Freedom To Traipse and the Right to Exclude

26 08 2016


Consider this dude.

Wrought iron fencing, all in, costs about $40 per foot in Chicago, which means this astounding maniac spent about $800 just for the materials to build this thing. He spent a sweltering summer morning on his hands and knees, grunting and sweating, pounding measuring stakes into the ground, mixing and pouring concrete, letting out pained creaks and moans, all the while muttering about his rights, like if spite could watch pornography. Fueled by some unfathomable perceived slight, powered by a mantra I imagine was along the lines of “I’ll show them,” this anti-social, joyless local slowly, meticulously closed in this trivial patch of parkway in such a way as to ensure nobody could enjoy it. Enjoy it–hell, cross it. Use it.

It has a gate! This four-plus-foot-high-wrought-iron fence has a gate. The cost of putting in the gate and the additional materials cost actually puts this thing up closer to $1,000. One thousand dollars united states.

I instantly regret putting that photo up top. Because if I’d said to you, “imagine some busybody lunatic with an extra $1,000 and seemingly endless spare time built a four-foot-high, gated, wrought-iron fence around an eighteen square foot patch of land he did not own,” you, as a sane person, would have said, “Oh, Ramsin, hey–based on all the facts I have so far, it’s obvious that within this fenced-in-area is a decadent garden to shame Babylon, so fragile and delicate in its elegant composition that any foreign interaction could result in a Ph imbalance that would threaten the indisputably valuable fauna that, after all, would require such extensive security measures.”

Only then, for maximum hilarious contrast, would I show you this:


Like building a moat around an above-ground pool

Only if a truck, on its way to deliver boring furniture to a downscale dental office had hit a bump and a few pots of dreary waiting room plants had splattered on the side of the road could this “garden” have taken less effort. This fence guards little more than the homeowner’s weaponized rage, turned outward at a world that demands he share.

Some background could help. In Chicago, since we have so much room (and so many cars) most non-arterial roads have a strip of land, usually grassy, between the sidewalk and street called the Parkway. The Parkway is owned by the City but must be maintained by the property owner. In exchange, the City in practice looks the other way when property owners make permanent modifications to the strip of Parkway in front of their property. Some people just mow it. Some people put in turf or gravel, or plant little flower or vegetable gardens–some even sort of mildly enclose it, to protect it (or to spare themselves the constant upkeep). All reasonable consideration for the impressed labor of tending the land.

In Anglo-American law, property rights are often spoken of as comprised of a “bundle of sticks” or “bundle of rights.” There are varying ways people describe the sticks in the bundle, but the basic version is that property ownership entails five or so component rights. The use right, the benefit right, and rights of alienation, destruction and exclusion. Chicago homeowners actually hold one of the sticks over Parkways–the right to use. (They also arguably hold a benefit right, since they can grow food and flowers and stuff on it).

Perhaps the most important right, and the one people most strongly identify with property ownership, is the power to exclude. If you can exclude people from land, that place is truly yours. People can buy and sell it, but if you can keep them off of it, they’re just pushing paper around.

The City does not afford that right to homeowners over the Parkway, the right to exclude. It would defeat the purpose; the whole point is that people need to access the sidewalk from the street, particularly if you park on the street. Thus even if homeowners had a right to exclude, the public would have an easement to cross it. This is something that has penetrated into the folk understanding of the law in Chicago too–when I was a kid, I remember playing on the side of the street, and hearing kids respond to ornery people telling us to get off their grass that we were allowed to play “in the easement.”

This is all by way of saying, what the good god damn? What the hell dude? C’mon now. The only purpose this guy had in putting up this fence was to force a right on the world he did not have. Look I’m not unreasonable. There are certainly reasons to put up some kind of barrier. I walk a very energetic dog who has strong feelings about her under-paw cleanliness after she poos. If someone has put care and attention into maintaining the parkway for the benefit of us all, I will steer her away, as do I assume nine out of ten people who pass by. Even a small barrier suffices to plead the courtesy of passer-by.


A lovely, large garden nobody is disturbing

And I understand that this dude is on a corner lot next to an alley, so probably had nitwits driving over the corner of his land, creating over time one of those depressions in the land that causes rain water to pool. Okay, so maybe a foot-high fence with a little reflective garnish to induce greater care from motorists. That would do the trick. This, however, is nasty–and it’s done not within the letter of the law, but in defiance of it. It is claiming an entitlement that does not exist.

Yes, to some degree, I’m the nitpicking jerk too insistent on the letter of the law. I’ve had a number of streetside arguments with homeowners who have tut-tutted at me and my pup when she darts into a Parkway despite a “keep dogs off grass,” sign. But property owners’ sense of ownership over the public elements of the neighborhoods they live in actually has repercussions.

