#LivingWhileBlack: Blackness as Nuisance

69 Am. U. L. Rev. 863 (2020).

* Professor, Rutgers Law School. Dean, Rutgers Graduate School – Newark.

** Associate Professor, University of Missouri Kansas City School of Law. Interim Director of the Black Studies Program, University of Missouri Kansas City College of Arts and Sciences.

Thank you to the participants in the Rutgers Law School spring faculty workshops and Rose Cuison-Villazor, who offered invaluable feedback. Also, thank you to University of Missouri Kansas City School of Law student Tyler Dwyer for his adept research assistance. We are indebted to the editors of the American University Law Review for their excellent work. Any errors are ours.

In 2018, the powerful combination of high-quality cellphone video and social media brought to light a barrage of incidents involving 911 calls reporting that Black people were occupying spaces that the callers believed they ought not occupy. In nearly all of these cases, the targeted men, women, and children were in places in which they had a legal right to be and engaging in activities in which they had a legal right to engage. Widely circulated and debated on social media, these incidents all went “viral,” spawning a series of social media hashtags, most strikingly “#LivingWhileBlack.”

One might see in these incidents a new phenomenon in need of new legal tools. In this Article, we argue that these incidents are not emblematic of anything new, but rather a technology-enhanced incarnation of a much older tradition: the invocation of the property law concepts of nuisance and trespass to exclude Blacks from spaces racialized as “white.” This Article examines both the historical and modern incarnations of this “Blackness as Nuisance” tradition and argues that these efforts to distort property law norms arise from discomfort with racial integration and perceived Black physical mobility. The Article concludes with the suggestion that policymakers carefully consider the intersections of property law and criminal law, and the historical origins of these types of incidents, in order to craft effective responses to these highly charged and potentially dangerous encounters.

Introduction

The spring and summer of 2018¹ saw a torrent of media reports of white Americans calling the police when they perceived that Black² people were occupying spaces where they ought not be.³ This phenomenon garnered widespread media attention beginning in April 2018, when a Starbucks store manager in downtown Philadelphia called 911 to report that two men (who had entered the store only two minutes prior to the call) were “refusing to make a purchase or leave.”⁴ The incident prompted calls for a boycott of Starbucks, and protesters rallied outside of the store in question for days after the incident.⁵ Approximately two weeks later, Jennifer Schulte of Oakland, California called 911 to report that “someone is illegally using a charcoal grill in a non-designated area.”⁶ Social media users picked up the incident after the wife of one of the grill users captured and posted a cellphone video of Schulte arguing with the group and calling 911.⁷ The video went viral,⁸ with thousands of views within twenty-four hours (and more than one million views within two weeks),⁹ and with social media users eventually bestowing upon Schulte the sobriquet “BBQ Becky.”¹⁰ Weeks later, Susan Westwood of Sunset Beach, North Carolina, called 911 to report two African-American women standing in an apartment complex parking lot (the women were tenants in the complex).¹¹ According to Westwood, the women had “been hanging out here for a while”; she pleaded with the 911 dispatcher, “I’ll tell you what, I’ll pay $2,500 to get them out of here. Right now, I will. This is, this is, get them out of here.”¹² In each of the incidents catalogued by media outlets and considered here, the target of the crime report was a person of African descent, and the 911 caller was racialized as white. This observable racial difference and perceived racial motivation, coupled with the advent of high-quality cellphone video capability and social media’s capacity to rapidly circulate content, prompted the virality of the incidents as well as the public calls for redress and legislative solutions.¹³

In the most widely reported incidents, white people called the police on Black people in public parks;¹⁴ at youth sporting events;¹⁵ at community pools;¹⁶ in retail stores;¹⁷ in university classrooms,¹⁸ dining halls¹⁹ and dormitories;²⁰ in parking lots;²¹ and on the sidewalk,²² among other places.²³ These particular incidents of viral crime reporting were so numerous that they spawned their own social media hashtag: #LivingWhileBlack.²⁴ As sociologist Tressie McMillan Cottom has observed regarding the proliferation of media coverage of these incidents, “It’s a genre.”²⁵

These #LivingWhileBlack incidents garnered widespread attention primarily because the persons targeted or their allies captured a cellphone video of the encounter, including, in several instances, the police response. Having now gone viral,²⁶ this phenomenon is a matter of intense public debate and, often, outrage.

Media and scholarly discussions of these #LivingWhileBlack incidents have mostly taken place in the context of the intersection of bias—whether implicit or explicit—and policing.²⁷ Some discussions have even contemplated whether lawmakers ought to develop legislative measures targeting inappropriate or ill-intentioned emergency service or crime reporting calls.²⁸ While the popular narrative is, justifiably, influenced by concerns about criminal justice policy and high-profile police shootings of unarmed civilians, another element to the #LivingWhileBlack phenomenon deserves attention: the 911 callers requesting police intervention to remove or detain the Black targets of such claims were not merely relying upon criminal law concepts to articulate their claims of imminent harm. These callers were also using property law concepts, particularly trespass²⁹ and nuisance, to invoke the intervention and assistance of law enforcement.

