Here, a property manager thought that the level of short-term traffic coming to and leaving from Baumann's apartment was odd and suspicious.
…
Although neither the manager nor Detective Buetow determined how many people would constitute a "high amount" or a "high volume," or what length of time amounted to "short term" or a "short amount of time," these characterizations were expressions of activities and circumstances the manager actually observed. From those reported facts, Detective Buetow, a trained narcotics investigator, drew an inference that there might be illegal drug activity occurring in the Baumann apartment, and he arranged to confirm the inference through a dog-sniff search.

Here's the sad part about this throwaway case from Minnesota: The dog sniff that was supposedly based upon "reasonable" suspicion was only of the common hallway; it was not the basis for entering the defendant's apartment (until after the dog alerted in the hallway, of course, resulting in an otherwise valid search warrant for the apartment proper).

But why should any quantum of suspicion be required at all for the owner of private property (through his agent) to authorize a search of his premises? Why go through the motions of "getting to reasonable suspicion" (and debasing the standard in the process) when no suspicion whatsoever is required in the first place?

A tenant "buys" a certain amount of privacy when she enters into a lease. That's capitalism. But unless the lease specifically covers common areas such as hallways, then such areas remain under the control of the landlord, who should be able to invite law enforcement onto the non-exclusive areas of the premises for any reason, or even for no reason at all. To the extent that Minnesota law says otherwise, Minnesota law is a ass.

I'm of course not defending sniff dogs — not even close. Nor the War on Drug Users. I don't even like the reasonable suspicion standard, which itself reflects an insolent disregard for the plain text of the Fourth Amendment.

What I'm defending are simple, straightforward, self-apparent principles of property law. (And of contract law: If you want a warranty that there will be no invitations to bring sniff-dog into common areas, then negotiate for it in the lease.)

The case is State v. Baumann, 2009 Minn. App. LEXIS 20 (January 13, 2009) (PDF – 9 pages). Via FourthAmendment.com.

Previously:
–If You Need "Rights," Then You Don't Deserve Them?
–Doesn't the Fourth Amendment Generate Heat Too?
–If, By "Probable," You Mean a 5% Chance…

One long-standing "reasonable accommodation" that long predates the ADA is of course exempting seeing-eye dogs from "no pets allowed" policies. "Greedy" businesses realized, without any coercion from the government, that it was smart (i.e., profitable) business policy to allow these well-trained animals onto their premises.

But as the ADA expands the definition of a legally cognizable "disability" and thereby throws open the doors to bureaucrats to redefine what is a required accommodation (reasonable or otherwise), is it any surprise that the universe of proposed "service animals" has expanded, indeed exploded, beyond the traditional seeing-eye dog?

She gripped a leather harness — like the kind used for Seeing Eye dogs — which was attached to a small, fuzzy black-and-white horse barely tall enough to reach the woman's hip. The woman, Ann Edie, was simply blind and out for an evening walk with Panda, her guide miniature horse.

And that's just the beginning:

What’s most striking about Edie and Panda is that after the initial shock of seeing a horse walk into a cafe, or ride in a car, watching them work together makes the idea of guide miniature horses seem utterly logical. Even normal. So normal, in fact, that people often find it hard to believe that the United States government is considering a proposal that would force Edie and many others like her to stop using their service animals.

But that's precisely what's happening, because a growing number of people believe the world of service animals has gotten out of control: first it was guide dogs for the blind; now it's monkeys for quadriplegia and agoraphobia, guide miniature horses, a goat for muscular dystrophy, a parrot for psychosis and any number of animals for anxiety, including cats, ferrets, pigs, at least one iguana and a duck. They're all showing up in stores and in restaurants, which is perfectly legal because the Americans With Disabilities Act requires that service animals be allowed wherever their owners want to go.

But that's only assuming that the animal in question is indeed a legitimate service animal and that accommodating it would be "reasonable."

All that is really happening here is that people, both property owners and other patrons, are rediscovering the reasonableness standard and insisting that it be revived. If we can't have full property rights (including the highest of all property rights: the right to exclude), then can we at least have the right not to accommodate unreasonableness?

