How Is This Legal?


One man. Two boys. Twelve kids.

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98 Responses

  1. zic says:

    The ordinance to regulate drones would, in effect, seem to make cell phones illegal, as well and verges deeply into first-amendment violations.

    The ordinance you’re concerned with seems like it should trigger withholding of all federal funding to the community as a violation of the commerce clause.Report

    • Burt Likko in reply to zic says:

      If there’s to be a Federal constitutional challenge, Commerce Clause would be one of the grounds. Specifically look at “inverse commerce Claus” cases like the double-long trailer prohibition case whose name escapes me at the moment.

      See also: right to travel. IIRC that’s one of the few judicially-enforceable “privileges and immunities.”Report

  2. Vikram Bath says:

    Assuming it is illegal, it might still take someone to get denied admittance and then get upset enough to sue, win, and sustain through whatever appeals are needed in order for the law to get and stay stricken.Report

    • Kazzy in reply to Vikram Bath says:

      Perhaps if I refuse to identify myself/my business?

      But could they get me on some form of disobeying a lawful order?

      Are their orders lawful?

      I suppose it depends on how they phrase it. Sometimes they don’t say anything and wait for you to speak. But erecting a barricade which demands stopping is an “order”, no? And waiting for you to speak before they remove it?Report

      • dragonfrog in reply to Kazzy says:

        Do you go there often enough that the guards are likely to recognize you? If so, it might be harder to get turned away. Also, if you raise a challenge, it might be hard to maintain employment. Not to mention that, by the sound of it, they would have some kind of mad well-funded legal team…Report

  3. Glyph says:

    “it is not a gated community”

    The header of the site you link to describes it as one…Report

    • Kazzy in reply to Glyph says:

      In the sense it has a gate, yes. My language was sloppy. It is not a “private” community. At least as I understand. “Private” communities can’t run their own police forces ad court systems. At least, they sure as hell shouldn’t be allowed to!Report

      • Kolohe in reply to Kazzy says:

        If George Washington and the boys believed that, we’d still be speaking British.Report

      • Glyph in reply to Kazzy says:

        It looks like from my brief googling/wikipedia’ing that this village is an old blueblood stronghold of Astors, Morgans, Colgates, and Julliards, and the origin of the term “tuxedo” to describe the suit of clothes. So I would speculate that they may have an unusual relationship to the state.

        Disney World in Florida negotiated a similar deal on their huge territory, wherein all the roads inside it are maintained by them, they do their own power production and water, and (IIRC) the police are only supposed to come onto the property if invited (though in practice, I don’t know if they would stop them and AFAIK they do involve the police in any serious criminal matter immediately). IOW, Disney World in FL is more or less an autonomous government on its own property. Not sure how their “town” (Celebration) works.

        I suspect you may find something similar for the village.


      • Michael Cain in reply to Kazzy says:

        Browsing through this page, it appears that in New York state, a village is precisely that: a private community within a town, created (or dissolved) purely at the discretion of its residents, that is authorized to run its own services, including police and courts. The Wikipedia articles on the history of Tuxedo and Tuxedo Park are suggestive — Tuxedo Park began as a planned community for the wealthy, and eventual incorporation as a village was presumably a convenient way to maintain that status. Skimming down the New York state laws on villages, it appears that there are at least a couple of ways of making sure that restricted access is legal.Report

      • Kazzy in reply to Kazzy says:

        Thanks, @michael-cain .

        Growing up in NJ, we never had this shit. We had towns. They might have been called boroughs or villages or cities and that might (or might not have) meant something about their internal governance (e.g., Mayor, Town Council, etc.), but you lived in a town and that was that. Teaneck was Teaneck, with Teaneck schools and a Teaneck library. There might have been a neighborhood called “West Englewood” but that didn’t mean anything.

        F U, NY.Report

      • Mike Schilling in reply to Kazzy says:

        Tuxedo is allowed to manage its own transactions.Report

      • LeeEsq in reply to Kazzy says:

        @michael-cain, under New York law a village is an incorporated municipality that provides certain services to its residents. The village I grew up in maintained a swimming pool for residents as an example. Villages are subdivisions of towns, which are subdivisions of counties.Report

      • Kazzy in reply to Kazzy says:


        I actually do not object to municipalities (of any type) limiting access to certain facilities to residents. A pool seems like a reasonable one to limit access to. For whatever reason, roads seem like something else entirely. Maybe I’m being unprincipled and inconsistent though.Report

  4. Not being a lawyer at all, maybe a different question we/I/you could ask is this: assuming it is illegal, what would it take to make it legal and still retain as much of the regulation as possible. What if it became a gated, presumably privately owned community, with no shops therein, and with security guards who could enforce the regulations against “trespassers” instead of police officers issuing tickets or denying admission? Would the “no shops therein” part be what saves the community from commerce clause concerns? Could the shops be called “private clubs” that one has to be a member of (by being a member of the community) in order to shop there? Would it be legal then?

    I’m not saying this because I support the regulation. (Absent any special circumstances or other information I’m missing, it seems like a stupid, even harmful regulation.) But my revised question might be a way to get at what people really support, or at least accept as legal.Report

    • Kazzy in reply to Gabriel Conroy says:

      I should say I do not object to privately-owned gated communities (provided they adhere to all non-discrimination laws and the like). But this isn’t that. I don’t mind telling a private security guard paid for my the owners of the road where I’m going. I sincerely mind telling the police.Report

      • Gabriel Conroy in reply to Kazzy says:

        Disclaimer: it’s Sunday and I’m in the mood to play Devil’s advocate.

        I guess one of your sticking points here is that the access regulations are policed by real police, who have the monopoly of force. Another sticking point is that presumably the roads are paid with public funds.

        What if the village’s roads are toll roads and residents get a discount or free entry by virtue of being residents (and therefore property tax payers and/or sales tax payers), and the tolls are enforced by police? You might still object, but I imagine your objection would be less.

        What if the toll roads were paid for partially by public funds, but in order to secure a certain amount of funding from town residents (via a bond issue or higher taxes), the state allowed for the village to institute a toll, with the above mentioned exception for residents? Would that be objectionable? Why or why not?

