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by Peter Moskos

June 23, 2016

"The people ride in a hole in the ground": Subway Broken Windows

One point of Broken Windows policing is that it requires police discretion and intelligence. Yes, rules are important so police act without the bounds of the law, but just because something is against the rules doesn't mean it's a Broken Window worthy of police attention.

Similarly, just because something is a Broken Window wouldn't necessary mean it's against the law. (Though I can't think of a single example... Actually maybe topless women in Times Square? Not that I personally mind or think breasts are a Broken Window, but apparently others do).

When Bill Bratton was on the cover of Time Magazine in 1996 (for which he was later fired), he was called, correctly, "A leading advocate of community policing." When dealing with quality-of-life issues as a police officer, it's not just about blind rule enforcement. It's about selective rule enforcement based order maintenance and public fear. The law focuses only on the criminal individual. Broken Windows policing gives consideration to the reasonable community standards.

Thankfully (over significant objections from the ACLU and others who wanted to let the live and beg in the subway system), the courts ruled in 1990 that begging on the subways is not constitutionally protected free. (Nor should it be, damnit, because it's a closed and confined space, and people have a right to be left alone, especially when they can't get away.) In 1997 the court upheld a ban on the unauthorized sale of goods, even political materials.

Yesterday on the subway, in very short order, I saw three illustrative examples. In ascending order of disorder:

1) Is this guy a Broken Window?

Not in my mind. I have a soft spot for Mexican singers on the train. I really do.

I'm a strong believer that people riding the train have a right to be left alone. The subway is for commuting. It is not a free and open public space. And though this guy was violating the rules, I don't think he's a Broken Window. Reasonable people can differ. But as a cop, I'm using my discretion and not citing him.

But it is illegal to play any instrument or "sound production device" on the subway. [I can't believe phonographs are expressly prohibited! (Or that I once violated the phonograph rule....]

[Here's the unedited two-minute version. He gets added props for playing the whole song rather than hustling through a verse to move to a new car every stop. And another nice thing about musicians like this is they keep away the straight-up obnoxious beggars. I've never seen them on the same train. Bad for business. Who would give something to Joe-Junkie demanding our attention when this guy is singing, telling us not to cry?]

2) Are these musicians on the platform a Broken Window?

At first I was thinking that was an officially issued (and auditioned for) spot for subway musicians. Yes, if it's MTA approved (and quality controlled) it's legit. But it's not:
Notwithstanding any other provision of this section, the use on subway platforms of amplification devices of any kind, electronic or otherwise, is prohibited.
That makes sense. A good rule of thumb is that it's OK if you can walk away from it. It's not that they're bad musicians, but what if I don't want to hear them? Broken Window? Probably not. But I could go either way.

3) What about these guys?

The "showtime" style dancers bother me and a lot of people. Not that these two seem like bad kids (unlike other whom I have seen start fights for people unwilling to move). I call Broken Window. But why? What's the difference? It's not just that they're young and more "urban" (I love using that code word in a completely urban environment). But as a police officer (and believer in Broken Windows) you have to articulate the differences. For starters:
A) Amplified sound.

B) Dancers move. Musicians don't.

C) There are two people rather than one. These two were not particularly threatening, there is something potentially dangerous about swinging around in small confined spaces. The law generally only recognizes individual action, but the public and police are and should be sensitive to group behavior.

D) I don't want anybody's ass in my face.

E) I have to pay attention else so I don't receive an errant (or intentional) kick.

F) This is known and generally (not universally) disliked behavior in New York City.
Maybe there are a few others you can come up with.

And as a practical matter I'd be willing to give up Mexican singers to get rid of showtime dancers. And the city has tried some creative non-puntative methods. But part of the point of Broken Windows is you do selectively enforce rules based on non-discriminatory community standards. But you have to be able to articulate differences between acceptable and unacceptable behavior.

And keep in mind all three of those examples were from just one subway ride yesterday.

4) And then there's this guy. This tweet and this video is actually what started this whole post. This is a Broken Window that needs immediate action.

This doesn't happen often in New York, but it does happen.

