Read the Testimony of Equal Justice Works Fellow Marques Banks Urging the Council of the District of Columbia Committee on the Judiciary to Reject the “Drug-Related Nuisance Abatement Amendment Act of 2017”

COUNCIL OF THE DISTRICT OF COLUMBIA
COMMITTEE ON THE JUDICIARY
The “Drug-Related Nuisance Abatement Amendment Act of 2017” (22-0189)

Testimony of
Marques Banks, Equal Justice Works Fellow
Washington Lawyers’ Committee for Civil Rights and Urban Affairs

Thank you for this opportunity to provide written testimony regarding the proposed “Drug-Related Nuisance Abatement Act of 2017” (B22-0189). For nearly fifty years, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (“the Committee”) has addressed issues of discrimination, racial injustice, and entrenched poverty through litigation and policy advocacy.

The Committee applauds Councilmember McDuffie’s revision of the proposed bill to limit its applicability to commercial tenants as a step in the right direction. However, based on data both from DC and other jurisdictions that demonstrate that such “nuisance” laws have a disproportionately harsh impact on communities of color, the Committee continues to oppose the bill despite its narrowed focus. Neither the existing law nor the amendments will improve public safety. Instead, the law fosters and potentially rewards racial and gender-based stereotyping and may hold individuals responsible for things they cannot control (e.g. vehicular traffic) or that remain dangerously vague (e.g. increased fear of residents). Instead of tinkering further with the proposed bill, the Council should refine current law to reduce opportunities for overbroad and misdirected applications, which are likely to be particularly harmful to lower income residents of color in gentrifying neighborhoods.

The overly broad and subjective nature of the exisiting Drug-Related Nuisance Abatement Act potentially rewards racial and gender-based stereotypes.

The existing Drug – or Prostitution Related Abatement Act authorizes the D.C. Attorney General, the United States Attorney for the District of Columbia, or a community-based organization to file suit against a property owner seeking preliminary and permanent injunctive relief to enjoin or abate a drug or prostitution-related nuisance. D.C. Code § 42-3101. Under current law, a nuisance is expansively and vaguely defined. “Conditions” that constitute “adverse impact” to support a nuisance action include:

  • Increased fear of residents to walk through public areas near the property.
  • Increased volume of vehicular and pedestrian traffic near the property.
  • Increased ambulance or police calls to the property.
  • Substantial number of complaints made to law enforcement

These broad definitions invite actions based on stereotypes and implicit bias. Such highly subjective and imprecisely defined “impacts” can readily lead to nuisance complaints based on innocent activity. For example, a community-based organization might file an action because its members are afraid when they see a group of African-American men standing in front of a business. Similarly, persons who are new to a community might, on the basis of their own biases, assume that a group of women who have gathered outside of a business are engaged in prostitution and therefore deem the gathering a nuisance.

The current law also makes individuals potentially responsible for actions that are outside of their control. Property owners could be liable for increased traffic in the vicinity, or for police calls made about activity around their property. The law is not tailored to deter conduct or conditions that create neighborhood harm, but instead casts a wide net that may saddle those who are not responsible for harmful activity with defending accusations founded on racial or gender fears or stereotypes.

Laws like the Drug-Related Nuisance Abatement Act adversely affect people of color.

Based on studies conducted in DC and other cities, the Committee is concerned that this law will have a disproportionate, negative impact on people of color, particularly on African Americans. In DC, enforcement of drug-related laws, especially those involving minor offenses, has been directed in highly disproportionate fashion against people of color. Racial disparities in drug arrests here are well documented. Studies conducted by both the ACLU Nation’s Capital and the Committee demonstrate that African-Americans are morelikely to be arrested for drug offenses than whites, despite the fact that drug use survey data shows much less disparity in drug use between blacks and whites in the City. These reports showed that African Americans made up 91 percent of the drug arrests in D.C. when African-Americans only make 48 percent of the population.[1] According to the data, persons who live in predominately black areas were 75 times more likely to be arrested than persons who live in areas with a predominately white population.[2] Since an expansive set of drug-related activities and even unproven fears or assumptions regarding drug activity (e.g., “increased police calls”, “increased. . .pedestrian traffic”) can be a predicate for a nuisance action, it is likely that the racial profiling evident in arrest patterns will carry through to pursuit of drug-related nuisances.

