Policing Property
(Source)
I. Property and Criminality
In the first week after Derek Chauvin killed George Floyd in Minneapolis, the New York City Police Department arrested more than two thousand protesters in New York City. At least a quarter of those arrested were charged with burglary. Mayor Bill de Blasio distinguished between protesters and perceived opportunists, “doing things like looting for pure financial gain, pure criminal gain, nothing to do with protests whatsoever.”
The specter of the looter—lying in wait for the opportunity to take advantage of social upheaval—is connected to ideas about the latent criminality of unpropertied people. It has been used to justify the extensive surveillance of nonwhite communities, and protest movements calling account to injustice.
“Law and order” has roots in the protection of property and in white supremacy. The conflation of Blackness and criminality is inextricably tied to the relationship between property and policing, distinguishing criminals from non-criminals. Racial categories emerge from the governance of property relative to those who have historically had none, who we therefore imagine “harbor criminal disregard for the propertied order.” Whiteness is a property, valuable insofar as categorically excluding Black people maintains it.
Maintaining property interests has always been central to the modern American police state. Corporations fund various police apparatuses to both parties’ benefit, and the state tolerates their implicit targeting of and resulting harm to Black people and members of radical movements via property misdemeanors. Ultimately, these minor property charges represent a collision between three interest groups: corporations, cops, and purported criminals. The first two groups have developed a symbiotic relationship aligning them against the third.
II. Property Misdemeanors
None of the NYPD’s Citywide crime statistics clearly distinguish between different kinds of property crimes. New York City’s statistics on property prosecutions are opaque and overbroad, in keeping with a national pattern of radically under-documenting misdemeanors. However, using misdemeanor property crimes as a proxy for minor property crimes, we identified 54,816 individual property misdemeanor charges against adults across the five boroughs in 2019. These charges represent crimes like fourth degree criminal mischief and reckless endangerment of property—charges so minor they only apply to property worth under $250, and can result from conduct as innocuous as standing on top of a phone booth during a protest or spray painting a statue. They also include petit larceny, primarily used as a shoplifting charge for items worth under $1000.
Assuming an adult population of around 6.6 million people, the per capita rate of misdemeanor property charges is just shy of 1 in every 100 inhabitants. It is of no moment that the majority of these charges do not result in conviction. The number still represents a shocking number of petty criminal charges moving through an overburdened court system, and disproportionately overburdening people of color.
Moreover, misdemeanants are regularly forced to plead guilty to low-level crimes for which there is little or no evidence. The process is so informal that it is ultimately impossible to tell whether these disproportionately Black defendants are guilty or not. On their face, these statutes are vague, and invite both police and prosecutorial discretion. Nonetheless, they can result in up to three month’s incarceration and a year’s probation. Even those who are not ultimately convicted face devastating collateral consequences, including the possibility that private companies will buy and sell their criminal data. And even if they are guilty—what are they really guilty of?
III. Corporate Power
The earliest public police departments in the United States were established in the mid-19th century, a period of rapid industrialization, economic exploitation, and increasing labor unrest, all conditions driven by the ownership class’s property interests. Southern slave patrols, the forerunners of police, were fundamental to this transition. Commercial elites needed mechanisms that would guarantee a stable and orderly work force, a stable and orderly environment for conducting business, and the maintenance of the “collective good”—increasingly conceptualized in economic terms and conflated with capital’s interests.
The modern police force provided both an “organized, centralized institution, legally authorized to use force to maintain order,” and the “illusion that this order was maintained under the rule of law,” not at the discretion of economic power. Public order offenses, like hooliganism, drunkenness, and vagrancy justified increasing surveillance of the “criminal classes,” which in turn, purportedly made it possible to identify in advance whether a person would steal. This dynamic was ultimately tautological, particularly since whether a person was guilty of such an offense was largely at the police’s discretion.
Corporations also relied on private police agencies to control their workers. Government law enforcement could not keep up with corporations’ demands for “public order.” The Department of Justice, unable to effectively manage national policing, contracted with private police to track and prosecute federal crimes. Blame for private police violence against striking workers fell not on employers but on the government, for failing to otherwise “provide public protection for the employers’ unquestioned right to defend their private property.”
