TABLE OF CONTENTS Introduction I. Third-Party Policing as a Response to Social Problems A. The Rise of Third-Party Policing B. The Home Rule Ordinances 1. Parental Liability Ordinances 2. Crime-Free Ordinances 3. Nuisance Ordinances II. Risk Management and Crime Prevention at Home A. The Dominant Legal and Cultural Constructions of Home B. Compelled Compliance Behaviors 1. Surveillance and Monitoring 2. Isolation III. The Role of Strict Vicarious Liability A. Individual Culpability and Narratives of Fault 1. Failing to Govern and Be Governed 2. Failing to Control Criminality B. Vulnerability as Fault C. The Framing Effect IV. Sanctioning Noncompliance A. Criminalization and Stigmatization B. Eviction V. Challenging Home Rule Ordinances and Creating New Possibilities A. Challenging Home Rules 1. Exceeds Grant of Home Rule Authority 2. Conflicts with State Law 3. Constitutional and Other Concerns B. Creating New Possibilities 1. Questioning the Efficacy of Home Rules 2. Alternative Approaches Conclusion
The ability to "establish a home and bring up children" is a fundamental part of the American dream. (1) Lately, however, residents in thousands of cities and towns across America are finding their ability to do this undermined by a number of local ordinances. (2) These ordinances, passed in response to pressing social problems like bullying, criminality, and drug abuse, use strict or vicarious liability to hold parents and other heads of household legally responsible for the wrongful actions of their family members and friends. (3) For example, parental liability ordinances threaten parents with fines and other penalties if they do not prevent their children from bullying others, or if their children engage in other targeted behaviors. (4) Additionally, crime-free ordinances mandate that rental housing leases must include a "crime-free lease addendum," which sets out how tenants will be evicted if their friends or family members commit an unlawful act on or near the leased premises. Similarly, nuisance laws require a tenant's eviction from rental housing if a threshold number of calls to the police is exceeded, even if the basis for the calls is another person's wrongful or abusive behavior.
These laws can be understood as a form of third-party policing, an increasingly important form of regulation and law enforcement that is now often deployed to address social problems. (5) In third-party policing, the state requires private parties--who neither participate in nor benefit from the misconduct they are compelled to address--to enforce laws and prevent misconduct by enacting some method of control over a primary wrongdoer. (6) Failure to perform these assigned duties results in civil or criminal sanctions. (7)
The private parties typically called upon to perform these enforcement duties are businesses, professionals, and industrial actors, and the sites that they are asked to police are typically public. (8) However, fairly early in its development, third-party policing began targeting a more intimate arena. Through parental liability laws and the "one-strike" policy for residents of federal public housing projects, tenants and parents were required to police their homes.
Both parental liability laws and the one-strike policy became popular in the late 1980s, the former in response to a perceived increased in juvenile crime and disorder, and the latter in response to extremely high crime rates in federal public housing projects. (9) Under parental liability laws, parents were held legally responsible for the wrongful actions of their children. Under the one-strike policy, residents of federal public housing could be evicted if anyone associated with their household engaged in any criminal or drug-related behavior on the premises. (10)
Initially, significant bodies of scholarship grew up around both the parental liability laws and the one-strike policy. (11) However, this scholarship tended to treat each as isolated phenomena and focused on parental liability laws at the state level, and the one-strike policy at the federal one. But, "in the shadow of the debate" about these policies, "local governments nationwide have quietly implemented programs that apply the same 'one strike' logic." (12) Crime-free lease addendums and chronic-nuisance-abatement ordinances use the same form of vicarious liability as the one-strike policy, and local law has now brought that vicarious liability to bear on a much larger portion of the population. (13) An estimated 100 million people occupy 38.6 million rental properties in America, and given that crime-free lease addendums and nuisance ordinances are currently present in nearly 2000 cities and towns across the nation, many of these households are now subject to eviction based on the wrongdoing of others. (14) Parental liability ordinances are expanding, too, both in terms of the scope of behaviors they encompass, and the increasing number of cities enacting them. (15)
Despite their burgeoning numbers, the crime-free lease addendums, nuisance ordinances, and expanding parental liability ordinances have flown mostly under the radar of legal scholarship. (16) There are two reasons for this. First, the origin of these rules in local law has allowed them to proliferate mostly unnoticed. With the exception of a small group of prominent local-law scholars, the legal academy generally tends to overlook local law. (17) And, as a practical point, the breadth and variances between jurisdictions make it a difficult area to empirically or sometimes even qualitatively study. (18)
The second reason that these ordinances have proliferated relatively unremarked is that third-party policing itself is "generally invisible." (19) Because it appears in many different contexts, and sometimes merely repurposes old laws that were originally enacted for other reasons, third-party policing has only just begun to attract the scholarly attention of a few pioneering academics. (20) Third-party policing practices are ubiquitous, but its emergence as an "articulated or developed doctrine" is still in its infancy, and while the literature is growing, there has not yet been widespread examination of third-party policing activities and practices. (21)
This Article offers an examination and excavation of the nationwide trend of cities and towns enacting ordinances that use vicarious liability to hold household and family members responsible for the actions of others. These laws can be understood as "home rule ordinances," a term that highlights three important features shared by these ordinances. First, home rule ordinances create a new standard of home governance that parents and heads of household must meet to avoid legal sanction. In other words, the ordinances create a set of "home rules" that apply to the internal workings of home life. Second, they establish rules about who gets to have a home at all; that is, they serve as a sorting rule, setting parameters for homeworthiness in a broader sense. The ability to keep one's home becomes contingent on one's ability to control the behavior of another person, and if a tenant fails to demonstrate such control, eviction can follow. (22) And, finally, the ordinances are home rule ordinances in another, more literal sense: they typically rely on a city's home rule authority for their existence. (23) Home rule ordinances are passed as part of a city's power to regulate its own local or municipal affairs, and have faced challenges on the basis that they exceed the grant of home rule authority. (24)
This Article argues that although these home rule ordinances seem to hold some initial appeal, they are deeply problematic. They place an undue burden on familial and intimate relationships, undermine our legal, cultural, and aspirational notions of home, and represent an attempt by municipalities to regulate highly intimate spaces and alter people's home lives. Through these ordinances, cities coerce friends and family members into serving as "'intimate handler[s],'" and into becoming part of "networks of security production." (25) This "networked governance" governs both the watchers and the watched, (26) and has important implications for privacy, for parenting rights, for who can establish a home, and for how people must parent.
