a citizen’s journal by Thomas Nephew

Testimony against a proposed county loitering bill

Posted by Thomas Nephew on 17th November 2011

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Montgomery County Council Public Safety Committee
public hearing on loitering bill 35-11; my testimony part begins
at around 16:30, but everyone’s testimony is well worth
listening to.

On the evening of Tuesday, November 15, I joined seven other people testifying before the Montgomery County Public Safety Committee about the proposed loitering/”prowling” bill 35-11, introduced by Councilman Phil Andrews.  As I’ve explained in a post on the “Montgomery County Civil Rights Coalition” blog, I think this is no better than the youth curfew I wrote about in the prior post.

My testimony is below; I’ve added a few links where appropriate. I’ll describe the hearing and the testimony of others in a separate post.

I’d like to thank Professor Andrew Taslitz of Howard University for connecting me with Howard Law students Maryam Mujahid (editor of the Howard Law Journal), Marc Watkins, and Michelle Mills. I’m very grateful to each of them for their generous help on very short notice. Their research and review work was invaluable; any errors are mine alone. It was also great to meet Marc, Michelle, and fellow law student Darien Jones at the hearing.

= = =

Thanks for this chance to speak against the loitering/”prowling” bill 35-11. I question its constitutionality, necessity, and likely results.

The October 25 memo about this bill cites cases seeming to show laws based on the same Model Penal Code ordinance have withstood scrutiny around the country.

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From sundown towns to a midnight county

Posted by Thomas Nephew on 24th October 2011

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
Sundown Towns, by James LoewenBut 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.**

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Natalie Davis on DWB and affirmative action

Posted by Thomas Nephew on 27th August 2003

If you care about either issue — and in America, you should — you should read how Natalie Davis connects her opinions about being pulled over for DWB (driving while brown) …

I swallowed my sudden feelings of anger and humiliation and handed him the crumpled item, which he examined. At that point, I couldn’t bear anymore, and tears began to roll down my face.

The cop opened the foil, saw the remains of a partially eaten hamburger, grimaced, and then turned his attention to the quiet, weeping woman before him.

“All right, ma’am, you can go,” he said. “I won’t write you up, but you should get that light fixed right away.”

Tell me that demeaning encounter wasn’t about or didn’t involve DWB — the dreaded “driving while brown.”

…and affirmative action (aka “AA”):

This member of the one race — the human race — does not want to be judged by melanin for any reason: not for “racial” profiling, not for college scholarships, not for preferential or derogatory treatment of any kind. And that is why I can not support affirmative action: If pigmentationism is immoral in cases of “racial” profiling, then it is always immoral, in my estimation.

Responding to a comment, Davis goes on to write:

…I believe focusing on economic disadvantage is the only decent way to achieve all of those things. Few favors are done for those who don’t have the ability to achieve and learn in college. No favors are done for melanin-enriched people who earn their accomplishments but are saddled with the hideous AA specter. No favors are done for the majority-group people who pay unjustly for previous generations’ sins.

Ms. Davis’ post generated a good discussion, including Tony “Ampersand” Deutsch’s comment:

I certainly favor economic AA, but I don’t think it’s a substitute for racial AA. There are at least three problems that economic AA cannot address (limiting myself to black/white examples to keep the discussion simpler):

1) Racist favoritism of poor whites over poor blacks.
2) Racial discrimination against middle-class blacks.
3) The effects of the enourmous disparity in wealth between whites and blacks at every income level (every economic AA program I’ve ever seen proposed is based on income and ignores wealth).

In the end, racial AA doesn’t ask us to make a choice between pigmentationism and non-pigmentationism. It asks us to make a choice between unmitigated pro-white racism (no AA) or partly mitigated pro-white racism (some AA). The choice we’d all prefer – no discrimination at all – just isn’t on the menu. So, for me, saying “we shouldn’t favor racial AA because we favor no discrimination” doesn’t hold water, because it suggests that “no discrimination” is an option when it isn’t.

I suppose none of this is news, but the arguments are well laid out by Davis, Deutsch and others, so go have a look. I think Deutsch’s objections to “economic affirmative action” are less telling than he does; race-based favoritism and discrimination could and should be fought as such, as matters of criminal prosecution and administrative decisions, rather than compensated for with race-based preferences. So I prefer the “economic assistance” model Ms. Davis does — although I also intuitively like schemes like scholarships for the top percentiles from each high school — schemes which are attractively agnostic about what accounts for disparities between high schools.

But these may be easier issues for me to theorize about than they are for Ms. Davis. So I respect her all the more for taking the position she does — and I won’t do her the disservice of considering the case closed just because she happens to agree with me. I’m just not sure enough of my position for that.

EDIT, 8/29: last paragraph rewritten, see comments.

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