September 23, 2005
Retreat

About 140 Deputy Attorneys General descended upon Dewey Beach for the last two days, for the annual Attorney General's retreat.

One nice aspect of the conference was that my normal 40-mile each-way commute shrank to only five miles or so instead.

The program was also very good, highlighted by a stimulating session on constitutional law presented this morning by Yale Law School professor Akhil Reed Amar.

These sessions are counter-scheduled with a state judicial conference during the same period. With the courthouses closed, nearly the entire complement of state attorneys are able to come to the retreat. It's a welcome and rare opportunity for the office, and very enjoyable.

September 21, 2005
A Louisiana Levittown--and I mean that in a good way

I’ve been thinking about some of the opportunities that the Hurricane Katrina disaster could provide for folks whose homes were ruined if not completely obliterated by the storm surge, wind, and flooding from the levee breaks.

This post outlines an idea about how to restore much of that lost housing in a way that enhances the opportunity for maintaining the distinctive look and  individuality of these old neighborhoods, while also using mass production techniques that most likely were not been applied before in the Big Easy.

I assume a few initial conditions apply to any such reconstruction effort. At a minimum this includes cleaning up the toxic debris and poisoned soil in the ruined residential areas, either by removal, or by taking a cue from Brownfields practices and capping the areas with bentonite or other appropriate materials. It also includes dealing with the risk of future flooding, by either improving the levee system to handle higher-level storm events, adding fill to raise the overall ground level of the neighborhoods, or both, which would be my preference.

Finally, I also assume that the City of New Orleans will not rezone these renewal areas to alter the existing property lot lines or its current setback requirements under its zoning code.

For example, as noted in a fascinating website devoted to the Bywater area of New Orleans, lot sizes tend to be about 35 feet in width. In several locations, the homes are built as twins, with a party wall on one side and a single side yard access to the rear from the open side. These lot dimensions helped inspire several forms of the famous shotgun houses that dot the city landscape, so many of which are most likely beyond saving.

On the other hand, there is a relatively simple way to restore this indigenous architectural style back to the City, in an improved state, without affecting current ownership of the lots on which these homes are placed.

It’s a combination of Levittown and the factory method of basic home construction, sometimes called modular housing.

Levittown was one of the first, remarkably successful suburban tract development projects in the post-World War II era. It began on 1200 acres of former potato fields in Long Island, and one critical element of its success was copied all over the country--the developers offered only two basic house designs.

Over the years, the homeowners added their own improvements to these very simple homes, including additional rooms and garages. For as much as these Levittown homes looked all the same at the beginning, they certainly aren’t now.

The limitations of the city’s lot dimensions also suggest that a similarly simple approach to reconstruction in New Orleans would be the fastest way to bring new housing stock online.

Modular home builders could quickly set up and install the basic elements of several fundamentally New Orleans home styles, including Creole cottages, shotgun houses, camelback houses, or sidehall homes.

This time, however, these homes can be significantly improved over the ruined homes they replace, with better insulation, duct work for heat pump/air conditioning systems, and updated plumbing and electrical fixtures.

Local talent can build the foundations for these homes and complete the finish work on the new modular shotguns, thus putting the owner’s own stamp on their replacement. In addition, these internal improvements I've described wouldn’t necessarily be so obvious on the outside, thus bringing a real sense of restoration to these neighborhoods.

The advantage of modular construction for this purpose is pretty obvious. It can bring a nearly complete home (and joined twin, if desired) to each site on a far speedier schedule than a massive stick-built on-site effort. The finish work, on the other hand, will provide more than enough work opportunities for local craftsmen, as well as a chance for significant training for similar work for hundreds of others.

I’m not actually running for the new job of housing reconstruction czar for New Orleans, on the This Old House® ticket. Nonetheless, if enough folks are interested in bringing back their old house designs, now ruined by Katrina, I’ll bet the modular housing industry would be happy to hear from them.

