Controlling chronic misconduct in city spaces: of panhandlers, skid rows, and public-space zoning.

Author:Ellickson, Robert C.
 
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Contents

  1. Introduction

  2. Chronic Nuisances in Public Spaces

    1. The Tragedy of the Agora

    2. The Concept of a Chronic Street Nuisance

      1. Harms of Chronic Street Misconduct in General

      2. Chronic Panhandling

        1. Benefits of Panhandling

        2. Harms of Panhandling

      3. Chronic Bench Squatting C. A Recommended Doctrinal Definition of a Chronic Street Nuisance

      4. A Proposed Prima Facie Case

        1. The Proposal

        2. The Inadequacy of an "Effect on the Street Headcount" Test

        3. Only Acts, Not a Status, Can Create a Nuisance

      5. Defenses Available to Those Who Cause Chronic Street Nuisances

    3. Distributive Justice and the Destitute

    4. Why "Homeless" Tends to Be a Misleading Label

  3. The Many Sources of Street Order

    1. Internalized Norms of Street Etiquette

    2. Pedestrians' Self-Help Defenses

    3. Third Parties That Police the Streets

    1 . Individual Champions of the Public

    1. Pedestrians

    2. Owners and Occupiers of Abutting Land

    1. Organizations That Enforce Street Decorum

    2. The Police

  4. A Brief History of Street Disorder and Skid Rows

    1. Trends in the Size of the Urban Underclass

    2. Fluctuations in the Strength of Social Controls

    1. The 1950s: Informally Policed Skid Rows

    2. 1965-1975: A Constitutional Revolution

      1. Vagrancy

      2. Public Drunkenness

      3. Disorderly Conduct Stemming from Mental Illness

      4. Liability of Officials and Governments for Constitutional Violations

      5. The Revolution in Retrospect

    3. The 1980s: Popular Embrace of the Homeless

    4. The 1990s: Backlash

  5. The Informal and Formal Zoning of Public Spaces

    1. A Hypothetical Division of City Public Spaces into Red, Yellow, and Green Zones

    2. Alternative Zoners of Public Spaces

    1. Informal Zoning

    2. Municipal Zoning

  6. The Federal Constitutional Rights of Individuals Who Chronically Misbehave in Public Spaces

    1. Panhandlers' Freedom of Speech

      1. Commercial or Political Speech?

      2. Permissible Regulation of Time, Place, and Manner

      1. Alternative Channels of Communication

      2. The Significance of the Government Interest

      3. Narrow Tailoring: of Street Performers and Solicitors for Charities

    2. Bench Squatters' Constitutional Rights

      1. Freedom of Travel

      2. The Eighth Amendment Ban on Criminalizing Status

  7. The Relative Merits of Informal and Municipal Zoning of Public Spaces

  8. Conclusion

  9. Introduction

    To the bewilderment of pedestrians in the 1980s, panhandlers, aimless wanderers pushing shopping carts, and other down-and-out individuals appeared with increasing frequency in the downtown areas of the United States.(1) During the same period, in an apparent paradox, the Skid Rows of most U.S. cities were in sharp decline. While New Yorkers were encountering more panhandlers in their subway system, their city's most famous Skid Row--the Bowery--was fading from view.(2) While the number of homeless campers occupying Palisades Park in Santa Monica rose, fifteen miles away, Los Angeles's Skid Row east of Spring Street was losing population.(3)

    By the early 1990s, the increased disorderliness of the urban street scene had triggered a political backlash. Commentators began to report that the urban populace was suffering from "compassion fatigue."(4) Even in the nation's most liberal cities, mayoral candidates campaigned for greater control of street misconduct, and city councils passed crackdown ordinances. In New York, San Francisco, Washington, D.C., and countless other cities, these legal measures, coupled with a general hardening of pedestrians' attitudes, began to reduce the incidence of disorderly behavior in public spaces.(5) In 1994 alone, voters in Berkeley, Santa Monica, and Santa Cruz--three of the most politically liberal municipalities in California--compelled their local officials to take steps to limit street disorder.(6)

    This Article describes the evolution from the Skid Row of the 1950s, to the unruly sidewalks of the 1980s, to the emphatic backlash of the 1990s, and seeks to explain this course of events. The Article's primary mission, however, is normative. ACLU attorneys, poverty lawyers, and pro bono departments of large law firms have been challenging crackdown ordinances on constitutional grounds, generating an explosion of reported cases on the regulation of public spaces.(7) This unprecedented level of legislative and judicial attention to issues of misbehavior in public spaces makes it timely to explore the appropriate social controls that pedestrians, religious leaders, police officers, legislators, and others should place (and, in the case of judges, allow to be placed) on users of streets, sidewalks, and parks.

