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August 19, 2013

Zero Tolerance, Zero Margin for Error

In an article about the recent stop and frisk decision, NY Mayor Michael Bloomberg makes some interesting points:

As a black Brooklyn detective with nearly 20 years on the job recently told the Daily News, “Stop-and-frisk is never about race. It’s about behavior.” If an officer sees someone acting in a manner that suggests a crime is afoot, he or she has an obligation to stop and question that person. That’s Policing 101, and it’s practiced all over the country. The difference is that in New York — unlike in many other cities — police officers are required to fill out a form every time they make a stop, identifying why the stop was made and the race of the person.


Of the 24 million interactions that New York police officers have with the public each year, about 500,000 — or 2  percent — involve a stop. The average officer on patrol makes about one stop every two weeks, hardly an excessive number.

Amazingly, out of several million stops that have happened over the past decade, the advocates who brought the case could identify only 19 stops that they believe were unjustified — and the judge disagreed with them on a majority of even those handpicked cases, finding that 10 of the 19 stops were in fact justified, even though they did not lead to an arrest. By doing so, the judge acknowledged that stops that do not end in arrest are often legitimate; those scoping out a robbery, or lying in wait of a potential victim, can be stopped and deterred even if they cannot be arrested.

Nevertheless, the judge used a questionable analysis of police officers’ paperwork, which found that only 6 percent of stops were unjustified, as a basis for imposing a court-appointed monitor to oversee the NYPD’s practice of stop-question-frisk, as well as to mandate specific programmatic changes to policing, even though she has no experience in policing.

The Editorial Staff have been thinking quite a bit lately about the power of sensational anecdotes. What we fear and what we perceive as a threat depends to a very large extent upon what we know. A good example of this phenomenon is the "Stranger Danger" moral panic of several years ago, in which the largely illusory threat of complete strangers kidnapping/killing/sexually abusing our children was fanned into flames by media coverage of a few sensational (and statistically rare) stories. The irony here is that the Stranger Danger campaign taught children and parents to fear the wrong thing:

Consider these numbers: Every day in this country about 2,000 children are reported missing. That means close to 800,000 kids are reported missing every year, but only 115 kids a year are victims of what is viewed as classic stranger abductions.

The debate over stop and frisk has some similarities to the debate over the so-called epidemic of military rape. The biggest similarity is that the only reason we have numbers on either "problem" is that both the military and the police already had programs in place to monitor, punish, and prevent abuses.

What is a reasonable margin for error for any public policy? Is something that only happens 2 percent of the time (note: this is not the number of times stop and frisk is abused, but the frequency with which the tactic is used at all), shockingly high? Certainly, that 2 percent does not reflect the percentage of stop and frisks in high crime neighborhoods, because it includes police actions in lower crime parts of New York.

So what would be an acceptable "misfire" rate for stop and frisk? That's the one question I don't see anyone asking. I suspect there's no easy answer, and yet this case was decided on the basis of numbers used to suggest that too many innocent people were stopped.

I'm not at all sure the right numbers were used.

At what point does law enforcement become an intolerable intrusion upon our freedoms? I don't know the answer to that question because, unless and until we do away with law enforcement, its true costs or benefits are invisible.

One thing I am certain of is that basing public policy on a small number of sensational stories that wouldn't be news if they happened all the time isn't a terribly good way of assessing either the risks or the benefits of our laws or enforcement techniques.

Posted by Cassandra at August 19, 2013 06:17 AM

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Comments

I'm not sure what the big deal is. I am occasionally stopped by the police, but I am never frisked.

Posted by: Man Riding Unicycle Naked at August 19, 2013 10:47 AM

Aren't you forgetting about that time in San Francisco, MRUN??
0>;~}

Posted by: Snarkammando at August 19, 2013 11:49 AM

As I heard it, SK, that was more probing than frisking.

Cass,

Gramercy for the worry about judging from rare sensational cases, but my concerns are not based on any case. If I err here, it is entirely in the other direction. I oppose this not because of some case in which it has been misused. I oppose it on principles.

What bothers me is not some contingent fact or set of cases, but the whole project. I do not like that it appears to violate the 4th, and even more I do not like the gaming of the language in order to find a way to violate the command of the 4th. It bothers me for the same reason the court's Obamacare ruling bothers me: just as the mandate is and is not a tax, depending on the convenience of the state, frisking both is and is not a search.

