Black Codes and Broken Windows: The Legacy of Racial Hegemony in Anti-Gang Civil Injunctions

Yale Law Journal

Volumn 107, Issue 7, 1998, Pages 2249-2278

  Stewart, Gary ^a  

^a NONE

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[No Author keywords available]

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EID: 0348023623     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797421     Document Type: Article

References (263)

1. McCleskey v. Kemp, 481 U.S. 279, 344 (1987) (Brennan, J., dissenting).
2. Robert A. Destro, The Hostages in the 'Hood, 36 ARIZ. L. REV. 785 (1994).
3. See Terence R. Boga, Note, Turf Wars: Street Gangs, Local Governments, and the Battle for Public Space, 29 HARV. C.R.-C.L. L. REV. 477 (1994).
4. E.g., Christopher S. Yoo, Comment, The Constitutionality of Enjoining Street Gangs as Public Nuisances, 89 NW. U. L. REV. 212, 213 n.2, 214 n.3 (1994); see also, e.g., Frank E. Harper, To Kill the Messenger: The Deflection of Responsibility Through Scapegoating (A Socio-Legal Analysis of Parental Responsibility Laws and the Urban Gang Family), 8 HARV. BLACKLETTER J. 41 (1991).
5. E.g., Christopher S. Yoo, Comment, The Constitutionality of Enjoining Street Gangs as Public Nuisances, 89 NW. U. L. REV. 212, 213 n.2, 214 n.3 (1994); see also, e.g., Frank E. Harper, To Kill the Messenger: The Deflection of Responsibility Through Scapegoating (A Socio-Legal Analysis of Parental Responsibility Laws and the Urban Gang Family), 8 HARV. BLACKLETTER J. 41 (1991).
6. See Boga, supra note 3, at 477.
7. See Alexander A. Molina, Note, California's Anti-Gang Street Terrorism Enforcement and Prevention Act: One Step Forward, Two Steps Back?, 22 SW. U. L. REV. 457, 459 (1993); see also Harper, supra note 4, at 48 (noting that in 1991 there were an estimated 50,000 to 70,000 gang members in Los Angeles County alone).
8. See Boga, supra note 3, at 477; see also Daniel J. Sharfstein, Gangbusters: Enjoining the Boys in the 'Hood, AM. PROSPECT, May-June 1997, at 58 (analyzing the costs and benefits of California's anti-gang injunctions). For a general definition of the term "civil injunction," see Madsen v. Women's Health Center, Inc., 512 U.S. 753, 762 (1994). The Court stated: An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group's past actions in the context of a specific dispute between real parties. The parties seeking the injunction assert a violation of their rights; the court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a statute addressed to the general public. Id.
9. See Boga, supra note 3, at 477.
10. Id.
11. The placement of the term "innocent" in quotation marks is intended to problematize the terms "innocence" and "guilt" in the context of racial discussions. For a more detailed exploration of the problematic nature of "innocence," see generally Thomas Ross, Innocence and Affirmative Action, in CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR 27 (Richard Delgado & Jean Stefancic eds., 1997).
12. The theory of aversive racism, proposed by John F. Dovidio and Samuel L. Gaertner, posits that [c]ontemporary forms of racism are more subtle and indirect than the old-fashioned forms . . . . [A]versive racism is an adaptation resulting from an assimilation of an egalitarian value system with (1) impressions derived from human cognitive mechanisms that contribute to the development of stereotypes and prejudice, and (2) feelings and beliefs derived from historical and contemporary cultural racist contexts. . . . Both the existence of almost unavoidable racial biases and the desire to be egalitarian form the basis of an ambivalence that aversive racists experience. John F. Dovidio et al., Stereotyping, Prejudice and Discrimination: Another Look, in STEREOTYPES AND STEREOTYPING 276, 288 (C. Neil Macrae et al. eds., 1996) (citations omitted). For a more detailed discussion of aversive racism, see infra Section III.B.
13. See People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997).
14. See Yoo, supra note 4, at 236.
15. For an informed discussion of how levels of gang participation vary, see David S. Rutkowski, Note, A Coercion Defense for the Street Gang Criminal: Plugging the Moral Gap in Existing Law, 10 NOTRE DAME J.L. ETHICS & PUB. POL'Y 137, 149-50 (1996). See generally JOAN W. MOORE, GOING DOWN TO THE BARRIO: HOMEBOYS AND HOMEGIRLS IN CHANGE (1991) (examining the historical evolution of two Chicano gangs in the 20th century); Harper, supra note 4, at 49-52 (explaining the various reasons that people join gangs).
16. For an informed discussion of how levels of gang participation vary, see David S. Rutkowski, Note, A Coercion Defense for the Street Gang Criminal: Plugging the Moral Gap in Existing Law, 10 NOTRE DAME J.L. ETHICS & PUB. POL'Y 137, 149-50 (1996). See generally JOAN W. MOORE, GOING DOWN TO THE BARRIO: HOMEBOYS AND HOMEGIRLS IN CHANGE (1991) (examining the historical evolution of two Chicano gangs in the 20th century); Harper, supra note 4, at 49-52 (explaining the various reasons that people join gangs).
17. See MARTÍN SANCHEZ JANKOWSKI, ISLANDS IN THE STREET 1, 300-02 (1991); Harper, supra note 4, at 52.
18. Examine, for example, the lyrics and mass popularity of gangsta rap, such as 2PAC, ALL EYEZ ON ME (Death Row Records 1996); and THE NOTORIOUS B.I.G., LIFE AFTER DEATH (Bad Boy Records 1997).
19. Examine, for example, the lyrics and mass popularity of gangsta rap, such as 2PAC, ALL EYEZ ON ME (Death Row Records 1996); and THE NOTORIOUS B.I.G., LIFE AFTER DEATH (Bad Boy Records 1997).
20. James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, ATLANTIC MONTHLY, Mar. 1982, at 29.
21. For a more detailed discussion of the rise of these policing philosophies, see Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 COLUM. L. REV. 551, 565-91 (1997).
22. Id. at 578.
23. Id. at 579.
24. Wilson & Kelling, supra note 17.
25. See, e.g., HERMAN GOLDSTEIN, PROBLEM-ORIENTED POLICING 23 (1990) (noting that the "broken windows" thesis is "widely cited"); WESLEY SKOGAN, DISORDER AND DECLINE 51-57 (1990) (providing empirical support for the broken windows argument); William Barr, A Practical Solution to Crime in Our Communities, 1 MICH. L. & POL'Y REV. 393, 396 (1996) (arguing that "the analogy of the broken windows is perfect," and noting that it explained his experience as Attorney General of the United States from 1991 to 1993); William J. Bratton, The New York City Police Department's Civil Enforcement of Quality-of-Life Crimes, 3 J.L. & POL'Y 447 (1995) (demonstrating the author's unabashed support, as the former New York City Police Commissioner, for the "broken windows" thesis and community policing); Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165, 1171 (citing "[t]he well-known 'broken windows' thesis"); Livingston, supra note 18, at 583-84 ("In short, Broken Windows . . . was 'widely cited,' has become 'one of the most influential articles on policing,' and has helped to create what some have termed a 'consensus' in community and problem-oriented policing circles that the neglect of quality-of-life problems was a deficiency of urban policing in the period into the 1980s.").