In some Chicago neighborhoods, property owners are considering banding together to fund private security forces to patrol the neighborhood. (Writ large, the University of Chicago, a private institution, commands the third-largest police force in the state.) This Request for Proposals for private security patrols in the West Humboldt Park Special Services Area (“SSA”) #36 calls for “both unarmed guards and armed guards/off-duty police officers,” to patrol the neighborhood 32 hours per week. A similar proposal has been debated for the more affluent Wicker Park neighborhood. Special Service Areas are tax overlay districts that assess a special tax to fund services within the geographic boundaries of the district. SSAs are created by ordinance, governed by Mayoral appointees, and managed by private contractors, similar to homeowners’ associations.

An armed force answerable to a hyperlocal quasi-government with the mission of protecting space rather than people is, in essence, an instrument of exclusion. A private security force gives local residents a unique power over the public space of a neighborhood, the de facto power to exclude people from the neighborhood. It’s the potential of a wrought-iron-fence-cum-Frankenstein’s-monster, an animated exclusionary tool that keeps unwanted people from moving freely through intimidation or the threat thereof.

Private security for SSAs are not new–Marquette Park, a long-time Eastern European working class enclave on Chicago’s South Side, instituted one back in the mid-90s. What was interesting about the Marquette Park SSA force, and other similar efforts (such as the one in West Humboldt Park) is that they are not, as one would expect, a feature of white ethnic fortress mentality. During the debate over the Marquetta Park SSA, white liberal aldermen raised questions about bifurcating policing, but some black aldermen supported the idea, given the bleeding over of gang crime from poorer neighborhoods into middle class black enclaves on the South Side in particular. In fact, at the time of the creation of the Marquette Park force, it was one of the more diverse community areas in Chicago–split about 40-30-30 white, Latinx and Black in 1990. Private security over public space was a tool of the gentry against the underclass.

The desire to exclude has as much to do with outsiders, whomever those people are, as anything else. In North Side, predominantly white neighborhoods, we know well who will be treated as inherently outsider–people of color, particularly young black men. In South Side, predominantly Black middle class neighborhoods, it will be “those kids,” from the next neighborhood over, from public housing complexes, in janky cars or wearing the wrong kind of clothes, or just someone the folks on the block don’t recognize. This last stick in the bundle, the right to exclude, whether through physical or psychological barriers, defines who truly owns a place. But we all own sidewalks and streets (and Parkways) in common, whatever the neighborhood. A freedom to traipse through any neighborhood is what makes our city as a unitary community. Absence of that freedom is a step towards Balkanization.

People want and deserve a sense of security on their block. It is unseemly for a relatively healthy young(ish) man like myself to pass judgment on people who feel unsafe walking home at night. It’s unseemly for a renter like myself to pass judgment on a homeowner who has tirelessly tried to maintain the Parkway in the face of repeated drive-overs and dumped garbage. But the answer can’t be exclusion. We can’t list towards giving people that stick  unless we’re prepared for its use in regular bludgeonings.

This wrought iron embodiment of mean-spiritedness augurs poorly for what the landed classes will do to neighborhoods with some extra cash and the wrong mentality.

Affordable Housing Through More Wealth Concentration!

13 11 2015

Housing means a lot. Where you live can often be your destiny. It may determine everything from your physical and mental health, to your education and earning power, to your understanding of the world around you.

Housing also means wealth. There was much jubilation from some quarters when it was posited that the persistent inequality posited by Thomas Piketty in Capital could at least in part be explained by the value of housing as wealth.

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1789 to 2014: Letter from First Comte de Intelligencer JEAN CHAIT to His Excellency’s Minister of Finances Necker

12 09 2014

From the Desk of the First Comte de Intelligencer JEAN CHAIT

26 August 1788

Dearest Friend Necker,

I received with some distress your note of 24 August, wherein you expressed concern that the People, faced with privation, an obtuse system of justice, and an obdurate policy of foreign adventurism, have nominated as their Spokespeople certain Parties and Individuals, who express the most radical and Unserious theories and speculations on Politics and Government, and who would, in your view, seek to depose His Majesty the King Louis XVI, father of the French people, protector of the Frankish and Norman realms, and fruit of Bourbon tree.

It is my pleasure therefore to set your concerns at ease. These Radicals are indeed Unserious; and lack a basic understanding of how the Bourbon system works. What does it mean to oppose in His Royal Body the King Louis XVI? The presumption that vociferous opposition to His Majesty, and his Court, would affect some meaningful change in the Government and Politic of France and the Bourbon lands betrays a childlike unseriousness in those critics who would crown themselves leaders of the masses.