September 20, 2005
Would have been better if they had put it in writing

It’s not at all unusual for state and local governments to issue rules and regulations about folks putting up signs in the rights-of-way.

In most places, the money that was spent on building highways wasn’t intended to also provide unrestricted opportunities for those seeking to post their own personal messages to the rest of us, be they commercial, personal, or political.

In most jurisdictions, the published rules outlaw placing nonofficial signs within certain limits. On the other hand, most governments make a distinction between the literal installation of such signs in the ground, and carrying them around to be seen by passersby.

Think of union picketers parading on a sidewalk in front of a business entrance, for example. Carrying a sign or banner as part of that activity doesn’t run afoul of typical sign regulations, and is also generally recognized as a legitimate endeavor protected from unreasonable governmental intrusion by the First Amendment.

Even so, some limits to such activities can be imposed without crushing someone’s civil rights, as outlined in a recent 10^th Circuit Court opinion.

Wendy Faustin has engaged in anti-abortion protest activities in the Denver, Colorado area for a good while. Her efforts included holding up banners as she stood on a highway overpass within city limits, with the message “ABORTION KILLS CHILDREN.”

Denver police repeatedly asked her to stop, and she refused. After several such attempts to dissuade her, the police eventually charged Faustin with violating the city’s anti-posting ordinance. That charge was dismissed when the city prosecutor learned that she had been holding the banner, and had not actually attached it to the overpass.

Faustin filed suit, challenging the city’s actions under the First Amendment. After a series of legal skirmishes over Denver's posting ordinance and other issues, the District Court then addressed the city’s defense based upon an admittedly unpublished police department policy to block such banner displays from highway overpasses.

Here is the city’s description of that policy, as contained in an affidavit filed with the court:

It has been the uniform and consistent policy and practice of the Denver Police Department to prohibit all speech or expressive activities on all highway overpasses located in the City and County of Denver.  Put another way, it is the Denver Police Department's policy and practice to advise all persons who wish to engage (or are engaging) in speech activities at these sites that they cannot display banners or signs while at these locations, whether or not such signs or banners are attached to protective fencing.

The lower court held that this unwritten enforcement policy was overbroad and vague, and ruled for Faustin.

On appeal, however, two members of the 10^th Circuit panel disagreed.

…Denver may constitutionally restrict the displaying of signs or banners on highway overpasses.  The state has a significant interest in traffic safety and in the avoidance of interference with official traffic control devices on highway overpasses. [citations omitted]. Restricting signs or banners on highway overpasses directed at the motorists below is narrowly tailored to achieve this interest.  [citation omitted].  And as for ample alternative avenues for communication, the policy affects only highway overpasses; Denver rightly notes that there are "hundreds of miles of sidewalks and thousands of acres of parks and other public fora to present . . . views and ideas to the public."

Therefore, Denver may constitutionally restrict signs or banners on highway overpasses, and such speech is legitimately subject to regulation.  Thus, this restriction on expression falls within the plainly legitimate sweep of the policy. As such, if the policy, as Denver argues, only ever restricts signs and banners, it is not unconstitutional.  Even if one were to hypothesize that the Denver policy might reach some expression on the overpass that could not impede traffic flow on the highway, there is nothing in this record to suggest that any such speech would be substantial in comparison to the legitimately prohibited expressions. [citation omitted].

As for Faustin’s vagueness argument, the panel majority ruled that in light of her own repeated experience with the no-overpass policy, she had no case:

Faustin knew and had no doubt that the restriction applied to her, and such application is not unconstitutional.  Again, Faustin's claim fails because she has made no showing of "real and substantial" chilling of protected speech. Essentially, Faustin's vagueness argument goes to the fact that the policy is unwritten.  However, this fact is not fatal.  See Lebron v. National Railroad Passenger Corp., 69 F.3d 650, 658 (2d Cir. 1995) (determining unwritten policy prohibiting all political advertising was not unconstitutional).  The policy clearly prohibits communication directed toward the traffic on the underpass, and thus it is not unconstitutionally vague.

