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.Maybe there are a few others you can come up with.
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.
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.