Whether used well or badly, powers gained by turning the law into a logical contradiction cannot benefit a free people. In the end, such can only serve the interests of those with enough power that the system bends for them.

Posted by: Grim at August 19, 2013 12:28 PM

I agree with Grim, here. It's not for the rare case of abuse vs the various *successful* S&F occasions that I am quite leery of the action. It's in the basic assumption that for the simple act of walking on the street I can be stopped and frisked. Where in this scenario is the basic tenet of American justice that we are innocent until proven guilty?

Posted by: DL Sly at August 19, 2013 01:06 PM

Grim has it right and exceptionally so. As things stand, the projects are so fluid they defy getting a grip on. Under the best of circumstances the project might be acceptable but then, unnecessary - under the worst, seemingly necessary, but unacceptable. This, I gather, is what is meant by 'on the horns of a dilemma'.

Posted by: George Pal at August 19, 2013 01:15 PM

It's my opinion that the judge crafted her opinion to suit her bias. But to be fair, it's a tough question, and brings to mind Justice Holmes' old adage:

Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure. . . .
Northern Securities Co. v. United States, 193 U.S. 197, 400-401 (1904).
Here, the "hydraulic pressure" being exercised is a society's complicated views towards police powers and race. While we expect (demand?) that our police exercise their reasonable judgment to protect society from harm, even where that protection entails a certain level of inconvenience and, yes, discrimination, that discrimination cannot be based solely upon race. While I'm inclined to accept the Brooklyn detective's explanation that these "stop and frisks" are not the result of "race," but of "behavior," I think some skepticism is warranted as well. For example: If the suspicious behavior is hanging out on a street corner late at night, which group is more likely to e the subject of a "stop and frisk:" (A) a trio of middle aged white women in business suits, or (b) a trio of young black men in Oakland Raiders hoodies and droopy drawers? The behavior is the same, but the level of suspicion generated by the two groups is much different, and reasonably so, based upon statistical data. Now dress the black men in business suits and the white women in hot pants, halter tops, fishnet stockings and stiletto heels. Which group's "behavior" will now justify reasonable suspicion? My point being is that "behavior" alone doesn't explain the disparity between the suspicion generated by one group of citizens over another. There are other factors at work, but race is one certainly of them. The question then becomes whether the race of the person is determinative of the extra scrutiny that person will receive from the police. Good luck figuring that one out, so the judicial fallback is statistics, and bad law.

Posted by: spd rdr at August 19, 2013 01:20 PM

Gramercy for the worry about judging from rare sensational cases, but my concerns are not based on any case. If I err here, it is entirely in the other direction. I oppose this not because of some case in which it has been misused. I oppose it on principles.

That was my understanding from your arguments, Grim - that in your case, you wouldn't accept the practice even if it were perfectly executed. I think that's a very different argument from the majority of ones I've seen made.

It's also one I don't happen to agree with (the 4th doesn't prohibit ALL warrantless search/seizure, but only unreasonable (a matter of interpretation) searches/seizures. So I don't think it's actually possible to definitively state that these searches violate the 4th Amendment.

I do think reasonable people can disagree about what "unreasonable" means in this context.

Posted by: Cass at August 19, 2013 01:36 PM

It's in the basic assumption that for the simple act of walking on the street I can be stopped and frisked.

That's not actually what stop and frisk says, though. That's a complete rewording (and reinterpretation) of the actual policy described in the linked article:

If an officer sees someone acting in a manner that suggests a crime is afoot, he or she has an obligation to stop and question that person.

Simply walking down the street does not suggest that a crime is either afoot, or even likely to occur.

Where in this scenario is the basic tenet of American justice that we are innocent until proven guilty?

That applies to trials. If someone is stopped, frisked, and arrested, it still applies at trial. You can't mix legal precepts that apply to criminal trial procedure to things that are not criminal trials.

This is what bothers me about this debate - people are pulling all sorts of things out that don't apply to this situation as though they were dispositive. I don't have a problem with questions or debate, but I really do have a problem with either redefining policies in ways that don't match what the actual policy says or applying unrelated concepts to the policy as some sort of test.

