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a citizen’s journal by Thomas Nephew

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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Their urge to betray — and ours

Posted by Thomas Nephew on 24th March 2011

Until recently, Peter Benjamin was the chairman of the Washington, D.C. area Metro transit system’s Board of Directors. A former mayor of Garrett Park, he brought an avuncular personality and long experience with Metro affairs to the table. While in correspondence with us about the bag search issue I’ve written about before, he dismissed some of our assertions about the program’s drawbacks — for example, he didn’t believe it would cause much decline in ridership. But he seemed to take seriously the civil liberties issues involved.

Still, sometimes I think if I had a dollar for every time I’ve heard or read “I’m a supporter of the ACLU, but…” I could afford the richer, more refined lifestyle I truly deserve.

And sure enough, when push came to shove at a February 10 discussion of the bag search issue, Mr. Benjamin delivered what may be the new low standard in that genre. Beginning with the heart-sinking words “I am a long term member of the American Civil Liberties Union. Many of my friends consider me a civil liberties nut,” Benjamin was giving the lie to those words within roughly twenty seconds. Even though asserting that the rights we have as citizens are “why we are the great country that we are” and personally believing that “bag checks are a violation of those rights, and …the beginning of a process that moves towards us having fewer and fewer and fewer of those rights,” Mr. Benjamin continued:

And if this decision were only for me, and only about me, I would say I personally am willing to take the risk of potentially having somebody get into the system and blow something up and I would be one of the victims, and I would balance that against my rights and say my rights are much more important. […]

However, I’m also a member of this board, and I was sworn to protect the safety and the security of the people who ride our system. And I don’t know how I as an individual with good conscience could allow somebody to get into our system and cause an explosion and know that somehow or another I contributed to that by overruling the best judgments of our chief executive officer and the professionals who understand this process. […]

But I don’t know that I can be in a position of saying that I have got the ability, given the responsibility that is given to me as an individual and as a member of this board to protect our riders, to say that they should take the same risk that perhaps I would be willing to take. And as long as I have to carry out that responsibility, I think I need to defer to those who believe that they understand better this issue. It’s one that I do very reluctantly, but it’s one that I do after very, very careful thought. And I think that’s the balance that each of needs to make as we consider this issue.”

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Are Metro bag searches really that bad?

Posted by Thomas Nephew on 21st February 2011

Recently I was asked:

are metro bag searches really that bad? I am no fan of racial profiling, but this just doesn’t sound that bad. What’s to hide in a bag? If it’s not a bomb, it’s not a bomb. Just keep your embarrassing belongings at home if you don’t want Metro Police to see them.

The following is adapted from the answer I sent.

= = =

You are now less free to move about the country
The fundamental answer, of course, is that we have the Bill of Rights for a reason, that reason is to affirm individual rights, we concede them at our peril, even if the concession appears a small one.

Part of what’s at stake here is maybe captured in that Southwest Airlines ad line that says we should be “free to move about the country.” It’s important that we carry our our rights with us wherever we go, including the right to be free from unreasonable searches. This is the very definition of an unreasonable search — for no reason (at least for no disputable reason), you are pulled aside and subjected to a search.

Why is this particular right important? The government should have to have a very good reason, in advance, for searching you — whether in your home or at a subway stop — because otherwise the door is open to fishing expeditions where you get stopped and searched just to see if you can be charged with something or other. You’re focused on bombs — but the police are not; anything they turn up is generally fair game (thanks in part to poor Supreme Court decisions, but that’s the world we live in). The burden shifts to you to know what you ought not carry with you; as a result, you’ll generally carry less; you’ll be less free. We agree one ought not carry bombs around. But fewer agree we ought not carry certain drugs around. And many fewer still agree we ought not carry anti-slavery literature around. Yet all of those things have been sanctioned before. We can’t know what the future holds. Let’s not make searching us for anything any easier than it should be.

Where will these searches end? We’ve already all but conceded that this may happen in isolated occasions — for example, when entering certain buildings like the WMATA headquarters, or when getting on airplanes. (A point Metro Transit Police Chief Taborn made to me in person, and then considered his case closed.) We’re now about to concede it can happen as we move about a city on its subways. We’ll have no point left to make if we are soon asked to submit to random bag searches on the sidewalks and streets of our cities as well. Would you still urge people to simply not take embarrassing things with them, or might you then say enough is enough? We’re saying so now.

Not just unconstitutional, but stupid
Finally, these searches aren’t just unconstitutional — they’re stupid. And they’re not just stupid — they’re stupid by definition. What program of unreasonable, suspicionless (and unconstitutional) searches is going to be better than a program relying on reasonable (and constitutional) ones based on real suspicions? What bad guy is going to be foiled by a plan to occasionally set up bag searches at a few stations, in which a majority (likely a vast majority) of people with bags are left unexamined, and which he or his co-conspirators can simply turn around and walk away from? This is a plan all but guaranteed to never, ever catch a single bomber. Its proponents sometimes concede that — but argue it nevertheless deters bad people from planning attacks, by introducing an element of uncertainty. Yet it’s absurdly easy to plan for the contingency of encountering a bag search: walk away and try somewhere else, some other time. I’d venture to say a subway system advertising this as its best thinking on security invites attack more than it deters it.

