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Back to the future with the Montgomery County youth curfew
This summer, two bad events in Montgomery County came to dominate the attention of local politicians.  First, over the July 4th weekend, gang members from elsewhere gathered in downtown Silver Spring and then fought; one girl was stabbed but survived.  Then, in mid-August, a “flash mob” — an unannounced mass appearance, often pre-arranged by social media or text message — descended on a Germantown 7-11 and looted its shelves of chips and the like.  Concerns had already been on the rise about similar events around the country and around the world, so the 7-11 surveillance video quickly became notorious.

Reflecting the growing hysteria, County Executive Ike Leggett had already proposed a youth curfew in mid-July that was initially drafted as a quite draconian curfew.  An amended bill was submitted in late August that eliminated criminal penalties and provided a variety of “affirmative defenses” for daring to be OWY — outside while young — after 11pm on weekdays and after midnight on weekends.

A “witch hunt”?
Calling this “hysteria” and the curfew highly questionable policing and crime-fighting seems fair in light of a number of salient facts:

• As Councilmember Phil Andrews has repeatedly pointed out, gang-related crime is actually down by nearly 50% over the last two years.
• Less than seven percent of youth arrests under 22 in Montgomery County occur during the proposed curfew hours.
• Montgomery County police rank and file oppose the idea, warning “Enforcement of a curfew misdirects scarce police resources,” and noting “Banning lawful activities of residents of our County based upon their age is not a solution to problems of real crime.”
  
• Even current advocates of the measure like “Safe Silver Spring” — supposedly tasked with advising county leaders on crime prevention — didn’t so much as mention a curfew in an extensive list of recommendations at the beginning of the year.  And no wonder…
• …most curfew studies conclude they have no statistical effect on youth crime.

At a mid-October “Youth Town Hall” with county council members, high school student and leading curfew opponent Leah Muskin-Pierret aptly compared the curfew proposal to a “witch hunt” — based on paranoia, targeting a largely innocent, powerless group, and not really solving the alleged problem.

The “Sundown Town” comparison
But there’s another, perhaps equally apt parallel from more recent — even current — American history: “sundown towns.” In his classic 2005 book “Sundown Towns,” James Loewen defined them as “any organized jurisdiction that for decades kept African Americans or other groups from living in it and was thus ‘all white’ on purpose.”

These jurisdictions ranged from those where black people were intimidated into leaving at gunpoint or by a lynching, through ones that posted signs saying “N*****, don’t let the sun set on you in this town,“ to those that enacted and executed their exclusions via only slightly more genteel city ordinances or development practices.  Hollywood generalizations notwithstanding, sundown towns per se were (and too many still are) not so much a deep South phenomenon as one of the border South, North, and Midwest.*

In Maryland, concentrations of “sundown towns” appear to be in Western Maryland, but also in Prince George’s County near DC and also a couple in Montgomery County — most notably Chevy Chase, one of the more or less “white glove”, development-based variety of sundown town.**

The “curfew” nature of many sundown towns was most plain, of course, when black people faced a night-time curfew.  This restriction on movement is itself an echo of the antebellum slave era, when slave patrols could and would demand papers of blacks found away from their enslavement sites.  As Howard law professor Andrew Taslitz points out in his book “Reconstructing the Fourth Amendment” (and at an April UDC forum about Metro bag searches), the framers of the Fourteenth Amendment explicitly sought to restore and strengthen Fourth Amendment rights against precisely this kind of restriction on movement.***  Curfews against blacks were as unjustified and hysterical then as youth curfews are now, and were often justified with a similarly unpersuasive combination of paternalism and paranoia: “it’s for their own good,” “they can’t handle freedom anyway,” “they’re dangerous.”

Worst of all, they’re bad for business
The most often reported information about the July Silver Spring incident– the event that seems to be of greatest concern to curfew advocates — was that that many of the protagonists were from the District or Prince George’s County, and that at least some said they came to Silver Spring because unlike in those jurisdictions, there was no curfew in Montgomery County.