I'm least hostile to Grim's argument that it's an unreasonable search (hence the questions I ask in this post - is it unreasonable always and everywhere? If so, why? Is it only unreasonable if it disproportionately impacts minorities? Why do we accept disparate impact in this situation and reject it in others?). I think these are good questions and I'm interested in what you all think about them.

Posted by: Cass at August 19, 2013 01:43 PM

While I'm inclined to accept the Brooklyn detective's explanation that these "stop and frisks" are not the result of "race," but of "behavior," I think some skepticism is warranted as well. For example: If the suspicious behavior is hanging out on a street corner late at night, which group is more likely to e the subject of a "stop and frisk:" (A) a trio of middle aged white women in business suits, or (b) a trio of young black men in Oakland Raiders hoodies and droopy drawers? The behavior is the same, but the level of suspicion generated by the two groups is much different, and reasonably so, based upon statistical data.

And if that's so (and I think it is) then race is clearly far from the only criterion.

Now dress the black men in business suits and the white women in hot pants, halter tops, fishnet stockings and stiletto heels. Which group's "behavior" will now justify reasonable suspicion?

I think people are having a tough time distinguishing between racial profiling, behavioral profiling, and appearance-related profiling (which I do classify as a kind of behavior, as I did when my normally clean-cut and well behaved son dressed like a hood and found himself the unhappy object of police attention). How we choose to hold ourselves out to the world makes a statement.

My point being is that "behavior" alone doesn't explain the disparity between the suspicion generated by one group of citizens over another. There are other factors at work, but race is one certainly of them. The question then becomes whether the race of the person is determinative of the extra scrutiny that person will receive from the police. Good luck figuring that one out, so the judicial fallback is statistics, and bad law.

I don't disagree :p

Posted by: Cass at August 19, 2013 01:48 PM

I don't disagree :p
Of course you don't disagree! Because everything I offered is blatantly obvious to everyone (blind persons, perhaps, being the exception). In a free society members are permitted to "advertise" themselves to the world in (nearly) any fashion so desired. (Check me out! I'm a biker! An iconoclast! An observant Jew! A Ramones fan! Rollll TIDE!) I find it odd that those who choose to advertise themselves a being "a thug" would then find it objectionable that others should take them at face value. I mean, isn't that the whole point?

Posted by: spd rdr at August 19, 2013 02:38 PM

"That's not actually what stop and frisk says, though. That's a complete rewording (and reinterpretation) of the actual policy described in the linked article:"
From the article:
"...it means they are stopping people in those communities who fit descriptions of suspects or are engaged in suspicious activity."

"People who fit descriptions of suspects." The simple coincidence of looking like someone else and walking on the street....hmmmm. Seems to me that this is a lot of leeway and power to be giving to a small group of people.

"That applies to trials."

I'm going to have to disagree with you on this for that essential belief is the basis of the "unreasonable" clause within the 4th amendment - the basic assumption that, in the eyes of the Law, we are innocent until evidence proves otherwise, whether that evidence be to warrant a search for further evidence as proof of a crime, or within the confines of a trial room.

Posted by: DL Sly at August 19, 2013 02:40 PM

I'm going to have to disagree with you on this for that essential belief is the basis of the "unreasonable" clause within the 4th amendment - the basic assumption that, in the eyes of the Law, we are innocent until evidence proves otherwise, whether that evidence be to warrant a search for further evidence as proof of a crime, or within the confines of a trial room.

Again, the presumption of innocence is inextricably tied to the burden of proof in criminal trials of evidence "beyond a reasonable doubt". It doesn't really have anything to do with warrants, O Dark One :p

There is a very long list of warrantless searches (including health/welfare inspections in the military) that don't presume anyone is innocent. We don't require evidence "beyond a reasonable doubt" to obtain a warrant. The reason the burden of proof is so high in criminal cases is that you can be deprived of life or liberty by a guilty verdict.

In the case of a search, that doesn't really apply. At worst, you would then normally get a trial. The police don't normally kill or jail people who are searched without any further process, so the burden is lower. In fact, one of the distinguishing characteristics of legal warrantless searches is that they are either performed for the purpose of interdiction (to stop a crime) or for some other purpose not directly tied to criminal prosecution (seizing contraband in schools, for instance).