Thus WMATA’s bag search program really encroaches on a fundamental civil liberty, yet only pretends to provide security. To me, opposing such a program is an easy choice to make . By contrast, I’m ruefully confident that if we don’t block this now, future Chief Taborns will see the new status quo as a justification for further intrusions on our freedom.

How bad is that really? In the scheme of things, it’s not as bad as an unjust war, or torture, or assassination policies. But it’s bad enough. We ought to fight for our freedoms whenever they’re encroached on — especially when the justification is as threadbare as it is in this case.

Thanks for writing, and thanks for asking an honest, challenging question. I hope this was a decent answer.

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A flawed policy made worse — Metro’s random bag searches

Posted by Thomas Nephew on 22nd January 2011

In mid-December, the Washington Metropolitan Area Transit Authority, or WMATA — better known as “Metro” — and its police force announced a new random bag search policy:

…police will randomly select bags or packages to check for hazardous materials using ionization technology as well as K-9 units trained to detect explosive materials. Carry on items will generally not be opened and physically inspected unless the equipment indicates a need for further inspection.

As described, the policy allows people approaching a station to decide to refuse the screening, of course — they just can’t then bring their bags with them:

Anyone who is randomly selected and refuses to submit their carry-on items for inspection will be prohibited from bringing those items into the station. Customers who encounter a baggage checkpoint at a station entrance may choose not to enter the station if they would prefer not to submit their carry-ons for inspection.

Opponents of the policy (including myself) deemed the policy unconstitutional, ineffective, and misguided — security theater that demands public acceptance of routine, suspicionless, unaudited (and therefore possibly profiling-based) searches for almost precisely zero security in return.  Thanks in part to a good deal of mobilizing by opponents — including an online petition and an evening of nearly unanimous public opposition — WMATA’s “Riders Advisory Council” (RAC), the institutional voice of Metro users,  overwhelmingly passed a resolution calling on the Board to halt the program, and require their police department to consider alternatives in consultation with civil liberties advocates.

The RAC is — as its name implies — simply an advisory body, and it’s not clear how much weight the WMATA board of directors will give their recommendation. While the policy was apparently all but sprung on the board by Chief Taborn and WMATA General Manager manager Sarles, it’s not clear whether the board will even take it up at the next board meeting — scheduled for 1pm next Thursday — let alone come to a decision about it.

Be observed… be watched
As welcome as the 15-1-1 RAC vote was,  the real news of the January 5th RAC meeting may have happened earlier in the meeting.  During a brief question and answer session, Metro Transit Chief Taborn confirmed that bag search refusers would “be observed… be watched” for their decision by law enforcement:


Metro Transit PD Chief Taborn answers questions by Riders Advisory
Council members Diana Zinkl and David Alpert about the random bag
search policy begun in December. (Excerpt transcript)

DIANA ZINKL: And also, could you also clarify, one question that came up at our last meeting, where there was some confusion – the answer either from Deputy Chief Pavlik(?) or the other officer who was in attendance — is what happens if someone’s approaching a rail station, is stopped, does not consent to the search, turns around and leaves and goes to get on the bus.
CHIEF TABORN: What happens is that according to our policy, that person is free to go.  But with regards to law enforcement initiatives, there will be some actions, there will be some observations, because we need to establish why that particular person chose not to do it.  So there will be some activity that’s afoot.
DIANA ZINKL: Can you give us some specificity — given that I think everyone of us in this room has been in the situation that if there’s something that’s not working with the rail system you go and get on a bus — given that this is a very likely scenario, can you be a little bit more specific as to what’s actually going to happen to that person and what they will be… what their experience will be?  Because – I think – the reason I’m asking is that I think this is a very real scenario, and the answer that we received, that was received on Monday, indicated a fair amount of ambiguity and uncertainty from the officer…
CHIEF TABORN: Well I can tell you without any uncertainty that that person would be observed.  And what that means to you is different than what it means to me, but that person would be observed.
DIANA ZINKL: Well could you clarify what ‘be observed’ means?
CHIEF TABORN:Be observed. Be, be observed. Be watched.
DIANA ZINKL: And when they try to get on the bus, what would happen?
CHIEF TABORN:That will be activities that law enforcement will use just as any regular law enforcement has to establish probable cause, to find out who, what, where, why, and when.

As I wrote at the Montgomery County Civil Rights Coalition blog, it got worse.  When RAC chair David Alpert followed up, Chief Taborn elaborated that “[a]t some point in time, as we work with the FBI and as we work with the Department of Homeland Security, we establish why” the person refused the search. Read the rest of this entry »

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