This Article proceeds as follows. Part I situates home rule ordinances in the context of third-party policing, and describes how a series of shifts in governance created a political landscape in which third-party policing measures could flourish. Part II describes how home rule ordinances establish the home as a site of risk management, crime prevention, and security production, compelling parents and heads of household to engage in a variety of surveillance and compliance behaviors. Part III explores the role of vicarious liability, fault, and vulnerability in home rule ordinances. Next, Part
IV considers the consequences of noncompliance with home rule ordinances, including stigma, fines, and eviction. Part V first considers the current legal avenues for challenging home rule ordinances. Part
V then argues that cities should consider moving away from home rule ordinances, and offers some alternative interventions that cities could employ to address the broader, structural issues often underlying problems involving misconduct, criminality, and drug use.
The Article concludes by suggesting that home rule ordinances are transforming the "right to maintain control" over one's home into a duty to control all the people connected to that home, and deter them from engaging in wrongful conduct. (27) Such a duty is likely impossible to fulfill, and the attempt to comply with it can fracture familial and social bonds in ways that actually contribute to, rather than prevent, the social problems that initially prompted these ordinances.
I. THIRD-PARTY POLICING AS A RESPONSE TO SOCIAL PROBLEMS
This Part describes how third-party policing came to be a popular response to many social issues. Part I.A chronicles the growth of third-party policing out of a series of shifts in governance. With the late modern state's shift from sovereignty to governmentality, and from welfarism to neoliberalism, crime has emerged as a new paradigm for governance. The criminal paradigm is now applied in a variety of contexts, including the context of social issues that used to lie outside of its purview. Crime fighting also encompasses a variety of new tools. one of these new tools is a focus on the potential of third parties to control crime. Home rule ordinances are part of this trend.
Part 1.B offers a more detailed sketch of each of the three types of ordinances that comprise the new home rules: parental liability ordinances, crime-free lease ordinances, and nuisance ordinances. These ordinances use strict vicarious liability to hold a parent or head of household responsible for the wrongful actions of another household member.
A. The Rise of Third-Party Policing
In modern Western societies, legal norms have traditionally been enforced through direct deterrence. (28) Lately, though, in their struggle to address complex social problems, governments at all levels are turning to third-party policing. (29) Third-party policing tries to deter unlawful conduct by coercing a third party into performing activities that will discourage a potential primary wrongdoer. (30) To motivate private parties to perform these policing duties upon primary wrongdoers, third-party policing relies on a number of "legal levers": regulatory, civil, or criminal sanctions that befall those who fail to police properly. (31)
Third-party policing is now used to solve myriad "pressing social problems," at local, national, and international levels. (32) For instance, if juvenile vandalism or destruction of property is a problem in a particular community, that community may try to hold the parents liable for the costs of that damage. (33) Similarly, if sweatshop factories are an issue for a particular nation, that nation may hold manufacturers liable for their subcontractors' violations of federal laws, and may also co-opt retailers into the policing project to decrease the end market for these products. (34) The key is that a third party, thought to have some means of controlling the actions of a targeted party, is compelled by the threat of legal sanction to perform policing activities that could accomplish this goal.