26. See, e.g., HERMAN GOLDSTEIN, PROBLEM-ORIENTED POLICING 23 (1990) (noting that the "broken windows" thesis is "widely cited"); WESLEY SKOGAN, DISORDER AND DECLINE 51-57 (1990) (providing empirical support for the broken windows argument); William Barr, A Practical Solution to Crime in Our Communities, 1 MICH. L. & POL'Y REV. 393, 396 (1996) (arguing that "the analogy of the broken windows is perfect," and noting that it explained his experience as Attorney General of the United States from 1991 to 1993); William J. Bratton, The New York City Police Department's Civil Enforcement of Quality-of-Life Crimes, 3 J.L. & POL'Y 447 (1995) (demonstrating the author's unabashed support, as the former New York City Police Commissioner, for the "broken windows" thesis and community policing); Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165, 1171 (citing "[t]he well-known 'broken windows' thesis"); Livingston, supra note 18, at 583-84 ("In short, Broken Windows . . . was 'widely cited,' has become 'one of the most influential articles on policing,' and has helped to create what some have termed a 'consensus' in community and problem-oriented policing circles that the neglect of quality-of-life problems was a deficiency of urban policing in the period into the 1980s.").
27. See, e.g., HERMAN GOLDSTEIN, PROBLEM-ORIENTED POLICING 23 (1990) (noting that the "broken windows" thesis is "widely cited"); WESLEY SKOGAN, DISORDER AND DECLINE 51-57 (1990) (providing empirical support for the broken windows argument); William Barr, A Practical Solution to Crime in Our Communities, 1 MICH. L. & POL'Y REV. 393, 396 (1996) (arguing that "the analogy of the broken windows is perfect," and noting that it explained his experience as Attorney General of the United States from 1991 to 1993); William J. Bratton, The New York City Police Department's Civil Enforcement of Quality-of-Life Crimes, 3 J.L. & POL'Y 447 (1995) (demonstrating the author's unabashed support, as the former New York City Police Commissioner, for the "broken windows" thesis and community policing); Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165, 1171 (citing "[t]he well-known 'broken windows' thesis"); Livingston, supra note 18, at 583-84 ("In short, Broken Windows . . . was 'widely cited,' has become 'one of the most influential articles on policing,' and has helped to create what some have termed a 'consensus' in community and problem-oriented policing circles that the neglect of quality-of-life problems was a deficiency of urban policing in the period into the 1980s.").
28. See, e.g., HERMAN GOLDSTEIN, PROBLEM-ORIENTED POLICING 23 (1990) (noting that the "broken windows" thesis is "widely cited"); WESLEY SKOGAN, DISORDER AND DECLINE 51-57 (1990) (providing empirical support for the broken windows argument); William Barr, A Practical Solution to Crime in Our Communities, 1 MICH. L. & POL'Y REV. 393, 396 (1996) (arguing that "the analogy of the broken windows is perfect," and noting that it explained his experience as Attorney General of the United States from 1991 to 1993); William J. Bratton, The New York City Police Department's Civil Enforcement of Quality-of-Life Crimes, 3 J.L. & POL'Y 447 (1995) (demonstrating the author's unabashed support, as the former New York City Police Commissioner, for the "broken windows" thesis and community policing); Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165, 1171 (citing "[t]he well-known 'broken windows' thesis"); Livingston, supra note 18, at 583-84 ("In short, Broken Windows . . . was 'widely cited,' has become 'one of the most influential articles on policing,' and has helped to create what some have termed a 'consensus' in community and problem-oriented policing circles that the neglect of quality-of-life problems was a deficiency of urban policing in the period into the 1980s.").
29. See, e.g., HERMAN GOLDSTEIN, PROBLEM-ORIENTED POLICING 23 (1990) (noting that the "broken windows" thesis is "widely cited"); WESLEY SKOGAN, DISORDER AND DECLINE 51-57 (1990) (providing empirical support for the broken windows argument); William Barr, A Practical Solution to Crime in Our Communities, 1 MICH. L. & POL'Y REV. 393, 396 (1996) (arguing that "the analogy of the broken windows is perfect," and noting that it explained his experience as Attorney General of the United States from 1991 to 1993); William J. Bratton, The New York City Police Department's Civil Enforcement of Quality-of-Life Crimes, 3 J.L. & POL'Y 447 (1995) (demonstrating the author's unabashed support, as the former New York City Police Commissioner, for the "broken windows" thesis and community policing); Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165, 1171 (citing "[t]he well-known 'broken windows' thesis"); Livingston, supra note 18, at 583-84 ("In short, Broken Windows . . . was 'widely cited,' has become 'one of the most influential articles on policing,' and has helped to create what some have termed a 'consensus' in community and problem-oriented policing circles that the neglect of quality-of-life problems was a deficiency of urban policing in the period into the 1980s.").
30. See, e.g., HERMAN GOLDSTEIN, PROBLEM-ORIENTED POLICING 23 (1990) (noting that the "broken windows" thesis is "widely cited"); WESLEY SKOGAN, DISORDER AND DECLINE 51-57 (1990) (providing empirical support for the broken windows argument); William Barr, A Practical Solution to Crime in Our Communities, 1 MICH. L. & POL'Y REV. 393, 396 (1996) (arguing that "the analogy of the broken windows is perfect," and noting that it explained his experience as Attorney General of the United States from 1991 to 1993); William J. Bratton, The New York City Police Department's Civil Enforcement of Quality-of-Life Crimes, 3 J.L. & POL'Y 447 (1995) (demonstrating the author's unabashed support, as the former New York City Police Commissioner, for the "broken windows" thesis and community policing); Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 YALE L.J. 1165, 1171 (citing "[t]he well-known 'broken windows' thesis"); Livingston, supra note 18, at 583-84 ("In short, Broken Windows . . . was 'widely cited,' has become 'one of the most influential articles on policing,' and has helped to create what some have termed a 'consensus' in community and problem-oriented policing circles that the neglect of quality-of-life problems was a deficiency of urban policing in the period into the 1980s.").
31. Livingston, supra note 18, at 578.
32. Wilson & Kelling, supra note 17, at 29.
33. For a discussion of "reform era" policing, see Livingston, supra note 18, at 565-67.
34. See Wilson & Kelling, supra note 17, at 33-34.
35. Id. at 31.
36. See id. at 35.
37. Id. (emphasis added).
38. Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 HARV. L. REV. 1255, 1256, 1273 (1994). Kennedy has since expanded his argument. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1997).
39. Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 HARV. L. REV. 1255, 1256, 1273 (1994). Kennedy has since expanded his argument. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1997).
40. See Kennedy, supra note 30, at 1274.
41. Id. at 1278.
42. Wilson & Kelling, supra note 17, at 35.
43. Id.
44. Id.
45. Id. (emphasis added).
46. I borrow John Jeffries's definition of "rule of law." He explains: The rule of law signifies the constraint of arbitrariness in the exercise of government power. . . . The evils to be retarded are caprice and whim, the misuse of government power for private ends, and the unacknowledged reliance on illegitimate criteria of selection. The goals to be advanced are regularity and evenhandedness in the administration of justice and accountability in the use of government power. John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189, 212 (1985).
47. It is interesting to note, however, that even Kennedy has expressed reservations about the racial implications of anti-gang injunctions. See Randall Kennedy, Guilty by Association, AM. PROSPECT, May-June 1997, at 66.
48. David Cole, The Paradox of Race and Crime: A Comment on Randall Kennedy's "Politics of Distinction," 83 GEO. L.J. 2547, 2555 (1995).
49. See Fox Butterfield, More in the U.S. Are in Prisons, Report Says, N.Y. TIMES, Aug. 10, 1995, at A14.
50. See JEROME G. MILLER, NATIONAL CTR. ON INSTS. & ALTERNATIVES, HOBBLING A GENERATION: YOUNG AFRICAN-AMERICAN MALES IN WASHINGTON, D.C.'s CRIMINAL JUSTICE SYSTEM 1 (1992).
51. See MARC MAUER & TRACY HULING, THE SENTENCING PROJECT, YOUNG BLACK AMERICANS IN THE CRIMINAL JUSTICE SYSTEM: FIVE YEARS LATER 1 (1995).
