DC Court of Appeals to Neighborhood: Drop Dead

In July 2009, a three-member panel of the federal court of appeals for the District of Columbia effectively ruled that well-off suburbanites are entitled to protect themselves from crime and other serious threats but residents of poor neighborhoods are not.

Gated communities have spread across the United States since the 1970s. By some estimates, more than 8 million residents lived in 20,000 gated communities in the late 1990s, and the numbers have increased rapidly since. Gated communities impose tight controls on neighborhood access, requiring non-residents seeking entry to show that they have a reasonable purpose.

As the federal appeals court acknowledged, a wave of “violence… has plagued the Trinidad neighborhood in Northeast Washington, DC for many years.” Conditions had reached the point in early June 2008 that there had been 25 recent assaults involving firearms, resulting in 5 deaths. On May 31, 2008, the neighborhood experienced a triple homicide. If this had been the suburbs, the National Guard might have been called out.

Taking a page from the suburbs, the District of Columbia police department established (temporary) checkpoints on entry into the Trinidad neighborhood. While the program was in effect for several weeks, out of 951 vehicles seeking to enter, 48 were denied entry. One of the drivers sued, alleging her rights had been violated. A lower district court ruled for the city but the federal appeals court in Caneisha Mills v. District of Columbia overturned this decision. The appeals court decision was written by David Sentelle, a Reagan appointee in 1985. Presumably, he saw the case as an individual civil rights matter, even as he effectively dismissed the collective rights of the neighborhood residents to their own personal safety.

As in many areas of the law, the courts have made a hash of checkpoints. According to the US Supreme Court, it is legal for police departments routinely to set up drunk driver checkpoints without any special justification almost anywhere (Maryland plans to spread 30 of them across the state just for the 2009 Labor Day weekend).  But the Court has ruled it is illegal to set up similar checkpoints to look for evidence of narcotics trafficking (or other serious criminal activity), even if there is specific cause to be concerned in a particular neighborhood.

Am I missing something — or maybe it is just that drunk drivers threaten suburbanities who, by contrast, have few worries about drug dealers and gun violence?

Further illustrating the court system’s confusion, the actual closest case to the Trinidad circumstances might be Virginia v. Hicks. Fearing threats to the safety of residents, the Richmond public housing authority in 1997 decided to “privatize” the streets within its housing jurisdiction. People who did not live there had to show a good reason to enter. As in DC, one sued and his arguments were upheld by the Virginia Supreme Court in 2002. The US Supreme Court, however, reversed in 2003. As Justice Ginsburg commented in oral argument, “You’re saying the public housing authority can’t create for people in the projects a gated community. People who live outside can have it, but poor people can’t have it.”

In St. Louis, it has long been possible to privatize some streets, allowing the residents to tightly control entry.  As urban planner Oscar Newman observed some years ago, “Buried within those very areas of St. Louis which have been experiencing the most rapid turnover of population are a series of [private] streets where residents have [successfully] adopted a program to stabilize their communities, to deter crime, and to guarantee the necessities of a middle-class lifestyle.” For the residents of the Trinidad neighborhood in Washington, DC, they could only hope for such a possibility.

The DC checkpoints set up in June and July 2008 were admittedly a stopgap measure adopted rapidly on an emergency basis — and without any well developed intellectual rationale. In the longer run, the DC government should establish more formal procedures with clearer criteria and controls. Any long term security program should require a neighborhood supermajority vote of approval.

Going further, new institutional means should be established by which individual inner city residential neighborhoods can assert greater general control over their surrounding environments.  Business improvement districts have worked in many cities for commercial property owners.  If the option were available, “residential improvement districts” could perform a similar function, including improved public security for people living there as well.

The rise of private community associations has effectively served the needs of suburban residents. Now it is time to do the same for the inner cities. The courts should work to facilitate such a process, rather than placing legal obstacles in the way.  The law often works slowly; the first practical steps toward neighborhood privatization will necessarily be limited and incremental.

I say, let the residents of the Trinidad and other DC neighborhoods have checkpoint authority — assuming they want to use it — to protect themselves. If gated communities work for the suburbs, the security needs of the inner cities are far greater.