The growing popularity of third-party policing as a solution to social problems can be traced to three shifts in modern governance. (35) First, there is a "movement from sovereignty to governmentality." (36) Under sovereignty, the state used "force and domination" to maintain its power both on the international stage and within its own borders. (37) Under governmentality, however, the state uses a different set of tools. Instead of force and domination, governmentality relies on subtler "technologies of governance." (38) These tools are "more diffuse and spread over institutions both of the state and civil society" and result in "individuals governing themselves" and one another. (39)
The configuration of individuals as "responsible for their own governance" is also part of a second political shift, from "welfarism to neoliberalism." (40) Under neoliberalism, individuals are not controlled or policed in the traditional sense. Instead, they are recruited into policing and regulating themselves and others. (41) These duties are justified not only on the grounds of ability--that is, the idea that members of the community could and therefore should prevent crime--but also on the grounds of responsibility. (42) "'[T]he community'" becomes "'the all-purpose solution'" to every social issue, not only because community members can help prevent crime and related problems, "but also because some were found to be responsible for it." (43)
Professor David Garland's theory of "responsibilization" helps explain how this works. (44) He notes that in managing populations, governments now tend to act not directly, through their own state agencies, but instead indirectly, through nonstate actors. (45) As he puts it, the current "primary concern" of government is "to devolve responsibility for crime prevention on to agencies, organizations and individuals which are quite outside the state and to persuade them to act appropriately." (46) Ultimately, the state "is seeking to implement 'social' and 'situational' forms of crime prevention which involve the re-ordering of the conduct of everyday life right across the social field," including the home. (47) Whereas the state's initial target for transformative action was the individual wrongdoer, it now seeks to alter "the norms, the routines, and the consciousness of everyone," in order to make crime prevention a part of everyone's quotidian culture and practice. (48)
Indeed, a third shift in modern governance is that crime itself has become a mode of governance in America. (49) Beginning in the 1960s, the United States has increasingly engaged in "governing through crime." (50) The tools of criminal law, like "criminalization, incarceration, [and] police intervention," are brought in as the answer to nearly every social problem, even those once considered well beyond the reach of criminal law. (51) Crime control has infiltrated areas and zones of personal lives that were once believed to be largely outside its scope, and has become "the funnel through which all other policy interventions flow." (52) It is now "the central metaphor through which government intervention and coercion is justified" and rationalized. (53)
In addition to the ever-expanding scope of criminal law, the kinds of interventions and coercive tools used in the name of fighting crime have become more diverse over time. For instance, civil remedies are now also often used in service of crime control. In the 1980s, problem-oriented policing started using civil ordinances to accomplish its goals, a practice that has continued to grow. (54) Civil ordinances provide the criminal law with an even greater sphere of impact and are able to access areas of private life that were once unavailable to it. (55) The National Institute of Justice, for instance, suggests that "one of the most important advantages of using civil remedies" is their ability to reach "beyond the scope of the criminal law" and control behavior that the criminal law could not access. (56)
Many of the civil ordinances that are used in service of the criminal law concern land. In fact, crime management has recently turned away from traditional enforcement methods and toward "land management responses." (57) One legal scholar suggests that this shift is the result of "[t]he Warren Court's 'criminal procedure revolution,'" which placed constitutional limits on how police could impose social order. (58) Land-management solutions like "stricter housing codes, trespass zoning, and homeless campuses," which avoid such procedural and constitutional complications, thereby became an attractive option for policymakers. (59) Accordingly, the application of civil-law tools like "nuisance abatement, forfeiture, and eviction" to problems originally approached through the criminal law has been dramatically increasing. (60)
The shifts from sovereignty to governmentality, from welfarism to neoliberalism, and from traditional law-enforcement techniques to land-management tools have generated third-party policing as an important new technology of governance, one that is frequently relied upon as part of the state's crime-fighting apparatus. (61) Indeed, "the extensive use of third parties" has become "[o]ne of the most striking features of contemporary social regulation." (62) Many of these third-party policing schemes compel multiple third parties to perform policing duties.
As the new focus on land-management responses suggests, third-party policing often involves monitoring and obtaining control over a specific geographical site. (63) A common example of this form of third-party policing involves taverns or bars. Usually, after discovering a problem associated with a particular drinking establishment, such as drunk and disorderly patrons, the police will ask the third party to perform some activity that is not normally part of its business practices. (64) This action can be a change to the physical environment, like constructing a barrier, adding lighting, or installing more access controls, or it can be a change to business behaviors, like adopting screening protocols for tenants or implementing rules of conduct for patrons. (65) If the third party accedes to the request, all is well. (66) If not, a "legal lever" will be deployed to coerce compliance. (67) For instance, bar owners who fail to make the requested change may "find themselves the subject of an unscheduled health or building code inspection, or other regulatory action." (68)
Another popular legal lever is the extension of liability from the primary wrongdoer to the secondary wrongdoer--a "gatekeeper" or "enabler"--who has the ability to "disrupt the wrongdoing" by either withholding services or performing some other preventive measure. (69) A common example of gatekeeping liability occurs when lawyers or accountants are held liable for the fraudulent security transactions of their clients. (70)
Although there is not yet much hard data studying the effectiveness of third-party policing, (71) these schemes have been rapidly replicating and reproducing themselves. (72) This is a common occurrence in lawmaking:
Political scientists have noted the interesting phenomenon in legislative activity that over time certain notions or ways of dealing with problems become prominent (perhaps in part because of perceptions of their past success in solving problems) and these solutions come to be attached by decision makers to a wide range of problems as they come to their attention. (73)
Cities have been particularly keen on turning to third-party policing as a solution to social problems. (74) Perhaps surprisingly, in an era of globalization and the simultaneous rise of both nation-states and supranational governing bodies, the role of local governments and municipalities has not been diminished. (75) On the contrary, there is a growing "dialectical relationship" between local governments and these larger bodies of governance, such that local governments have managed to "not only persist in the age of 'globalization' but to actually acquire importance and new ... powers." (76)
Local governments, seeking to address social issues like bullying, drug abuse, and other criminal or undesirable behaviors, are increasingly turning to third-party policing as the answer. Continuing the new tradition of characterizing social problems as criminal issues, cities and municipalities across the nation are increasingly enacting ordinances that piggyback onto criminal behaviors and require third parties to monitor and control the behavior of others.