52. Cole, supra note 39, at 2558.
53. Cole continues: The criminal justice system contributes to a stereotyped and stigmatic view of African Americans as potential criminals. That stereotype plays a role in the storekeeper's decision not to buzz a young black man into her store; the employer's decision not to hire a black applicant; the police officer's decision to stop a black traveler in an airport, white neighborhood or fancy car, the citizen's decision to cross the street at the sight of an approaching group of black teenagers; and the schoolteacher's assumption that a black student is less likely to excel at school and more likely to get into trouble. In countless daily interactions and in innumerable ways, African-Americans are plagued by stereotypes fueled in no small measure by the criminal justice system. Id. at 2561.
54. See id.
55. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
56. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
57. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
58. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
59. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
60. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
61. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
62. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
63. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
64. See, e.g., Russell Ben-Ali, Black Cops Question Shooting of P.A. Officer; Black Cops Demand Probe, STAR-LEDGER (Newark, N.J.), Nov. 26, 1997, at 19; Kevin C. Dilworth, Head of Black Police Chapter Favors Tough Stand on Brutality, STAR-LEDGER (Newark, N.J.), Feb. 1, 1998, at 32; Michael Fletcher, Police Brutality Protesters March on Justice Department, WASH. POST, Sept. 13, 1997, at A6; Blaine Harden & Devon Spurgeon, Marching New Yorkers Protest Brutality; In Wake of Allegations of Torture of Haitian Immigrant, Officers Are Called 'Perverts' and 'Racists,' WASH. POST, Aug. 30, 1997, at A4; Michael Kramer, How Cops Go Bad - Brutality, Racism, Cover-Ups, Lies: A Guilty Police Officer Tells How the Process Works, TIME, Dec. 15, 1997, at 78; Joseph D. McNamara, Too Many Cops Think It's a War, TIME, Sept. 1, 1997, at 28; Steve Mills, U.S. To Probe Cop's Alleged Beating; Witnesses Support Black Officer's Side of Arrest Incident, CHI. TRIB., Jan. 10, 1998, at 1; Peter Noel, Cop in Giuliani Time: Black Activist Charges Vicious Police Beat Down, VILLAGE VOICE, Aug. 26, 1997, at 38; Police Shooting Spurs Accusations of Racism; Twice in Six Months, an Unarmed Black Has Been Killed by a White Officer in Charlotte, N.C., ORLANDO SENTINEL, Apr. 14, 1997, at A5. But see Richard Lacoyo, Good Cop, Bad Cop - Headlines About Brutality Have Overshadowed the Real News: More Cities Are Reining In Police Misbehavior, TIME, Sept. 1, 1997, at 26.
65. See William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1, 21 (1996).
66. See David S. Cohen, Official Oppression: A Historical Analysis of Low-Level Police Abuse and a Modern Attempt at Reform, 28 COLUM. HUM. RTS. L. REV. 165, 179 (1996) ("Today, an entire class of crime, so-called 'quality of life' offenses, is denned largely as what the poor do - sleep in the streets, beg for money, squeegee unwilling car drivers' windshields, etc."). For an extreme demonstration of this point, see Ellickson, supra note 22, which argues for the zoning of annoying, chronically homeless people who occupy public spaces.
67. Stuntz, supra note 47, at 20-21.
68. See infra Section III.B.
69. See generally DERRICK A. BELL, JR., RACE, RACISM AND AMERICAN LAW (1992) (discussing the history of racism against American blacks).
70. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
71. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
72. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
73. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
74. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
75. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
76. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
77. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
78. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
79. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
80. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club
81. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
82. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
83. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
84. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 615 (1956). For other insightful historical studies of vagrancy, see generally A.L. BEIER, MASTERLESS MEN: THE VAGRANCY PROBLEM IN ENGLAND, 1560-1640 (1985); JOHN POUND, POVERTY AND VAGRANCY IN TUDOR ENGLAND (1971); C.J. RIBTON-TURNER, A HISTORY OF VAGRANTS AND VAGRANCY (1972); and Jeffrey S. Adler, A Historical Analysis of the Law of Vagrancy, 27 CRIMINOLOGY 209 (1989). For discussions of more contemporary examples of vagrancy-type laws, see WILLIAM HARBUTT DAWSON, THE VAGRANCY PROBLEM (1910); LAWS OF THE VARIOUS STATES RELATING TO VAGRANCY (1916); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE. L.J. 1 (1960); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345 (1936); Rollin M. Perkins, The Vagrancy Concept, 9 HASTINGS L.J. 237, 250-61 (1958); Arthur H. Sherry, Vagrants, Rogues and Vagabonds - Old Concepts in Need of Revision, 48 CAL. L. REV. 557 (1960); T. Leigh Anenson, Comment, Another Casualty of the War . . . Vagrancy Laws Target the Fourth Amendment, 26 AKRON L. REV. 493 (1993); and Note, Use of Vagrancy-Type Laws for Arrest and Detention of Suspicious Persons, 59 YALE L.J. 1351 (1950). Commentators and jurists have debated whether there is a renewed need for vagrancy-type laws. Compare Barr, supra note 22, at 394, 396 ("[V]agrancy and anti-loitering laws would allow police to act upon then educated and professional suspicions that something is awry. . . . The key civil rights issue of today, the real civil threat, is the ability to live with some modicum of safety."), and Clarence Thomas, Keynote Address at Federalist Society Symposium, reprinted in 1 MICH. L. & POL'Y REV. 269, 269 (1996) (arguing that the rights revolution has resulted in a "culture that declined to curb the excesses of self-indulgence - vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community's sense of decorum"), with H. Lee Sarokin, Civil Rights or Nuisance: How Should the Judge-Citizen View a Vagrant's Behavior?, 1 MICH. L. REV. 379, 382 (1996) ("Curfews, rousting people, and using the billy club to get people to move on or away are very tempting tools if they rid us of crime. But what is practical and productive is not always principled and proper.").
85. Foote, supra note 52, at 615.
86. See id. at 616.
87. See id.
88. See William J. Stuntz, Implicit Bargains, Government Power, and the Fourth Amendment, 44 STAN. L. REV. 553, 560 (1992) ("[M]ost people probably would approve of greater police authority to keep an eye on 'undesirables' (and to keep them out of 'nice' neighborhoods). That is why old-style loitering and vagrancy laws were politically tolerable, notwithstanding their stunning breadth."); cf. Forrest W. Lacey, Vagrancy and Other Crimes of Personal Condition, 66 HARV. L. REV. 1203, 1205-06 (1953) (implying that law enforcement officials enforcing vagrancy laws might disproportionately target certain groups, including racial minorities).
89. See William J. Stuntz, Implicit Bargains, Government Power, and the Fourth Amendment, 44 STAN. L. REV. 553, 560 (1992) ("[M]ost people probably would approve of greater police authority to keep an eye on 'undesirables' (and to keep them out of 'nice' neighborhoods). That is why old-style loitering and vagrancy laws were politically tolerable, notwithstanding their stunning breadth."); cf. Forrest W. Lacey, Vagrancy and Other Crimes of Personal Condition, 66 HARV. L. REV. 1203, 1205-06 (1953) (implying that law enforcement officials enforcing vagrancy laws might disproportionately target certain groups, including racial minorities).
90. See generally, e.g., Foote, supra note 52.
91. Cf. Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972) (holding that vague vagrancy-type ordinances "permit[] and encourage[] arbitrary enforcement of the law" and furnish "a convenient tool" for discriminatory treatment of unpopular groups).
92. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 199-201 (1988); William Cohen, Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis, in 4 RACE, LAW AND AMERICAN HISTORY, 1700-1990, at 13, 29 (Paul Finkelman ed., 1992) ("The contract system could work only if there was some way of forcing blacks to sign labor agreements in the first place. Vagrancy statutes provided just such a means . . . .").
93. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 199-201 (1988); William Cohen, Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis, in 4 RACE, LAW AND AMERICAN HISTORY, 1700-1990, at 13, 29 (Paul Finkelman ed., 1992) ("The contract system could work only if there was some way of forcing blacks to sign labor agreements in the first place. Vagrancy statutes provided just such a means . . . .").
94. FONER, supra note 60, at 199.
95. See W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 167 (1962). For a recounting of the black community's reactions, see Steven F. Miller et al., Between Emancipation and Enfranchisement: Law and the Political Mobilization of Black Southerners During Presidential Reconstruction, 1865-1867, 70 CHI.-KENT L. REV. 1059 (1995).
96. See W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 167 (1962). For a recounting of the black community's reactions, see Steven F. Miller et al., Between Emancipation and Enfranchisement: Law and the Political Mobilization of Black Southerners During Presidential Reconstruction, 1865-1867, 70 CHI.-KENT L. REV. 1059 (1995).
97. Although only Mississippi and South Carolina explicitly mentioned race in their vagrancy statutes, these statutes of all the states clearly targeted ex-slaves. See FONER, supra note 60, at 201 ("[T]he vagrant contemplated was the plantation negro.").
98. See DU BOIS, supra note 62, at 167 (noting that although "[n]egroes were no longer real estate . . . [n]egroes were liable to a slave trade under the guise of vagrancy and apprenticeship laws.").
99. THEODORE BRANTNER WILSON, THE BLACK CODES OF THE SOUTH 44 (1965) (quoting an August 23, 1865, editorial from the Edgefield Advertiser).
100. Id.
101. GEORGE M. FREDRICKSON, THE BLACK IMAGE IN THE WHITE MIND: THE DEBATE ON AFRO-AMERICAN CHARACTER AND DESTINY, 1817-1914, at 180 (1971) (quoting REVEREND HORACE JAMES, ANNUAL REPORT OF THE SUPERINTENDENT OF NEGRO AFFAIRS IN NORTH CAROLINA 46 (1865)).
102. GEORGE M. FREDRICKSON, THE BLACK IMAGE IN THE WHITE MIND: THE DEBATE ON AFRO-AMERICAN CHARACTER AND DESTINY, 1817-1914, at 180 (1971) (quoting REVEREND HORACE JAMES, ANNUAL REPORT OF THE SUPERINTENDENT OF NEGRO AFFAIRS IN NORTH CAROLINA 46 (1865)).
103. WILSON, supra note 65, at 44 (quoting Senator Carl Schurz, who reported that he "had heard this hundreds of times").
104. Id. at 45 (quoting the Savannah News of November 8, 1866).
105. See ROBERT CRUDEN, THE NEGRO IN RECONSTRUCTION 20 (1969) ("The fact was, of course, that the white Southerner was face to face with a new phenomenon - Negro mobility - and it is not surprising that he, like others faced with situations at once new and frightening, fell back on old clichés to comfort himself and rationalize his behavior.").
106. WILSON, supra note 65, at 53 (quoting the Semi-Weekly Floridian of January 9, 1866).
107. CRUDEN, supra note 70, at 21 (quoting U.B. Phillips); see also Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1119-29 (1997) (examining how whites' concerns regarding status limited African-American progress in the postbellum period).
108. CRUDEN, supra note 70, at 21 (quoting U.B. Phillips); see also Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1119-29 (1997) (examining how whites' concerns regarding status limited African-American progress in the postbellum period).
109. WILSON, supra note 65, at 63 (emphasis added) (citing ALA. CONST. art. 4, § 36 (1865); GA. CONST. art 2, § 5 (1865); MISS. CONST. art. 8 (1865)).
110. See id. at 66.
111. Id. at 68. Compare expansions of the term "vagrant" in Alabama and Florida. Alabama's definition included "'any runaway, stubborn servant or child'" and "'a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.'" Id. at 76. Florida's law "'in relation to Contracts of Persons of Color'" declared that a black person must be punished for vagrancy if his master complained of "'willful disobedience of orders, wanton impudence, or disrespect to his employer or his authorized agent, failure to perform the work assigned to him, idleness, or abandonment of the premises.'" Id. at 99.
112. Id. at 68.
113. Id.
114. See id. at 71-80.
115. See id. at 96-115.
116. CRUDEN, supra note 70, at 21.
117. See id. at 26-34.
118. See FONER, supra note 60, at 209.
119. See id. at 587-601.
120. Cohen, supra note 60, at 30.
121. See id.
122. Id.
123. See id. at 30-31.
124. 405 U.S. 156 (1972).
125. 382 U.S. 87 (1965).
126. Id. at 89.
127. Id. at 88.
128. Id. at 90-91.
129. Livingston, supra note 18, at 601.
130. See Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972); see also Jeffries, supra note 37, at 213-14 ("[T]He 'worst case' breakdown of the rule of law is not random whim or caprice but hidden bias and prejudice. And the single most potent concern at issue here is not an abstract interest in the postulates of a just legal order but a specific commitment to end discrimination based on race or ethnicity."); Stuntz, supra note 47, at 21 ("[T]he real problem . . . had nothing to do with the fuzziness of the ordinance. . . . The problem in Papachristou was race-based criminalization.").
131. Papachristou, 405 U.S. at 171.
132. Id. at 170 (quoting Shuttlesworth, 382 U.S. at 90; Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)).
133. See id. at 169; see also Foote, supra note 52, at 625 (noting that two different kinds of suspicion are possible - that is, suspicion for either "past" or "future" criminality - and that vagrancy laws target the latter); Lacey, supra note 57, at 1217 (noting that vagrancy laws aim to target future criminality).
134. Papachristou, 405 U.S. at 169.
135. See Cohen, supra note 48, at 179 ("Because the traditional role of the police is to enforce order upon the lower classes, . . . the poor and disempowered are inherently more likely to find themselves at the receiving end of police brutality."); id. at 181 ("[T]he police specifically and the government generally have lost the trust and cooperation that these communities have to offer."); see also Robin K. Magee, The Myth of the Good Cop and the Inadequacy of Fourth Amendment Remedies for Black Men: Contrasting Presumptions of Innocence and Guilt, 23 CAP. U. L. REV. 151, 208 (1994) (arguing that the criminal justice system perpetuates stereotypes of black criminality).
136. See Cohen, supra note 48, at 179 ("Because the traditional role of the police is to enforce order upon the lower classes, . . . the poor and disempowered are inherently more likely to find themselves at the receiving end of police brutality."); id. at 181 ("[T]he police specifically and the government generally have lost the trust and cooperation that these communities have to offer."); see also Robin K. Magee, The Myth of the Good Cop and the Inadequacy of Fourth Amendment Remedies for Black Men: Contrasting Presumptions of Innocence and Guilt, 23 CAP. U. L. REV. 151, 208 (1994) (arguing that the criminal justice system perpetuates stereotypes of black criminality).
137. See Papachristou, 405 U.S. at 156; see also Livingston, supra note 18, at 599 ("In the context of the . . . [1960s] civil rights struggles . . . the Supreme Court was increasingly called upon to invalidate laws punishing vagrancy, loitering, trespass, and disorderly conduct.").
138. Livingston, supra note 18, at 560; see also id. at 642-44 (discussing anti-gang injunctions).
139. See Boga, supra note 3, at 477.
140. See id. For examples of anti-gang injunctions, see City of Norwalk v. Orange Street Locos, No. VC 016746 (Cal. Super. Ct. Aug. 25, 1994) (preliminary injunction); People ex rel. Fletcher v. Acosta, No. EC 010205 (Cal. Super. Ct. Apr. 7, 1993) (order for preliminary injunction); and People v. Playboy Gangster Crips, No. WEC 118860 (Cal. Super. Ct. Dec. 11, 1987) (preliminary injunction).