In 1939, the Chicago Chief of Police testified before the Senate about using private police to protect property: “It is impossible to provide a police force large enough to meet all the wants of business, and it is well enough to have an agency . . . to furnish, for businessmen, only reliable watchers.” The justification for public-private partnerships in policing in the late twentieth and early twenty-firstcenturies is similar: effective crime prevention requires a level of surveillance that public police departments cannot carry out on their own.
IV. Private Police
The comingling of public and private law enforcement at the crossroads of minor property crimes creates, if not an actual conflict of interest, surely the specter of one. If the police’s social role is to protect and serve the public, interactions that prioritize the desires of retail stores and bank branches over public health and public speech should surely raise eyebrows.
Government law enforcement agencies often work with, and even depend on, corporate partners to prosecute minor property crimes crimes. States often grant corporate police traditional state powers in exchange, further blurring demarcations between public and private functions. In Tennessee, for example, FedEx’s private police force can request warrants and make arrests, and is a member of the FBI’s regional task force. However, perhaps more disturbingly, the hiring process also works in reverse: corporations can and often do employ public police officers.
In New York City, corporations can hire armed and uniformed NYPD officers as private security personnel through the NYPD’s Paid Detail Unit. The corporation pays a 10% administrative fee to the NYPD, which takes a cut, and then offers officers extra work at a reduced rate. Duane Reade and Chase Bank have both been known to use this service, for superficially different but substantively similar reasons.
Duane Reade’s shoplifting problem is notorious to the point of farce. In 2018, minor property crimes in Duane Reade accounted for 41% of citywide larcenies under $1000. Duane Reade took a two-step approach to mitigating its losses. First, it pressured prosecutors and police to bring higher charges against shoplifters, for example, bringing top charges of third-degree burglary instead of petit larceny, the typical misdemeanor for minor property crimes like shoplifting items worth under $1000. Second, Duane Reade hired armed police officers through the Paid Detail Unit. In mid-March, at the height of panic shopping for a pandemic that has disproportionately killed Black Americans, New York police arrested a Black man for petit larceny for attempting to steal about $90 worth of soap and cleaning supplies from a midtown Duane Reade. By hook or by crook, by charge or by cop, Duane Reade must protect its bargain brand soap.
In mid-2011, Chase gifted $4.6 million to the New York Police Foundation for security monitoring software and other “technology modernization.” A few months later, Chase and other banks began staffing bank branches via the Paid Detail Unit, allegedly in response to Occupy Wall Street and out of concern that protesters would target bank branches. When one reporter asked an officer at TD Bank what he would do if the bank’s instructions conflicted with his understanding of citizens’ rights to protests, he said only that he would “remove them.”
Although Chase’s donation predated this practice, it is difficult to imagine that a donation towards surveillance technology would not have impacted the bank’s relationship with the NYPD, or that police staffing bank branches would not have used that selfsame software while manning those banks in order to—police what, exactly? Whatever the case, Chase has since removed their own well–documented announcement of the partnership from their website.
V. Surveillance Capitalism
Corporations and cops more explicitly mediate their relationship through surveillance technology. The former fund police surveillance technology in exchange for implicit commitments from the latter to pursue minor property crimes. Retail giants in particular, like Duane Reade, Walmart, and Target, create and deploy vast surveillance systems that they then share with police.
In the mid-1990s, Target partnered with local police departments, including the Minneapolis Police Department, to create its “Safe City Program.” As part of this partnership, Target offered the Minneapolis Police Department access to its forensics laboratory and legal department—apparently one of the best forensics labs in the nation—in order to install and monitor security cameras across Minneapolis. In a 2014 joint report prepared by the Police Executive Research Forum and Target, police executives speak openly about using predictive policing algorithms to identify “crime hotspots.” They define hotspots broadly, incorporating characteristics such as “physical decay,” “vacant housing,” and patterns in “land use.” Once the algorithm identifies a high-risk area, the report continues, the police department directs more police officers to that area. These predictive tools use signs of poverty to catch what are overwhelmingly minor property crimes.