In particular, cities are increasingly pushing third-party policing into the home and using it as a tool to govern households. (77) Initially, in the middle of the last century, municipalities tried to police social disorder by focusing on outside spaces, through ordinances such as vagrancy and loitering laws. (78) However, in the 1960s courts began striking down these laws, (79) so cities began refocusing the attention from external to internal spaces, and "reached into a sector previously untouched by vagrancy laws: the home." (80) Cities "were able to do so, in part, because the recent criminalization of domestic violence allowed--indeed, required--the expansion of criminal law into private space." (81) Once the home had been opened up to legal intervention in this way, other criminal and civil laws entered the home, a space the legal system had begun to envision as not solely private, but instead "'in need of public control, like the streets.'" (82) Cities began to focus on curing disorder inside the home, and intervening in that formerly private space, in order to promote the broader goal of order and security in the city.
B. The Home Rule Ordinances
Home rule ordinances have emerged from this overall landscape. They follow this tradition of envisioning homes "'as in need of public control'" in order to promote the interests of reducing crime and increasing security. (83) The ordinances are designed with "the self-conscious purpose of leveraging familial solidarity" to both directly and indirectly deter potential wrongdoers. (84) The possibility of a negative impact on friends and family members is meant to directly dissuade potential wrongdoers from engaging in unlawful behaviors. At the same time, the ordinances are also meant to indirectly deter wrongdoing, by eliciting a series of behaviors from those friends and family members that will ward against criminal activity. (85) Family members and friends are thereby implicated "in the responsibility and liability for the management" of the risk of wrongdoing. (86) The three ordinances discussed below--parental liability ordinances, crime-free lease ordinances, and nuisance ordinances--attempt to achieve the goal of public security by controlling "not just individual behaviors," but also "broader social arrangements--where and how people live." (87)
1. Parental Liability Ordinances. Desperate to stop youth bullying and the suicides connected to it, many cities are now passing or considering passing ordinances that hold parents responsible for their children's bullying or other wrongdoing. (88) Bullying and "bullycides" are now a major social issue across the nation and frequently dominate news headlines. (89) A recent Psychology Today article describes the coverage and scope of the problem: "It's relentless. Virtually every week the media informs us about another new tragedy of a young person taking his or her own life because they could no longer tolerate being bullied." (90) Bullying is understood in the popular imagination to be an extremely common and extremely dangerous social problem among kids and teens. The American Medical Association states that 3.2 million children have been bullied, and other studies suggest that 42 percent of children have experienced online bullying. (91) Celebrities and not-for-profit organizations have launched a number of campaigns to combat the problem, and the law continues to explore the role and responsibilities of schools and parents in combatting bullying. (92)
At the state level, many legislatures are exploring the potential of parental liability statutes to address the problem. For instance, following the bullying-related suicide of twelve-year-old Rebecca Sedwick, some Florida lobbyists are attempting to craft legislation that would hold parents criminally liable for their children's bullying behavior. (93) Also, in Iowa, a bill imposing parental liability for bullying behavior was drafted and proposed. (94) The rationale underlying these proposed state laws is that poor parenting causes juvenile misconduct. (95) Proponents of these laws believe that "parents will spend more time and effort in monitoring the activities of their children if they know they will be held responsible for their children's actions," and that this monitoring will be an effective deterrent to bullying. (96)
Not content to wait for the sometimes laborious political process to work itself out at the state level, however, cities have forged ahead with their own ordinances. In June 2013, the city of Monona, Wisconsin, attracted widespread media attention when it passed a city ordinance holding parents liable for their children's bullying behaviors. (97) The ordinance offers a definition of bullying and other prohibited behaviors, and then provides that "[i]t shall be unlawful for any custodial parent or guardian of any unemancipated person under eighteen (18) years of age to allow or permit such person to violate the provision[ ][prohibiting bullying] above." (98)
Under the Monona ordinance, parents who violate the provision may be fined between $50 and $1000 ("plus 'the costs of prosecution'") for a first offense, and double that for additional violations. (99) According to Monona's police chief, the fines will be levied only in situations in which the parents are uncooperative and do not make an effort to address the bullying. (100) Other cities have followed Monona's lead. For example, in Kansas City, Missouri, the city council approved an ordinance that would see parents of bullies fined up to $1000, unless they enrolled their child in an antibullying program. (101)
The path to ordinances targeting bullying has been paved by other cities enacting more generalized parental liability statutes. (102) In the 1990s, many states and municipalities began passing such ordinances. (103) Many of these ordinances eliminated the parentalintent requirement that was present in older parental liability laws, and imposed a strict-liability standard instead. (104)
One of the first cities to start this trend was Silverton, Oregon. Silverton passed a law that charges parents with the misdemeanor offense of "'failing to supervise a minor'" whenever a child or youth violates a provision of the Silverton Municipal Code. (105) The violations that trigger parental liability under the ordinance include acts as minor as cigarette smoking. (106) The ordinance allows fines of parents even for a first offense of children up to the age of eighteen. (107) According to the mayor of Silverton, the law has been effective because "'[w]hen their parents are being dragged into it, most kids ... realize they're not the only ones who pay the price for their actions, and kids begin to take stock of themselves.'" (108) By the time the ordinance was a year old, "approximately a dozen parents had been charged" under it, Oregon state had passed a similar law, and Silverton city officials had received requests from "Europe, Japan, and Australia for copies of their ordinance." (109)