        I realize that what my hypothetical describes is not what you are describing. I’m just curious how closely you, or anyone, would want to push the limits.Report

      • Kazzy in reply to Kazzy says:

        I’d need to know the details of the toll but I find it less objectionable. Being forced to interact with and answer questions by the police bothers me.Report

      • Kazzy in reply to Kazzy says:

        I mean, imagine if instead of a gate, they simply pulled everyone over without a tag and asked what their business was? No violations. Just a stop-and-question.

        Wait… Is this some wealthy white person version of stop-and-frisk? With admittedly far, far, FAR more benign consequences?

        Note: I’ve heard via third party that people of color are more likely to get asked follow up questions or to have their visit “verified”.Report

      • Gabriel Conroy in reply to Kazzy says:

        I personally think pulling people over is worse than a gate. If there’s a gate, there’s some expectation of stopping and being questioned. It at least *seems* fairer. Being pulled over….people won’t always know why they’re being pulled over, and it will seem like an unexpected, potentially arbitrary thing (or more arbitrary than a gate).

        And yes, differential enforcement based on skin color is a problem in either way of doing it.Report

    • Brandon Berg in reply to Gabriel Conroy says:

      How does the commerce clause come in at all? The commerce clause forbids states from interfering with interstate commerce. The courts have, of course, been perfectly willing to blatantly misconstrue the commerce clause so as to grant additional powers to the feds, but I’ve never heard of them doing so to limit the power of local government.Report

      • I think it’s a “negative commerce clause” thing (a la Gibbons v. Ogden). States, and presumably subdivisions thereof, cannot impede interstate commerce without the feds’ permission. (One exception being alcohol because of how the prohibition repeal amendment is worded.)Report

      • @brandon-berg see e.g. City of Philadelphia v. New Jersey 437 U.S. 617 (1978).Report

      • Brandon Berg in reply to Brandon Berg says:

        Oh, right. That makes sense. I was thinking that commerce between two towns wouldn’t be interstate commerce, but of course blocking access to the town in general would also block interstate commerce. A state couldn’t get around the restriction by letting commerce into a ten-foot ring inside its border and then regulating anyone who wanted to travel any further in.Report

      • Brandon Berg in reply to Brandon Berg says:

        @burt-likko Thanks, although that didn’t really address the specific question I had regarding why that would be considered a restriction on interstate commerce, though I think I figured it out in my comment above.

        @gabriel-conroy Fun fact: What’s now called the Dormant Commerce Clause was actually the primary purpose of the commerce clause, according to Federalist 42.Report

  5. Burt Likko says:

    That was just a recent example of an inverse commerce clause case, @brandon-berg . @gabriel-conroy is right to point you back to Gibbons v. Ogden for the legal concept.

    My brain is kind of drifting to Seattle at the moment, rather than to the law, if you know. What I mean. After about 3:30 I should be better again, one way or the other.Report

    • Brandon Berg in reply to Burt Likko says:

      Right, right. I understand the legal concept, but those cases dealt with explicitly interstate concerns. This is different, in that it’s ostensibly an intrastate concern.Report

    • Mad Rocket Scientist in reply to Burt Likko says:


      Did you watch the whole game, or did you figure the Packers had it sewn up and changed the channel before the end of the 4th?Report

      • I watched it all. Knew good and damn well it wasn’t sewn up. But I really didn’t enjoy the demonstration of why that was right.Report

      • Mad Rocket Scientist in reply to Mad Rocket Scientist says:

        I spent that last quarter saying “Oh, NOW you remember how to play football…”Report

      • Use of the left-right-left-right-up-down-up-down-A-B-start code should be disabled during playoff mode.Report

      • Stillwater in reply to Mad Rocket Scientist says:

        When GB got the ball back with 5:30 on the clock and ran three quick between the tackles runs (for no gain), I was frustrated. WHen they got the ball back a few seconds after they punted and did three quick between the tackles runs (for no gain) I was apoplectic. They were playing to not lose, which is a recipe for losing, in my view. You got the best QB in the league, an injured Sherman, no Thomas, and you take the ball outa his hands to play field position and the clock against the defending SuperBowl champs who have a track record of big fourth quarters.

        Stupid, stupid, stupid.

        “The Seahawks are who we thought they were. And GB let em off the hook!”Report

      • Mad Rocket Scientist in reply to Mad Rocket Scientist says:

        The Seahawks offense was maddening for almost the whole game, but their defense was doing a respectable job.

        But that last quarter/OT… GB proved the old adage that one can truly snatch defeat from the jaws of victory.Report

      • Stillwater in reply to Mad Rocket Scientist says:

        Yeah, OT is a real headscratcher. The one thing you know when you start on defense is that a TD ends the game, a field goal gives you a shot. So what do the Packers do with the ball on their own 40 yard line? Man to man with no safety help. Wilson was smart enough to read it right, but why the Pack thought that was the right defense in that situation is a mystery. Especially when they played to Not Lose in regulation!!!

        Absolutely maddening.Report

      • Kazzy in reply to Mad Rocket Scientist says:

        The thing is, GB wasn’t completely caught with their pants down there. From what I remember, coverage was pretty tight. Wilson just made a hell of a throw and Kearse a phenomenal catch. Similar to the 2-pointer… they had Wilson trapped and he threw up a prayer that was almost knocked down but alas.Report

      • Michael Drew in reply to Mad Rocket Scientist says:


        Coverage was tight but it was an all-out blitz (or thereabouts) with no backfield/topside help – that’s why it was really such a vulnerable moment. Russell checked down, made a nice throw and that was ballgame. Needed to be a good throw too, but it was really all about the decision there.Report

      • Michael Drew in reply to Mad Rocket Scientist says:


        Are you a Cheesehead too?Report

      • Jim Heffman in reply to Mad Rocket Scientist says:

        On the one hand, Wilson had been duffing passes all day long, and getting sacked when he tried to take his time to throw, so the blitz wasn’t a loser idea.

        On the other hand, Wilson had suddenly stopped duffing passes in the last few minutes, so maybe Green Bay needed to recognize that.

        On the gripping hand, as Stillwater points out Green Bay should have been up at least six more points and instead tried to just run out the clock, and you might say that they got what they asked for.Report

      • Michael Drew in reply to Mad Rocket Scientist says:

        I agree with all of that, @jim-heffman . The blitz wasn’t terrible there, Russell just responded with the right decision and executed. And you’re right that if the offensive playcalling had been more like that defensive playcall all game, it almost certainly never would have gotten to overtime, and the Pack would be in the Super Bowl.