141. See Boga, supra note 3, at 477.
142. The California Supreme Court's decision in People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997), identifies two potential sources of judicial authority to issue anti-gang injunctions in California: (1) general nuisance laws; and (2) California's Street Terrorism Enforcement and Prevention (STEP) Act, CAL. PENAL CODE §§ 186.20-186.28 (West 1988 & Supp. 1997). The court noted that while a legislature could declare a legislative act the exclusive remedy for abating gang activity, STEP expressly allows other means of enjoining criminal street gangs. See Acuna, 929 P.2d at 614. Regardless of which source of authority is invoked, the person seeking an injunction must demonstrate that the defendant has violated her rights. See Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 762 (1994). Accordingly, she must identify some legal source promulgating the rights that she claims the defendant has violated.
143. See Yoo, supra note 4, at 219.
144. Boga, supra note 3, at 485.
145. See Mary M. Cheh, Constitutional Limits on Using Civil Remedies To Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 HASTINGS L.J. 1325, 1345-48 (1991) (discussing the appeal of civil as opposed to criminal remedies).
146. Id. at 1343.
147. Livingston, supra note 18, at 644-45.
148. Id. at 645.
149. Id. at 643.
150. See id. at 643-44.
151. 512 U.S. 753 (1994).
152. Id. at 764 (quoting Railway Express Agency v. New York, 336 U.S. 106, 112-13 (1949)) (citations omitted).
153. Id. at 793 (Scalia, J., dissenting).
154. But cf. Stuntz, supra note 47, at 1 (noting that an alternative approach would be for courts to manipulate the substantive scope of criminal law).
155. Cheh, supra note 108, at 1329.
156. See Yoo, supra note 4, at 253-55. But see Cheh, supra note 108, at 1369 (arguing that civil procedural due process imposes significant safeguards against arbitrariness.)
157. See Cheh, supra note 108, at 1394.
158. See id. at 1395 n.365.
159. Yoo, supra note 4, at 254.
160. For cases demonstrating the traditionally limited scope of appellate review, see, for example, Doran v. Salem Inn, Inc., 422 U.S. 922 (1975); and Brown v. Chote, 411 U.S. 452 (1973). For a case demonstrating how the expeditious nature of an injunction can translate into relaxed procedural considerations, see, for example, Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310 (1940). But for an example of extensive review by an appellate court, see Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986).
161. 388 U.S. 307 (1967).
162. See id. at 315.
163. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 793-94 (1994) (Scalia, J., dissenting).
164. See Yoo, supra note 4, at 255.
165. See id. 129. See id. at 222-25.
166. See generally NATIONAL RESEARCH COUNCIL, A COMMON DESTINY: BLACKS AND AMERICAN SOCIETY (Gerald D. Jaynes & Robin M. Williams, Jr. eds., 1989) (providing a comprehensive statistical compilation of race opinion surveys); HOWARD SCHUMAN ET AL., RACIAL ATTITUDES IN AMERICA 193 (1985) (charting racial attitudes).
167. See generally NATIONAL RESEARCH COUNCIL, A COMMON DESTINY: BLACKS AND AMERICAN SOCIETY (Gerald D. Jaynes & Robin M. Williams, Jr. eds., 1989) (providing a comprehensive statistical compilation of race opinion surveys); HOWARD SCHUMAN ET AL., RACIAL ATTITUDES IN AMERICA 193 (1985) (charting racial attitudes).
168. See Thomas F. Pettigrew & Joanne Martin, Shaping the Organizational Context for Black American Inclusion, 43 J. SOC. ISSUES 41, 43 (1987).
169. See generally BELL, supra note 51 (detailing the history of racism within the United States).
170. See Samuel L. Gaertner & John F. Dovidio, The Aversive Form of Racism, in PREJUDICE, DISCRIMINATION, AND RACISM 61, 61 (John F. Dovidio & Samuel L. Gaertner eds., 1986); James R. Klugel & Eliot R. Smith, Whites' Beliefs About Black Opportunities, 47 AM. SOC. REV. 518, 529 (1982). Klugel and Smith's research is presented in greater detail in JAMES R. KLUGEL & ELIOT R. SMITH, BELIEFS ABOUT INEQUALITY (1986).
171. See Samuel L. Gaertner & John F. Dovidio, The Aversive Form of Racism, in PREJUDICE, DISCRIMINATION, AND RACISM 61, 61 (John F. Dovidio & Samuel L. Gaertner eds., 1986); James R. Klugel & Eliot R. Smith, Whites' Beliefs About Black Opportunities, 47 AM. SOC. REV. 518, 529 (1982). Klugel and Smith's research is presented in greater detail in JAMES R. KLUGEL & ELIOT R. SMITH, BELIEFS ABOUT INEQUALITY (1986).
172. See Samuel L. Gaertner & John F. Dovidio, The Aversive Form of Racism, in PREJUDICE, DISCRIMINATION, AND RACISM 61, 61 (John F. Dovidio & Samuel L. Gaertner eds., 1986); James R. Klugel & Eliot R. Smith, Whites' Beliefs About Black Opportunities, 47 AM. SOC. REV. 518, 529 (1982). Klugel and Smith's research is presented in greater detail in JAMES R. KLUGEL & ELIOT R. SMITH, BELIEFS ABOUT INEQUALITY (1986).
173. See Gaertner & Dovidio, supra note 133. A number of other social psychological theories also attempt to explain modern forms of racism. See, e.g., Patricia G. Devine & Kristin A. Vasquez-Suson, The Rocky Road to Positive Intergroup Relations, in RACISM: THE PROBLEM AND THE RESPONSE 234 (Jennifer L. Eberhardt & Susan T. Fiske eds., 1998) (advancing a prejudice disassociation model that explains the process by which people can inhibit or control their racist tendencies); Irwin Katz et al., Racial Ambivalence, Value Duality, and Behavior, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 35 (arguing that "ambivalent racism" reflects a combination of sympathy for blacks' plight with the belief that they have contributed significantly to it); John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 91 (arguing that "modern racists" are largely unaware of their racist feelings); Don Operario & Susan T. Fiske, Racism Equals Power Plus Prejudice: A Social Psychological Equation for Racial Oppression, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 34-35 (arguing that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences"); David O. Sears, Racism and Politics in the United States, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 76, 83-89 (explaining how "symbolic racism" articulates itself through political values and personal ideology); Jim Sidanius et al., Hierarchical Group Relations, Institutional Terror, and the Dynamics of the Criminal Justice System, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 136 (advancing a "social domination" theory, which maintains that complex human societies appear predisposed to organize themselves as group-based social hierarchies with one or a small number of dominant groups and at least one subordinate group). Aversive racism theory's primary competitors are probably "symbolic racism" and "modern racism." I have opted to use aversive racism because, unlike these alternatives, it focuses upon the actions and motivations of people who would probably label themselves "liberal." For legally oriented critiques of modern forms of racism, see R. Richard Banks & Jennifer L. Eberhardt, Social Psychological Processes and the Legal Bases of Racial Categorization, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 54; Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 983-85 (1993); and Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
174. See Gaertner & Dovidio, supra note 133. A number of other social psychological theories also attempt to explain modern forms of racism. See, e.g., Patricia G. Devine & Kristin A. Vasquez-Suson, The Rocky Road to Positive Intergroup Relations, in RACISM: THE PROBLEM AND THE RESPONSE 234 (Jennifer L. Eberhardt & Susan T. Fiske eds., 1998) (advancing a prejudice disassociation model that explains the process by which people can inhibit or control their racist tendencies); Irwin Katz et al., Racial Ambivalence, Value Duality, and Behavior, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 35 (arguing that "ambivalent racism" reflects a combination of sympathy for blacks' plight with the belief that they have contributed significantly to it); John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 91 (arguing that "modern racists" are largely unaware of their racist feelings); Don Operario & Susan T. Fiske, Racism Equals Power Plus Prejudice: A Social Psychological Equation for Racial Oppression, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 34-35 (arguing that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences"); David O. Sears, Racism and Politics in the United States, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 76, 83-89 (explaining how "symbolic racism" articulates itself through political values and personal ideology); Jim Sidanius et al., Hierarchical Group Relations, Institutional Terror, and the Dynamics of the Criminal Justice System, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 136 (advancing a "social domination" theory, which maintains that complex human societies appear predisposed to organize themselves as group-based social hierarchies with one or a small number of dominant groups and at least one subordinate group). Aversive racism theory's primary competitors are probably "symbolic racism" and "modern racism." I have opted to use aversive racism because, unlike these alternatives, it focuses upon the actions and motivations of people who would probably label themselves "liberal." For legally oriented critiques of modern forms of racism, see R. Richard Banks & Jennifer L. Eberhardt, Social Psychological Processes and the Legal Bases of Racial Categorization, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 54; Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 983-85 (1993); and Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
