Black Codes and broken windows: the legacy of racial hegemony in anti-gang civil injunctions.

• Author: Stewart, Gary

[W]e remain imprisoned by the past as long as we deny its influence in the present.

--Justice William Brennan(1)

Murder and mayhem are ravaging America's inner-cities. indeed, members of neighborhood gangs are holding an alarming number of innocent citizens "hostages in the `hood,"(2) leaving residents of these communities afraid for their lives in public spaces.(3) In response to these terrifying conditions, many state and local governments have adopted new criminal and civil approaches designed to abate the "nuisance" of gang existence.(4)

California has positioned itself at the vanguard of this burgeoning army of states, deploying powerful new weapons in a war against local gangs for the urban landscape.(5) The escalating social costs of gang activities have brought emergency measures aimed at resuscitating ailing California communities.(6) Especially prominent--and, as we will see, problematic--among these new stratagems is the civil injunction aimed at curtailing gang activities.(7)

More specifically, municipalities are increasingly fighting gangs by appealing to courts' power to abate nuisances. Judges have responded by granting sweeping injunctions restraining gang members from fighting, using gang symbols, possessing weapons, spraying graffiti, trespassing on private property, and even socializing publicly.(8) As Terence Boga notes, "Through the magic of a judicial order, even purely social association becomes a punishable offense, subjecting violators to months of incarceration and significant fines. By means of this civil remedy, cities are effectively banishing street gangs from the realm of public space."(9)

In this Note, I identify modern anti-gang civil injunctions as a legacy of postbellum vagrancy ordinances. Juxtaposing these two periods, I show that a significant effect of measures authorizing broad police and judicial discretion in crime prevention is the domination and control of "undesirable"--but "innocent"(10)--minority groups by majority race groups. Utilizing the prominent psychological theory of aversive racism,(11) which analyzes the more subtle forms of contemporary racism, I argue that differences in the transparency of racist attitudes and actions do not necessarily reveal differences in the harmful effects that these attitudes and actions might impose on minority communities.

More concretely, the California Supreme Court's recent affirmation of purportedly race-neutral anti-gang civil injunctions threatens to harm minority communities.(12) Courts have consistently granted municipalities broadly worded injunctions that threaten to stigmatize innocent minority youth who are members of the same communities that these courts purport to want to protect.(13) Some of these youth might be labeled "associates" of gangs simply because they belong to racial minorities and share living quarters or public spaces with street gang members. Others might actively affiliate with street gang members but lack the specific intent to further a gang's criminal activities.(14) Either way, anti-gang civil injunctions promise to perpetuate racial stigma and oppression. Particularly because gang members are popularly envisioned as lower-class members of racial and ethnic minorities(15) and because many minority youths romanticize gang culture,(16) communities genuinely attempting to break down systems of racial oppression cannot afford anti-gang civil injunctions. Although justified in less overtly racist terms, anti-gang injunctions share with postbellum, vagrancy ordinances a repressive effect that stamps minority communities with badges of inferiority.

In Part I of this Note, I examine and critique James Q. Wilson and George L. Kelling's "broken windows" metaphor,(17) which refers to the people, entities, and symbols (e.g., homeless people, gangs) that may impinge upon a community's quality of life and thus symbolize its impending decay. The "broken windows" argument claims that broad police discretion is necessary for effective crime prevention, even if such discretion leads to some infringements on civil rights. I challenge this approach by examining its ability to grapple with one simple historical lesson: that the provision of broad police powers might result in both general violations of civil liberties and the specific oppression of minority communities.

A review of this literature is essential to an examination of anti-gang injunctions for two reasons. First, the anti-gang injunctive strategy is located within a larger, renewed call for quality-of-life improvements in American cities. Second, the "broken windows" literature provides the strongest contemporary argument for anti-gang injunctions. Thus, an examination of this literature logically precedes an informed discussion of such injunctions.