I am rapidly getting out of my depth here, as I don't even pretend to be a criminal atty online :p

But I did stay at a Holiday Inn Express last night, and did a ton of research on legal warrantless searches during the Evil Bu$Hitler years. So I know a little - not by any means everything.

Posted by: Cass at August 19, 2013 03:10 PM

One more thing, Ms. Sly.

If the police were searching people simply for walking down the street, how come there aren't more stop and frisks? There are a LOT of people walking down the street in NYC.

Posted by: Cass at August 19, 2013 03:12 PM

It's also one I don't happen to agree with (the 4th doesn't prohibit ALL warrantless search/seizure, but only unreasonable (a matter of interpretation) searches/seizures. So I don't think it's actually possible to definitively state that these searches violate the 4th Amendment. I do think reasonable people can disagree about what "unreasonable" means in this context.

Of course we can disagree about what is reasonable. What bothers me is the disagreement about what constitutes a "search" of the sort that would trigger full 4A protections.

"Stop and frisk" is not a real search, which requires probable cause and/or a warrant. The police aren't entitled to "search" someone for whom they have only reasonable suspicion. But they can "frisk" him -- which means to search him by patting him down. They can't go further than that, because they can't "search" him. But they can still physically search him, as long as they search him in a particular way.

It's a search that is not a search, for occasions when we can't meet the 'probable cause' standard but still want to search somebody. (That probable cause standard has been downgraded over the years, as we recently discussed, from an actual "probability," i.e. a probability between .5 and 1.0, to a mere substantial likelihood, i.e., .2 or .3 to 1.0.)

So on occasions when the likelihood is only .1 -- meaning that there is a 90% chance that there's no crime, but still something we can describe as a reason to think there might be a ten percent chance of a crime -- we can still search you, because the search is not a 'real' search. We're just stopping you, putting you in a humiliating position and physically patting you down to see what you've got. That's not a search at all.

That's what bothers me.

Posted by: Grim at August 19, 2013 05:23 PM

Grim I am pretty sure we are never going to agree on this one, but bright lines exist mostly on the Internet. Searches and seizures exist along a spectrum from extremely intrusive to the police being allowed to access a locked car with a kidnap victim in plain sight without a warrant (and everything in between).

The question I'm trying to get at here is, "How do we decide whether these 'searches' are unconstitutional/wrong? Are they always unconstitutional/wrong no matter the circumstances?"

If a young man sighted carrying a bomb flees into a crowd and descriptions of him vary (as they often do), who are the police allowed to stop and frisk? Is the answer, "No one"?

I'm guessing few people would go that far. It's pretty easy to think of cases where we wouldn't want to say to the police, "That's flat out unconstitutional and you can NEVER do it - ever."

Or is this wrong because we think it's being done too often, or on too flimsy grounds? That's not really an argument that it's unconstitutional per se, but more that the tactic is being overused or is not necessary. In that case, this sounds like a local matter for NYC to decide.

In these discussions, you often voice a preference for a bright line "Well, we should just hang rapists". But it's not uncommon for people to be falsely convicted of rape - is hanging people wrongly still a good idea?

Sure, it's simple and satisfying (and they're not going to be around to be inconveniently exonerated later). But is it good law? Or justice? If we falsely convict people even in the presence of legal procedures designed to protect the innocent, how is it reasonable to think allowing people simply to take the law into their own hands would be "better"? Would they not be just as (or even more likely) to make mistakes than courts and juries?

It's only "better" if you exclude all the myriad ways in which summary "justice" administered by fallible human beings unencumbered by the Bill of Rights can go horribly wrong.

I'm not sure stop and frisk is right, but many of the arguments being used against it don't strike me as correct/accurate either. I'm trying to get at the reasons. You seem to be unhappy about drawing a distinction between a full search/seizure and something less. I think your argument is that "something less" is still bad, even though you admit it's not as intrusive as a full search.

So you do seem to see the difference, but want to ban all searches - even less intrusive ones - because despite clear differences, you want to treat them exactly the same. I'm just not sure that's a great idea.

Posted by: Cass at August 19, 2013 06:17 PM

I'm not intending to admit that it's less intrusive than a full search, although I suppose in some sense it is: letting the police (or the TSA) grope your genitals is still less intrusive than letting them strip you naked and probe you digitally. However, both are affronts to the dignity of a citizen, and indeed of a human being. Before such affronts are permitted by the law, I would like to see some evidence that they are warranted -- and ideally, some authority granted by an independent party such as a judge from a separate branch of government, not just an executive privilege.