One would hope that the public at large — including the disabled themselves — would be reasonable in their demands without prompting by the government. But one would also hope that people would refrain from committing crimes without prompting from the government. Unfortunately, hope isn't enough. So instead our criminal, civil and regulatory laws adopt the objective "reasonableness" standard: What does and does not make sense, not to any particular person, but to a (hypothetical) reasonable person. If we're not going to have strong property rights (sigh), then we at least need objective standards, so property owners can plan accordingly.

The opponents of guide horses and service iguanas have it exactly right: It's time take back reasonableness from those anti-property malcontents who have hijacked it.

(Via Marginal Revolution.)

—

Elsewhere:

One fighter in a burgeoning army of crusaders for disabled access, [Thomas] Mundy says he has filed more than 150 lawsuits in 18 months demanding damages from small businesses in violation of the exacting requirements of the Americans with Disabilities Act.

Suing for ADA noncompliance has become a cottage industry for dozens of disabled Californians who have taken on the role of freelance enforcers of an often ignored federal statute. They secure piecemeal correction of offending premises and often enrich themselves and their lawyers in the process.

I briefly noted a similar story in a recent Questions post, before the Mundy article made the rounds of the libertarian blogs.

As for Mundy's relentless nuisance lawsuits, keep in mind what I observed in a comment over at Popehat:

This is reminiscent of California's Unruh Act, which mandates a minimum $4,000 civil award for any incident of illegal discrimination, no matter how slight.

Is it any wonder, therefore, that there are, e.g., men in California who actively seek out "ladies nights" at bars for the sole purpose of filing Unruh claims, or law firms that specialize in Unruh litigation (i.e., ambulance chasing)?

If you subsidize something, you get more of it. Including unreasonable litigation over what was originally meant to be a law about "reasonable" accommodations.

Previously:
–From the Archives: Is the eHarmony eLawsuit eFrivolous?

Some have argued that a long-term reorganization is simply not possible (i.e., because no one would buy a car from a company in Chapter 11). That debate is worth having (I think the claim is absurd), but one way or the other it has nothing to do with the fact that Chapter 7 liquidation is not being seriously suggested by anyone.

Armed with that:

In the summer of 1956, the once-mighty Packard Motor Car Company closed its doors. Its headquarters and chief production complex still stand here, though, and their slowly decaying remains serve as a symbol for the fall of American manufacturing in general and the degradation of the auto industry in particular.
…
Since Packard's departure, there have been attempts to use the plant as an industrial mall, and at times dozens of small and medium-sized businesses operated within its walls. Today there is only one small firm remaining, a chemical processing concern. The City of Detroit and a private company have been fighting a long legal battle for ownership of the complex.

The rest of the op-ed, by a columnist for the Detroit Free Press, is a detailed and dismal description of the mammoth site:

Almost all the windows in the four- and five-story buildings — thousands of them — are broken. The bricks and masonry are crumbling, and two large enclosed bridges that soar over streets are falling apart. Part of one of the large passageways recently collapsed onto Bellevue Avenue, and still sits there, blocking the street.

To which my response is, in fact, "Amen, Brother!" Because the parable of Packard is precisely why the government should not entangle itself in the Big Three (or with any other distressed business).

When property has no clear owner with clear control, then decay is a given. A commons will inevitably deteriorate and ultimately collapse — either due to overuse (too many cows grazing) or underuse (too many lawyers suing).

Fast forwarding to today, recall what the bailout debate actually entails: Who is now, and who will be, responsible for the Big Three? Investors and the executives they hire? The UAW? The federal government's proposed "car czar"? Whoever controls the companies will, in essence, own them. Yet if no one has clear responsibility for the Big Three, then no one will have clear ownership of the operations, and no one will have a clear incentive to maintain the firms and their facilities. It is precisely the intervention of government that could end up turning the entire Big Three territory into a giant industrial wasteland, just as it was the intervention of government that keeps the Packard Motor Company plant a ghost town to this day.

Of all the bad alternatives, the absolute worst would be to turn the Big Three into a government-controlled commons.