Using the Silverton ordinance as a template, a suburb in Cleveland, Ohio, passed a nearly identical ordinance. (110) Prosecutors there could "criminally charge parents based on the misdeeds of their children" with "a third offense" potentially resulting in parents serving 180 days in jail. (111) Recently, though, the ordinance was struck down on the grounds that it "was inconsistent with a state statute requiring the person charged to commit an act or omission as a predicate for culpability." (112)
Another community, St. Clair Shores, Michigan, enacted a similar law in 1994. (113) According to the St. Clair Shores provision, parents can be held criminally responsible for failing to "'reasonably control'" their children. (114) The ordinance was drafted by two police officers who were "motivated by juvenile crime increases," and it passed "without debate." (115)
The proliferation of parental liability statutes is likely to continue. Numerous municipalities across America have already implemented parental liability ordinances, and many of those ordinances are "hybrid laws that both lower the mens rea required for the parent and define conduct by a minor that would not be separately subject to criminal sanction as evidence of 'improper parenting.'" (116) These laws are not based on culpable parental transgressions, like active participation or encouragement of the unlawful behavior. Rather, they set "liability for parents based solely on their status as a parent and the misconduct of their child alone." (117) Cities nationwide often consider proposals to extend such liability, and local legislatures will almost certainly "continue to explore regulatory strategies" like this to "reduce juvenile misconduct" and address social problems like bullying. (118)
2. Crime-Free Ordinances. In addition to attracting a fine under a parental liability ordinance, a criminal or unlawful act committed by a child or any other household member could also potentially result in the child's entire family's eviction from rental housing under a mandated crime-free lease addendum. If her household lives in a municipality that has passed a crime-free ordinance mandating that landlord-tenant leases must contain a crime-free lease addendum, and the lease accordingly contains such an addendum, the household may be evicted for her unlawful act. The standard crime-free lease addendum requires the eviction of an entire tenant family when a tenant, family or household member, guest, or other person deemed to be under the tenant's control, engages in criminal conduct on--and sometimes even off--the relevant premises. (119) The following is an example of an expansive, yet relatively common, crime-free lease addendum:
Resident, any member(s) of the resident's household, a guest or any other person affiliated with the resident on or off the premises: Shall not engage in criminal activity, including drug-related criminal activity, on or off the said premises. (120)
This type of addendum is part of the International Crime Free Association's (ICFA's) programs for rental or multi-unit housing. (121) The ICFA, a not-for-profit started in Arizona in 1992 by a former police officer, markets these programs to municipalities and provides support to those that implement them. (122) Illinois, in particular, has championed this program, with over one hundred municipalities in the state having adopted these ordinances. (123) To fight crime and disorder and promote the goal of security, approximately two thousand cities and towns in forty-four states have implemented the ICFA program. (124) Proponents assert that the Crime-Free Program offers myriad benefits, including "reduced crime, better community awareness, increased property values, more attractive neighborhoods ... and improved quality of life." (125)
The Crime-Free Program involves several prongs, including training for property owners and managers, and attention to the physical aspects of security, like lighting and locks. (126) The crime-free lease addendum, however, is the "cornerstone" of the program. (127) The model addendum was originally created by the U.S. Department of Housing and Urban Development, in the form of the one-strike policy applicable only to federal housing projects. (128) The new municipal ordinances import this policy from the public housing context--where it was part of the artillery in the war against drugs-- into the private rental housing market at large. (129)
The typical crime-free lease addendum has five notable features. First, in the private rental housing market, the addendum draws multiple third parties into the project of policing. The named tenant or the head of the household and the landlord are both conscripted into the project of crime control. The tenant is required to monitor and deter potentially unlawful behavior, and the landlord is required to evict tenants who fail to do so. Police or other city officials communicate their desire for eviction to the landlord, who must usually comply or face a series of escalating sanctions, including fines or the loss of a business license. (130)
Second, the crime-free lease addendum holds tenants responsible for actions that they may be connected to only tangentially, by virtue of their familial or social relationship with another person. The addendum is based in strict vicarious liability, so although "the tenant herself may have had absolutely nothing to do with the alleged criminal conduct or drug activity, she is nevertheless subject to eviction for the conduct of the person who actually engaged in the prohibited activity." (131) Indeed, some ordinances "actually specify their intent to penalize the entire household for criminal activity regardless of whether members were aware of the activity or able to control the participants in the activity." (132) It is thought that such an addendum will offer "maximum incentives to tenants to prevent, discover, and remedy" the drug or criminal issues of household members. (133)
Third, a crime-free lease addendum often encompasses a wide spectrum of behaviors, including not just criminal wrongs, but any sort of unlawful act, such as "local ordinance violations, the creation of a nuisance, and/or any conduct that endangers health, safety or welfare." (134)
Fourth, although some versions of these addendums limit the geographical scope to encompass only activities engaged in at the relevant premises, other versions, like the one set out in full above, extend to locations beyond the relevant rental property. (135)