    These open-access public spaces are precious because they enable city residents to move about and engage in recreation and face-to-face communication. But, because an open-access space is one everyone can enter, public spaces are classic sites for "tragedy," to invoke Garrett Hardin's famous metaphor for a commons.(8) The media are quick to report the gravest problems of the streets, such as armed robberies, drug trafficking, and drive-by shootings. This Article focuses on problems that by comparison seem trivial: chronic street nuisances. Chronic street nuisances occur when a person regularly behaves in a public space in a way that annoys--but no more than annoys--most other users, and persists in doing so over a protracted period. Two hypothetical examples of street nuisances recur during the analysis that follows. The first involves a panhandler, by assumption a mild-mannered one, who repeatedly stations himself on a sidewalk in front of a particular restaurant. The second involves a mentally ill bench squatter who, morning after morning, wheels a shopping cart(9) full of belongings to a bench in a downtown plaza, stretches out a sleeping bag on the bench, and dozes there intermittently until dark. The street behavior in both cases is assumed to result in a net decrease in the use of these public spaces.(10) Because the panhandler's presence inhibits pedestrians, the sidewalk is less used and the restaurant's business suffers;(11) although the bench squatter himself contributes to the daytime population in the plaza, the average headcount falls because fewer pedestrians wish to linger there.(12)

    Chronic street nuisances pose practically knotty and normatively perplexing questions about the management of public spaces. Most courts have held that a city can prohibit more aggravated nuisances, such as aggressive panhandling(13) and overnight sleeping in parks not designated for camping.(14) Conversely, there is universal agreement that every person, no matter how scorned, is entitled, assuming he behaves himself, to walk on every public sidewalk and to sit on every bench in every public park. The examples of protracted panhandling and bench squatting fall in the baffling normative terrain that lies between these easier cases.

    Most of the legal scholars who have written on street misconduct have come at the topic from one of three angles: hyper-egalitarianism, free speech libertarianism, and criminal defense. Each of these is a pertinent, but overly narrow, perspective.

    Commentators with a hyper-egalitarian outlook single-mindedly aim at redistributing wealth, status, and opportunity to the poorest at hand--in this context, to a street person whose misbehavior has annoyed other pedestrians.(15) For example, hyper-egalitarian analysts apparently would excuse, on grounds of poverty and duress, a destitute panhandler who aggressively hassled a pensioner.(16) This exclusive stress on distributive justice is criticized below, in part because surveys suggest that street disorder annoys low-income pedestrians as much as anyone.(17)

    First Amendment scholars have produced a large literature on freedom of speech in public spaces.(18) These writers would first ask whether, say, a request for money constitutes "speech." If they were to conclude that it does, they would proceed to the intricacies of "public forums," "time, place, and manner" regulation, and related First Amendment issues. This literature, while insightful, self-consciously gives priority to the communicative aspects of street behavior and downplays its other features, including its effects on the liberties of other street users.

    Finally, criminal law specialists have addressed issues of police control of street behavior. A chronic street nuisance may fit the definition of an infraction such as vagrancy, loitering, or disorderly conduct. Many criminal law scholars have focused more on deterring police misconduct than on controlling individuals who disturb the peace. For example, Caleb Foote's landmark article on vagrancy law stressed issues of vagueness and excessive police discretion.(19) Because criminal sanctions are but one of many possible forms of social control,(20) authors who narrow their focus to police enforcement tend to underappreciate other sources of order on the street.

    Notable and forceful advocates of controls on street misconduct are relatively more prominent in the literature beyond the law reviews.(21) Urbanologist Jane Jacobs and criminologist Wesley Skogan have both stressed that maintaining the invitingness of streets, sidewalks, and parks is essential to the viability of an urban neighborhood.(22) The well-known "broken windows" thesis of James Q. Wilson and George L. Kelling also sounds this theme. Wilson and Kelling assert that the persistence of a minor disorder not only disturbs a neighborhood on its own account, but also, like an unrepaired broken window, signifies that social controls are attenuated at that locale. Passersby, sensing this diminished control, become prone to committing additional, perhaps more serious, criminal acts.(23) According to Wilson and Kelling, unchecked street misconduct thus has a multiplier effect.

    A specialist in property law approaches the issue of street order as a problem not of speech or of crime, but of land management. Many lawmakers and scholars have treated municipal lands as an undifferentiated mass. City spaces, however, are highly...

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