—

Elsewhere:

Kill the car, kill the country. History will show that when America was on its knees, a handful of lawmakers tried to cut off its feet. And blame the workers. How suddenly did the workers — a small percentage of a car's cost — become justification for crushing an industry? And when did Detroit become the symbol of economic dysfunction?

When? Might I suggest, as Mitch Albom's colleague at the Detroit Free Press posits, "the summer of 1956"? (Via Fark, where the commenters rip Albom's bratty whinefest to shreds.)

—

Need another analogy? Fannie Mae has announced that it will not evict renters from the foreclosed properties in its portfolio — the move "will effectively transform Fannie Mae — a government-controlled mortgage finance company — into a national landlord." This will no doubt generate lots of warm fuzzy feelings, but will do little to help unwind the government-spawned entity's troubles.

—

Finally: Why oh why have the people at the Ayn Rand Institute not released "The End of the Twentieth Century" as a pamphlet or easily accessible webpage or something? What a golden opportunity they're squandering.

Under federal law, an array of civil rights statutes are available to protect individuals from discrimination. This report provides a brief summary of selected federal civil rights statutes, including the Civil Rights Act, the Equal Pay Act, the Voting Rights Act, the Age Discrimination in Employment Act, the Fair Housing Act, Title IX of the Education Amendments of 1972, the Rehabilitation Act, the Equal Credit Opportunity Act, the Equal Educational Opportunities Act, the Age Discrimination Act, the Civil Service Reform Act, the Immigration and Nationality Act, the Americans with Disabilities Act, the Congressional Accountability Act, and the Reconstruction Statutes.

The 12-page report is a quick and easy read and a good reference piece.

As the debate over the Employment Non-Discrimination Act (either with or without transgenderism as a protected status) returns to Congress (and the blogosphere), libertarians will again face the conundrum they have not always negotiated well in the gay marriage debate.

To pine for a freedom-drenched utopia where government intervention regarding invidious discrimination in private affairs is neither authorized nor needed (e.g., where there would be a "right to be a racist" but with few or no racists seeking to invoke such a right) misses the reality-based point: We don't have such a utopia now, nor will we achieve it any time soon. These various civil rights laws exist, including the ones that infringe upon property rights and freedom of contract (the ones that prohibit discrimination by the government itself are, all libertarians should agree, not only legitimate but also desirable).

The question for libertarians therefore becomes: Taking these laws as a fact, as an external constraint that we may disagree with, do we then embrace the quest to make these laws as sensible, consistent and reflective of other desirable principles (i.e., equal protection) as possible (i.e., by adding sexual orientation to the list of protected classes)? Or do we close our eyes, put our hands over our ears and chant loudly, "Not a state actor! Not a state actor!"?

If you're going to have a law, even a law you'd rather not have, then you might as well craft it right.

Previous CRS Recommendations:
The South Ossetia Conflict
Congress and the States
Political Activity by Tax-Exempt Institutions
The Law of Church and State
Constitutional Limits on Hate Crime Legislation
Same-Sex Marriage — Legal Issues
Saudi Arabia
The National Debt
Restricting Video Game Sales to Minors
Warrantless Wiretapping
Foreign Holdings of Public Debt
China's Internet Censorship
Summary of Rumsfeld v. FAIR

When Gary Khera, went with his wife to the Union Mission on Roanoke Avenue to make a donation, a staffer asked him to remove his turban.

"She said, 'Sir, you have to take your turban off. This is the United States,'" Khera recounted. "That made me a little upset. I am a United States citizen."

Khera, citing his religious beliefs, declined.

The issue here is of course not whether private owners of private property have the right to demand a certain conduct on their premises. The staffer was, bottom line, correct: This is indeed the United States.

The issue is instead the sacred pursuit of mocking the mockworthy and never passing up an opportunity to expose religious hypocrisy or stupidity. A Christian charity placing mindless dogmatic formalism over its actual function, and doing so by insulting another person's religion in the process? How much more robotically brainless can people be? (Or stated differently: What would Jesus do?)

More:

The mission building contains a chapel, and employees consider the entire building "the Lord's house," Weeks said. A sign in the lobby outlines the policy against hats or other headwear inside.

