GeoLegal Weekly #26: Urban Impunity
Whether its "porch pirates", grand theft auto or open air drug use, many urban environments have become carnivals of impunity. Where's law enforcement? And should companies enforce the law themselves?
When we talk of rule of law, we often think about this at a political level. Can people access the justice system? Are democratic institutions protected? But a big piece of rule of law is the extent to which people believe there are consequences for actions and that the government has capacity to enforce those consequences. Even though violent crime has been on a downward trend over the last 20 years, the post-pandemic urban landscape amid an opioid crisis has created a new sense of impunity in major city centers in the US and some parts of Europe.
This is about more than safety and security. If citizens and businesses believe people can act with impunity, their faith in government and institutions erode. Part and parcel of that is that we start to see people filling the void and becoming their own security systems and quasi-law enforcement teams. This raises serious questions about liability, politics, and public relations that most businesses are not ready to address.
Urban Lawlessness?
A couple years ago, my wife was leaving our house to go to work. “Where did you park the car?” she asked me. The question was odd, as I had left it on the driveway on a decent road in Muswell Hill, a neighborhood consistently rated as one of London’s best. I could see through the open door that it wasn’t there any more. So I called the police.
I told them that my car had been parked securely on the driveway and must have been stolen overnight. Seven minutes later I received an email from the police closing my case. I called back to tell them it must have been an error and that I’d be available all day if they wanted to talk to me or the neighbors.
“Claim insurance,” the officer on the line told me, “we don’t have the resources to investigate stuff like that.”
Over the course of the next few weeks, there were two more car thefts, three catalytic converters stolen and a house break-in in our neighborhood.
Today, I spend a lot of the year in Santa Monica, a beach town where the children of celebrities like Ben Affleck play in the same YMCA basketball league as my kids. It’s the type of neighborhood where you wouldn’t be surprised to see a Kardashian buy some diamond earrings from behind a glass case.
I went to Target recently to buy some toothpaste, and to my surprise it too was in a glass case. So was laundry soap. And over the counter allergy medicine. I ring a bell, and I get the Kardashian treatment just to buy my housewares.
The places I choose to live aren’t the only magnets for crime. In San Francisco, Nordstrom recently shut down its flagship store, seemingly because of uncontrollable theft and a decline in foot traffic from nearby drug use. Target shut down stores last year reportedly because of organized retail crime; Walmart and several others too. It’s not hard to find similar stories in New York or Portland or any other major city.
Not enough laws or not enough enforcement?
The problem is certainly not a lack of laws. As California Governor Gavin Newsom recently said “There are plenty of laws on the books, and it’d be nice to see some of these damn laws enforced for a change.” Why isn’t the law being enforced? Why does it increasingly feel like shoplifters or “porch pirates” can act with impunity?
In some of these places, the decision to not enforce against lower level crime is borne out of the belief that many laws on the books disproportionately affect certain groups and non-enforcement is a remedy. No doubt this was influenced by the brutal murder of George Floyd and societal reactions to an unfair justice system and a belief that it is the police who typically act with impunity.
In other places, it is because budgets are constrained. Further, many places do not believe the criminal justice system is the right way to address drug use, anti-social behavior and the like, preferring social and health services to take it on. Regardless, a combination of non-enforcement, an opioid crisis and tougher economic conditions for the worst-off post-pandemic are all leading to perceptions that crime is up - and, in some cases, tolerated or ignored by the institutions whose job it is to stop it.
Let me be clear: I am not a staunch law and order advocate. I believe that law enforcement and the justice system often deliver unfair outcomes on the basis of race, national origin and socioeconomic class. I think that candidates who try to pin rising crime rates on certain racial groups or immigrant populations are being racist, xenophobic and disingenuous for political gain.
But I do think something interesting is going on when it comes to a collapse of law enforcement in urban environments. By failing to enforce whole categories of crimes like property crimes or drug crimes, the state is actually damaging the legal system itself both directly and indirectly. Citizens who feel like their property or personal security is at stake rarely simply accept that outcome: They look for other solutions. And in so doing, they undermine the legitimacy of the state itself by either taking power away from the state or bolstering leaders that are happy to trample on long held human rights and civil liberty safeguards.