175. See Gaertner & Dovidio, supra note 133. A number of other social psychological theories also attempt to explain modern forms of racism. See, e.g., Patricia G. Devine & Kristin A. Vasquez-Suson, The Rocky Road to Positive Intergroup Relations, in RACISM: THE PROBLEM AND THE RESPONSE 234 (Jennifer L. Eberhardt & Susan T. Fiske eds., 1998) (advancing a prejudice disassociation model that explains the process by which people can inhibit or control their racist tendencies); Irwin Katz et al., Racial Ambivalence, Value Duality, and Behavior, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 35 (arguing that "ambivalent racism" reflects a combination of sympathy for blacks' plight with the belief that they have contributed significantly to it); John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 91 (arguing that "modern racists" are largely unaware of their racist feelings); Don Operario & Susan T. Fiske, Racism Equals Power Plus Prejudice: A Social Psychological Equation for Racial Oppression, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 34-35 (arguing that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences"); David O. Sears, Racism and Politics in the United States, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 76, 83-89 (explaining how "symbolic racism" articulates itself through political values and personal ideology); Jim Sidanius et al., Hierarchical Group Relations, Institutional Terror, and the Dynamics of the Criminal Justice System, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 136 (advancing a "social domination" theory, which maintains that complex human societies appear predisposed to organize themselves as group-based social hierarchies with one or a small number of dominant groups and at least one subordinate group). Aversive racism theory's primary competitors are probably "symbolic racism" and "modern racism." I have opted to use aversive racism because, unlike these alternatives, it focuses upon the actions and motivations of people who would probably label themselves "liberal." For legally oriented critiques of modern forms of racism, see R. Richard Banks & Jennifer L. Eberhardt, Social Psychological Processes and the Legal Bases of Racial Categorization, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 54; Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 983-85 (1993); and Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
176. See Gaertner & Dovidio, supra note 133. A number of other social psychological theories also attempt to explain modern forms of racism. See, e.g., Patricia G. Devine & Kristin A. Vasquez-Suson, The Rocky Road to Positive Intergroup Relations, in RACISM: THE PROBLEM AND THE RESPONSE 234 (Jennifer L. Eberhardt & Susan T. Fiske eds., 1998) (advancing a prejudice disassociation model that explains the process by which people can inhibit or control their racist tendencies); Irwin Katz et al., Racial Ambivalence, Value Duality, and Behavior, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 35 (arguing that "ambivalent racism" reflects a combination of sympathy for blacks' plight with the belief that they have contributed significantly to it); John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 91 (arguing that "modern racists" are largely unaware of their racist feelings); Don Operario & Susan T. Fiske, Racism Equals Power Plus Prejudice: A Social Psychological Equation for Racial Oppression, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 34-35 (arguing that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences"); David O. Sears, Racism and Politics in the United States, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 76, 83-89 (explaining how "symbolic racism" articulates itself through political values and personal ideology); Jim Sidanius et al., Hierarchical Group Relations, Institutional Terror, and the Dynamics of the Criminal Justice System, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 136 (advancing a "social domination" theory, which maintains that complex human societies appear predisposed to organize themselves as group-based social hierarchies with one or a small number of dominant groups and at least one subordinate group). Aversive racism theory's primary competitors are probably "symbolic racism" and "modern racism." I have opted to use aversive racism because, unlike these alternatives, it focuses upon the actions and motivations of people who would probably label themselves "liberal." For legally oriented critiques of modern forms of racism, see R. Richard Banks & Jennifer L. Eberhardt, Social Psychological Processes and the Legal Bases of Racial Categorization, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 54; Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 983-85 (1993); and Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
177. See Gaertner & Dovidio, supra note 133. A number of other social psychological theories also attempt to explain modern forms of racism. See, e.g., Patricia G. Devine & Kristin A. Vasquez-Suson, The Rocky Road to Positive Intergroup Relations, in RACISM: THE PROBLEM AND THE RESPONSE 234 (Jennifer L. Eberhardt & Susan T. Fiske eds., 1998) (advancing a prejudice disassociation model that explains the process by which people can inhibit or control their racist tendencies); Irwin Katz et al., Racial Ambivalence, Value Duality, and Behavior, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 35 (arguing that "ambivalent racism" reflects a combination of sympathy for blacks' plight with the belief that they have contributed significantly to it); John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 91 (arguing that "modern racists" are largely unaware of their racist feelings); Don Operario & Susan T. Fiske, Racism Equals Power Plus Prejudice: A Social Psychological Equation for Racial Oppression, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 34-35 (arguing that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences"); David O. Sears, Racism and Politics in the United States, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 76, 83-89 (explaining how "symbolic racism" articulates itself through political values and personal ideology); Jim Sidanius et al., Hierarchical Group Relations, Institutional Terror, and the Dynamics of the Criminal Justice System, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 136 (advancing a "social domination" theory, which maintains that complex human societies appear predisposed to organize themselves as group-based social hierarchies with one or a small number of dominant groups and at least one subordinate group). Aversive racism theory's primary competitors are probably "symbolic racism" and "modern racism." I have opted to use aversive racism because, unlike these alternatives, it focuses upon the actions and motivations of people who would probably label themselves "liberal." For legally oriented critiques of modern forms of racism, see R. Richard Banks & Jennifer L. Eberhardt, Social Psychological Processes and the Legal Bases of Racial Categorization, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 54; Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 983-85 (1993); and Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
178. See Gaertner & Dovidio, supra note 133. A number of other social psychological theories also attempt to explain modern forms of racism. See, e.g., Patricia G. Devine & Kristin A. Vasquez-Suson, The Rocky Road to Positive Intergroup Relations, in RACISM: THE PROBLEM AND THE RESPONSE 234 (Jennifer L. Eberhardt & Susan T. Fiske eds., 1998) (advancing a prejudice disassociation model that explains the process by which people can inhibit or control their racist tendencies); Irwin Katz et al., Racial Ambivalence, Value Duality, and Behavior, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 35 (arguing that "ambivalent racism" reflects a combination of sympathy for blacks' plight with the belief that they have contributed significantly to it); John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 91 (arguing that "modern racists" are largely unaware of their racist feelings); Don Operario & Susan T. Fiske, Racism Equals Power Plus Prejudice: A Social Psychological Equation for Racial Oppression, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 34-35 (arguing that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences"); David O. Sears, Racism and Politics in the United States, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 76, 83-89 (explaining how "symbolic racism" articulates itself through political values and personal ideology); Jim Sidanius et al., Hierarchical Group Relations, Institutional Terror, and the Dynamics of the Criminal Justice System, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 136 (advancing a "social domination" theory, which maintains that complex human societies appear predisposed to organize themselves as group-based social hierarchies with one or a small number of dominant groups and at least one subordinate group). Aversive racism theory's primary competitors are probably "symbolic racism" and "modern racism." I have opted to use aversive racism because, unlike these alternatives, it focuses upon the actions and motivations of people who would probably label themselves "liberal." For legally oriented critiques of modern forms of racism, see R. Richard Banks & Jennifer L. Eberhardt, Social Psychological Processes and the Legal Bases of Racial Categorization, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 54; Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 983-85 (1993); and Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