U.S. District Judge Ted Stewart was on the panel, and dissented from this last part of the decision. As he saw the facts of the case, Denver’s unwritten enforcement policy was simply too fuzzy to withstand constitutional attack:

It is not written and, thus, not available to the public.  On three of the four occasions where Faustin was approached by law enforcement officials on the Perry Street Overpass, the officers themselves could not cite the specific law, let alone the "policy" in question, that Faustin was allegedly violating.  On the fourth attempt, an officer did cite an ordinance and charged Faustin with violating it.  However, that charge was subsequently dropped because the prosecutor realized that the ordinance cited was not applicable to her conduct.  Tellingly, not one of the officers cited the policy in question, even though it is was a police department policy.  As evidenced by the fact the officers encountering Faustin were unable to articulate the policy or how it applied to her conduct, the degree of vagueness presented by the unwritten policy appears to "authorize[] or even encourage[] arbitrary and discriminatory enforcement" thereof. [citation omitted].

I think Judge Stewart has the better position on this last issue. Although it’s a perfectly defensible policy choice as a matter of balancing highway safety and First Amendment rights, this unwritten policy seems more like an afterthought than anything else.

I’m not one to suggest that every enforcement practice adopted by the police has to be written out, but this one certainly wouldn’t take much effort to reduce to a standard memorandum. Besides providing clear guidance to the Denver P.D., it would have also readily eliminated any arguable constitutional claims from folks like Ms. Faustin, who have plenty of other places to share their messages with the rest of us.

September 19, 2005
Not nobody not nohow

At some level you have to give the City of Chicago points for persistency, if nothing else.  

Nonetheless, there comes a time when even a major city government should recognize that there are some folks who can make it very clear that they’re the ones in charge, and not the City’s leadership. 

Several years ago Chicago joined with several other big cities and announced with great fanfare that they were suing firearm manufacturers.

The complaints typically sought millions of dollars in reimbursement for the cities’ “response costs” to the plague of illegal conduct within their borders, enhanced as those costs were by the weapons used by the local criminal element. 

It was an admittedly novel argument, with several potential responses—such as the occasionally inconvenient assertion that the city governments’ own failures of administration in law enforcement, education, and social welfare policy exacerbated the rise in crime in their own neighborhoods.

Undaunted by their eventual defeat in the courts on this attempted shift in responsibility, the Chicago city leadership pressed on. They filed a new Freedom of Information demand on the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF), seeking access to the information in the agency’s Trace Database and Multiple Sales Database.

The ATF tried to block access, arguing that certain FOIA privacy and law enforcement exemptions barred access to the information. The District Court disagreed, and the Feds appealed. 

During the appeals, Congress intervened, twice passing appropriations bills that specifically forbade the use of Federal funds to comply with any such demand. The Supreme Court remanded the case to determine what effect these new laws had on the lawsuit. In response, the Seventh Circuit ruled that while Congressional action barred the use of Federal funds, nothing prevented the use of Chicago’s money to pay for the cost of retrieving the information from the databases. 

The ATF felt differently, and sought yet another rehearing. During that process, Congress stepped in once again, and expressed itself even more forcefully in a 2005 appropriations act:

No funds appropriated under this or any other Act with respect to any fiscal year may be used to disclose part or all of the contents of the Firearms Trace System database maintained by the National Trace Center of the Bureau of Alcohol, Tobacco, Firearms, and Explosives or any information required to be kept by licensees … to anyone other than a Federal, State, or local law enforcement agency or a prosecutor solely in connection with and for use in a bona fide criminal investigation or prosecution and then only such information as pertains to the geographic jurisdiction of the law enforcement agency requesting the disclosure and not for use in any civil action or proceeding other than an action or proceeding commenced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or a review of such an action or proceeding, to enforce the provisions of chapter 44 of such title [18 USCS §§ 921 et seq.], and all such data shall be immune from legal process and shall not be subject to subpoena or other discovery in any civil action in a State or Federal court or in any administrative proceeding other than a proceeding commenced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to enforce the provisions of that chapter, or a review of such an action or proceeding; except that this proviso shall not be construed to prevent the disclosure of statistical information concerning total production, importation, and exportation by each licensed importer … and licensed manufacturer….