        Apropos of nothing, the Packers gave McCarthy a long-term extension mid-year when they almost certainly could have waited until right now and paid little more, and not been in any danger of losing him. (What coach who’s made his name on coaching QBs to elite status decides it’s a good idea to leave a job that involves coaching Aaron Rodgers for the third third of his career?)Report

      • Mad Rocket Scientist in reply to Mad Rocket Scientist says:

        Yeah, don’t get me wrong, I still have a soft spot for The Pack (having grown up there), but I think they thought that had it done, and when the Hawks suddenly got game, GB was as surprised as the rest of us.

        Either way, it was a good game, one I really enjoyed watching (& I am by no means a major football fan).Report

      • I have to say, I disagree with almost all of the MMQing I’ve heard this morning.

        Probably the best (and silliest) examples were the two things I heard every host and guest on the 4 sports talk shows I tuned into say:

        1. The Packers should have stayed aggressive in the 2nd half. That they went conservative and didn’t play to their strengths with the lead was “playing afraid,” and that’s why they lost. Mike McCarthy should be fired for this.

        2. The special teams coach shouldn’t have been playing the field goal aggressively, even though that’s the way the Packers always play field goals. They should have recognized that with a lead they could live with a field goal and not a TD, pulled their corner guys back from how they normally rush, and been conservative just to avoid falling for the fake. Not being conservative was a terrible call. The special teams coach should be fired for this.

        In each show, the second observation was always piled into the first and not one person seemed to get the incongruity of doing both of these things.

        FWIW, my own opinion on it is probably different from everyone else’s in the country:

        I think decision-wise the Packers made all the calls they *should* have made. Not giving up the run and not going pass-heavy with a big lead — after the defense has picked you twice — was the right decision. Not having a guy who isn’t used to carrying the ball take a knee rather than run into a team known for stripping the ball after a INT when you have a lead is the right decision. Playing those last plays for the types of plays Seattle had been running all day was the right decision.

        Sometimes you can make all the right decisions and still lose.

        The more I have thought about the game since yesterday, the more I think the Packers played a really great game against a great team in a tough place to win, and almost won but didn’t. I think it’s just the particular order of events that make us try to ask why the Pack “melted down” or why the Hawks “pulled out a miracle.” I’m not sure looking back that it was either.

        It was sure as s**t dramatic, though.Report

      • Kazzy in reply to Mad Rocket Scientist says:


        While I don’t disagree with your overall analysis, I will say that there is nothing incongruous with saying that a team should be aggressive in one phase of the game but conservative in another. Offense, defense, and special teams (which, really, is at least two unique units if not more) function very differently and sometimes necessitate a different approach.Report

      • Stillwater in reply to Mad Rocket Scientist says:

        Yeah, I don’t agree with Tod’s analysis either since I mentioned all the same things I’ve said here to my wife in real time. After it was all done she said “well, you called that one.”

        She did.


        You can ask her.

        But I’ve been down this road before with the Broncos three playoffs ago when we cleverly took the ball outa Manning’s hands to run three plays between the tackles and punt – and lost the game by doing so! – when a single first down woulda effectively won us the game. Same for the Pack yesterday: a single first down (well, 5-6 in bounds plays, anyway) on either of their last two posessions woulda effectively run the clock to zero.Report

      • @kazzy Perhaps, but I have noticed that level of nuance with what I’ve been hearing. (or maybe that’s just me.)

        And while I’m at it, I might as well talk about another one of my MMQ pet peeves: The belief that if something had happened differently at point X of a game, everything that transpired after X would have transpired exactly the same as it did.

        I hear this all the time when people talk about basketball. “The Blazers lost by one. If Aldridge wouldn’t have gotten that flagrant called on his in the third, they would have won.” Even announcers do it: “If they end up losing by one, that technical foul on James will end up being the difference in the game.”

        I’m hearing a lot of that about individual Packers today, and it seems unfair. I’m not sure that after the game they played that anyone deserves to be a goat for taking the heavily favored champs all the way to OT on the road.

        If I was a Pack fan, my big fear right now would be that everyone over-reacts, fires coaches, and breaks up the core, rather than saying, “Holy s**t, look what we did with a hobbled QB after the way we started this year — we totally need to build on this.”Report

      • Mad Rocket Scientist in reply to Mad Rocket Scientist says:

        The special teams coach shouldn’t have been playing the field goal aggressively

        That has got to be the dumbest thing I ever heard. I don’t know who The Pack’s kicker was that night (nor do I care), but every time his foot hit the ball, it went through the uprights.Report

      • Mike Schilling in reply to Mad Rocket Scientist says:

        The Pack absolutely should not have blown the coin toss in overtime.Report

      • Michael Drew in reply to Mad Rocket Scientist says:


        It’s more the first-half offensive approach people are criticizing that I’ve seen, especially in the red zone. I agree that second-guessing the FG coverage is ridiculous, though.

        In Wisconsin they definitely are giving Morgan Burnett the business for sliding, and I agree it isn’t as big a deal as some are making of it. I’m not sure they “had” him slide though; as far as I can tell, Julius Peppers gave a signal and he went with it. Maybe it came from the coaches, but I’m not sure it did. In my few, Wisconsin sports (especially football) fan culture is very tilted toward blaming players first and coaches second, so I think the focus on Burnett sliding fit into that; I didn’t hear many people talking about the coaches “having” him side.

        Hypothesizing that it was coach-directed, though, I do think it’s emblematic of an attitude on the part of the coaches about advancing the ball at high-pressure moments throughout the game that, taken all together, very much seems to have contributed to the outcome in retrospect. A low-risk approach that posited that the game plan would be enough; that the situation didn’t call for some risk-taking commensurate with the significance of the game and the difficulty of the circumstances. A look at the score – within two TDs – with five minutes remaining after the defense had given the offense five extra chances to score shows that that idea was misbegotten at the strategic level.

        Generally It is fair to say that judging everything with the benefit of hindsight is unfair, but it’s also the case that that view about retrospect can lead to a view that no one can conclude that any in-game decision is wrong because they weren’t in the coach’s shoes, and because surely the coach was at least trying to make the right decision all the time. It can also be the case that from a particular strategic perspective, every individual decision can look right, but that that strategic approach can be one that, either in retrospect or looking forward, can be, while not wrong, not the one that was the best for achieving victory, even though it could have easily been good enough to win if it was executed well and you didn’t get too many bad bounces.