[This guy is clearly having some mental episode. And I suspect drugs are involved -- both drugs he shouldn't be taking but is along with drugs he should be taking but isn't. He needs help. But along with his long-term needs, there is the short-term matter of everybody else on that subway. People should not be expected to tolerate this behavior as just a normal part of a commute in which you ride in a hole in the ground. And the passivity you see is less acceptance than self-preservation.]

Yes, of course it would be great if there were a mental health crisis team at the ready. But in the short term, if there were a cop on this train, he or she better not walk away saying, "Broken Windows is racist and quality-of-life enforcement is not my business."

That said, I actually had a tough time figuring out what crime this guy was actually committing. There's no begging or "sound production device." But that is why you need police discretion and a catch-all like disorderly conduct: "in any manner which may cause or tend to cause annoyance, alarm or inconvenience to a reasonable person or create a breach of the peace."

This man needs to be taken off the train at the next stop and committed, hopefully through deescalation and voluntary compliance, but by force if necessary. (And no, I'm not willing to stop the whole transit system to wait for a response team. Tens of thousands of commuters have rights, too.) But I could imagine people criticizing a cop for having to use force on this poor unarmed man.... But if you're the cop? What do you do. It's not so easy.


Andy D said...

Dealing with the last guy is exactly what the Ferguson/Gray/Viral Video effect is keeping cops from doing too. To me, while I agree about the dancers I think the last guy is a far more important "broken Window." But despite all hopes I have that I could talk to him and de-escalate the situation, his manic pacing makes me feel that for a lot of cops, if not most, this would become a use of force situation. And it would be tweeted. And there is a good chance that someone (maybe even the same person who tweeted that! I don't know him so I have no idea what his attitude would be) would be saying "Brutal!" "Racist!" and the cop(s) would get investigated, maybe suspended. This is exactly the type of thing that the Ferguson/Gray Effect will have a lot of cops walking away instead of engaging. Which is sad. No, actually not sad, terrible.

Jay said...

1. The amp/non-amp distinction has its drawbacks. That amplified keyboard is much less objectionable than the drummers banging on inverted industrial barrels.

2. I don’t like the gymnasts either, but I’m not sure why. They are careful. They don’t work crowded cars, and I’ve never seen them come close to inadvertently hitting a passenger. And I have to admire the imagination involved – converting subway poles, bars, and straps (or whatever we now call those metal loops) to a completely different function, and doing it so well that you might even think that’s what the equipment was designed for, as though there were an Olympic event that combined horizontal bar, vertical bar, and flying rings.

3 I hope you gave these guys a buck or two. It’s one thing if you don’t like the act and don’t want to reinforce the behavior. But you were capturing their performance and using it for your own purposes. I had a post five years ago about norms of reciprocity between subway performers and passengers (here FWIW – and if you read it, remember that in 2011, an iPhone was still something pricey and special compared to most cell phones).

4. Andy D. makes an important point. You can imagine all the ways things could go bad if cops tried to do what most passengers would want them to do and get this guy off the train and to where he should be. If I had been on the train, I’d be thinking: he seems scary, and I feel uncomfortable, but like most of the other New York crazies – and God knows I’ve seen a lot of them on the streets and subways – he’s probably not going to harm anyone. I hope.

Peter Moskos said...

If you're performing on a subway, getting in other people's way, you don't have a right not be filmed.

I gave the Mexican guy $5 because I liked his song. I gave the dancers nothing. Because I don't want them in my personal space on my commute. The idea that a guy literally putting his ass in my face deserves some kind of reciprocity is kind of funny.

Peter Moskos said...

Also, I've personally witnessed both inadvertent kicks (minor, but still) and intentional hits (ie: punches) from dancers on crowded cars.

Jay Livingston said...

Maybe the gymnasts on the IRT are more careful than the ones on the BMT (I mean, the subway lines formerly known, respectively, as the IRT and BMT).

Nobody in public in NYC has a legal right not to be photographed. It’s about norms, not laws. And maybe if you are shooting as a journalist, the norm is different. What irks me is the person who captures a performance to put it on Instagram or Facebook – “look at this cool stuff I saw on the subway” – and doesn’t contribute.

I miss those street performers that used to be around in my early days in NYC. You still see singers and musicians, but the jugglers and magicians are gone. I guess they’re all just posting to YouTube.