Pub. L. No. 108-447, 118 Stat. 2809, 2859-60, codified as amended at 18 U.S.C. § 923 note (2004) (emphasis added).

The shorthand version of this can be described as “Not Nobody Gonna See This Stuff, Not Nohow, 'Cept for Crime Fightin'.”

Last week the Seventh Circuit issued its latest decision in the controversy, and recognized the latest Act of Congress for what it was:

Congress’ obvious intention … was to cut off access to the databases for any reason not related to law enforcement. The public is now doubly restricted from access to these databases: first, the funding restriction prevents the federal agency that collects the data from acting on a request for disclosure; and second, the requesting party has no judicial remedy as the information is immune from legal process and not subject to subpoena or otherwise discoverable in a civil action. The new “immune from legal process” language in the rider also demonstrates that our solution to the funding restriction in the prior riders—appointment of a special master to be paid for by the City—is no longer tenable.

The City raised several new arguments against the plain meaning of the new law, but the panel ruled against each point.  

Perhaps the best portion of the circuit court’s decision was its bluntly worded footnote 1, discussing one of the City’s contentions:

If we agreed with the City’s argument that the statutory language is ambiguous (which we do not), we would turn to the legislative history of the statute.... [citation omitted]. When pressed at oral argument, counsel for the City conceded that “the people who wrote the legislative history are not our friends.” We agree with the concession; the relevant legislative history clearly supports ATF’s position and fails to offer a hint of support for the City’s position. House Report to 2005 Act at 30. More importantly, though, the people who wrote the text of the statute and enacted it into law were not the City’s friends.

No kidding. 

On the other hand, the City’s non-friends had an appropriate point to make here—along with the power to make that point both obvious and enforceable.

Chicago’s time and money would be better spent on some tried and true methods of reducing the costs of crime in its streets, instead of searching for deep pockets from out of town to blame for its own problems.

September 15, 2005
Pre-storm cruise

Hurricane Ophelia has been just erratic enough over the last few days that I thought we should take advantage of the evening's pleasant weather for a short cruise.

By tomorrow it could be an open question when we'd be able to take the next one.

I took this picture looking west from just offshore of the Rehoboth Bay Sailing Association, south of Dewey Beach:

The slender poles in the center of the picture mark a channel leading from the RSBA docks.

The moon rose quickly while we were messing about. Here's a view of Love Creek, looking southeast as it leads to Rehoboth Bay:

My wife noted that this image is much lighter than it looked while we were out there.

I also had plans to finish and publish some more thoughts about Hurricane Katrina and the various opportunities it provided, despite the awful destruction it unleashed upon the Gulf States. With Ophelia bearing down on the Mid-Atlantic states, however, I decided not to push my luck.

September 12, 2005
Local knowledge

Younger daughter seems to be acclimating herself quite well to freshman year of college, several hours’ drive from home.

She’s already made several new friends, for whom meeting younger daughter is their first exposure to someone from Delaware, and from a beach resort at that.

In an effort to advance her fellow students’ knowledge of some of the primary cultural touchstones of her life here, younger daughter tacked to the wall of her dorm room an email that a hometown buddy sent her some time ago. She sent us a copy over the weekend.

The only thing I’ve done with this text is to add the occasional bit of evidentiary proof of these statements.

YOU KNOW YOU'RE FROM SOUTHERN DELAWARE IF…

You've never met any celebrities.

Your idea of a traffic jam is ten cars waiting to pass a tractor/chicken truck on the highway.

You've seen all the biggest bands ten years after they were popular. [Here’s an example from last weekend.]

You measure distance in minutes.