That sounds bad, but it should be noted that immediate, independent accounts of the brawl are lacking.  The earliest I’ve found came about week later, and simply reported police accounts more or less unquestioningly.  Now clearly, something bad happened — but what?  Was Downtown Silver Spring in fact “flash mobbed” (as implied later on by Councilman Marc Elrich)? Was there always an intent to fight?  How many of those fighting were indeed gang members — not just “suspected” of that?  Was the absence of a curfew really a factor in planning a fight, or just one in heading to a popular nighttime attraction?  Did the fight happen by intent or by accident?  Does it seem likely to happen again, or was this a one-off event?  If they contributed to the problem, might eliminating PG and DC curfews make just as much sense as starting one in Montgomery County?  Thanks to a fairly lethargic journalistic tradition in the DC area, we may never know the answers to those questions; to my knowledge, I’m the only one asking.

And no wonder — those questions clearly hardly matter to curfew advocates among the county’s political and business leadership.  Capital-D capital-S capital-S Downtown Silver Spring is the urban development jewel in East Montgomery County’s crown, and nothing must be allowed to tarnish its reputation.  This, too, is a familiar story, writes Loewen in “Sundown Towns”:

Suburban city officials also know that shopping malls often desegregate first, leading to white uneasiness that can fuel white residential flight.  Today some suburbs do what they can to discourage African Americans from visiting their malls: persuading public transportation agencies not to service the malls with bus routes from black neighborhoods, surveiling African American shoppers and making them uneasy, and having police follow black motorists.”  (p.237)

Or, perhaps, enacting youth curfews and selectively enforcing them against… you know.  Politicians, bureaucrats, and police alike are remarkably candid when weighing business against civil liberties:

• Council member Nancy Floreen, commenting at the Youth Town Hall in response to one teen’s claim that business would suffer: “Frankly, teens seventeen and younger are not known as big spenders after 11 o’clock at night…  There’s a perception out there in the business world… that a big crowd of kids hanging out some place does not encourage the big spenders.  …You need a better argument.”
• The County “FAQ” page about the curfew — developed before the curfew was even approved! — states that “Montgomery County has revitalized or developed urban centers in Bethesda, Clarksburg, Germantown, Rockville, Silver Spring, and Wheaton, so it would make sense to have a county-wide curfew.” (emphasis added).
• Peter Franchot, Comptroller of Maryland, also could find no higher values to espouse than “an obligation to offer my perspective on issues that substantially affect our state’s economic vitality and our ability to sustain good-paying jobs, public revenues and private sector investment. It is with each of those roles in mind that I offer my strong and resounding support of the curfew legislation as it is currently proposed.”
• MCPD’s Robert Carter, in an op-ed to the Washington Post, wrote that “We are able to tell the bad kids based on their behavior. It’s the kids who come to hang out but never spend a dime at area businesses.”

…to say nothing of the baldly sneering op-ed by Blair Lee, CEO of the Blair Development Group, who wrote of “good” teen skeptics, in a screed titled “Send us your hoodlums” (all emphases added):

They know they won’t really be curfew targets, but they don’t want to be technical lawbreakers, although underage drinking, exceeding the speed limit, smoking pot and illegally downloading music doesn’t seem to bother them.

… and of those despicable “guilty white liberal” skeptics:

They have a thousand excuses for inaction. But, by far, their deepest concern is racial profiling. Won’t the curfew affect a disparate number of blacks and Latinos? Damn right, that’s who’s in the gangs! But for Montgomery liberals this could cause the apocalypse — Al Sharpton calling them racists.

Nixonland has risen again, if it ever went away.  The wrinkle — as ever in post-liberal, post-Democratic America — is that the charge for curtailing minority civil liberties is now being led by black politicians and allegedly progressive, green, and/or liberal white ones.  I have no doubt some of them tut-tutted about Lee’s piece, but so far they’re nearly all still jumping exactly the way Mr. Lee and (so the scuttlebutt has it) the powerful development company Foulger-Pratt and their ally Doug Duncan would like them to.

