Exclusion Diffusion

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 70 No. 4

Exclusion Diffusion

Sarah L. Swan

EXCLUSION DIFFUSION

Sarah L. Swan^*

Abstract

Over the last few decades, municipalities and local governments have increasingly turned to banning and exclusion laws as a means of crime prevention. Banning and exclusion laws prohibit an individual from accessing a particular area or building for a prescribed period of time (often one to five years). Violations frequently trigger penalties of up to a year in jail. Because they are focused on crime prevention, no actual wrongdoing is necessary to trigger these bans: many bans are issued on the basis of mere suspicion.

Banning and exclusion laws most typically forbid suspicious individuals from being in public spaces, like city parks or neighborhoods. But they also extend beyond just public spaces, into spaces that mix public and private aspects, like private businesses open to the public, and public housing. And now, banning and exclusion practices have diffused out into the purely private realm. Through a recent trend of local ordinances, state legislation, and ad hoc initiatives, many private landlords have been empowered to ban a tenant's invited guests from a rental home, on virtually any basis. Landlords can exercise this power solely on personal fiat, though they often do so in partnership with local police.

This Article is the first to surface and critique this expansion of banning and exclusion laws into the private realm of the home. As private rental homes join city streets, neighborhoods, parks, private businesses, and public housing as yet another site of state-driven exclusion and banning, spatial governance becomes nearly totalized. Although carefully constructed exclusionary mechanisms can be a justified crime-prevention tool in certain limited circumstances, landlords' new exclusionary powers, as currently constituted, all but guarantee they will be exercised in the same racially discriminatory manner as prior forms of exclusion from public spaces. These enhanced exclusionary powers increase displacement, evictions, and arrests; link associational rights to property

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ownership in troubling ways; negatively affect family formation; and infringe upon the liberty and privacy rights of already vulnerable populations. For these reasons, this exclusionary expansion should be curtailed.

Introduction.............................................................................................849

I. From Public to Private.................................................................854

A. Banning in Public Spaces ......................................................... 854

1. Parks and Public Facilities Banning.................................. 855
2. Injunctions and Gang Ordinances...................................... 856
3. Off-Limits Orders for Areas with Drugs or Prostitution .... 857
4. Banned from the Entire City............................................... 858

B. Banning in Public/Private Spaces ............................................ 859

1. Businesses........................................................................... 859
2. Public Housing................................................................... 860

C. Banning in Private Rental Housing.......................................... 862

1. Trespass Affidavit Programs .............................................. 862
2. Invited Guests in Private Rental Homes ............................. 864

a. Case Law ..................................................................... 866
b. State Legislation and Local Ordinances ...................... 866

II. Problems with Bringing Banning Home....................................871

A. Cumulative Impact .................................................................... 872
B. The Special Significance of Home ............................................ 872
C. Discretion and Discrimination ................................................. 874
D. Impact on Visitors and Tenants ................................................ 878

1. Associational Rights ........................................................... 879
2. Privacy and Dignity Harms ................................................ 881
3. Eviction and Arrest ............................................................. 882

a. Visitors Face Arrest..................................................... 883
b. Tenants Face Eviction ................................................. 884

III. Arguments for Banning...............................................................885

A. Public Interest .......................................................................... 885
B. Private Interests of Landlords .................................................. 889

IV. Circumscribing Exclusion...........................................................892

A. Home Rule Solutions ................................................................ 894
B. Constitutional and Statutory Claims ........................................ 895

1. The Threshold Issue of State Action ................................... 899
2. Rights of Association .......................................................... 900
3. Procedural Due Process Claims ........................................ 901
4. Fair Housing Act ................................................................ 902

Conclusion.................................................................................................903

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Introduction

Banishment is an ancient, dramatic, and symbolically potent punishment.¹ Modern regimes, however, tend to use banishment not as a form of punishment, but as a means of crime prevention.² Often in response to perceived suspicions or concerns about potential disorderliness, municipalities and local governments have been using trespass and exclusion laws to exclude individuals from all sorts of places.³ Public facilities, parks, neighborhoods, districts, businesses, public housing, and sometimes even entire cities have all been marked as zones of exclusion that certain people are unable to visit. Typically, these "trespass exclusion" laws work as follows: upon seeing someone deemed suspicious, police officers, city employees, or other individuals associated with the property will inform that suspicious person that they are no longer allowed to be in a particular place and will issue a 'no trespass' order.⁴ After receiving this notice, any future attempts to access the property will typically result in arrest and criminal conviction for trespass.⁵

These modern municipal banning laws are the latest in a string of attempts to combat disorder.⁶ In the first half of the twentieth century, vagrancy laws did

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this work. Vagrancy statutes criminalized "habitual loafers,"⁷ "disorderly persons,"⁸ persons "wander[ing] without destination or visible means of support,"⁹ and persons "strolling around from place to place without any lawful purpose or object."¹⁰ In a series of cases in the 1960s and 1970s, these laws were found to be unconstitutionally vague.¹¹ Cities then turned to civility laws, which were more specific than vagrancy laws in that they criminalized particular behaviors related to disorder, like aggressive panhandling, public urination, and sitting on sidewalks.¹² Civility laws could withstand more constitutional challenges, but their specificity also made them less useful to cities.¹³

Banning and exclusion laws are the "more muscular successor" to these vagrancy and civility codes.¹⁴ Like the vagrancy and civility laws before them, banning and exclusion laws are most interested in restoring order in public spaces.¹⁵ But these laws also possess an "expansionary logic,"¹⁶ such that they have come to exclude not just people in public spaces, but also more private spaces, like businesses open to the public¹⁷ and public housing complexes.¹⁸

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Trespass exclusion laws have now also come to govern the purely private space of rental homes. Traditionally, renters have held the right of exclusion: the standard common law position is that renters in possession of the property have the right to decide who may or may not visit them there.¹⁹ Now, though, through a combination of ordinances, case law, state legislation, and ad hoc police and landlord initiatives, many jurisdictions have reversed that position, such that landlords and police in many municipalities now have banning authority over guests in rented homes. Guests who have been banned can be arrested if they attempt to access the property again, and the tenants associated with them can be evicted.²⁰

This expansion of landlord exclusionary powers is occurring across the nation. Arizona has enacted legislation that enables landlords to have a tenant's guests removed at the landlord's sole behest.²¹ The Illinois Code of Civil Procedure currently declares that landlords can ban anyone who is not on the lease and is not a member of the lessee's household.²² Landlords are exercising similar powers in cities and towns in Michigan,²³ and in Madison, Wisconsin.²⁴ Under one recent initiative, the Madison Police Department encouraged landlords to erect "No Trespassing" signs, which officers believed allowed them to "declare any non-resident on the property to be trespassing."²⁵ Under this broad power, "family members - even those who may be providing critical support, like child care - cannot visit tenants" if police disapprove.²⁶

This expansion of banning and exclusion into the private realm of the home is deeply problematic. First, the cumulative impact of adding private rental homes to the multitude of spaces where individuals may be excluded on threat of criminal penalty means that with the sole exception of owner-occupied homes, nearly every conceivable urban space is potentially subject to state-driven exclusion. Second, the special significance of "home" in the cultural and legal imagination makes exclusion from them particularly damaging. Third,

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unfettered...