When you go out of state to shop or eat, you are always surprised about the tax.

You know several people who have hit a deer.

Your school classes were canceled because of cold.

Your school classes were canceled because of heat.

You've ridden the school bus for an hour each way.

You love the beach but hate the tourists.

You know about Punkin’-Chunkin and you have your favorite Chunker.

You know what's knee-high by the Fourth of July.

You've eaten scrapple sandwiches.

You can identify all the major types of manure by smell.

You can see a car running in the parking lot at the store with no one in it no matter what time of the year.

You end your sentences with unnecessary prepositions.

Example: "Where's my coat at?"

State festivals are named after a fruit, vegetable, grain, or animal.

You install security lights on your house and garage and leave both unlocked.

You think of the major four food groups as beef, pork, beer and Jell-O salad with marshmallows.

You carry jumper cables in your car.

If it takes more than an hour to drive to, you're not going.

You know what a "slippery" dumpling is.

You used to play in the wuder in the crick.

You know what "cow tipping" and "snipe hunting" are.

You only own 3 spices: salt, pepper, and ketchup.

You've been to a demolition derby at the State Fair.

You think everyone from a city has an accent.

You think the "Apple Scrapple Festival" is perfectly normal, except for all those granola-types running in the 5K race.

You think, maybe, just maybe, you might get a white Christmas…? Then it rains.

The highest point in town is a rise on the golf course.

The local paper covers national and international headlines on one page but requires 6 pages for sports.

Your local paper puts winners of the Fire Prevention essays contest on the front page.

You talk of northern Delaware and the entire Eastern Seaboard as "above the canal."

You know if another Delawarean is from southern, middle or northern Delaware as soon as they open their mouth.

After the Dairy Queen opened, people waited in line for hours to "try something new." This went on for months.

The opening of a Wal-Mart was declared by your mayor as, "The most exciting thing to happen in Western Sussex County in 50 years."

Of course, some of these bits of local knowledge apply to many other places in this country. Even so, we think living here is something special, since it’s not likely that this entire collection fits anywhere else.

For a somewhat broader perspective that includes the rest of Delaware, a version of this list appears at this site.

September 11, 2005
Anniversary

This blog didn't exist on September 11, 2001.

However, by that time Glenn Reynolds had been running his new Instapundit site for just over a month or so, and I'd been reading his posts for about two weeks.

After the terrorists did their worst that awful day, I felt compelled to write something. Glenn graciously posted the email I sent him that evening:

READER EMAIL:

About today:

I'm a deputy attorney general, and essentially act as the general
counsel for the Delaware Department of Transportation. Among other things, I've worked for several years with my counterparts in the Port Authority of NY/NJ on the EZPass project (electronic toll collection systems).

As soon as I heard of the attacks on the WTC, my thoughts went
immediately to my business friends who work for the Port Authority in Building One. There was no way I could reach them to find out how or if they made it out safely. Then I thought of all the thousands of others, with similar thoughts about the thousands of people they know who work or live in the same area.

The "six degrees of separation" that connect so many Americans may not be fully appreciated by those not of this country. It'll be one of the reasons we come together fairly quickly as a people to react in strong, measured ways to this newest outrage.

My office is near Dover AFB, which went to Delta level along with all the other military bases. State employees were dismissed early, and as I drove by the base I was impressed at the line of cars of AFB staff lined up to enter the base for duty on short notice. It was obvious that many were interrupted in the middle of living their lives according to the normal peacetime routine. It was also obvious that these people know their duty and are prepared to follow through.

Some good will come of this eventually, I'm sure. It's just an awful
price to pay.

I believe that my prediction turned out to be correct. Much good came from the nation's reaction to 9/11, and much good remains to be done.

It also remains an awful price to pay, however, and I can't easily imagine ever saying it was worth it.

UPDATE: Here are two noteworthy 9/11 memorial videos. The first one is by Mr. Snitch, a New Jersey blogger, and the second one is by Blue Man Group, which I've recommended previously.