I've never understood this "Midas Touch" attitude that some religionists subscribe to — the bizarre insistence that everything the congregants do must be done as if it were being done in a church (i.e., completely in accordance with all the assorted rules and taboos) or not at all. Doesn't confusing the charity office with the chapel dilute and debase the chapel rather than sanctify the charity office?

(This is the same argument I make regarding Decalogues in government buildings: aren't the theocrats doing the Ten Commandments a disservice by capitulating in openly and notoriously declaring that a Decalogue is a "mere historical symbol" no more solemn and sacred than, say, the Code of Hammurabi?)

It's quite simple really: A church is a church, but a charitable mission is not. Neither is a hospital, a pharmacy or an adoption agency. Either climb down from your altar-pedestal-mountaintop — or stay locked up in your sanctum sanctorum, pat yourself on the back for your God-fearing obsession with purity, and let the rest of the world get on with its affairs.

Previously:
–Who is "Shutting Down" Catholic Charities?
–On Compulsory Pharmacology
–Thou Shalt Have No Other Paycheck Before Me

After being dealt a rare public embarrassment by the City Council, which forced his administration to acknowledge on Monday that he was legally required to send out $400 rebate checks promised to hundreds of thousands of New York homeowners, a defiant Mr. Bloomberg said on Wednesday that he had no plans to release the money.

At a news conference, Mr. Bloomberg described the rebates as "up in the air." Asked what he would tell homeowners who have been depending on the money to pay bills or buy holiday gifts, he responded: "Plan for the worst, and hope for the best."

When pressed, the mayor said: "I just answered your question. You just don’t want the answer."

To be clear, I have always been and continue to be adamantly against the rebate, which is nothing more than a stealth layer of progressivity quietly superimposed upon property taxes.

But that's not the point — this is: The rebate law was duly enacted and its terms are unambiguous — even the mayor's office admits that there is no bona fide dispute on that question.

And still Bloomberg tells the City Council, and taxpayers, to go screw themselves. He'll do whatever he damn well pleases — because, in case you forgot, he's in charge.

This is the most unrepentant display of unbridled anti-taxpayer political hubris I've seen since Alaska Representative Don Young's infamous "my money, my money" tirade on the House floor.

But if anyone can "out-Young" Don Young, it would be the insufferable Michael Bloomberg. As chronicled in the Times exposé (and of course on this blog), Bloomberg never hesitates in, and indeed seems to enjoy, dismissing his constituents as whiners, obstructionists — or just plain idiots.

So I ask again, in the wake of Bloomberg's recent, dishonorable end-run around term limits: four more years of this?

The "Best" (i.e., Worst) of Bloomberg:
–NYC's Tax-and-Spend Microcosm
–"Just Plead Guilty"
–Bloomberg: "Poor Get Better Health Care Than Rich"
–Bloomberg Decries Tax Breaks for Opponents While Championing Them for Supporters
–"Be Glad We Don't Take It All"
–Latest Bloomberg Election Stunt: Senior Rents
–Bloomberg: Ban Campaign Contributions by Businesses
–Still Think Bloomberg's Not a "Typical Politician"?

By sheer coincidence, word has come down that New York City's out-of-control Landmarks Preservation Commission continues to justify its own unjustifiable existence by finding new sharks to jump:

Silver Towers/University Village, three concrete towers designed by I. M. Pei that were part of Robert Moses's vast urban renewal program for Greenwich Village, was one of seven landmarks officially designated on Tuesday by the New York City Landmarks Preservation Commission.

The six other newly designated landmarks include aluminum-clad low-rise office building by Skidmore, Owings & Merrill and a late 19th-century cast-iron commercial building.