Are they aware, these radicals, philosophes, and vagrants, of the nature of the French state? Composed as it is of dozens different administrative regions, more recently divided into generalities which have yet to develop administrative authority of their own? Do they imagine the interests of a Breton to be coterminous with the interests of an Angevin? Or Poitanne? Is the King merely to give speeches on vulgar hustings, would this set in harmony the disparate dukedoms, bishoprics, freeholds and cities, that daily and for centuries have struck different notes from church towers, fields, and castle walls?

How precisely do they expect His Majesty to impose a uniform system of so-called constitutionalism, where he can hardly exercise his will over the freeholders and minor dukes of Rodez or Armagnac? With over 47 provinces, and as many or generalities, responsible for taxation often in conflict with the local Duke or provincial dynasty–is His Majesty to wave his hand and bring “tax fairness” to all these places, as though these Men and their Kin do not exist? No man knows better than yourself, My Dear Necker, despite your Swiss heritage, that His Majesty, and his Bourbon Forebears including le roi soleil, have often to dragoon payments of tax, or wheedle gifts from the Church, merely to finance the Royal Household, much less to provide for any national administration of justice.

And of justice!

These wild-eyed radicals point to the Body of the King, and cry for equal justice–the King’s justice–betraying what can only be a naive understanding of how the Justice of the Realm in fact operates. Do they envision the King sits as seigneur judge from Normandy to Provence? Provence, where there is still in use by the low and middle courts code systems of law derived from the Roman Empire, the time of Casear? And Normandy, where the common law, through years of vassalage to the English Crown, administers yet the system of writs and common law to be found in that dismal island?

Are they so insular, these Heretics and Rabble-Rousers, that they fail to know the plight of the common subject who seeks justice, often spending years between seigneurial courts, ecclesiastical courts, and bailliages and sénéchaussées, before their cases can even be heard? And yet, they say, our complaint is with His Majesty, for not administering justice evenly.

These same charlatans sing their song of woe for the dignity of the urban artisans, decrying the immiserated condition of the ropemaker and brickmaker and ferrier. They decry his lack of power in bargaining with his masters and municipal and noble purchasers of the fruits of his labor.

Do these Poseurs, Charlatans, Criminals and Emos assume an impossible longevity in His Majesty, that it was he that authored the Ordinance of Villers-Cotterêts in 1539, which ancient document in its Article 185 states unambiguously,

Que suivant nos anciennes ordonnances et arrests de nos cours souveraines, seront abattues, interdites, et défendons toutes confrairies de gens de mestier et artisans par-tout notre royaume.

In other words, that all Associations and Confraternities of artisans and professionals are prohibited to combine or withhold, in concert, their labor? Is the King to treat the Ordinance as mere paper–the very contempt for Law about which these self-styled Philosophes at once mewl?

My Dear Friend, in other words, these Men are precisely those about whom His Majesty–and your Excellency–needn’t worry; precisely because they are Unserious, and lacking totally in the Savvy and Elan that marks those of us who have made careers as keen observers of a system which works within a slight percentage of perfection–a system which, organically emerged over centuries of careful compromise, is the Best of all Possible Governments, in the Best of all Possible Worlds.

Yours in Self-Awareness,


Six Months in Chicago

18 08 2014


(image via NBC5-WMAQ)

For six months in Chicago, there may be a rare, once-a-decade opportunity to get some answers. If that sentence seems magniloquent, that’s because I had to start big since the subsequent sentence is, “That opportunity is the 2015 Chicago municipal elections.”

That opportunity is the 2015 Chicago municipal elections. Chicago is defined by confluence; in the first instance, literally, as sitting at the confluence of Lake Michigan, the Chicago River, and the Chicago Portage, the connection between the Great Lakes and Mississippi watersheds. Soon after, the nation’s railroad flowed together there; now, it’s the confluence of the nation’s air travel and trucking. Today, it is also a confluence of some of the country’s biggest challenges.

Income inequality, gentrification, rising housing costs, under-resourced schools and creeping privatization, under-served mental health services, police brutality, street crime, segregation, environmental justice, exploitation of undocumented workers, police militarization, un- and under-compensated care work, wage theft, unemployment, over-crowded jails, hyper-criminalization, lack of government transparency, and crumbling infrastructure. These issues intersect on the orange-lit streets of the Great American City. Chicago is a beautiful city and livable city. It is also suffering.

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A Civil Action for Deprivation of Rights

14 08 2014

§1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In Monell v. Department of Social Services of the City of New York, the Supreme Court held that local government units are to be included among those persons to whom Section 1983 applies.