In exchange, police departments have focused on the kinds of crimes Duane Reade, Target, and Walmart care about. A 2010 PERF-Target report identifies two general categories of crimes that corporate partners wanted investment in: the “icky” kind, such as panhandling, loitering, and public urination, and the property kind, like petty theft.
In the early 2000s, Microsoft developed a similar partnership with the New York City Police Department to create the Domain Awareness System, currently the largest digital surveillance system in the world. The DAS knits together thousands of public and corporate cameras into one unified surveillance system. The NYPD receives 30% of the revenue Microsoft earns by selling DAS to other global customers. Microsoft presumably keeps the remaining 70%.
The New York City Council is currently considering legislation that would increase oversight and transparency around the NYPD’s surveillance systems, including DAS. Yet these measures fail to address the motives driving this partnership. Whether intentionally or accidentally, Microsoft perfectly designed DAS to catch the same “icky,” quality of life infractions and minor property crimes as Target’s Safe City program. Indeed, the much-obsessed-over looting of a Microsoft store this June in an NYC neighborhood notorious for its luxury commercial retail occurred only a few blocks south of the NYPD’s 2018 DAS Upper East side expansion. These are the kinds of property crimes whose prosecution benefits corporate actors, not individuals, and prioritizes corporate power, not public need.
VI. Corporate Remedies
These charges are not simply about loss prevention. Duane Reade, Target, and Microsoft have all taken steps to protect their already well-insured property against any possible threat from Black people by using both state-sanctioned surveillance technology and threats of police violence. The structural disparity between corporate and individual power is mediated through police and prosecutors pursuing what amounts to pennies’ worth of property crimes. In Manhattan, major retailers have pursued charges of burglary carrying more than four years worth of jail time for the theft of items as cheap as cat litter and soap. The New York County Defender Services found that 69% of these cases resulted in jail or prison time.
What parallel remedy exists for the racially profiled Black consumer, the harassed Black customer, the brutalized Black civilian? It is easy to point to civil rights statutes, but not easy to prosecute them. These remedies have not adequately internalized the external costs because their makers do not represent the affected groups, and because affected groups have historically lacked the funding and political power necessary to push lawmakers for fundamental reform, even when they have substantial momentum. Meanwhile, corporations with the capital to take affirmative steps towards alternatives to prosecution refuse to do so.
VII. Abolition and Reclamation
The relationship between corporations and the police is one of state-sponsored, symbiotic profit. Considering law enforcement’s historical role in the destruction of Black wealth, the “looting” or “vandalism” of corporate property in the midst of a protest against police violence may best be understood as a rightful reclamation of community property, and an expression of the violence with which Black Americans have been divested of their fair share. The system of racial capitalism has done immeasurable harm to Black people, and the few remedies available to Black citizens for continued civil rights violations are obscenely paltry in comparison.
The outsized punishments that New York assigns to minor property crimes make it clear that property interests, especially corporate property interests, obstruct the interests of justice. The legal system simultaneously overvalues property itself, and devalues those charged with property misdemeanors by encouraging informality within the system, and informality in the relationships between police and corporate property interests. Calls for police abolition should be coupled with calls to reform, if not altogether abolish, these kinds of minor property crimes. In the meantime, cops and corporations are making a killing.
About the Authors: The authors are rising second-years at Cornell Law School. They are Co-Presidents of the National Lawyers Guild, Cornell Chapter, and members of the Law and Political Economy Collective at Cornell.
Violet Nieves is from New York City and wants you to know it. After graduating from Columbia University with a Bachelor’s of Arts in English, she spent four years as a litigation and trial paralegal at Schlam Stone & Dolan LLP while working on housing rights advocacy with local organizers. She is currently interning for Justice Andrew Borrok in the New York Supreme Court, New York County Commercial Division.
Emily Van Dyne graduated magna cum laude from Hunter College, City University of New York, with a Bachelor’s of Arts in English and a minor in Political Science. Prior to law school, Emily waitressed in New York City for ten years. She is currently interning at Mobilization for Justice, a legal aid organization in Manhattan.
Suggested Citation: Violet Nieves & Emily Van Dyne, Policing Property, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (July 6, 2020), https://live-journal-of-law-and-public-policy.pantheonsite.io/policing-property/.