Here are pictures of the more absurd designations. I dare anyone to make the case that these structures are either aesthetically pleasing or historically relevant to the point where their owners should be stripped of their property rights over the structures:

Silver Towers / University Village
(a/k/a "Ode to East Berlin")

Morris B. Sanders Studio and Apartment
(a/k/a "Ode to a High School Gym Shower")

Fire Engine Company No. 54
(a/k/a "Ode to Gaudy Banners Hanging from
Supposedly 'Historic' Red Brick Face")

A state appeals court ruled Wednesday that a western Pennsylvania township violated constitutional protections in forcing a sexually oriented business to close on minor holidays such as Flag Day.
…
The video and book store, Adultland XXX, faced the prospect of being shut down for a year because it conducted sales on Flag Day 2006. It previously was cited for opening on Columbus Day 2005.

The township has invoked an 1893 state banking law to determine which holidays require the business to be shuttered, but the 19th century law is not specifically mentioned in the ordinance.
…
[The store's] attorney Joseph T. Moran said the ordinance's vagueness violated state and federal constitutional due-process rights.

You take whatever victories you can get, I suppose. And I'm a big fan of the void for vagueness doctrine as a general check on excessive government infringement on liberty.

Still, wouldn't it have been nice if the case had been argued and decided on the (one would hope rhetorical) question of whether competent consenting adults have, or ought to have, an unfettered liberty interest in entering into private commercial transactions of whatever kind suits their fancy — including buying and selling naughty videos?

Alternatively, how about asking whether it is a legitimate function of government to single out one politically unpopular business for what is obviously a persucative restriction. Stated differently, is vindictive spite ever a rational basis, let alone a compelling one, for nullifying equal protection under the law? (Note: California gay couples need not answer that question.)

But if "void for vagueness" is the best we can get, we'll take it — until the obnoxious nanny-statist prudes of Pulaski Township, Pennsylvania, rewrite the law in a way that inactivist judges find acceptable.

The case is Boron v. Pulaski Township, No. 1555 C.D. 2007 (Commonwealth Ct. Pa., November 19, 2008) (PDF – 17 pages).

Previously:
–Fifth Circuit Says Lawrence Extends to Commercial Transactions

I own a busy cafe-delicatessen with 25 employees. All the workers except two enjoy listening to background music from the radio while they work, as do I; those two say it irritates them, gives them headaches and makes it hard to talk to the customers. I turned off the music, but most of my workers say I'm unfair. Should I heed the majority or respect the wishes of those two employees?
–H.D., NEW YORK

"Heed the majority"? In a private business owned by a private individual? Since when is a business subject to the mob rule of "democracy"?

Not to cede any ground in the battle to restore economic substantive due process, but let's keep at least some perspective here. We are not talking about minimum wage laws, workplace safety regulation, bans on bigoted discrimination or even second-hand smoke. It's a radio. Radios are not toxic, music is not a workplace hazard and anti-noise malcontents are not a suspect class.

So does our self-declared "Ethicist" tell the proprietor to tell his two dissenters to take a flying leap? That a reasonable work environment is, um, reasonable and that, even under the most oppressive anti-business labor laws, there is no such thing as a right to an unreasonable accommodation?

I admire both your concern for working conditions and your nod to workplace democracy. And while the minority should be protected from the tyranny of the majority — or else we would all be assailed by the Top 40 — here you have a supermajority, 24 out of 26, more than what's needed to break a filibuster or override a presidential veto, a near-consensus worth heeding. Are there situations when majorities are too slight to set some policies? Yes. Is this one? No.

Forgive me for being a bit sensitive to notions of "the tyranny of the majority" this week, but how dare this idiot debase the noble notion of protecting political minorities in the public arena, by applying it to a private setting where it has no legitimate applicability.

Forget the "tyranny of the majority" — what about the tyranny of the property owner? The decision should be his to make, according to whatever considerations he values most — maximizing the productivity of his work force as a whole; maximizing revenue by drawing in more customers, or just playing whatever music he enjoys most, regardless of profits.

Instead, the "Ethicist" nitpicks what constitutes a "supermajority," as if he were James Madison working on an early draft of Article I, Section 7. Good grief.

Is there no aspect of private enterprise left where an employer can simply say to his employees, "This is how it is; if you don't like it then quit"? Is there no sphere left, public or private, where feeding the rabid beast of majoritarianism is not deemed the highest possible virtue?

