Freedom To Traipse and the Right to Exclude

26 08 2016


Consider this dude.

Wrought iron fencing, all in, costs about $40 per foot in Chicago, which means this astounding maniac spent about $800 just for the materials to build this thing. He spent a sweltering summer morning on his hands and knees, grunting and sweating, pounding measuring stakes into the ground, mixing and pouring concrete, letting out pained creaks and moans, all the while muttering about his rights, like if spite could watch pornography. Fueled by some unfathomable perceived slight, powered by a mantra I imagine was along the lines of “I’ll show them,” this anti-social, joyless local slowly, meticulously closed in this trivial patch of parkway in such a way as to ensure nobody could enjoy it. Enjoy it–hell, cross it. Use it.

It has a gate! This four-plus-foot-high-wrought-iron fence has a gate. The cost of putting in the gate and the additional materials cost actually puts this thing up closer to $1,000. One thousand dollars united states.

I instantly regret putting that photo up top. Because if I’d said to you, “imagine some busybody lunatic with an extra $1,000 and seemingly endless spare time built a four-foot-high, gated, wrought-iron fence around an eighteen square foot patch of land he did not own,” you, as a sane person, would have said, “Oh, Ramsin, hey–based on all the facts I have so far, it’s obvious that within this fenced-in-area is a decadent garden to shame Babylon, so fragile and delicate in its elegant composition that any foreign interaction could result in a Ph imbalance that would threaten the indisputably valuable fauna that, after all, would require such extensive security measures.”

Only then, for maximum hilarious contrast, would I show you this:


Like building a moat around an above-ground pool

Only if a truck, on its way to deliver boring furniture to a downscale dental office had hit a bump and a few pots of dreary waiting room plants had splattered on the side of the road could this “garden” have taken less effort. This fence guards little more than the homeowner’s weaponized rage, turned outward at a world that demands he share.

Some background could help. In Chicago, since we have so much room (and so many cars) most non-arterial roads have a strip of land, usually grassy, between the sidewalk and street called the Parkway. The Parkway is owned by the City but must be maintained by the property owner. In exchange, the City in practice looks the other way when property owners make permanent modifications to the strip of Parkway in front of their property. Some people just mow it. Some people put in turf or gravel, or plant little flower or vegetable gardens–some even sort of mildly enclose it, to protect it (or to spare themselves the constant upkeep). All reasonable consideration for the impressed labor of tending the land.

In Anglo-American law, property rights are often spoken of as comprised of a “bundle of sticks” or “bundle of rights.” There are varying ways people describe the sticks in the bundle, but the basic version is that property ownership entails five or so component rights. The use right, the benefit right, and rights of alienation, destruction and exclusion. Chicago homeowners actually hold one of the sticks over Parkways–the right to use. (They also arguably hold a benefit right, since they can grow food and flowers and stuff on it).

Perhaps the most important right, and the one people most strongly identify with property ownership, is the power to exclude. If you can exclude people from land, that place is truly yours. People can buy and sell it, but if you can keep them off of it, they’re just pushing paper around.

The City does not afford that right to homeowners over the Parkway, the right to exclude. It would defeat the purpose; the whole point is that people need to access the sidewalk from the street, particularly if you park on the street. Thus even if homeowners had a right to exclude, the public would have an easement to cross it. This is something that has penetrated into the folk understanding of the law in Chicago too–when I was a kid, I remember playing on the side of the street, and hearing kids respond to ornery people telling us to get off their grass that we were allowed to play “in the easement.”

This is all by way of saying, what the good god damn? What the hell dude? C’mon now. The only purpose this guy had in putting up this fence was to force a right on the world he did not have. Look I’m not unreasonable. There are certainly reasons to put up some kind of barrier. I walk a very energetic dog who has strong feelings about her under-paw cleanliness after she poos. If someone has put care and attention into maintaining the parkway for the benefit of us all, I will steer her away, as do I assume nine out of ten people who pass by. Even a small barrier suffices to plead the courtesy of passer-by.