Watch a man filling a garbage bag and biking out of a store in SF, while security and staff video him above.
Vote for Enforcers
One solution citizens take is to vote for the candidates calling them with society-splintering dog whistles. Former US President Donald Trump, for instance, once publicly said: “‘If you rob a store, you can fully expect to be shot as you are leaving that store,’ he said, drawing loud applause. ‘Shot!’ he added for emphasis.” Sometimes this is a pendulum swinging back from a more liberal-leaning administration. In other cases, this is taking conservative approaches and going much further. Or it is an invitation to get tough in a discriminatory way.
In nearly all cases, this is more likely to be a short-term remedy whereby citizens of majority groups feel safe for a while at the expense of less well-off groups in society only to find they have sowed the seeds for a much fiercer backlash in the future. This is especially true in poorer countries where police truly do lack resources, or are prone to corruption.
In El Salvador, for instance, the president has arrested no less than 1% of the population in a bid to quell gang presence and violence. Doing so requires a poor country to invest in things like stadium capacity size mega-jails where up to 70 inmates share a single cell but receive no services to prepare them to re-enter society. Such policies involve leaving a lot of broken families in its policy wake, sowing the seed for future challenges.
Of course, when compared to how the Philippines under Rodrigo Duterte dealt with the problem, it looks light-touch. The administration of “Duterte Harry” simply shot thousands of perceived criminals; he once claimed that “he would be ‘happy to slaughter’ three million drug addicts in the country.” According to Philippine authorities from 2016 to 2021, 6,201 people were killed by the police. Of course, not all of them were involved in the drug trade - and the sheer magnitude of police killings strongly suggest that many innocents were killed.
Policies like the above involve trampling on a lot of human rights in the process. On some level, they may provide safety but it comes at the cost of erosion of civil liberties, privacy or institutions in society more broadly. While this may suit societies on the brink of collapse, it’s only likely to create a more polarized society in wealthier countries reacting to real or perceived impunity.
Build a Glass Case
Another approach that many citizens and businesses take is to try to safeguard themselves by building or buying their own glass cases, like the one that housed my toothpaste or Kim K’s earrings. The problem with glass cases is that they can be smashed so they function somewhere between a placebo and a minor deterrent.
There’s a lot we can do and spend money on to make ourselves feel like we are getting safer. After my car was stolen, I felt quite abandoned by my local government - like I was living on the frontier and had to defend my family. So, I went and spent about £2,000 on a Ring security system and £80 on a wheel lock. The latter was annoying and could have been cut in two by any thief with the right equipment; still it acted as a deterrent.
The alarm system, however, was flashy with all sorts of cool features. For the next two years, I was the first to know if there was a fox in my backyard, particularly in the middle of the night. Any human that wanted to enter could simply have smashed a window. Given my prior experience with the local police, it’s not clear to me that my knowledge a crime was in process would have actually led to the crime being stopped. That was my own glass case, as it was for the person below who caught a garbage bag with feet stealing their packages on their doorbell camera.
Of course, as everyone builds these barriers, society changes. Neighborhoods become completely surveilled and people start to become suspicious of anyone that walks by and triggers an alert. They also potentially impinge on the privacy of neighbors - for instance, the thought of my neighbor having hours of footage of my children playing in the front yard because of their own wide lens camera creeps me out. Governments ramp up their own use of surveillance because society becomes more accepting of it. And documenting crimes without enforcing them can simply heighten the perception of impunity.
Privatization of Security
When there’s a government failure, a natural response is to throw money at the problem. Increasingly, people try to fortify themselves by hiring their own armed guards, perhaps as a pooled resource for the road or the neighborhood. There’s been a massive boom in private security spending in recent years as citizens have tried to cope with this government failure. Armed guards will drive up and down their street hoping to deter criminals by knowing that they could face the ultimate consequence if they test anyone in the neighborhood. And, of course, companies are making use of this strategy as well.
One philosophical problem with privatizing a public service is that it lets the government off the hook.
One of government’s core functions is to provide security through rules and laws. Accepting that the government can’t do that is tantamount to rejecting the government's capacity more generally, which offers impunity to those who break the law.