        One consensus in commentary that bugs me has been view that the Packers were clearly the better team on the day. Often this was explicitly hedged with a “for fifty-five minutes,” other times, not. Either way, it’s absurd. It’s absurd to explicitly exclude the five minutes or a quarter (plus) where the Seahawks were miles better; it’s absurd to say that the Packers were clearly better on the strength of the whole game taken in balance. If they were so much better in the first 0:55:00, then the score would not have been close enough in the last 5:00 for even a transcendent five minutes to even it up. (I.e., do what Tom Brady (and LaGarrett Blount) did next.)Report

      • Kazzy in reply to Mad Rocket Scientist says:

        That I agree with, too, @tod-kelly .

        If you ask me, “Can you construct a coherent argument wherein you advise UNIT X be aggressive while UNIT Y be conservative?” I could do it.

        I’d need a venue other than sports talk radio though in which to actually lay it out, though.Report

      • @michael-drew I don’t know that I’ve heard any criticism about their first half play, other than “they should have gotten touchdowns and not field goals” — which strikes me as more of a wish than a criticism, considering that I think Seattle opponents have been averaging less than 7 points a game over the past 8 or 9 weeks.

        What are the criticisms you’re hearing?Report

      • Michael Drew in reply to Mad Rocket Scientist says:

        It’s absurd to explicitly exclude the five minutes or a quarter (plus)

        “(plus OT),” that was meant to be.Report

      • Michael Drew in reply to Mad Rocket Scientist says:

        Well, I thought the play calling (or the reads: yes, I am criticizing Aaron Rodgers here: his numbers bear it out) on those trips inside the 5yl was messed up myself. Go for it at least on the second one, fist of all. Don’t pass into the end zone on early downs and then short of the goal line on later downs. Etc.

        In general as a Wisconsin football fan, I don’t have a problem with running the ball, certainly not up in the second half. I don’t even view it as inherently conservative football. As I say, it’s not about the play calling in general for me. It’s that at the pressure points they took very few risks, which, when it’s clear you’re in a conservative game plan, means you’re not even trying to confound their expectations and gain a surprise advantage. They just have to do exactly what they know they have to do to stop what they expect you to do in order to stop it.

        (Though generally, leaning on the run, even up in the second half, becomes less attractive when their two best defensive backs are playing with one fully functional arm apiece.)Report

      • Michael Drew in reply to Mad Rocket Scientist says:

        I was actually sort of shocked the Hawks didn’t take a shot with the ten seconds or so McCathy stupidly left them for exactly that reason. Who’s to say the Pack doesn’t win the toss and it’s Russell Wilson who doesn’t see his feet in bounds while play hasn’t expired, rather than Aaron Rodgers.Report

      • Mike Schilling in reply to Mad Rocket Scientist says:

        That surprised me too. Wilson does have that gun for an arm; why not take a shot at the end zone?Report

      • 1. When you have a rush offense that is gaining yards much more often than it isn’t, notwithstanding being in a loud opposing team’s stadium, you go for it on fourth and inches. 7-0 instead of 3-0.

        2. Repeat, when it’s fourth and two feet instead of fourth and inches. 14-0 instead of 6-0. Do that right, and before you look up, it’s 17-0 by the time most of the fans have bought their beer and settled in. Stadium noise diminishes substantially.

        3. Learn a thing or two about how your opponent works. Was I the only person on the fishing planet who didn’t see a fake field goal attempt coming there? Really? While you’re at it, maybe consider faking the field goal on fourth and two to the goal yourself.

        4. Let the other guys shoot their mouths off and get penalized for unsportsmanlike conduct for saying bad words after making a relatively ordinary play. Let the other guys get nervous and anxious and just give you unearned yards and free first downs. Metaphorically speaking, when your boot is on their throats, you apply firm, constant pressure until victory is declared. You don’t relent.

        5. When it’s second down and 31 yards to go, the opposing quarterback is suffering from major happyfeet, and man coverage has generated two turnovers for you already, you don’t drop eight men back into the secondary and give the nervous kid all day.

        6. When the superstar cornerback of the opposing team is walking around holding his arm against his chest because it hurts so bad, you put your best receiver in that slot and throw at him. Richard Sherman played most the game with only got one arm, posturing with the other one as if to tell the crowd “I got liver!”

        7. If you know an onside kick is coming, you form and circulate a fishing plan for recovering the ball instead of doing a “have at it, everyone!” in moderately heavy rain.

        8. Yes, Morgan Burnett should have run further with it and not slid.

        9. A punter needs to get it more than thirty yards downfield in the late game, weather or no.

        10. When you’re still ahead by 5 points, and you have their quarterback flushed out, running desperately towards the out of bounds marker so fast he won’t be able to stop his own momentum, and he throws like a madman across his body to the opposite corner of the end zone on a two-point conversion, and the ball flies through the air like an unevenly balanced skeet target, at least tip it away from the receiver so that a field goal can still win you the game instead of putting it into OT.

        11. If a field goal ties the game and a touchdown wins it in regulation and you have The Best Damn Quarterback On The Planet, you don’t hand it off to a running back and rush three times up the fishing middle of the fishing scrum for one yard per play. Maybe you do that once, and then you try something different.

        12. A “prevent offense” requires moving the chains, not just chewing up forty-five seconds and two of your opponent’s time outs. When your running backs stop being able to get meaningful penetration up the middle for some reason, you stop rushing it up the middle.

        13. A two-goal lead is not a sufficiently large enough margin of error to play “prevent offense.” Or, for that matter, “prevent defense.” You start thinking about that above fourteen points ahead.

        14. If you’re not going to be using those time outs, maybe challenge a questionable call. Let the players know you’ve got their backs.

        15. When all else fails and you find yourself in OT and you lost the coin toss, it’s a new game, with added information you can use. Get back to doing what worked so well for you in the first half, and get in the damn quarterback’s face before he finds an open receiver.

        I could go on. But absolutely neither Morgan Burnett nor Brian Bostick should be held up as the principal goats. Green Bay lost because of a cumulation of poor decisions made on the sideline.

        Now, as for the Super Bowl. Is it somehow possible for both teams to lose?

        ….Oh. That’s kinda too bad.Report

      • Michael Drew in reply to Mad Rocket Scientist says:

        Largely what @burt-likko said in just about every particular.