Where does that leave us in the case of terrorism? At risk. I would rather run the hazard than permit the police to shut down the city and search anyone and everything without a warrant, on the strength that one young man in the city is supposed to be hiding and might be armed (as actually happened in Boston). We'd have found him faster if citizens were out looking for him anyway; but even if that weren't true, concentrating power in the government is more dangerous than the one Boston bomber, even if he hadn't already spent his ammunition, and even if he hadn't already been badly injured.

In general I've a great suspicion when it comes to letting the state turn its intense powers inward, against the citizenry.

We probably won't agree, as you say. But I am more likely to agree where I don't see the government bending words to new meanings in court. If they can show me that they legitimately have the power from Constitutionally granted authority, I may well agree. If they can convince the necessary supermajority of citizens to grant them new authority via the amendment process, I may still disagree but will likely submit (with dark and angry mutterings) to the new affront.

But where we simply redefine a search to be a 'search,' or a tax is a 'tax,' permitted where it would have been refused on a plain and natural reading of the language... well, that I tend to reject outright.

Posted by: Grim at August 19, 2013 06:44 PM

My understanding of "stop and frisk" is that it limits the frisk to patting the outer clothing for bulges that may indicate the person is carrying a weapon (the police having a right to protect themselves, too). Find a gun, though, and the stopping officer has bootstrapped his or her way into a probable cause search of the rest of the pockets. This being New York where guns are outlawed and only outlaws have guns, it all seems reasonable - except for the part about why the person was stopped to start. All it takes to justify a stop and frisk, apparently, is a vague claim that "it's a high crime area" or "there's been a lot of burglaries in the area" where the person was observed, thus arousing the officer's suspicion. Common sense tells me that the cop is likely fishing in the right hole, but it's still fishing, and that troubles me as a slippery slope.

Posted by: spd rdr at August 19, 2013 06:48 PM

I have no problem with the police "having a right to protect themselves too." I do have a problem with them having the right to commit what would be assault and battery if an ordinary citizen did it, without it counting as a full-on "search" for legal purposes.

Posted by: Grim at August 19, 2013 07:18 PM

If they can show me that they legitimately have the power from Constitutionally granted authority, I may well agree.

Well, that's problematic since the 4th Amendment is anything but detailed or specific. The qualifier "reasonable" clearly indicates that not ALL searches/seizures are Constitutionally prohibited - only "unreasonable" ones. It also clearly indicates that not all searches are the same - there are reasonable ones and unreasonable ones.

The question then becomes, "OK - define unreasonable". The Constitution doesn't do so, thus the debate.

And in this case, which doesn't even involve federal law enforcement, we're talking about the power of city law enforcement and we're only talking about *that* because the 14th Amendment extension of 4th A. protections designed to limit the federal government means those original protections now apply to state and local government officials, too. This extension is usually derided by federalists as an impermissible encroachment on the legitimate right of state legislatures to decide what laws suit them best...

...except when we don't like the outcome, as in this case, and wish we could get a definitive ruling from the original 4th A text that limits state and local LE. Which we really can't :p

For whatever it may be worth, I'm not sold on stop and frisk. But I'm also not sold on the notion that any of this is obvious or cut and dried and I'm even *less* sold on the idea that the plain meaning of the 4th Amendment is violated here. There's a lot of interpreting and stretching going on on both sides.

Posted by: Cass at August 19, 2013 08:02 PM

Again, the question isn't what it means for a search to be reasonable. It's what it means for there to be a search.

If the court said, "We define reasonable as any time there is any chance whatsoever that a crime has been committed," I think they'd be wrong, but they wouldn't be in this bind. We could go to Congress or state legislatures and correct the court as to when a search is permissible. That can be done.

The problem is that they've said that you can do a "search" at .2 or .3, but at .1 a "search" is not justified -- so just put them in the 'search' position, and pat them down to see what you find.

That's a search. But according to the courts, it's not a "search."

Now go to your legislature and try to fix it. When the courts start redefining words, democratic solutions are no longer available. It's why we lost the Obamacare case: the government argued that the mandate was a tax for some purposes, where it was good to be a tax; and not for others, where it wasn't. They were allowed to win on these grounds. How do you fix that with democratic means?

