“It has generally been held that an in most instances rightly held that the degree of dilution necessary is merely that which will prevent a nuisance, having reference primarily to unsightly floating matter and bad odors. For most rivers and many of the smaller streams of the country, this requirement as to the cleanness of the waters is all that is necessary.”
– Paul Hansen, “The control of stream sanitation,” 1913.
Nuisance law was created to stop such foul activities from unreasonably interfering either with the rights of private landowners (i.e., private nuisance) or with the rights of the general public (i.e., public nuisance). Before the 1930s when state and federal regulations took up the task of regulating pollution, nuisance law was one of the main tools used to maintain water quality and sanitation. Individual property owners could take industries or businesses to court for fouling the air or water, and thus interfering with his (or, less likely at the time, her) enjoyment of his property. While the laws were used to regulate pollution, and so were sometimes called “filth laws,” they also included dangerous sidewalks, obstructing roadways, explosions, and “bawdy houses.”
Most waste scholars may think of nuisances and the laws meant to address them as relics of the past. But a new article by the New York Times recounts how the laws were tweaked in the 1980s to include drugs and violence in urban neighbourhoods. The move was designed to make landlords responsible for maintaining “crime-free neighbourhoods:”
A town’s “nuisance property” ordinances [are] intended to protect neighborhoods from seriously disruptive households. Officials can invoke the measure and pressure landlords to act if the police have been called to a rental home three times within four months.
One result: people, mainly women of colour, facing domestic abuse are afraid to call the police for fear of being evicted.
Gwen Kaitis, director of the Illinois Domestic Violence Helpline, said her group receive several calls a month from women facing a choice between safety and housing. On a recent day, she said, a woman with five children called to say that her boyfriend had choked her and she was trying to end their relationship, but that her landlord had told her that if the police were called one more time, he would evict her.
The New York Times article follows a report by Mathew Desmond, a sociology professor at Harvard University: “Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women” that shows domestic violence was involved in nearly one-third of the cases citing nuisance laws in Milwaukee, and that rentals in largely black areas were disproportionately singled out. Another report, “The Cost of Being “Crime Free”: Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances” by Emily Werth, a lawyer with the Sargent Shriver National Center on Poverty Law in Chicago, takes a human rights approach and warns that twenty-first century nuisance laws “reduce the supply of rental housing, displace crime victims and others who need to reach out to the police for help, chill reporting of crime to the police in the first place, increase the number of vacant properties and the rate of family homelessness, deny persons with disabilities the opportunity to access housing that is integrated into the community, and prevent persons with criminal records from finding stable housing, among other concerns.”
The human rights frame shows that the relationship between historical and contemporary uses of nuisance law is continuous, rather than an abrupt departure and misuse of the older tort laws. Rachel D. Godsil, Professor of Law, Seton Hall University School of Law, has written about nuisance law as a tool of racial segregation during the Jim Crow era: “In 1883, a white family brought a lawsuit in state court claiming that a black family moving in next door would be a nuisance.” Godsil chronicles the somewhat unexpected history of white judges ruling against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. Yet, the history points to a continuity in openly treating black people and other disenfranchised groups as unworthy of legal protection, particularly in terms of real estate and displacement. Godsil coins the term “race-nuisance,” a phrase that resonates with recent reports by Werth, Desmond, and the New York Times.
Sandra S. Park, a lawyer with the A.C.L.U. who is representing a woman evicted for calling for help after domestic abuse, told the New York Times: “The problem with these ordinances is that they turn victims of crime who are pleading for emergency assistance into ‘nuisances’ in the eyes of the city.” Her turn of phrase, whereby people–women, and usually black women–are turned into both a form of pollution and a force that precludes the enjoyment of one’s property, is also part of a long historical trend. The recorded history of those in power seeing threats to their social order as “filth”–using waste to characterize the Other–stretches as far back as medieval times. In the last three centuries, the personalized rhetoric of waste and pollution has usually been class-based, where the bourgeois “[condemns] the excremental working classes,” a pattern suited to battles over private property and real estate (Inglis 2010: 216). But class is only one of many categories used to differentiate the “inferior, unregulated, disorderly and dangerous.” It’s no coincidence that class, race, and gender have all been markers of difference equated with waste and the accompanying desire to expunge.
The comments following the New York Times article reveal that public opinion is split evenly between those that support “race[class-gender]-nuisance” and those who abhor it. A landlord writes, “if the tenant is unwilling to make better judgments about the men they allow to live with their children, then we feel we have to act,” and a tenant supports this use of nuisance laws “to make the tenants understand that they weren’t living in ‘that kind of building.’ I can’t imagine living somewhere where the police keep showing up. Even if it is domestic violence, do YOU want to be living next door to that?.” Others argue that “‘How can I (we) help?’ has been replaced with ‘How can I (we) get rid of our own discomfort with the problem?'”, echoing and critiquing the mainstay of waste management to take waste “away.” To cleanse. To segregate.
Usually the entwining of race [and gender, and class], waste, and justice are thought of terms of uneven environmental burdens. Toxic dumps, industries, and brown fields disproportionately affect low-income communities of colour. Rob Nixon calls this “slow violence.” Twenty-first century nuisance law and its nineteenth century origins are a twist on the that equation. Of course, the contemporary nuisance laws are not designed or intended to alienate people dealing with domestic violence, nor people of color, nor women. Yet, slow violence still applies, as the systematic exacerbation of vulnerability for certain segments of the population, again and again. The unintended, but constant reproduction of vulnerability and criminality along the lines of race and class is the very definition of systemic violence. The logic of segregation and uneven burdens underlie the comments at the end of the New York Times article, the siting of toxic sites, and the push for “crime free neighbourhoods” via nuisance law. Tying nuisance law to eviction and domestic violence (and thus to gender, race, and economic status) via police visits is one of the more shocking, though not surprising, manifestations of trends that have not changed their politics, nor even their tactics, in centuries.
Max Liboiron is a post-doctoral fellow at the Social Science Environmental Health Research Institute at Northeastern University.