senate Agriculture Committee, which is dominated by those from the lower two counties.

This week the same cultural divide was on display, but this time in Tennessee.

Remarkably enough, it was on the exact same subject—dogs in pickup trucks.

Sponsors said they were trying to protect the animals and motorists, but lawmakers - particularly from rural areas of the state - were highly critical.

The bill had been amended to exempt dogs being transported for farming or hunting purposes. Senators then amended it to apply only to trucks driving on interstates, but that wasn't enough for opponents.

They voted 13-11 against it.

I am not shocked by this result.

After all, Delawareans have already been there and done that.

And as we know very well, it's good to be first.

UPDATE: Some readers sent notes about the fact that the California legislature chose a different path. Here's how one regular correspondent described it:

California has a law that dogs riding in an open vehicle (pickup, convertible, etc.) must be secured in such a way that the animal cannot be thrown out by the vehicle's movement and strangled, nor can it jump out and be hanged.  The incidence of such accidents has gone way down and the good ol' boys have outdone each other in the manly art of restraint invention.

People are not allowed in the back of pickups when they are in motion unless they have proper seats and restraints (seat belts) -- now, how many pickups do you know like that? [Subaru Brat, 1977-1987—Ed.]

However, school buses do not have passenger seat belts except for the special education buses.  There's a lesson in all this somewhere.

Yup.

April 12, 2004
Didn’t work then--won’t work now

When some folks are caught in a criminal act, their first inclination is to give a totally innocent explanation, no matter how far-fetched. In fact, to hear some tell it, they actually deserve a medal for what they’ve done.

One of the funnier examples of this phenomenon occurred during the Abscam bribery scandal that rocked Congress two decades ago.

Representative Richard Kelly (R-FL) was videotaped stuffing $25,000 into his pocket. Additional audiotapes cleared up any possible remaining mystery of what he was doing, and why.

When confronted with direct evidence of his crimes, however, Kelly insisted that he took the money as part of his own special investigation into criminals trying to bribe public servants.

Neither the jury nor the judges that upheld his conviction were particularly impressed. Many commentators at the time didn’t think much of Kelly’s attempted snow job, either.

A Seventh Circuit decision issued last Friday showed that at least one person had to be taught the same harsh lesson learned by Rep. Kelly over twenty years ago. 

M. L. Moore was a Chicago police officer assigned to work undercover on drug and gang-related problems in the Windy City’s 15^th District. Along with three other officers in the same unit, however, Moore went to the dark side. The four officers extorted money, weapons, and drugs from the dealers they were supposed to be arresting.

As recounted in a typically well-written opinion by Circuit Judge Diane Wood, the Chicago Police Department found out about these rogue cops, and set up a sting operation.

Using an Internal Affairs Division sergeant with the alias “Silky,” the CPD worked with the FBI to catch Moore and the others on tape.

It didn’t take long. Moore and his conspirators confiscated thousands of dollars from Silky. They eventually agreed to work as special escorts for Silky’s “drug couriers” traveling the Interstate highways in and around the city. These and other crimes were recorded on videotape.

After Moore was arrested, he had the audacity to attempt Congressman Kelly’s strategy:

... Moore met with FBI agents, waived his right to silence, and offered an innocent explanation for his conduct. He did all this after he was told that he could conceivably spend the rest of his life in prison if convicted on the various gun, drug, extortion and robbery charges that he faced. Without the benefit of counsel, Moore told the officers that “Silky” was his “big case” and that he was slowly gathering enough evidence to make “the big bust.” He conceded that he did not follow police protocol in working the “big case”—for example, he wrongfully retained money that he seized or received from Silky, he failed to inform his superiors at the CPD of his work on the case, and he did not follow CPD procedures for handling evidence in a criminal case. But all of these shortcomings— according to Moore—were done with an eye to making “the big bust.” The FBI prepared a five-page post-arrest statement documenting Moore’s version of the events.

After conferring with counsel, Moore then met again with the prosecution. Apparently in an effort to strike a plea bargain, Moore signed a proffer agreement permitting the government to use his statements under certain conditions. He eventually admitted that his undercover investigation claim was completely bogus.

That didn’t stop Moore from trying to block the government’s use of the proffered statement when the plea bargaining failed. He also argued on appeal from his convictions that the trial judge erred in admitting his incriminating statements into evidence.

The appellate panel didn’t agree:

The government’s evidence against Moore was strong, and the proffer statements, even if properly redacted, flatly contradicted Moore’s defense theory that he was simply pursuing his “big case” in a rather unconventional manner.

Rather, indeed.

April 11, 2004
Uncommon Brilliance

As regular readers of this site should readily surmise, I've spent a fair amount of time over the last four days watching The Masters tournament.

For some reason, this year I've noticed how CBS announcer Peter Oosterhuis uses and pronounces the word "brilliant" in describing some of the amazing shots that have graced this year's event.

The former British golf professional is clearly applying the term's secondary meaning, referring to a showing of great talent or skill. There's also a slight trilling sound as he rolls the "r" that makes the listener fully aware that Oosterhuis is not from, say, Kansas.

More often than not, I tend to hear American announcers use the word "great" to describe the same kind of special performance. While there's nothing wrong with their choice of terms, it strikes me that Oosterhuis pays tribute to the player's own ability, whereas in the same context the American sportscasters are placing more stress on the result.

Interesting difference in tone.

Mostly, I'm just glad that this year's Masters is not marred by all the political hoo-ha that occurred last year.

UPDATE: And I'm also glad that Phil Mickelson won--and with a brilliant putt, too.

April 11, 2004
Shameless self-promotion

This afternoon I posted my latest golf book review—Dr. Divot's Guide to Golf Injuries, by Larry Foster, M.D., F.A.A.O.S.

It's a sprightly-written paperback covering the common risks faced by amateur and professional golfers, as well as the typical treatments to help players return to the sport as quickly as possible.

April 9, 2004
Tip Jar

I have decided to try to make some money from writing this blog.

Today I set up two special tip jars on the home page of this site, in the right column.

Clicking on the logos for the Epilepsy Foundation of Delaware or the ALS Association will take you to the online donation pages used by these two charitable organizations.

If you enjoy reading this site and you’d like to show your appreciation, I’d be honored if you clicked over and donated what you could.

Both do great work, and touch the lives of thousands of victims and their families and friends.

I can assure you that zero % of the money will come back to me. They’ll receive the contribution; you’ll gain a tax deduction; and knowing those two facts will be my compensation.

Thank you very much for your consideration.