179. See Gaertner & Dovidio, supra note 133. A number of other social psychological theories also attempt to explain modern forms of racism. See, e.g., Patricia G. Devine & Kristin A. Vasquez-Suson, The Rocky Road to Positive Intergroup Relations, in RACISM: THE PROBLEM AND THE RESPONSE 234 (Jennifer L. Eberhardt & Susan T. Fiske eds., 1998) (advancing a prejudice disassociation model that explains the process by which people can inhibit or control their racist tendencies); Irwin Katz et al., Racial Ambivalence, Value Duality, and Behavior, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 35 (arguing that "ambivalent racism" reflects a combination of sympathy for blacks' plight with the belief that they have contributed significantly to it); John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 91 (arguing that "modern racists" are largely unaware of their racist feelings); Don Operario & Susan T. Fiske, Racism Equals Power Plus Prejudice: A Social Psychological Equation for Racial Oppression, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 34-35 (arguing that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences"); David O. Sears, Racism and Politics in the United States, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 76, 83-89 (explaining how "symbolic racism" articulates itself through political values and personal ideology); Jim Sidanius et al., Hierarchical Group Relations, Institutional Terror, and the Dynamics of the Criminal Justice System, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 136 (advancing a "social domination" theory, which maintains that complex human societies appear predisposed to organize themselves as group-based social hierarchies with one or a small number of dominant groups and at least one subordinate group). Aversive racism theory's primary competitors are probably "symbolic racism" and "modern racism." I have opted to use aversive racism because, unlike these alternatives, it focuses upon the actions and motivations of people who would probably label themselves "liberal." For legally oriented critiques of modern forms of racism, see R. Richard Banks & Jennifer L. Eberhardt, Social Psychological Processes and the Legal Bases of Racial Categorization, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 54; Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 983-85 (1993); and Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
180. See Gaertner & Dovidio, supra note 133. A number of other social psychological theories also attempt to explain modern forms of racism. See, e.g., Patricia G. Devine & Kristin A. Vasquez-Suson, The Rocky Road to Positive Intergroup Relations, in RACISM: THE PROBLEM AND THE RESPONSE 234 (Jennifer L. Eberhardt & Susan T. Fiske eds., 1998) (advancing a prejudice disassociation model that explains the process by which people can inhibit or control their racist tendencies); Irwin Katz et al., Racial Ambivalence, Value Duality, and Behavior, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 35 (arguing that "ambivalent racism" reflects a combination of sympathy for blacks' plight with the belief that they have contributed significantly to it); John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 91 (arguing that "modern racists" are largely unaware of their racist feelings); Don Operario & Susan T. Fiske, Racism Equals Power Plus Prejudice: A Social Psychological Equation for Racial Oppression, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 34-35 (arguing that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences"); David O. Sears, Racism and Politics in the United States, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 76, 83-89 (explaining how "symbolic racism" articulates itself through political values and personal ideology); Jim Sidanius et al., Hierarchical Group Relations, Institutional Terror, and the Dynamics of the Criminal Justice System, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 136 (advancing a "social domination" theory, which maintains that complex human societies appear predisposed to organize themselves as group-based social hierarchies with one or a small number of dominant groups and at least one subordinate group). Aversive racism theory's primary competitors are probably "symbolic racism" and "modern racism." I have opted to use aversive racism because, unlike these alternatives, it focuses upon the actions and motivations of people who would probably label themselves "liberal." For legally oriented critiques of modern forms of racism, see R. Richard Banks & Jennifer L. Eberhardt, Social Psychological Processes and the Legal Bases of Racial Categorization, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 54; Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 983-85 (1993); and Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
181. See Gaertner & Dovidio, supra note 133. A number of other social psychological theories also attempt to explain modern forms of racism. See, e.g., Patricia G. Devine & Kristin A. Vasquez-Suson, The Rocky Road to Positive Intergroup Relations, in RACISM: THE PROBLEM AND THE RESPONSE 234 (Jennifer L. Eberhardt & Susan T. Fiske eds., 1998) (advancing a prejudice disassociation model that explains the process by which people can inhibit or control their racist tendencies); Irwin Katz et al., Racial Ambivalence, Value Duality, and Behavior, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 35 (arguing that "ambivalent racism" reflects a combination of sympathy for blacks' plight with the belief that they have contributed significantly to it); John B. McConahay, Modern Racism, Ambivalence, and the Modern Racism Scale, in PREJUDICE, DISCRIMINATION, AND RACISM, supra note 133, at 91 (arguing that "modern racists" are largely unaware of their racist feelings); Don Operario & Susan T. Fiske, Racism Equals Power Plus Prejudice: A Social Psychological Equation for Racial Oppression, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 34-35 (arguing that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences"); David O. Sears, Racism and Politics in the United States, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 76, 83-89 (explaining how "symbolic racism" articulates itself through political values and personal ideology); Jim Sidanius et al., Hierarchical Group Relations, Institutional Terror, and the Dynamics of the Criminal Justice System, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 136 (advancing a "social domination" theory, which maintains that complex human societies appear predisposed to organize themselves as group-based social hierarchies with one or a small number of dominant groups and at least one subordinate group). Aversive racism theory's primary competitors are probably "symbolic racism" and "modern racism." I have opted to use aversive racism because, unlike these alternatives, it focuses upon the actions and motivations of people who would probably label themselves "liberal." For legally oriented critiques of modern forms of racism, see R. Richard Banks & Jennifer L. Eberhardt, Social Psychological Processes and the Legal Bases of Racial Categorization, in RACISM: THE PROBLEM AND THE RESPONSE, supra, at 54; Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 983-85 (1993); and Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).
182. See Gaertner & Dovidio, supra note 133, at 62.
183. See John F. Dovidio & Samuel L. Gaertner, On the Nature of Contemporary Prejudice: The Causes, Consequences, and Challenges of Aversive Racism, in RACISM: THE PROBLEM AND THE RESPONSE, supra note 134, at 3, 8. This facet of aversive racism distinguishes it from its prime competitors - that is, symbolic racism and "modern racism" - because those models focus more on political conservatives. See id.
184. See Gaertner & Dovidio, supra note 133, at 61.
185. See Dovidio & Gaertner, supra note 136, at 5.
186. Gaertner & Dovidio, supra note 133, at 62.
187. See Dovidio & Gaertner, supra note 136, at 5.
188. See Gaertner & Dovidio, supra note 133, at 84-86.
189. See, e.g., T.W. ADORNO ET AL., THE AUTHORITARIAN PERSONALITY (1950) (advancing a psychopathological theory of prejudice).
190. Dovidio & Gaertner, supra note 136, at 5.
191. See G.W. ALLPORT, THE NATURE OF PREJUDICE 17-28 (2d ed. 1958).
192. Cf. Operario & Fiske, supra note 134, at 34-35 (noting that power "engenders stereotypic thinking, encourages in-group favoritism, and enhances perceived intergroup differences").