The Committee’s concerns about the disproportionate racial impact of this law are grounded in the experiences of other jurisdictions. Studies conducted in Milwaukee, New York and San Francisco concluded that individuals living in low-income and predominantly minority neighborhoods are more likely to have their property deemed a nuisance under laws much like DC’s.[3] A study analyzing every nuisance property citation distributed by the Milwaukee Police Department from January 1, 2008, to December 31, 2009, shows that nuisance citations were distributed 56% of the time in poor neighborhoods and 63% of the time in predominantly black neighborhoods. Perhaps the most disturbing finding of the study is that neighborhoods that were undergoing gentrification, experiencing an influx of newer, mainly white residents and were therefore more integrated had the highest likelihood of properties deemed to be nuisances.[4] The higher incidence of nuisance actions in these transitioning areas stemmed from 911 calls and civilian complaints.

As in Milwaukee, there is at least anecdotal evidence that the use of nuisance laws increases as newcomers increasingly locate in minority neighborhoods in DC, and that the law may serve as a tool to displace long-time residents. For example, in 2005, when the Prostitution-Related Nuisance Bill was introduced, various media sources attributed the motivation for the law to advocacy by people moving into gentrifying neighborhoods such as Shaw and Adams Morgan.[5] After it was enacted, the law was most often employed against businesses in these gentrifying neighborhoods.[6]  This pattern repeats today, as the push for this bill comes from complaints from Brookland, a transitioning neighborhood similar to Shaw and Adams Morgan a decade or so ago.

Recently, New York City passed a series of bills to reform its Nuisance Abatement Act after an investigation showed that the targets of this law were almost exclusively located in communities of color.[7] Among the reforms, misdemeanor drug and marijuana possession no longer count as a nuisance under the law, and all drug-related cases require at least one incident personally witnessed by a sworn officer, in order to eliminate cases with confidential informants as the sole witnesses.[8] We should learn from the troublesome record of Milwaukee and embrace the types of changes made in New York.

Finally, particularly in light of the troublesome correlation between gentrification and the increased use of nuisance laws, the Committee has serious concerns about the power given to community-based organizations. In transitioning communities, community-based groups may see the nuisance laws as a way to “clean up” aspects of the community that make them uncomfortable or with which they are unfamiliar. Those groups are likely to be led by people who have more resources and power than the long-term tenants, generally residents of color, who are at risk of being the targets of nuisance actions and ultimately displaced by such actions. -time residents. The expansive and poorly defined “adverse conditions” that can constitute a nuisance under current DC law and the proposed bill give such community-based groups wide latitude to target behavior or activities beyond those that would constitute illegal activity. The risk of abuse is too great to ignore.

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For the foregoing reasons, as well as those brought forward by other concerned stakeholders and advocates, the Council should reject the proposed amendment and focus on tightening current law, rather than making it more punitive. The Committee urges the Council to narrow the definition of adverse conditions that can constitute a nuisance and consider protections that would prevent this law from being used as a tool to facilitate displacement of long-term neighborhood residents in DC’s transitioning communities.

       


[1] Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Racial Disparities in Arrests in the District of Columbia, (2013).

[2] ACLU of the Nation’s Capital, Behind the D.C. Numbers: The War on Marijuana in Black and White, (2013).

[3] Theresa Langley, Living Without Protection: Nuisance Property Laws Unduly Burden Innocent Tenants and Entrench Divisions Between Impoverished Communities and Law Enforcement, 52 Hous. L. Rev. 1255, 1278 (2015).

[4] Matthew Desmond & Nicol Valdez, Unpolicing the Urban Poor: Consequences of Third-Party Policing of Inner-City Women, (2013).

[5] Susan Ruether, Prostitution in Logan Circle: Are New Penalties the Answer? D.C. North, February 2006.

[6] Alliance for a Safe & Diverse DC, Move Along: Policing Sex Work in Washington D.C. (2008).

[7] Sarah Ryle, New York City Set to Pass Sweeping Nuisance Abatement Reforms, ProPUBLICA, (2017).

[8] Patrick Donachie, Council passes nuisance abatement reform, Times Ledger (2017).

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