A lovely, large garden nobody is disturbing

And I understand that this dude is on a corner lot next to an alley, so probably had nitwits driving over the corner of his land, creating over time one of those depressions in the land that causes rain water to pool. Okay, so maybe a foot-high fence with a little reflective garnish to induce greater care from motorists. That would do the trick. This, however, is nasty–and it’s done not within the letter of the law, but in defiance of it. It is claiming an entitlement that does not exist.

Yes, to some degree, I’m the nitpicking jerk too insistent on the letter of the law. I’ve had a number of streetside arguments with homeowners who have tut-tutted at me and my pup when she darts into a Parkway despite a “keep dogs off grass,” sign. But property owners’ sense of ownership over the public elements of the neighborhoods they live in actually has repercussions.

In some Chicago neighborhoods, property owners are considering banding together to fund private security forces to patrol the neighborhood. (Writ large, the University of Chicago, a private institution, commands the third-largest police force in the state.) This Request for Proposals for private security patrols in the West Humboldt Park Special Services Area (“SSA”) #36 calls for “both unarmed guards and armed guards/off-duty police officers,” to patrol the neighborhood 32 hours per week. A similar proposal has been debated for the more affluent Wicker Park neighborhood. Special Service Areas are tax overlay districts that assess a special tax to fund services within the geographic boundaries of the district. SSAs are created by ordinance, governed by Mayoral appointees, and managed by private contractors, similar to homeowners’ associations.

An armed force answerable to a hyperlocal quasi-government with the mission of protecting space rather than people is, in essence, an instrument of exclusion. A private security force gives local residents a unique power over the public space of a neighborhood, the de facto power to exclude people from the neighborhood. It’s the potential of a wrought-iron-fence-cum-Frankenstein’s-monster, an animated exclusionary tool that keeps unwanted people from moving freely through intimidation or the threat thereof.

Private security for SSAs are not new–Marquette Park, a long-time Eastern European working class enclave on Chicago’s South Side, instituted one back in the mid-90s. What was interesting about the Marquette Park SSA force, and other similar efforts (such as the one in West Humboldt Park) is that they are not, as one would expect, a feature of white ethnic fortress mentality. During the debate over the Marquetta Park SSA, white liberal aldermen raised questions about bifurcating policing, but some black aldermen supported the idea, given the bleeding over of gang crime from poorer neighborhoods into middle class black enclaves on the South Side in particular. In fact, at the time of the creation of the Marquette Park force, it was one of the more diverse community areas in Chicago–split about 40-30-30 white, Latinx and Black in 1990. Private security over public space was a tool of the gentry against the underclass.

The desire to exclude has as much to do with outsiders, whomever those people are, as anything else. In North Side, predominantly white neighborhoods, we know well who will be treated as inherently outsider–people of color, particularly young black men. In South Side, predominantly Black middle class neighborhoods, it will be “those kids,” from the next neighborhood over, from public housing complexes, in janky cars or wearing the wrong kind of clothes, or just someone the folks on the block don’t recognize. This last stick in the bundle, the right to exclude, whether through physical or psychological barriers, defines who truly owns a place. But we all own sidewalks and streets (and Parkways) in common, whatever the neighborhood. A freedom to traipse through any neighborhood is what makes our city as a unitary community. Absence of that freedom is a step towards Balkanization.

People want and deserve a sense of security on their block. It is unseemly for a relatively healthy young(ish) man like myself to pass judgment on people who feel unsafe walking home at night. It’s unseemly for a renter like myself to pass judgment on a homeowner who has tirelessly tried to maintain the Parkway in the face of repeated drive-overs and dumped garbage. But the answer can’t be exclusion. We can’t list towards giving people that stick  unless we’re prepared for its use in regular bludgeonings.

This wrought iron embodiment of mean-spiritedness augurs poorly for what the landed classes will do to neighborhoods with some extra cash and the wrong mentality.