Previously:
–On Narcissistic Altruism

—

Elsewhere:

The Billboard Liberation Front has partnered with Wachovia to release a daring advertising campaign that celebrates Wachovia's new money management strategy. This campaign emphasizes the silver lining in the economic storm front now threatening to swamp our economy as well as our individual fiscal inner tubes.
…
The BLF has been improving outdoor advertising since 1977. Prior campaigns have included work for Exxon, R.J. Reynolds, and Apple Computers.

In case you can't decipher what these cretins are talking about:

It's quite simple really: Maliciously destroying other people's private property is not only a crime. It is not only a tort. It is evil. Pure, unconditional, uncondonable evil.

And pretending that it is not evil, but rather "cute" or "clever" or "artistic" is also evil.

(Via Boing Boing — where there is plenty of evil in the comments.)

Previously:
–Sign of the the Times (Square)

Two law professors suggest exactly that:

After vice presidential nominee Sarah Palin finished her big speech at the Republican National Convention, the 1977 song "Barracuda," by the band Heart, blared out over the roar of the crowd. Convention organizers chose the music to highlight Palin's high school basketball-team nickname, "Sarah Barracuda." But Heart's songwriters, Ann and Nancy Wilson, were less than pleased.
…
Artists have frequently spoken out against John McCain's presidential campaign for using their songs without their permission.

There are two distinct issues here. First is, as John Marshall might say, what the law is:

Almost all recording artists make their songs available for use via a "blanket license" from firms such as ASCAP (the American Society of Composers, Authors and Performers) or BMI (Broadcast Music Inc.). … The McCain campaign has continued to play "Barracuda" since the Republican convention precisely because it cleared the license for such use with ASCAP.

Second is what the law ought to be:

There is an inherent tension between copyright law — which tells us what we cannot say, sing or perform — and the First Amendment, which protects against state censorship. In this case, the First Amendment must win. Rich and varied political speech — no matter how distasteful to recording artists or their fans — must prevail and stay free.

While copyrights should be respected, artists who abuse copyright to attempt to muzzle politicians' speech are sacrificing the broader interest for their own feelings and agendas.
…
Artists' copyrights are important, but the vibrancy of our political discourse is absolutely central.

This is, of course, utter nonsense.

The purpose of copyright is not, as the authors suggest, "to help artists get paid." The purpose of copyright (and patents) is to secure private property rights.

If I create something, then it is my property — with the highest of all property rights: the right to exclude. If I choose not to exclude (i.e., to instead try to extract the maximum possible profit from my property by entering into a "blanket license"), then that is my prerogative. I may later regret that decision upon discovering that my work is subsequently used — with my contractual consent — in a way to which I later object. But that is beside the point. (In this sense, the McCain campaign is correct: they paid for the use of the songs, so more power to them.)

If, on the other hand, I value artistic control over maximum profit, then that is also my prerogative. One option is not necessarily "better" in every instance; it depends entirely on the artist's subjective preferences. And no one is entitled to suggest that "the vibrancy of our political discourse" should give anyone the authority to make the decision for me.

No one would dare suggest that a politician has a right to hold a rally on my front lawn without my permission. No one would dare suggest that a politician has a right to use my image in a campaign commercial without my permission. Equally absurd is the notion that a politician has a right (in the absence of a license) to use my intellectual property without my permission. To label respect for intellectual property rights an "attempt to muzzle politicians' speech" is insolence on a par with McCain's terrifying use of air quotes when discussing First Amendment rights.

Note however an intriguing distinction: McCain-Feingold restricts the right (i.e., of campaign contributors) to give to politicians — supposedly for the sake of "better" campaigns. The "no copyrights" proposal restricts the right (i.e., of artists) to withhold from politicians — supposedly for the sake of "better" campaigns. Whatever it takes, I guess.

The notion that individual rights can be arbitrarily revoked whenever some central planner wannabe, or majoritarian mob, thinks it would be neat-o to do so is to say that there are no individual rights, period. That way madness lies. The most straightforward mechanism to ensure "better" campaigns is to conduct them in a way that respects individual rights. And that includes property rights generally and intellectual property rights specifically. The status quo is perfectly fine, thank you very much.