        On the fake FG coverage I have to admit to a bit of premature conciliation with @tod-kelly for the sake of establishing some common ground. I’ve since listened to a few more minutes of podcasts of various Wisconsin sports talk shows, and I’m more or less around to Burt’s view. It does seem petty on its face to question field goal coverage. But when you look at the situation, it really clearly is one where a fake (or other play to go for it) is pretty strongly in the interest of the team with the ball. It seems as though about 95% of the state of Wisconsin now says they saw that fake coming, and I’m willing to allow that upwards of 40% of them aren’t completely full of shit on that. So, it seems like that wasn’t some mindblowingly unpredictable call by Carroll there.

        And there’s apparently a history i hadn’t been fully aware of with the Packers’ special teams coach, Sean Sloccum. Every fanbase gripes about special teams, but judging by callers this really was a somewhat long running vein of spleen among packer faithful the last few years, with McCarthy taking some heat for sticking with Sloccum through Crosby’s nightmare year a couple years back, and general underperformance throughout Sloccum’s tenure. And apparently this looked to folks not like a considered decision on his part, but just a deadhead, unthinking, unaware one. Just send ’em out there and do what you usually do, when so many fans felt like the situation was obviously ripe for fake.

        I’m inclined to go with my homestate compatriots here based on their pre-existing grievance with the guy. Though if somehow we could establish that the decision wasn’t reflex but that he really gave good thought to it and came up with that call, I’m okay with it. But it doesn’t seem like that’s too likely to me.

        The issue is, in that spot, isn’t holding them to three there already a huge victory for the team? It doesn’t really seem like aggressive/conservative is the right frame here: the defense has already gotten that balance right for you on that drive. Just bank the success there. It just doesn’t seem like he could have thought about it much, given that it’s what they usually do. So i guess if it were different from what they usually do, I would feel better about that call in that spot. Or really any evidence to establish it wasn’t just an instance of a unit coach making an autopilot call in a situation with a pretty identifiable special profile.Report

      • Shawn Slocum, not “Sean Sloccum.”

        Sorry, Shawn. 🙁Report

  6. Michael Cain says:

    I’d be willing to bet a pint that if you dig down through the legal history, you’ll find that: (1) the Village of Tuxedo Park has never had public streets, only private roadways; (2) restricting access to those private roadways to non-residents is within the village’s state-granted powers (as is making arbitrary changes in the access rules); (3) as an incorporated village, Tuxedo Park is authorized by the state to have an official police force; and (4) use of the police to enforce access restrictions to the village’s private facilities is perfectly legal.

    The village designation in New York’s state law on local governments seems odd to me — like it was intended to allow creation of “private communities” after the fact.Report

    • Saul Degraw in reply to Michael Cain says:

      Ooh your comment was similar and right above mine. This is largely correct. I officially grew up in the Town of North Hempstead but in a few incorporated villages. My childhood home was kind of in a subvillage of a village of the Town of North Hempstead. So I went to the Village’s school district and used their public library and had access to their parks but our subvillage also had its own community swimming pool and tennis courts which were only for residents of the subvillage.

      I had very little interaction with the Town of North Hempstead and am not sure what they actually covered.Report

    • Kazzy in reply to Michael Cain says:


      I wonder if the presence of a private, not-for-profit school means anything for that. Suppose the cops decided to prevent me access. That is my place of work. Or imagine your children attend school there (again, voluntarily as it is a private school)… then what?Report

  7. Saul Degraw says:

    When was this law created/passed?

    Tuxedo Park is or at least used to be an enclave of extreme wealth especially during the 19th century/Gilded Age. The Tuxedo takes its name from the town when the heir to the Lorlilard tobacco fortune had a tailor cut of the tails for the coat of his formal wear. This was the 19th century equivalent of showing up to a formal event in jeans. Now we think of Tuxedos as the height of formality.

    My guess is that this is a very old law and is not really enforced. Law codes are filled with such old laws which have stop being enforced but are still technically on the books because it is a pain to repeal all the old laws as they become irrelevant or enforceable. Sometimes states keep old laws on the books in defiance as a way of shaking their fists at the Supreme Court. A lot of socially conservative states have not removed their anti-Sodomy laws from the books even though Lawrence v. Texas makes them unconstitutional and unenforceable.Report

    • Kazzy in reply to Saul Degraw says:

      Which law do you mean, @saul-degraw ? The limited access rule is enforced. They do keep the gate closed and check for tags or ask about your business. Generally, if you say you are going to the school, they waive you through. But I’ve seen delivery trucks or commercial trucks (e.g., plumbers, landscapes) be held until they could call the home they were visited. I imagine if that call went unanswered, they’d be denied access. Or if you simply said you were sight-seeing, you’d be denied access.Report

      • Gabriel Conroy in reply to Kazzy says:

        I’m spitballing here, but maybe it’s a holdover from an era when villages, etc., checked entry in order to protect against highwaymen coming from out of town to raise a ruckus, or maybe it’s a legacy of local-level welfare, where non-residents were “warned out” of a locality if it was suspected they become a charge to the community.

        I’m not sure if that “era” ever really existed, especially in the US. But that might go toward explaining the way, regardless of whether it is or ever was justified.Report

      • Kazzy in reply to Kazzy says:

        As has been discussed, the Park was once entirely privately owned. It began as a hunting preserve for Manhattan bluebloods… hence the fence encircling it. It then became residential and, at some point or another, incorporated as a village.

        There are other villages in the area. None of them restrict access in this way.

        Though, as discussed once before, the Village of Kiryas Joel in the Town of Monroe (where I live) is an almost exclusively Haredi Jewish neighborhood and has signs upon entering “encouraging” certain modesty norms.Report

    • Kazzy in reply to Saul Degraw says:


      Do you have any personal experience with TP? Just curious… I didn’t really know anything about it until I started working there. I remember driving through Tuxedo on the way to the Ren Faire as a child and just thinking, “That’s a funny name for a town.”Report

  8. Kazzy says:

    Assuming @michael-cain is right (and I have no reason to believe he is not), what do we make of this structure in NY’s law? I’m particularly curious about what our libertarian friends think. Does this increase freedom because it allows citizens to organize privately? Or does it decrease freedom because it empowers those citizens to use the force of law and the state? Something in between?Report

    • Michael Cain in reply to Kazzy says:

      Always good to read more before allowing the mouth (fingers?) to run free. New York’s Local Government Handbook (PDF) has lots of details. There are counties; there are towns, which are subdivisions of counties and look more like what NJ calls townships (and there’s no corresponding thing in the western state where I live now); there are cities, which are chartered by the state legislature; there are villages which are incorporated by local initiative; and lots of special districts for provision of services, which may or may not align with the boundaries of the other entities. Villages can be created from part or all of a town(ship); it doesn’t appear that they can be created from part of a city, or part of another village.