In Pembaur v. City of Cincinnati, the Supreme Court found that a single decision by
a local “final policymaker” triggered Section 1983 liability under Monell, even if the decision was not intended as settled policy (i.e., it was an ad hoc response).

In Tenney v. Brandhove, the Court settled and delineated two types of
immunity under Section 1983: qualified and absolute. A defendant-official is entitled to qualified or absolute immunity turns on the act being challenged, and not the office held by the public official.

Officials performing non-ministerial functions are shielded from liability if they can prove that “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity requires first that the plaintiff show that a constitutional right would have been violated on the facts alleged; and second that the right was clearly established. (Saucier v. Katz, 533 U.S. 194, 199-200 (2001)). Qualified immunity is pled as an affirmative defense, meaning the defendant must admit the truth of the events as pled by the plaintiff.

In Fordyce v. City of Seattle and Smith v. City of Cumming, appellate courts recognized the rights of the public to record matters of public interests (in particular protests) and the activities of police. City of Cumming was brought under 42 USC § 1983.

Case law suggests a public official (including police) need not be particularly identified in a complaint for violation of civil rights under § 1983, despite the higher pleading standards following Ashcroft v. Iqbal, 556 U.S. 662 (2009). See in particular, Stevenson v. City of Seat Pleasant, 743 F. 3d 411 (4th Cir. 2014).

There is no respondeat superior liability under § 1983. Typically, individual officers are insured, and departments or cities are involved in the litigation by a proving up of failure to supervise or negligent policy-setting, etc.

Happy Hunting.

How We Made “Innocent Until Proven Guilty” into “Guilty Unless Proven Innocent”

1 08 2014

It was fairly simple to invert the Anglo-American legal doctrine of “innocent until proven guilty.” In large counties in the United States, as many as 80% of those accused of felonies are represented by publicly-funded counsel. These counsel have such voluminous caseloads that in some cases, they can’t spend more than an hour on a particular case. Because the Sixth Amendment guarantees all criminal defendants effective counsel, these defendants can challenge their conviction on the grounds that their public defender didn’t have appropriate opportunity to raise a vigorous and effective defense.

However, the Supreme Court held (in Strickland v. Washington) that in order to vindicate the Sixth Amendment right to effective counsel, a defendant must (a) first wait until they are convicted; (b) prove up that the counsel was professionally unreasonable; and (c) prove up that the ineffective counsel was “prejudicial.” In other words, they must prove (as the Court held subsequently Harrington v. Richter) that the likelihood that they would have prevailed given effective counsel was “substantial.”

In other words, the default situation, given the reality of overloaded public defenders, is ineffective counsel–because, in reality, very few private defense attorneys would spend just a couple hours on a felony rap–which can then be remedied by a showing of likely innocence.

Just how overloaded are public defenders? The American Bar Association, as of 2011, recommended that public defenders handle no more than 150 felony cases per year. As of 2010, Cook County public defenders were handling an average of 235 felony cases.

Even assuming the state is only charging slam-dunk cases (a reasonable assumption, given prosecutors are often overworked as well), this basically guarantees that hundreds, if not thousands, of criminal defendants are not getting effective counsel every year.

The courts, in not recognizing the reality of underfunded public defense programs, are guilty of a cynical formalism that brushes aside the Sixth Amendment’s letter and spirit: that when faced with the machinery of the state, every citizen is presumed innocent. It is facially reasonable to require a defendant to prove on appeal or via collateral attack that effective counsel would almost certainly have made a difference (i.e., to prove a substantial likelihood that they would have prevailed). In reality, though, it means that indigent defendants, significantly likely to receive ineffective counsel, enjoy only an adulterated presumption of innocence.

The Conversation the Members of Jade Had With Each Other When They Got an American Apparel Catalog

31 07 2014

INT. Two Bedroom Condo. Murano Glass, framed record covers, wall-art made with wrought iron and depicting a musical staff and notes. JADE 1 enters, carrying her MAIL, including a CATALOG. It is an AMERICAN APPAREL CATALOG. She also carries some GROCERIES, in a paper bag, and her SUNGLASSES are stuck loosely into her hair. Stumbling, she drops everything down on the dining room table, a simple glass-top table supported by cheap metal-tubing legs. JADE 1, exasperated, plops onto a chair, lets out a tired sigh. The AMERICAN APPAREL CATALOG catches her eye. Thoughtlessly, she flips through it. Her eyes widen. At that moment, her BLACKBERRY rings. She picks it up and looks at the caller id; it’s JADE 2 and 3 in a conference call.


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