In Part II, I review the historical nexus between vagrancy laws and "undesirable" groups. Under these laws, police and courts were given broad discretionary powers that were typically used to harass innocent black people. Although the laws themselves were facially race-neutral, I argue that implementation of these laws was often targeted at minority communities. My objective in this part (and throughout this Note) is simply to examine the historical effects of vagrancy laws. I do not address constitutional arguments beyond their ability to document a historical awareness of these effects.

In Part III, I draw an explicit comparison between vagrancy laws and anti-gang injunctions, using the theory of aversive racism to explain how ostensible differences between the two crime-fighting measures are largely illusory.

1. THE DANGER OF BROKEN WINDOWS

   The renewed popularity of quality-of-life concerns is primarily the result of new community and problem-oriented policing philosophies.(18) These philosophies call for police officers to focus less on battling more serious crimes and more on "prevalent and low-key troubles" like abandoned buildings, chronic vandalism loitering youths, unsafe parks, and gangs.(19) Noting that "the rise of crime beginning in the 1960s had coalesced with ... [a shift of attention by police officers] away from the quality of life in public spaces,"(20) some scholars and commentators have increasingly demanded new crime-fighting approaches.

   James Q. Wilson and George L. Kelling's enormously influential article, Broken Windows,(21) helped to accelerate these demands.(22) Indeed, Broken Windows provided a compelling, almost intuitive prescription for modern American policing that "powerfully provoked this new attention to quality-of-life concerns and helped stimulate what became the community policing movement of the 1980s."(23)

   Key to Wilson and Kelling's "broken windows" argument is an observation that "residents of ... foot-patrolled neighborhoods seem[] to feel more secure than persons in other areas, tend[] to believe that crime had been reduced, and seem[] to take fewer steps to protect themselves from crime."(24) Thus, the authors argue, reform era(25) police officers who emphasized crime-fighting should have instead addressed the quality-of-life concerns of the communities that they policed.(26)

   To illustrate the simple premise of their argument, the authors make a memorable analogy. They note:

   Social psychologists and police officers tend to agree that if a window in a

   building is broken and is left unrepaired, all the rest of the windows will

   soon be broken. This is as true in nice neighborhoods as in run-down ones.

   Window-breaking does not necessarily occur on a large scale because

   some areas are inhabited by determined window-breakers whereas others

   are populated by window-lovers; rather, one unrepaired broken window is a

   signal that no one cares, and so breaking more windows costs nothing....

   ....

   We suggest that "untended" behavior also leads to the breakdown of

   community controls.(27)

   Addressing arguments critical of vagrancy ordinances, the authors counter that compassion should not blind us to the blemishes of disadvantaged communities. In their view, communities should willingly tolerate some infringement on the civil liberties of undesirable populations in exchange for the effective crime prevention that broad vagrancy-type laws promise.(28) They note, "Arresting a single drunk or a single vagrant who has harmed no identifiable person seems unjust, and in a sense it is. But failing to do anything about a score of drunks or a hundred vagrants may destroy an entire community."(29)

   In the same spirit as Wilson and Kelling, Professor Randall Kennedy has articulated demands for increased police presence in minority communities. Although not explicitly a call for quality-of-life improvements, Kennedy argues that

   the main problem confronting black communities in the United States is not

   excessive policing and invidious punishment but rather a failure of the

   state to provide black communities with the equal protection of the laws....

   [W]hat is really at stake ... is not simply an inter-racial dispute but an

   actual or incipient intra-racial conflict. Although blacks subject to

   relatively heavy punishment for crack possession are

   burdened by it, their black law-abiding neighbors are presumably helped by

   it .... Although black youngsters who wish to stay out late are burdened by

   a curfew, blacks who feel more secure because of the curfew are benefited.

   Although black members of violent gangs are burdened by police

   crackdowns on such gangs, blacks terrorized by gangs are aided.(30)

   Central to Kennedy's critique is a self-declared appreciation of the many different sectors that constitute black communities.(31) This leads Kennedy to conclude that the disparate racial impacts of crime control policies are perhaps the result, "not of a white-dominated state apparatus `discriminating' against blacks, but instead, of a state apparatus responding sensibly to the desires of law-abiding people--including the great mass of black communities--for protection against criminals...