Wednesday, April 22, 2015

Two conversations about constitutional rights

We have two different conversations about constitutional law. One is this hyper-technical purely legal analysis you see from lawyers and judges. The other is what really happens. So in this case, hooray, there are limits on the length of traffic stops, according to the USSC. But the other conversation says that if you get assertive about your constitutional rights in a real traffic stop, they won't let you go. Instead, you might get beaten, tazed, or shot.  The cop will likely face no consequences, just by claiming you resisted, or posed a "threat," or "he reached for his waistband." None of it needs to be true because a "reasonable mistake" is good enough. So, what good are rights if cops don't respect them and get away with violating them, day in and day out? The technological fix being proposed is video--dash cams and body cameras--and that may help, but the overriding problem is that police are drunk with power in this country. They can get away with almost anything and they know it. The can manipulate the on-the-scene situation, they investigate themselves, they have the union and prosecutors and most judges on  their side, and they are professional witnesses. Until that power situation changes, I think these USSC pronouncements are only meaningful in a small number of cases that get fully litigated. For thousands of day to day interactions between citizens and police, these "big decisions" are largely irrelevant.

http://www.scotusblog.com/2015/04/opinion-analysis-traffic-stops-cant-last-too-long-or-go-too-far-and-no-extra-dog-sniffs/

2 comments:

robert @ colorado hoa . com said...

While no analogy is perfect, a lot of what you just wrote is applicable to the relation between individual home owners and H.O.A. corporations:

- "One is this hyper-technical purely legal analysis you see from lawyers and judges. The other is what really happens."

- "So, what good are rights if [ H.O.A. corporations ] don't respect them and get away with violating them, day in and day out?"

- "the overriding problem is that [ H.O.A. corporations ] are drunk with power in this country. They can get away with almost anything and they know it."

- "Until that power situation changes, I think these . . . pronouncements are only meaningful in a small number of cases that get fully litigated. For thousands of day to day interactions between [ home owners ] and [ H.O.A. corporations ], these 'big decisions' are largely irrelevant."


Yeah, home owners allegedly have some "rights", either by contract, statute, or judicial ruling. And I hear H.O.A. activists making a big deal about this or that court ruling or law. But it's like celebrating every step taken as "progress" while running south on a northbound train.

As you told Shu Bartholomew five years ago:

(00:22:48) It's like something you would see in Nazi Germany or Soviet Russia. People think these things don't go on. But we know they go on every day in condo and homeowners associations. These people who have no idea how to use power at all. They won't even accept limits on their power. They don't even know what the law requires of them, these directors. They go by what some lawyer tells them to do, which the lawyer tells them to do only because he or she knows they can get away with it. Because the only recourse you have is some civil suit. Here in Illinois, we don't have an Ombudsman. Most states don't. There's nowhere for owners to turn. If the lawyer tells them "Oh, just jack 'em around. Who cares what the rules are? Who cares what the law says?" it doesn't make any difference. The transaction costs of enforcing an owners rights are so great that they are hardly ever able to do it. (00:23:40)

Where does that leave the home owners who are, for all practical purposes, unable to exercise the few and paltry rights they do have? There exists today a gross and unconscionable balance of power between home owners and H.O.A. corporations across our country, and neither our legislatures, enforcement authorities, or courts, are willing to address it -- much less actually do anything about it.

pvtgov said...

I'm sorry Evan, but were you talking about HOAs???