Posted by: Grim at August 19, 2013 08:12 PM

One possible answer to that question, by the way, is "Win the Presidency." After all, the courts are showing deference in that direction -- especially since the DOMA ruling, in which the President can effectively invalidate a law merely by declining to defend it.

But if that's the answer, we're in for a dark period. It's not just the concentration of power. It is the radical instability portended by that much deference to an executive branch that changes philosophy completely on average every eight years.

Posted by: Grim at August 19, 2013 08:24 PM

My handbag gets "searched" every time I go to a baseball game. Is that unconstitutional? Is it really a search?

My handbag is one of my personal effects. As to "how do you fix that with democratic means?", the answer is quite simple - pass a law that more narrowly defines what a "search" is. Happens all the time.

Posted by: Cass at August 19, 2013 08:47 PM

I think it's poor taste to search a lady's handbag, but that's a private interest, and you agree to the search when you accept the ticket's terms and conditions. It's not a valid comparison, though it is a good reason to watch the game from home or at a neighborhood bar.

As for passing the law, the law is composed of nothing but words. So even if the law says "a search shall be construed as any investigation of any kind into any individual" or something similarly restrictive, you have to ask what an "investigation" is, or "any kind."

The Constitution says "searches." If the legislature passes a definition that says 'investigations,' it not only has less authority, it's just as subject to judicial revision. The problem is the courts not adhering to the language. It can't be fixed by more language.

Posted by: Grim at August 19, 2013 09:09 PM

Well, a search by stadium personnel is one thing. It's quite another when there are uniformed police standing right there because while my purse is open, they can see into it (something they would not normally be able to do). And yet....

Difficulty in making language precise enough isn't impossibility, though. If, as you say, the problem is that the meaning of search doesn't include things you think are searches, then legislation absolutely can fix that. It's not hopeless.

Posted by: Cass at August 19, 2013 09:20 PM

"Again, the presumption of innocence is inextricably tied to the burden of proof in criminal trials of evidence "beyond a reasonable doubt". It doesn't really have anything to do with warrants, O Dark One :p"

I hate not getting back to a conversation like this for a day, so much has been said it often feels like my comment is moot. However...
Before one can get a warrant, there must be a reasonable suspicion that a crime has been committed - whether that be a credible tip, leads from investigative work, etc - some type of evidence of wrong-doing has to be presented to a judge in order for him/her to issue a warrant authorizing the police to conduct a physical search.
Or, at least, that's the way it's *supposed* to work outside of the Beltway, Chicago, NY, etc.
*sigh*

"Common sense tells me that the cop is likely fishing in the right hole, but it's still fishing, and that troubles me as a slippery slope." [emphasis mine]

Bingo!

Posted by: DL Sly at August 20, 2013 01:46 PM

One of the problems here is the word "search." A frisk is not a search. A pat-down is not a search. This is well established law, with many cases on point. A Terry stop, otherwise known as a stop and frisk, is not a search. A pat down or frisk for weapons is constitutionally limited (so sayeth the U.S. Supreme Court) to looking for weapons. If a cop feels a soft bag that is likely to contain MJ, too bad, because that is not within the scope of the frisk. Only weapons may be frisked for.

To repeat, a stop and frisk is NOT a search. Saying it is only muddies the waters.

Posted by: Rex at August 20, 2013 03:20 PM

Before one can get a warrant, there must be a reasonable suspicion that a crime has been committed - whether that be a credible tip, leads from investigative work, etc - some type of evidence of wrong-doing has to be presented to a judge in order for him/her to issue a warrant authorizing the police to conduct a physical search.

Not having a reasonable suspicion that a crime *may* have been committed (or is about to be committed, but hasn't yet) is not the same as presuming a suspect is innocent in a court of law and requiring evidence beyond a reasonable doubt for a guilty verdict. They are different processes with different rules.

I really am not trying to be argumentative here.

It's just that any profession has language that is specific to the tasks it performs and typically terms are defined with a fair amount of specificity because it's impossible to do business otherwise. There has to be some agreed-upon framework there. It's easy to look on this framework and say, "Well that's just silly - why do we have to make these distinctions?". But the distinctions aren't being created by the language. The language is shaped by real world distinctions that already exist. We may wish things were simpler, but we have to deal with complexity whether we like it or not.