193. See Dovidio & Gaertner, supra note 136, at 6.
194. See id.
195. Id. at 7.
196. Id.
197. Gaertner & Dovidio, supra note 133, at 66.
198. Dovidio & Gaertner, supra note 136, at 7.
199. Gaertner & Dovidio, supra note 133, at 66.
200. For a discussion on "dominative" racism, see JOEL KOVEL, WHITE RACISM: A PSYCHOHISTORY 54 (1970).
201. Dovidio & Gaertner, supra note 136, at 18.
202. Id. at 31.
203. Id. at 25.
204. Id. at 28.
205. Given the particularly pervasive influence of Wilson and Kelling's "broken windows" argument within criminology circles, public policy circles, and the academy, see sources cited supra note 22, I am arguing by extension that the existence of aversive racism in Wilson and Kelling's work is representative of a larger social phenomenon.
206. See Dovidio & Gaertner, supra note 136, at 7.
207. See Wilson & Kelling, supra note 17.
208. Gaertner & Dovidio, supra note 133, at 62.
209. See Wilson & Kelling, supra note 17, at 35.
210. See id.
211. See Livingston, supra note 18, at 578.
212. Cf. Cohen, supra note 48, at 179 (noting the overlap between "quality-of-life" offenses and things done by poor people); Cole, supra note 39, at 2558 (noting the negative consequences of incarcerating large numbers of African Americans).
213. See supra text accompanying notes 30-32.
214. See, e.g., Paul Butler, (Color) Blind Faith: The Tragedy of Race, Crime, and the Law, 111 HARV. L. REV. 1270, 1273 (1998) (book review) (chastising "Respectable Randall," "who admits to valuing specially the esteem of white people," as "worse than irresponsible").
215. See SKOGAN, supra note 22, at 25; Destro, supra note 2, at 788 ("The term 'gang' is notoriously imprecise . . . ."); cf. JANKOWKSI, supra note 15, at 141 (noting that some acts of violence committed by individuals are attributed to gangs).
216. See JANKOWSKI, supra note 15, at 141.
217. Harper, supra note 4, at 52. For a more comprehensive study of gang structure and membership, see generally JANKOWSKI, supra note 15.
218. See Harper, supra note 4, at 52 (noting the role played by the media in encouraging the public to think of gang violence as a racial problem); see also Magee, supra note 99, at 207-13 (discussing the dominant culture's negative perceptions of black men).
219. Cf. Harper, supra note 4, at 52 (noting that some criminal activity by groups of white youths is not characterized as "gang" activity); Boga, supra note 3, at 487-88 (noting that gangs, like fraternities and sororities, serve as socializing outlets for teenagers).
220. See Molina, supra note 6, at 465.
221. Harper, supra note 4, at 46.
222. Id. (citation omitted).
223. See id. at 46-47.
224. Id. at 48.
225. See, e.g., Rutkowski, supra note 14, at 154 (recounting the story of Anthony Burgos, who was killed because he was not affiliated with a gang).
226. Id. at 153-55.
227. Boga, supra note 3, at 488.
228. Id. at 487-88.
229. The socioeconomic decay of American cities is charted in WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED (1987).
230. See, e.g., MOORE, supra note 14, at 11-23 (examining the effect of East Los Angeles's economic deterioration on local Latinos).
231. Harper, supra note 4, at 46.
232. See WILSON, supra note 182, at 135-38.
233. See id. at 157-59.
234. See Boga, supra note 3, at 489.
235. Id.
236. Id. (citation omitted). Advertisers, for example, often target "aspirational brands" at local urban cultures, understanding that many minority youth aspire to "the imagined life of ease in white suburban country clubs." Joshua Levine, Badass Sells, FORBES, Apr. 21, 1997, at 142, 142-48 (describing how corporate marketplaces have discovered that "[f]or products to sell in Greenwich and Grosse Pointe, they better be 'butter' on the inner-city streets of New York and Los Angeles").
237. Boga, supra note 3, at 489 (footnote omitted).
238. Rutkowski, supra note 14, at 149.
239. Id.
240. See id.
241. Id. at 150. For a more detailed discussion of "wannabes," see DANIEL J. MONTI, WANNABE: GANGS IN SUBURBS AND SCHOOLS (1994), which discusses suburban gangs and "wannabes" outside of the well-known inner city gangs.
242. People ex. rel. Gallo v. Acuna, 929 P.2d 596, 621 (Cal. 1997) (Chin, J., concurring in part and dissenting in part); see also Yoo, supra note 4, at 234 ("Be skeptical about what you hear, even if you get it directly from gang members, (Gang members have lots of games to play - with themselves, with each other, with police or anybody else in authority, and with anybody who can possibly be 'impressed.')" (quoting Joan Moore, Gangs and Gang Violence: What We Know and What We Don't, in GANG VIOLENCE PREVENTION 23, 23 (Alfredo Gonzalez et al. eds., 1990))).
243. See Rutkowski, supra note 14, at 142.
244. Acuna, 929 P.2d at 601.
245. 929 P.2d 596 (Cal. 1997).
246. Id. at 608.
247. See id. at 603; see also Wilson & Kelling, supra note 17, at 38 (arguing that communities, as well as individuals, have rights of self-defense).
248. See Acuna, 929 P.2d at 608-09.
249. Id. at 616.
250. Id. at 613.
251. Id. at 615.
252. See id. at 616-17.
253. Id. at 618 (emphases added).
254. Gaertner & Dovidio, supra note 133, at 62.
255. See Acuna, 929 P.2d at 620 (Chin, J., concurring in part and dissenting in part). The suspect association in this case was to Latinos and Chicanos, groups who occupy the bottom of California's socioeconomic ladder. See Pedro A. Noguera, Educational Rights and Latinos: Tracking as a Form of Second Generation Discrimination, 8 LA RAZA L.J. 25, 26-28 (1995); Kevin C. Wilson, Note, And Stay Out! The Dangers of Using Anti-Immigrant Sentiment as a Basis for Social Policy: America Should Take Heed of Disturbing Lessons from Great Britain's Past, 24 GA. J. INT'L & COMP. L. 567, 579 (1995).
256. See Acuna, 929 P.2d at 620 (Chin, J., concurring in part and dissenting in part). The suspect association in this case was to Latinos and Chicanos, groups who occupy the bottom of California's socioeconomic ladder. See Pedro A. Noguera, Educational Rights and Latinos: Tracking as a Form of Second Generation Discrimination, 8 LA RAZA L.J. 25, 26-28 (1995); Kevin C. Wilson, Note, And Stay Out! The Dangers of Using Anti-Immigrant Sentiment as a Basis for Social Policy: America Should Take Heed of Disturbing Lessons from Great Britain's Past, 24 GA. J. INT'L & COMP. L. 567, 579 (1995).
257. Acuna, 929 P.2d at 622 (Chin, J., concurring in part and dissenting in part).
258. See id. In the words of Justice Mosk, the city validates as a criminal street gang "an association of three or more persons with a common name or symbol whose members collectively or individually engage in a pattern of criminal conduct." Id. at 623 n.1 (Mosk, J., dissenting). To validate gang membership, the City merely reviews police records to identify individuals who admit membership in a gang to a peace officer, probation officer, juvenile hall or youth ranch employee, or who meet two or more of the following conditions: wear clothing or tattoos indicating gang affiliation or use gang hand signs; are named by two or more members of a gang as a member; actively participate in a gang crime; are identified by a reliable informant as a gang member; or are observed associating with gang members two or more times. Id. Using these criteria, the Los Angeles Sheriff's Department estimated that 47% of all black men between the ages of 21 and 24 were actual or suspected gang members. See id.
259. 458 U.S. 886, 920 (1982) ("Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.").
260. Id.
261. Acuna, 929 P.2d at 621 (Chin, J., concurring in part and dissenting in part).
262. Id.
263. Dr. Malcolm W. Klein, Street Gangs and the Juvenile Justice System in the 1990s, 23 PEPP. L. REV. 860, 863 (1996).