Fifth, and finally, these addendums do not generally require a criminal conviction of any kind. Instead, arrests and simple accusations of criminal or drug-related activity can trigger eviction. (136) This is particularly important when one remembers that order-maintenance policing, which is currently the dominant mode of policing in America, targets misdemeanor and minor or noncriminal offenses. The vast majority of arrests currently made are not for serious crimes, but rather for minor infractions, and under the crimefree program, these arrests are a valid basis for evicting a household. (137) Some ordinances specifically state that arrests or accusations of unlawful activity are sufficient grounds for eviction, whereas other ordinances have the slightly higher requirement that, at an eviction proceeding, criminal activity must be proven to the civil standard of a preponderance of the evidence. (138) Eviction proceedings, however, do not often go all the way to a courtroom because most tenants do not fight their eviction notices. (139)
3. Nuisance Ordinances. Nuisance ordinances are often used in conjunction with crime-free lease addendums. (140) They first became popular in the 1980s, mainly as a response to drug dealing. (141) Currently, many large U.S. cities rely on nuisance ordinances as part of their crime-control efforts. (142) Under these ordinances, tenants will be evicted if the police are called to the property more than a threshold number of times, regardless of whether or not the tenant had any participation in the nuisance activity that prompted the calls. Those who pass nuisance ordinances believe that they have many "important long-term benefits," including providing safer and more appealing communities, increasing property values, and having a general "good effect on quality of life." (143)
A survey combining the nuisance ordinances of the twenty largest U.S. cities with an additional thirty-nine ordinances in cities that varied in location and population revealed that most nuisance ordinances are "strikingly similar." (144) They have three main features. (145) First, the nuisance designation is "based on excessive service calls [i.e. calls to police] made within a certain timeframe." (146) Second, a large and loosely defined set of activities can constitute a nuisance. (147) For instance, one city defines nuisance conduct as
any activity, conduct, or condition occurring upon private property within the city that unreasonably annoys, injures or endangers the safety, health, morals, comfort or repose of any member of the public; or will, or tend to, alarm, anger or disturb others or provoke breach of the peace, to which the city is required to respond. (148)
Finally, like the crime-free lease addendums, nuisance ordinances demand that landlords perform third-party policing functions and "coerce property owners to 'abate the nuisance' or face fines, property forfeiture, or even incarceration." (149)
As with the crime-free lease addendum, nuisance ordinances coerce both landlords and tenants into performing third-party policing. In many cases, the tenant is not the person who actually causes the nuisance, yet the tenant is the person who will face the legal consequence of the nuisance behavior. One troubling manifestation of this aspect of nuisance ordinances occurs in the context of domestic violence. Female tenants, who have either themselves contacted police or whose neighbors, family members, or friends did so, have been evicted for violating nuisance ordinances in connection with their attempts to seek assistance during home violence. (150)
II. Risk Management and Crime Prevention at Home
This Part explains how home rule ordinances configure the home as a site of risk management, crime prevention, and security production. Although homes are usually understood as private spaces, in reality, as Part II.A describes, the state makes numerous interventions into the home, and home rule ordinances are one more such incursion. Home rule ordinances configure the home as a site of security production: a place where criminality must be prevented and the goals of security advanced. Part II.B sets out the means that home rule ordinances use to accomplish these goals. Home rule ordinances compel a set of behaviors that the state believes are "necessary and desirable for the management of social order and stability." (151) These behaviors include acts of surveillance, monitoring, and isolation. This Part discusses how engaging in these compelled behaviors strains social and familial relations, impacts zones of intimacy and trust, and entails a psychic cost upon the person forced to embody the state in this way. Although the sanctions that accompany the home rule ordinances are themselves deeply problematic, the compelled acts that are required to successfully perform third-party policing in the home are perhaps even more worthy of concern. (152)
A. The Dominant Legal and Cultural Constructions of Home
Homes are generally thought of as private spaces, where one can interact with the members of one's family and intimate circle as one pleases, and where, absent domestic abuse or other harms to household members, state intervention is usually unwarranted. (153) As Professor Jeannie Suk explains:
Few concepts are as ubiquitous in ordinary human experience as the home. For most people, the home has formative cultural, emotional, and psychic significance. "Home," as distinct from household or the physical structure of the house, emerged in the nineteenth century as a bourgeois ideal of domesticity and privacy, closely associated with the affective private life of the family. This still evolving concept deeply informs our sense of who we are, and our feelings of safety and belonging. (154)
The home also represents "the metaphorical boundary between private and public spheres," and serves as a nodal site where "the most basic questions about the relation between individuals and state power arise." (155) The idea of the privacy or "sanctity" of the home is recognized and protected in much constitutional jurisprudence, particularly in Fourth Amendment cases. (156) In that context, the Supreme Court has specified that homes are to be protected from excessive government oversight and that the State is not to be "omnipresent in the home." (157) In this construction, respect for the home as a special space has been "embedded in our traditions since the origins of the Republic," and absent compelling reasons, state intervention should be minimal. (158)
Yet, despite this rhetoric, the home is subject to government and institutional interventions on many fronts. (159) Most of these interventions are justified on the basis that they prevent or redress harms to others, both inside and outside of the home. For instance, the state now intervenes to protect family members and intimate partners from abuse and mistreatment. Additionally, institutions like school and work have increasing authority over occurrences in the home that may harm others outside of it. To use an example from the bullying context, what a child does at home can now attract disciplinary action from the school. (160) As long as a home-based activity has some impact on school life, it can subject students to school discipline. (161) Similarly, home-based activities that affect the workplace can fall under the umbrella of activities that may subject an employee to workplace discipline. (162)