      So it’s not as weird as I thought, things are just named differently. A private land owner could suddenly find themselves within a village created by their neighbors against their wishes. Or as appears likely for the Village of Tuxedo Park, a group of land owners can form a village (minimum size 500 people) where they can run things more to their liking. I still believe there are ways to structure it so that access can be restricted legally.

      From a libertarian perspective, doesn’t seem much different than anywhere else. Just me making it sound odder than it is.Report

      • Kazzy in reply to Michael Cain says:

        I suppose it is the “restricted access” component.

        Which I admit above to Lee I might be being inconsistent on. I don’t mind a town saying, “This pool is for residents only.” But I would mind that town saying, “This park is for residents only.” And I really mind a town (or whatever term is applicable) saying, “These roads are for residents only unless given permission by the police.” So maybe I’m just picking what I’m getting my feathers all amiss about.

        It seems important to note that Tuxedo Park really doesn’t serve as “through roads” in any logical way. Yes, you could enter via one gate and exit via another gate, but it would take you longer to do that than to just go around. There is some truly beautiful scenery which can be seen from the roads but nothing you can’t also see in the adjacent Harriman State Park and all of which is privately owned by Park residents. So, this entire exercise is largely academic.

        Were the Village to block access to a thoroughfare (such as the highway that runs its border), I would find this objectionable even more so and it is unlikely they would have been able to continue operating in such a fashion even if only for practical reasons.Report

      • I think those would all be legitimate complaints, depending on the specific conditions. The handbook describes various sorts of frictions between villages and the town(ship)s they are derived from. I offered the bet that I did on the basis that the village incorporation was done by rich people, who could afford good lawyers. In effect, I’m offering to take the side of the bet that says those lawyers made sure the i’s were dotted and t’s crossed, and all the legal standards for restricted access are satisfied.Report

      • Kazzy in reply to Michael Cain says:

        Oh, yes, I am no longer arguing the legal issues. But rather we are okay with the laws allowing such behaviors. I *personally* am much more okay with laws allowing restricted access to a swimming pool than to a road. I don’t know what this says about me.Report

      • How do you feel about it if I describe it as “the rich people who live in the Village of Tuxedo Park have a shared driveway, much of it built to the same specs commonly used for residential city streets”?

        My daughter lives in a development in an unincorporated area of a county; the development is slowly being surrounded by the nearby city, at which point the city will be legally obligated to annex it. The streets in the development are owned and maintained by the HOA. Other than expense, nothing stops the residents from deciding — through the HOA — to put up guard gates and restrict access. One of the reasons that the development hasn’t been annexed already is that the streets are not built to city code, can’t be converted entirely to current code, and would cost the city millions to retrofit to something approximating code even after grandfathering in the width exceptions.Report

      • Kazzy in reply to Michael Cain says:


        Who is guarding the gate? The police? With the full force of the law and the state behind them?

        Or private security?

        I’m okay with the latter. Not the former.Report

      • The development is big enough that it could probably incorporate as a town. Whether they could do that in such a way that the existing streets continued to be private rather than public is a research question. Assuming yes, then the new town would be empowered to have a police department, but would have no public streets, and I suspect that enforcing the access control would be within the limits of what the police could do.

        Am I correct in thinking that I’m hearing you say that one of the prices of incorporation should be conversion of some privately held assets into public ones?Report

      • Kazzy in reply to Michael Cain says:


        I would need to know more about what it meant to incorporate. I am admittedly well out of my area of expertise.

        As a general rule, I think there a difference between the police being called to enforce anti-trespassing laws. If someone is in my backyard against my wishes, I want the cops to be able to respond to that. But I shouldn’t be able to station a cop at the edge of my property. That just seems like something different.

        But, again, “seems” and “is” are not synonyms.Report

      • @kazzy , at the detailed level I’m also way out of my expertise even for my state, let alone some place like NY. Minimally (and we have examples), incorporation means some paperwork, an election to approve the incorporation, and election of a non-paid mayor. Go through a bit more and you get limited legislative power, limited taxing power, and limited enforcement power. Within either of those, you could easily get either a deputized security person or a municipal officer whose job is legitiamately to sit at the gate to tell people that it’s not a public road and check whether they should be allowed in.

        Some of the plot in Niven and Pournelle’s old Oath of Fealty hinge on a private development inside LA that (due to some peculiar circumstances) is also an incorporated municipality.Report

      • Kazzy in reply to Michael Cain says:

        This is probably one of those instances where I’m looking at particulars too much. The idea of a newly deputized individual granting/denying access makes me say, “What if he abuses his power?!?!”

        But if I step back, I realize we often do (and should!) ask that question about any and every person granted state power.

        There is just something ugly to me about a cop sitting next to a gate on a public road saying, “What’s your business here?”

        Ya know what it is? Okay, I think I figured out why it bothers me…

        Theoretically, the police are expected (required?) to treat any and all citizens equally. We know this isn’t true. But we still expect it to be true. And want it to be true. When a cop is charged with identifying ‘insider’ and ‘outsider’ status, it gives the distinct impression that they will be treated differently according to those designations. “You may pass. You may not. You may pass only if you answer these questions. You belong. You do not. We will treat the latter accordingly, even if we allow their presence.” The laws should be applied equally to everyone regardless of their residence. And even if we allow that *access* can be rightly (not just legally, but rightly) controlled, if that leads to second-level effects in which other rights/protections/etc. are controlled and applied unequally, I think we’re in a really ugly place.

        Because, at that point, we’ve turned a town into a private club. And they can say, “Well, Joe’s a member, so Joe can get drunk and dance on the bar. You? You’re a guest. Keep your shit together.” Which is fine when it is a private club and the worst consequence is expulsion. It is much worse when we are talking about a town and a police force and jail/fines/whathaveyou.

        And, again, we know that cops the world over treat people differently across any number of criteria. So why is this irksome? Because this seems to not only invite it, but to quasi-sanction it.

