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Brookline TAB
Brookline, Massachusetts

Rules and Discretion
in Community Life

Dennis Fox

July 18, 2002

Here at the condo complex, talking about rules is all the rage. I hope things settle down short of adding more regulation to our daily lives. Brookline's already got enough of that.

It turns out a few unit owners want to tighten up the loose way of life that helped draw my wife and me here three years ago. Some of us see bikes chained to porches, a small vegetable garden, or a child's climbing equipment as signs of life and individuality; others see chaotic infringement on common ground. We're in the thick of it right now, digging up past bylaws, proposing new ones, demanding, mediating. It's a real challenge.

It's hard to draft rules that say what they're supposed to mean and go no further. In a past Midwest life I used to ask my students to write a rule to keep cars out of a big park in my neighborhood. By the time they finished listing all the reasonable exceptions -- emergency vehicles actually on the way to an emergency, a parent looking for a lost child (but how about a lost dog?), park service vehicles, handicapped-accessible vehicles, and more -- the rule was too long to fit on a readable park sign.

The common way to compensate for overgeneralized rules is to leave enforcement to someone's discretion. So the park officer lets the ambulance go through. And if a driver has a good enough story, the cop says okay. Maybe.

It's that "maybe" where we run into trouble. Maybe the cop is lenient with respectable looking middle-aged folks, or nice-looking women, or someone who's polite and believable, but not with African Americans, or young guys with long hair, or anyone who doesn't show the proper respect. Discretion brings its own dangers.

There are always some people who think every rule and law should be enforced, all the time, but that way lies madness. It's common throughout the US for police officers to pressure their bosses by enforcing every traffic violation. So many people get hauled into court that the cops typically win their battle without having to go on a real strike. It turns out enforcing every rule isn't all that popular.

Here in Brookline, we've recently seen plenty of rules bizarreness. A new building inspector told a Brookline Village businesswoman to remove the flowers she sold from the sidewalk in front of her store; after 21 years without a complaint, it turned out she was violating a rule.

Then he told other owners to remove signs from their front windows because they violated some other ordinance no one's paid attention to in decades. In this case, he was overruled by higher-ups who said the regs were always subject to "individual interpretation." So much for making things clear.

Parking's another example. When my parents visited from Florida for a week, they left their car outside overnight and never got a ticket.

But a few months later my son's Florida-licensed car got one overnight ticket -- and three between 7 and 9 am, when (so we've been told) the street is supposed to be car-free to keep nearby high school students and faculty from parking all day. The only problem? My son got his tickets when school was already over for the year, making the school-hour ticketing pointless.

A different kind of rules violation occurred a few months ago when town cops busted two white supremacists for leaving anti-Semitic flyers in building entryways along Washington Street. Now, I shed no tears to see these guys taken off the street, but only someone ignorant of First Amendment law could think it legal to arrest people for the content of their leaflets. I haven't noticed officers busting people who litter my entryway with flyers for pizza discounts.

So discretion rules, whether we're talking about how to react to leaflets stapled to electric poles, or whom to charge with a crime , or how to punish the guilty or compensate the aggrieved. I'm not sure how we'll settle our differences here at the condo. I do know that any new rules are likely to create more problems than they resolve.


Note: this version may differ from the published version.

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