People like to talk about issues generally or generically, and that's OK. But the two ways of talking (general purpose definitions and narrower legal definitions) are not going to match up neatly.

In practice, the broader definitions people use in every day life are poorly suited to resolving specific cases and disputes in real life. That's why legal jargon gets the way it is - lawyers and judges aren't doing this stuff on purpose to irritate the rest of us any more than a Marine who points out that a howitzer isn't a mortar isn't being pedantic. He or she is being accurate, because they may both shoot stuff but they're not the same; they have different strengths/weaknesses and features.

To repeat, a stop and frisk is NOT a search. Saying it is only muddies the waters.

I pretty much gave up on this yesterday. I do understand Grim's point, and have said several times that I'm sympathetic to several of the arguments he makes even though I didn't arrive at the same conclusions. I have the utmost respect for all of you, or else I wouldn't be interested in what you think.

I'm not trying to be a jerk here, but the parallels to my day job are making it difficult for me to discuss this, especially during a week when my stress level is off the charts. We can discuss all kinds of proposed changes to functioning software generally, but unfortunately the software will be solving *specific* problems with right and wrong answers, the outlines of which we can't always predict with 100% certainty in advance. But the product still has to work correctly.

This general/specific issue lies at the heart of the communication issues that plague s/w developers. The intended user generally isn't thinking of specifics. He or she isn't stupid - he or she is the person we're trying to satisfy and he pays our salaries. But the user almost never - or rarely - wades into the details, and when you try to explain that a proposed change will be applied to all sorts of scenarios the person requesting the change hasn't thought of, typically the reaction is something along the lines of "This isn't that hard - stop being so negative". They're only thinking of their special case, but their special case is not the only case we have to consider.

I don't want to offend anyone, and I certainly don't wish to suggest I know everything (or even most things). I'm not a lawyer and am quite aware of the gaping holes in my understanding.

The thing is: if every person in a debate insists on their own definitions of the terms being used, discussion becomes impossible. It's a problem in my field and it's a problem in public policy debates.

Now, if y'all will excuse me, it's time for me to slit my wrists. Love you all. Seriously.

I'm just shell shocked right now.

Posted by: M'wah!!! at August 20, 2013 06:01 PM

I wish I had realized earlier, Cass, that you were finding parallels with a frustrating situation at work. I would have waved off earlier: I don't know the situation you're considering, so there's a context we don't share that makes it difficult to discuss the issue in a useful way. It's certainly not my desire to frustrate you, but I don't know what the parallels are supposed to be, so I can't engage the issue that bothers you at all.

I'm going to have one go at trying to clarify my meaning for Rex, but it's not meant to try and re-engage the question with you. It would be better for us not to talk about it, because you're not free to lay out a problem between your employer and customers (which might be seen as disrespectful to the customer, as you clearly do not wish to be), and I can't really understand where you are coming from without that information. Please hold me excused. I don't want to frustrate you, I just like talking to you.

Rex,

You have perfectly articulated my point, while somehow entirely missing it. :) So sayeth the court! Yes, exactly.

Stop thinking it's a search (and an arrest) just because they're stopping you and running their hands all over you. Stop thinking it's a tax just because the government is forcing you to pay money by law. (But also think it's a tax, when you're asking whether the Constitution gives them authority to do it.) And as for what it means for two (or more!) people to be married, well...

At some point you're not making democratic decisions anymore (as Proposition 8 was entirely voided by the court, the court having ruled that the people couldn't have had any good reason for passing such a law). You're just being told to submit to whatever an unelected bunch decides to hold the language to mean. If words mean not what they mean, but what they are held by a technocratic bureaucracy or judiciary to mean, law can't be in the hands of the citizen. It's out of your hands.

Posted by: Grim at August 21, 2013 10:13 AM

Grim, I was just trying to explain my lack of response and overall bad mood.

Work has been a real pressure cooker lately and I am right on the edge of completely losing my temper for no reason pretty much 24/7. Since you are such a good friend, I don't want to do that (especially when you've done absolutely nothing to deserve that).

FWIW, I really, really like talking to you, too. Don't want to do anything boneheaded to screw that up and hope you'll understand.

Posted by: M'wah!!! at August 21, 2013 12:07 PM