Of course, some homes have always been subject to more state intervention than others. (163) The privilege of privacy has often had less political potency when applied to housing that has a "public" dimension, like federal housing projects or Section 8 subsidized housing. (164) The one-strike policy in federal housing is a good example of homes being understood as open to public scrutiny and control. Initially, the burden of deterring the criminality of others was placed only on those with homes in federal housing projects, which are thus somehow "public." "For those deemed eligible to live in public housing," the ability to remain in residence there depended "upon [their] adherence to stricter rules and regulations" than those applied to more "private" homes. (165)
Now, crime-free lease ordinances have brought the one-strike policy into the private housing realm, and they, along with parental liability and nuisance ordinances, ensure that more households than ever are responsible for producing security through deterring crime. To deter others, parents and heads of household are expected to perform behaviors involving surveillance, monitoring, and exclusion in cooperation with state recommendations and programs. In these ways, the state is able to intervene inside the home in a rather insidious way: through one's friends and family members.
B. Compelled Compliance Behaviors
To avoid legal sanction, home rule ordinances require parents and heads of household to perform a set of conforming behaviors. These individuals must don the role of "guarantor" or "insurer" of other people's actions and assume an "affirmative obligation" to "monitor and control their own and others' choices of associations and relationships." (166) Tenants must "scrutinize the behaviors of family members, their friends, and visitors within the home and outside of it," and ward off the possibility that one of them will engage in unlawful conduct. (167) Surveillance, monitoring, and isolation are the techniques meant to be employed in this pursuit.
1. Surveillance and Monitoring. Surveillance and monitoring are a part of modern life. Gradually, increased surveillance, at least in the public sphere, has become normalized: "[E]ach new surveillance or discipline technique normalizes a certain amount of state intrusion and paves the way for the next program that goes a step further.... Step-by-step, panic-by-panic, we have weakened the boundaries that have protected a private sphere." (168) Despite this kind of "surveillance creep," the home, as a traditionally private sphere, has been relatively buffered from the monitoring going on in the outside world. Home rule ordinances, however, require the performance of surveillance and monitoring activities. Through these ordinances, cities have "slipped control, surveillance, and regulation into ordinary everyday behaviors." (169)
One example of "surveillance creep" within the home comes in the context of cyberbullying. To prevent children from being involved with cyberbullying, parents are advised to engage in a series of monitoring activities including using a cellular-phone service plan that grants parents significant control over the child's phone activities, adjusting parental control settings on the Internet, and limiting computer use. (170) These kinds of activities, performed at the behest of the state rather than because the parent believes it to be the best course of action for their particular child, encourage "parents to abandon their traditional role of protecting their children and join in partnership with the state in becoming risk managers." (171) The overall message to parents is that "the repression of criminal conduct must take priority over any other objectives of child rearing and that parents will be expected to accomplish this largely on their own or with what they can purchase." (172)
Performing surveillance activities often comes at a significant cost, not only in terms of personal resources, but also in terms of stress on relationships. It "is not conducive to familial relations to have loved ones forced to play vigilante with one another, constantly in a state of suspicion." (173) At the same time as parents are advised that they should implement the monitoring techniques listed above, they are also warned that they must nevertheless "be mindful that communication is a key aspect of social development and that constant surveillance of their child's Internet use may damage parent child trust." (174) The kinds of negative impacts that accompany monitoring and surveillance help explain, for example, why a parent may wish to have a school perform drug searches on her children rather than performing them herself:
[B]y having schools search their children, parents are permitted to maintain a better relationship with their children than they might have otherwise and are spared the effort of personally conducting the search. Parents do not have to confront their children or risk damage to parent/child trust by requesting their children subject themselves to potentially invasive or humiliating searches. If drug testing is the price for participating in school activities and allowing your principal access to your photos is the price for bringing a cell phone to school, then parents plausibly can shift the blame onto schools for policing techniques that are sure to enrage teenagers. (175)
Regardless of whether searches also occur in places outside the home, some courts have agreed with the state's view that parents or tenants should conduct home searches for drugs or other contraband. (176) For instance, in the Supreme Court decision that upheld the one-strike policy, Department of Housing & Urban Development v. Rucker, (177) it was noted in her favor that Pearlie Rucker, a sixty-three year old grandmother subject to eviction from a public housing project after her daughter was caught with cocaine a few blocks from the premises, had regularly searched her daughter's room. (178) These efforts may have factored into the housing authority's ultimate decision not to pursue Ms. Rucker's eviction. (179)
At least one court, though, has concluded that asking tenants to search their guests and family members is not an acceptable requirement. (180) In addressing a case in which a tenant was evicted based on a guest's possession of a small amount of drugs, the Ohio Municipal Court held that eviction under these circumstances was tantamount to holding that tenants could simply have no guests, or "equally implausibl[y]" that tenants "must conduct a thorough search of each guest" every time he or she visited. (181) Although this judge believed that tenants should not have to search their guests or socially isolate themselves to avoid eviction, other courts have held that guests in possession of small amounts of drugs are a valid basis for eviction. (182) Thus, heads of household concerned about facing eviction may indeed feel the need to bar guests or search the guests that they do invite to their homes.
