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Creating Criminals, One Petty Law at a Time

by BEN ROSENFELD

When former Secretary of Education William Bennett suggested in 2005 that one way to reduce crime would be to “abort every black baby,” he claimed he was being ironic and trying to demonstrate the moral reprehensibility of such Machiavellian thinking.  However, he did not say “all babies,” and he did not retreat from his underlying racist premise that blacks are more likely than whites to commit crimes.

San Francisco Mayor Gavin Newsom has responded to a spate of assaults and killings at nightclubs by proposing a new ordinance that would ban people from standing (“loitering, he calls it) in front of them for more than three minutes.  Newsom is a rising star in the Democratic party.  On the surface, it appears as if a compassionate white mayor is finally exhibiting concern for black victims of violent crime.  (Apparently, a majority of the nightclub assaults involved black men.)  But Newsom’s modest proposal is premised on the same foul stereotype as Bennett’s that black nightclub-goers are more likely than other people to commit violent crime.  Officials would never propose such sweeping restrictions on freedom of movement to prevent ‘white crimes’, such as prohibiting disgruntled workers from visiting their former places of employment, or barring football fans from donning the colors of the visiting team while sitting in the home team’s section.

Every horrible  episode  does not require a new rule.  Murders outside of nightclubs are probably no more common than murders inside of bars and clubs.  We have become a nation of knee-jerkers who legislate according to the sensational, the aberrant, even the outlandish, rather than the studied, statistical, or principled.  In a free society, we don’t punish the majority for the crimes of the minority, or ascribe guilt, or guilty intent, based merely on status (nightclub-goer) or innocuous conduct (congregating outside).  Except, apparently now we do.

Government officials cannot and should not be counted upon to make principled distinctions about what constitutes innocent versus miscreant assembly, absent some indicia of actual criminal conduct.  Newsom’s law would exempt people who are smoking, waiting for a bus, or engaged in a short list of other officially sanctioned behaviors.  But no list of exemptions will prevent security guards or police from enforcing the law based on their own social, cultural, behavioral, or even racial biases.

A person smoking would be exempted, while a person getting a breath of fresh air would not be.  Revelers waiting outside for a friend to show up, or for one to exit, might be ordered to move several doors down, while people chatting up the band between sets might be given a pass.  People engaged in innumerable forms of protected expressive activity, from distributing literature, to picketing, to reading posted bills, to panhandling, to — yes –- arguing nonviolently with one another, let alone with authorities who tell them to scram, could find themselves subject to arrest.  A security guard probably would decline to ward off a friend of the door person who stopped by to chat.  But the same security guard would be free to chase away anyone who flunked his/her own personal attitude test.

The point is not that everyone who lingers in front of a nightclub will be warned, cited, or arrested.  The risk is just the opposite: that authorities will use this broad power selectively, to choose who is a VIP or who gets the bum’s rush.  The effect literally will be to carve private ante-clubs out of the public sidewalk, thereby obliterating yet more public space.  Like the filling of wetlands for condos and malls, this has been the trend throughout the country now for decades.  San Francisco of all cities, which has historically set a national example of expanding civil rights, should not follow suit.
Mayor Newsom’s proposal also treads on dangerous cultural ground.  In many cultures, the community gathering grounds are outside, not inside, in town plazas and parks, where public transportation corridors intersect, or as public space continues to shrink, on public corners and sidewalks.  Densely populated San Francisco, a walking city, lends itself to vibrant street culture more than many other American cities, and outdoor gaggles of people, often sidewalk regulars, are common.  This is part of San Francisco’s multicultural charm.  More importantly, it is an enshrined liberty interest.  Newsom’s law would enable authorities to further mold and homogenize culture by imposing their dominant social paradigms on minorities, racial or otherwise.  This, in part, is what has always been wrong with gang injunctions.
Of course, the notion that such a law would even work to increase the peace is ludicrous on its face.  Nightclub goers could still fight next door, on the corner, or in the parking lot.  Moreover, unequal enforcement of the law might start more than a few fights, and further alienate some members of the community, where such alienation is itself the ultimate root cause of extreme antisocial behavior — to wit, violent crime.

Newsom’s proposal is an ill-conceived political band aid which will hurt more than it helps.  At best, like his aesthetically-driven, out of sight out of mind approaches to homelessness patterned after Rudy Guiliani’s broken windows theory, it will just push the problem down the street, somewhere else.  Everyone wants to prevent murders outside of nightclubs.  But we don’t, as William Bennett probably meant to say, solve crime by aborting any possibility of its occurrence, or closing off every place where it might occur, even though it is beyond cavil that such totalitarian approaches work.
An American police state takes its own form:  we gradually exchange a rights-based system, in which government power is checked by law, for a paternalistic one in which we are all arrestable multiple times a day as we prosaically go about our lives, but trust the police to reserve their awesome power for use against the “bad guys.”  In the process, we cede the government carte blanche to determine who the bad guys are.  Every new rule creates a new set of “criminals” of people who weren’t before.  Newsom’s law would provide yet another pretext for police to detain and search anyone they regard as suspicious, want to put in the system, or simply wish to target.  The question is how exceptions to democracy will we permit ourselves before we have to admit we no longer live in one.

BEN ROSENFELD is a San Francisco civil rights attorney, and a Member of the Board of Directors of the Civil Liberties Defense Center (www.cldc.org) based in Eugene, OR.

 

 

 

 

 

 

 

 

 

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Ben Rosenfeld is a civil rights attorney in San Francisco.

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