A second philosophical problem with privatizing this public service in particular is that it is commonly accepted that part of what constitutes a legitimate government is that it has a monopoly on the use of force - especially deadly force. The universal exception to this is self-defense, but especially outside the United States, it is accepted that I should not run out into my driveway and shoot whomever might be stealing my car. When the government gives up entirely on the project of defending its citizens and their property, the desire (or need, or perhaps even right) for the private use of deadly force may grow.
The practical problem is that there’s a fine line between private security and vigilante justice. Private security is often less well trained, not bound by any oath and may have ethics that diverge from the local police who are ultimately supposed to be doing the arresting. For instance, a security guard at a New York Walgreens claims that police arrested him for assault after he tackled a repeated shoplifter but refused to press charges - which is what the police wanted. Instead the guard wanted the thief to receive social services. It doesn’t matter who has the right policy prescription; the police intervention resulted in both the thief and the guard being arrested because of this mismatch.
Corporate Responses
I’ve spent a lot of time on personal examples because they are evocative; now let’s think about this from a corporate perspective. Companies have a handful of approaches, each of which solve some problems while creating others.
Cashiers on Patrol
Some stores are putting their staff on the front lines; Lidl GB recently tried to differentiate itself by being the first supermarket to exit trial phases and equip all staff with cameras. There has been a rise in the placement of body cameras on general staff members in retail shops in order to capture crimes in process and step up intervention. The theory is that if people know they are being photographed at close range, they won’t steal. This involves staff getting into position to video the crime in process. This is being taken a step further with AI-powered surveillance which is trained on the movements of known shoplifters to identify when shoplifting is likely to be occurring, as shown below.
But knowing someone is stealing is different from stopping them. These solutions effectively deputize regular staff to intervene, even when there are policies preventing it. For instance, last year Lululemon fired two staff members for intervening in a theft. The company says the employees were fired because employee safety is of paramount concern and they put themselves in harm’s way. Many retailers have similar policies due to liability to the employer if either the thief or the employee gets hurt in the process. The problem is that technological identification of more thefts is only going to thrust employees into the middle of a hostile situation which they will potentially escalate. And when that technology reveals it has its own biases (i.e. if it flags someone as a shoplifter because it was trained that many shoplifters wear medical face masks or adjust their sagging pants etc) those companies will not enjoy the PR spotlight.
Fight or Flight
Other companies are weighing whether to simply exit markets - some, as detailed above, are leaving previously attractive markets like San Francisco at a rapid pace. They are mostly drawing the conclusion that their presence is not worth the potential public relations nightmares of violent escalations in shops and the costs of shrink, as product theft is called.
The problem with this strategy is that there’s plenty of data that cuts both ways around whether such crime has actually risen or whether it’s just perceived to have risen. One major retailer acknowledged that maybe they “cried too much last year” about the impact of theft on their financial performance. When communities feel abandoned, the goodwill the company has built over the years goes away overnight. When the pendulum swings back and the law is enforced again, they may not be welcome for re-entry. Of course, exodus also reduces the chances that a city gets back on its feet.
How to Navigate
For my money, I don’t think it’s worth accepting non-enforcement at the local level. Businesses pay tax dollars and threats to leave local areas tend to get attention of community groups as well as politicians. Companies would do well to think about building coalitions with adjacent businesses who also suffer from existing conditions and would suffer further if there is an exodus.
Landlords suffer when companies exit or are simply unwilling to pay high rents. Hotels and restaurants suffer when open air drug use scares away potential visitors or when guests don’t feel comfortable going to local shops. Where before companies might just work with law enforcement, today they must build coalitions of stakeholders who will give law enforcement backing to enforce the law if done in a fairer way. Finding those partners is crucial to a successful strategy, alongside deepening reporting and collaboration with law enforcement.
The big risk here is that urban communities generate momentum to simply push crime out of their boundaries into the suburbs. As a result, it’s only from deeper investment in remedying societal ills that one can begin to address impunity, which is really a symptom of deeper societal challenges. Supporting longer-term community efforts for drug treatment, housing and social services will bear fruit over time; the politics of doing so openly, however, vary by jurisdiction.
That’s it for this week. Thanks to Varun Oberai for deep research on the topic as well as Dan Currell, Steve Heitkamp and David Bender for their insights.
–SW