Yet even if protecting the pristine grandeur that is Ellsworth Avenue were the greatest imaginable good, just establishing a police substation nearby would probably be far more effective.  Lee’s rant and similar “get offa my lawn” commentary by others gives the game away — they just want kids punished, and want to bully an easily bullied Council into doing that.  It doesn’t have to make sense.  And they may get their way.

So what should I do about it?
Anyone opposed to the curfew should write their County Council members right away; for more information, visit the excellent site put together by high school opponents, http://stopthecurfew.net, where a mass email address to County Council is provided: testimony@stopthecurfew.net.  For up-to-the-minute action requests, visit their “Take Action” page.  Urge Council not to pass this bill, and if they do, to sunset it within a year.

As I said at a Citizen’s Advisory Board hearing, I’d be against this even if it were shown to be completely race-neutral — applied to whites, blacks and Hispanic kids in numbers matching those of the local population.  Equal enforcement of an unjust measure is just evenly applied injustice.

But at least it’s better than injustice unequally applied.  If our region becomes a “midnight county,” I’m very concerned about this curfew leading to racial profiling — especially when I’m repeatedly told police will “exercise discretion” in applying curfew regulations and that it’s “just another tool.”  If there is a youth curfew, the Montgomery County Police Department leadership — who want a curfew their rank and file do not — should have to prove there’s no racial profiling going on every day, by…

• requiring police to record, on serially numbered encounter forms issued to them, the perceived race, age, sex, and similar data about persons stopped for a curfew violation
• reporting twice a year to the County Council on these statistics
• training officers to avoid racial profiling, and providing for civil declaratory or injunctive relief if it happens

These are simple, common sense provisions that should actually apply to any police encounters in the United States.  They’re written up in greater detail in the model “Local Civil Rights Restoration Act” developed by the Bill of Rights Defense Committee (BORDC); I encourage everyone to have a look.

Yes, that would mean a little extra paperwork for police.  But if “young people have to give up a little — though, really, not much,” as Councilman Hans Riemer would have us believe, it seems to me we’re all entitled to a little proof that our rights to equal treatment under the law are being respected, too.

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UPDATE, 10/24: A competing bill, 35-11, has been introduced by Councilmembers Andrews and Leventhal; it is framed as an anti-loitering bill rather than a youth curfew one.  More at “Just Up the Pike“; links to the different curfew- or loitering-related bills are provided here.

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* To be clear: the deep South practiced even more brutal racial terrorism during the long Jim Crow era, both with spectacle lynchings and a convict labor system which essentially “disappeared” unfortunate black men into a slave labor gulag of mines, brickyards, timber camps, and plantations many never escaped.
** Built as a magnet for upper middle class flight from Washington in the late 19th and early 20th century, Chevy Chase nearly integrated in 1903 — but by mistake: a subdivision named “Belmont” was sold to developers rumored to want to build low income housing for blacks.  Developer Francis Newlands hastily bought back the current Saks Fifth Avenue locale to prevent that — and then persuaded the U.S. government to set aside Rock Creek Park as a buffer against black neighborhoods from the ‘the wrong side of the park’  (Loewen pp.124-125). Even today, Chevy Chase remains just under 5% black today (up from 3.7 percent in 2000), with about the same percentage of Hispanic Americans.  A dozen miles to the east in neighboring Prince George’s County, the pastorally named Greenbelt was also a whites only enclave — purposely created as such by the federal government in 1937 — for the first decades of its existence. Maryland also “boasted” a number of other certain or probable “sundown” towns; in the DC area, these included University City, Berwyn, Mount Rainier, and Brentwood, while census figures are at least suggestive for Washington Grove, near Gaithersburg in Montgomery County. It’s a guess, but I think there were probably many on the Eastern Shore as well. Our family knows that restrictive covenants were also in effect in the Cleveland Park neighborhood of Northwest DC as late as the 1950s.
*** Sadly, the passage of the Fourteenth Amendment failed to make curfews in particular or unequal protection under the law in general actionable in U.S. law as actually practiced.  But this was due more to execrable Supreme Court decisions like U.S. v. Cruikshank than to any fault in the clear language of the amendment.