2. Isolation. Home rule ordinances have isolating effects on kinship and relationship formation. An example from a sociologist's study of the mobilization of resident organizations in federal public housing dramatically demonstrates these isolating effects. Describing a public housing project in southeastern North Carolina, the sociologist recounts how just outside the projects, "a small number of African-American men would routinely assemble each morning at a street corner to wait for their girlfriends or wives, who were residents of a nearby housing project, to leave their apartments and cross the street to visit them." (183) It turned out that the men "who had been accused, arrested, or convicted of various criminal infractions, were barred from stepping foot on the project." (184) For their female companions, "the cost of permitting them to visit or stay the night was possible eviction" under the one-strike policy. (185)
For these couples, the one-strike policy altered the terms of their relationships. (186) The female tenant was allowed to keep her home only if she agreed to banish her partner from the premises. (187) For some tenants, then, social and familial isolation is the price of maintaining their homes. The difficulty of sustaining a relationship under these conditions is obvious. (188)
Children are also often banned from the premises as a solution to potential eviction in federal-housing situations. (189) Indeed, when a child's behavior is the trigger for eviction, "the matter is most often settled with an agreement that the child will no longer live in the unit." (190) "Agreement" may be a strong word in this context, given that the situation reads like "a classic Catch 22. Either the family agrees to dispossess one of its children, or stays together and finds itself out on the street." (191) Such banning procedures have obvious social consequences like "divided families, the surveillance of intimacy," and "the stigma of past behavior." (192)
To avoid the risk that a loved one may engage in wrongful behavior, tenants trying to avoid the operation of crime-free lease addendums may similarly alter the terms of their relationships with others. When eviction is based not on a tenant's level of fault, but on "the relationship established between the leaseholder and covered person," the tenant is left to decide whether the relationship is worth risking her home. (193) Indeed, in the context of public housing, officials have explicitly stated that they want tenants to choose their housing over their families. One city mayor bluntly asserted that, "'[w]e want tenants to understand that if they don't control members of their families, they are going to lose their housing.'" (194) A housing authority director offered a further clarification of this sentiment: "'The head of household is responsible for family members .... The message is, don't risk your house; let them [family members] fend for themselves.'" (195) The lines are clearly drawn: a tenant must choose between allegiance to the state, which will require alienating a loved one, or allegiance to her family, which may require her eviction. (196)
For tenants who do not feel that they have the ability to closely monitor or deter family members from wrongdoing, banishing these individuals and isolating their households may be the only viable option. These tenants may feel "overbearing pressure" to "close their households" as a means of safeguarding their homes against potential eviction. (197) This is particularly true because of the no-fault basis for evictions: even if the tenant makes a best-efforts attempt to deter family members, if those attempts are unsuccessful, eviction will follow. So, "[f]or instance, where a parent or grand-parent has no realistic means of controlling the conduct of their adolescent children or grandchildren at all times and at all places, the only way for the tenant to minimize the risk of eviction ... is to exclude their children or grandchildren from the apartment altogether." (198) Such exclusion comes at a profound social and psychic cost. Through home rule ordinances, the state decides for whom families can care, and how they can care for them.
Another important type of isolation that home rule ordinances create occurs in the context of nuisance citations based in domestic violence. Nuisance ordinances discourage tenants experiencing domestic violence from calling the police because such calls lead to nuisance citations, and nuisance citations lead to eviction. (199) Many not-for-profit groups providing assistance to women suffering domestic abuse note that clients regularly state that they are not calling police for assistance, even when they desperately need it, because they fear eviction. (200) In other words, these nuisance ordinances encourage battered women to isolate themselves from society and from "the 'protective arm' of the state." (201) This was illustrated in a case that the American Civil Liberties Union (ACLU) initiated on behalf of Lakisha Briggs, after the fear of eviction prevented her from calling police during a nearly lethal attack by her former boyfriend. (202) The attack required her to be airlifted to a hospital for emergency treatment, and she survived only because a neighbor called the police. (203) She did indeed face eviction proceedings upon her return from hospital. (204)
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|Title Annotation:||municipal home rule ordinances' use to remedy social problems as third-party policing; Introduction through II. Risk Management and Crime Prevention at Home , p. 823-859|
|Publication:||Duke Law Journal|
|Date:||Feb 1, 2015|
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