        Am I making sense here?Report

      • Am I making sense here?

        It’s more that I don’t understand what the fuss is about. Some rich folks took advantage of a peculiar set of circumstances and bought: (a) some degree of immunity from land-use policies set at the town/county level and (b) a different set of uniforms for their security personnel and better guaranteed response times than the town/county could provide. I’d love to look at the village financial structure — I might make a bet on whether or not the not-so-rich residents will eventually vote the village out of existence.

        When I lived in New Jersey almost 30 years ago, I made occasional trips out through the very rich boroughs of Little Silver, Fair Haven, and Rumson (each of those is physically about the size of Tuxedo Park, but more populous; at the median level, richer today than Tuxedo Park). The main road divided each into two parts, the river side and the other. The river side was large estates with magnificent houses. The other side was less so, but was still well-to-do. The river side was a gated community for all practical purposes, it was just that everyone had their own private entrance rather than sharing a common one. All of the things that you complain about were common practice. Eg, if Mr. Smith, from the “other” side of the road, was dancing on a table at a local club, he was treated one way; if Mr. Jones, from the river side, was doing the same thing, he was treated in an entirely different fashion. And the local police all recognized Mr. Jones and his family by sight.

        In some ways, the people on the river side were humorous. At one time, one guy was feuding with his neighbors because he wanted permission for his company’s helicopter to fly up the river and land on his yard to take him to work in the city, and the neighbors felt it was too noisy and he should just suffer through working in his chauffeured limousine for the hour it took to get there like everyone else. None of them showed up at the borough meetings where the change in statute was discussed, but the room was overflowing with the various legal teams :^)Report

      • Crap, write three paragraphs and leave out the punch line: in Fair Haven, no one expected the police to treat the people from the two sides of the road the same.Report

      • Kazzy in reply to Michael Cain says:


        In all honesty, whenever I move on from my current place of employment, I hope to never have to deal with the guards of the Tuxedo Park gate. I have little interest in entering their special little zone besides the fact that I work there.

        I just bristle at the idea of the wealthy and elite being able to so brazenly leverage the power of the government to their advantage. We all know it happens. Most of us don’t like it. It just seems to be at another level when a group can say, “Yea, we’re going to turn our country club with private security into a town with cops who have guns and the force of the state behind them.”

        Though — and here is where I need to reflect on how unprincipled I’m being — this is essentially how every government since the dawn of time has come to be: a powerful group justifying their power.

        Ugh, when the fuck did Hanley get all up in my head?Report

      • @kazzy
        If I were going to pick a situation to be offended about, I’d pick the following. During my time on the staff of the Colorado legislature, a man with a handgun entered the Capitol. He refused to surrender the gun and a state trooper shot and killed him. The response was to put metal detectors and troopers at the public entrances to the Capitol so that people with guns couldn’t get in. This action was opposed by Democrats generally (“It’s the people’s building”) and supported by the Republicans. At roughly the same time, the Republicans were trying to expand the number of other public spaces where concealed guns were allowed. In effect, “Crazies with handguns must be allowed in public spaces — except the public space where I spend most of my time, where not only are they forbidden, but I’m going to spend public moneys to identify them.”Report

    • Jaybird in reply to Kazzy says:

      It strikes me as vaguely similar to covenants. Well, similar insofar as this seems to be a covenant on steroids.

      The part that I find troublesome is not the covenant part (though *I* could never live under those irritating rules), it’s the fact that the cops are participating.

      Now, here in Colorado Springs, there’s a segment of the street between the block with the parking garage and the adjacent block with the megachurch that, 6 3/4ths days out of the week, is just another street in town… however, for 6 hours on Sunday, the cops are there directing traffic and allowing pedestrians to walk across the street (rather than walk half a block to the crosswalk). Is that an appropriate use for uniformed police officers? Most of the qualms I have are assuaged by the fact that it’s just for a handful of hours and it *IS* one of the busiest streets during those 6 hours that the city has to deal with.

      And yet.

      Anyway, my problem isn’t really with the “we want a gate to our neighborhood” as much as it is the whole “cops keeping the riffraff out” thing.

      As for its legality… it’s not like you can call the cops. I imagine that the police see a lot more tax revenue coming in from that neighborhood than from the people they’re keeping out of it. It’s a racket.Report

      • Mike Schilling in reply to Jaybird says:

        however, for 6 hours on Sunday, the cops are there directing traffic and allowing pedestrians to walk across the street (rather than walk half a block to the crosswalk).

        This kind of thing is very common around stadiums on game day. There are cops dedicated to directing traffic near AT&T during every home game. (There used to be streets near Candlestick Park that were two-way most of the time, but one-way to or from the ballpark before and after the game.) That it’s a church makes it a bit less comfortable for me, but it’s still cops being deployed where they’re most needed.Report

      • Kazzy in reply to Jaybird says:


        “Anyway, my problem isn’t really with the “we want a gate to our neighborhood” as much as it is the whole “cops keeping the riffraff out” thing.”

        This is it for me, too.Report

  9. LWA says:

    My mind, it wanders…
    Without being able to comment on the law, I would only use this as a springboard to the larger question of association versus inclusion.

    Why is this hurtful or alarming? Why should any of us care, if we are prohibited from driving there?

    Is there a “right” to inclusion? Maybe, I leave that to the legal experts. But I think this demonstrates how potent and corrosive exclusion becomes. People on this thread, who live thousands of miles from Tuxedo Park, become hurt and angered over being denied access to someplace we will never visit in our lifetimes.

    When Tuxedo Park is visited by some calamity, will the residents of the surrounding areas see them as kin and brothers, and rush to their aid? If the balance of political power tilts against them, will the other residents take vengeance, remembering the slight and insult of the previous generation?

    Americans look at events like the Holocaust, the Rwandan genocide, Bosnian-Serb ethnic cleansing, and smugly believe this is alien to us. I don’t think so. We like to think these events happened due to so huge economic, or political movement, that big crises require big triggers. But each of these horrible things were preceded by decades or centuries of small slights, insults, exclusions, of Them and Us, “Those People Are Awful” types of exclusion.

    It would be wonderful to think we can will this away, that we could walk past a sign saying “You Aren’t Wanted Here”, and have absolutely no reaction, utter indifference. As if we could cleanse ourselves of that gnawing desire to be included and welcomed into the group.

    But who here can, or would even want to?

    I don’t have a neat and tidy solution here other than to point out that the “right” to associate is also, Charlie Hebdo-like, the “right” to exclude and offend.Report

  10. Mike Schilling says:

    Contrary to Kazzy’s blurb, this is libertopia. Everything is privately owned and property rights are absolute.Report

  11. Tod Kelly says:

    @burt-likko (Moving this down here…)

    My responses to those points:

    1 & 2: I think it was the previous several attempts to punch it in while benign the road that made for the not going for it. So while it might’ve been 14-0 early leading to no overtime, it might also have been 0-0. (Also leading to no overtime.) (FTR, I probably would have gone for it, but that’s just because I have been watching Chip Kelly ball for a decade now.)

    3. I have to say, I didn’t see that fake coming. I was sure at the time they just wanted some mother-fishing points on the board.

    4. Yeah, the unsportsmanlike is a good point. I know I was thinking the same about the Hawks a various points. That is indeed just dumb.

    5. I’ll just agree to disagree, but I’m a believer in stopping the big play at the expense of the mid-range play. (Again, it’s a watching Chip thing.)

    6. Yeah, I thought that was strange too. I remember wondering during the game, “Do they think Sherman is trying to bait them into throwing it at him?” And then I actually started wondering, “Is Sherman trying to bait them to throw it at him?” Although it might have changed the outcome of the game, I would kind of love to remake the universe where they tried. I would love to see what a one-handed Sherman does when it’s all-the-tables time, just to see what would happen.

    7. From what I read afterwards, I think the guy who touched it actually had been told to block, not catch — but then it was coming down right on his head, so he reacted instinctively. More than any other moment in the game, the OSK felt to me like a stroke of wild, God-granted luck.

    8. Again, I don’t think that’s what lost them the game.

    9. Yeah, bad punt.

    10. Agreed as well, though the Packers were not ahead then. Seattle was up by 1, and they tried for the two to make it a field-goal ties game.

    As to the rest, I agree with it all — but I think I agree with it all in hindsight. I think it’s too easy for me to imagine them having gone the other way, still lost, and everyone wondering why they gave a game they had won to Seattle by not running out the clock and stopping the big play.

    It’s funny, but I haven’t seen anyone mention here, on TV or the radio mention what I thought was the biggest reason the game ended the way it did: Around the start of the fourth quarter, the Packers just looked totally gassed to me.

    I don’t know it was a spent adrenaline thing, or a conditioning thing, or a tightening up thing, but they looked exhausted. That Lynch touchdown especially — right there it looked like they had nothing left in the tank. And I really thought that was the difference in that overtime drive compared to all the earlier Seattle drives.Report

    • Burt Likko in reply to Tod Kelly says:

      Gassed? No, I saw the pictures on the sideline of defensive players in white and green fist-bumping, patting each other on the back, and visibly thinking about a trip to Arizona. Game wasn’t over yet and they should have known better. These guys played a full sixty in most of their other games; something about being ahead for so long and getting so much success early got into their heads and put them to sleep, made them take the rest of the game for granted.

      The credit on Seattle’s side was somebody over there refused to give up; somebody was telling the team, “It doesn’t matter that we’re down 17-0, we’re at home and we’re the champions and we can still pull this thing out!” and capitalized on that when, inevitably, some breaks started going their way. Was that Satan Pete Carroll? Was it Russell Wilson, who cried to the camera afterwards that Jesus just plain liked Seattle better than Green Bay? (If Wilson was right, he seemed to have forgotten that Jesus nevertheless didn’t cover the Vegas spread.)

      Ah well. As poorly coached as I think this particular game was, I can’t fault the Packers’ coaching staff too heavily. They got to the point where they did, which is more than 28 other teams of smart, strong, experienced people who get paid lots of money to play the game as well as it can be played were able to do. And contrary to the popular knock on Coach Sherman, I don’t think it all got done on the shoulders of the QB, despite his immense skill and ability.

      Besides, now it’s got my wife saying we ought to take a trip up to the pacific northwest so I can make good on our bet. Only things stopping us from doing it are money and time, both of which are at something of a premium at the moment.Report

      • Tod Kelly in reply to Burt Likko says:

        “(If Wilson was right, he seemed to have forgotten that Jesus nevertheless didn’t cover the Vegas spread.)”

        That wins the internet.

        As to traveling up here, that would be dandy. Full confession: Since $ seems to have been a stumbling block for a lot of folks the past two years, I am considering doing an early declaration that we do Leaguefest on the West Coast in Portland this year. I could get a lot of people free room, and one of the evenings maybe we do drinks and food at our place so that those expenses are off the table for people.Report

      • Kazzy in reply to Burt Likko says:

        McCarthy’s mismanagement of the game really came in the first half. He needed to go for the end zone on those first two drives that stalled inside the 2. The numbers all say so. And while “conventional wisdom” dictates otherwise… well, conventional wisdom is stupid. When you are playing a better team — and Seattle at home is a better team than Green Bay — you have to use a high-variance strategy… so-called David tactics. Even if Green Bay is only successful one of the two times, they still net more points (7 versus 6) and disadvantage Seattle the time they fail by pinning them inside. I won’t go so far as to say, “Hey, one more point… they avoid overtime!” because as Tod correctly points out, the game unfolds completely differently from there. Did McCarthy’s calls in those situations — and throughout the first half — lose his team the game? Impossible to say. Did they lower the odds of his team winning each time he made one of them? Yes. Again, we have numbers to tell us this with a pretty high degree of certainty.

        Ultimately, we are trying to reverse-engineer a “reason” for something happening that seemed like it shouldn’t have. “The Packers were gassed!” “No, they were overconfident with the lead!” Sports — hell, life — doesn’t neatly fit a narrative. The Packers caught some breaks early in the game and the Seahawks caught some breaks late in the game. The Packers did a few more dumb things than the Seahawks did. The Seahawks had better overall talent. A ball bounced off one guy’s head and into another guy’s arms. Shit happens.Report

      • Jim Heffman in reply to Burt Likko says:

        Indeed, you might say that Green Bay took the low-risk plays and the lower reward, and Seattle took the high-risk play and it paid off with higher rewards. We talk about how Seattle won, but if one big play hadn’t come through we’d all be talking about Green Bay’s masterful game-management strategy.

        As with everything else it’s a lesson in economics and the free market!Report