At its core, property law articulates the incidents, privileges, and limitations of ownership and use. In the context of nonblacks’ policing of Blacks’ presence in both public and private spaces, these principles—the incidents, privileges, and limitations of property rights—come into stark relief. What are the incidents of ownership in such cases? Who gets to claim the privileges or “entitlements” of property? And what are the limitations imposed by law, policy, or custom to such privilege taking? From the perspective of the use or, more precisely, the misuse of notions of real property ownership and the rights incident to such ownership, the #LivingWhileBlack phenomenon appears to be emblematic of a persistent discomfort associated with racial integration, generally, and Black proximity, specifically.³⁰ This casting of Blackness as a property harm—an interference with existing (white) property entitlements—is a deep-seated phenomenon that has been pervasive throughout U.S. history.

This Article’s examination of what we loosely term “Blackness as nuisance” bridges the gap between the criminal law and property norms and considers what Hari Osofsky terms the “intersecting vectors of place, space and time” at play in these #LivingWhileBlack incidents.³¹ Part I of this Article examines how white complainants in a subset of #LivingWhileBlack incidents weaponized the language of land use, particularly that of nuisance and trespass, in their efforts to exclude Blacks from various shared spaces. This qualitative textual analysis focuses on the actual words of the #LivingWhileBlack antagonists to better understand the discursive strategies of exclusion and intimidation at work in these incidents. Part II delves into litigated claims of Blackness as nuisance, examining late nineteenth-century and early twentieth-century court cases wherein white complainants attempted—and failed—to use nuisance law to insulate themselves from Black proximity. Moreover, in Part II, we consider these historical manifestations of “Blackness as nuisance” claims alongside the more recent examples from 2018, drawing out the ways in which the rhetoric of racial exclusion has evolved over time, and linking these historical examples to the themes and types of spaces discussed in Part I. In Part III, we explore the specific racialized property entitlements at work in #LivingWhileBlack incidents. These entitlements are contextualized in notions of the right to exclude, white antagonists’ denial of racial animus, and tropes of Black male predation and white female vulnerability. Finally, this Article concludes by examining the push to criminalize racially motivated emergency services calls and argues that effective policy interventions will require integration of the property and criminal law norms at work in such incidents. As policymakers debate the optimal response to threats to institutional legitimacy and the rule of law in disputes over public spaces, private spaces, and so-called “third places”³² in the context of #LivingWhileBlack, a historically grounded consideration of prior efforts to restrict Black property uses may be fruitful.

I. Weaponizing the Language of Land Use: #LivingWhileBlack and Claims to Racialized Property Entitlement

All of property law is about the societal problem of resource allocation or “entitlements.” When the state (through its courts) decides a property dispute between or among litigants, the state both articulates and sets an entitlement for the prevailing party and makes a tacit promise to enforce the entitlement now set.³³ In the context of the prototypical common law nuisance claim, the court considers the reasonableness, utility, and impact of the alleged interference with the complainant’s property rights.³⁴ If, and only if, that interference crosses a threshold of unreasonableness and/or harm, the state will set an entitlement in favor of the complainant.³⁵

In their efforts to leverage public resources (i.e., local law enforcement) to remove Black people from public, private, and third places, #LivingWhileBlack antagonists have painted with a wide brush the outer limits of the proverbial “right to exclude.” Held out by property scholars as “either the most important, or one of the most important, rights associated with ownership,”³⁶ the right to exclude is typically implicated in conflicts involving the holders of competing entitlements to property. In the genre of #LivingWhileBlack incidents, however, claimants (the 911 callers) have typically not been competing entitlement holders. This absence of any cognizable competing property interests between antagonists and targets in such incidents suggests that some other interest is at stake for complainants in these cases.

The notion that something other than land use is at issue in such cases is betrayed by the language of antagonists. 911 callers in these incidents have consistently used the language of land use, specifically concepts of trespass and nuisance, to articulate the basis for their crime-reporting calls. This Part considers the callers’ own words in the context of property theory and argues that callers in #LivingWhileBlack incidents have consistently leveraged property concepts of entitlement and belonging to advocate for the physical ouster of Black people from shared spaces.

A. Blackness as Nuisance and #LivingWhileBlack in Public Space

#LivingWhileBlack scenarios, admittedly, do not neatly fit the elements of traditional nuisance. Common law private nuisance is the intentional (i.e., voluntary), nontrespassory, unreasonable interference with another person’s use and enjoyment of land.³⁷ It operates to prevent one owner from using her property in a manner that would injure or impede a neighboring land use.³⁸ Whereas private nuisance is the unreasonable interference with another’s private use of land,³⁹ public nuisance is the “unreasonable interference with a right common to the general public.”⁴⁰ Public nuisance claims center on the unreasonable disruption of collective rights to peace, safety, comfort, and convenience.⁴¹ When 911 callers request that police forcibly remove Black people from lawfully shared spaces, those callers claim an affront to both individual and collective peace, safety, comfort, or convenience. In two of the most well-known #LivingWhileBlack incidents, which involved alleged negligent grilling in a public park and selling bottled water on the sidewalk outside a stadium, 911 callers articulated claims reflecting perceived affronts to the public by Blacks in shared space. In both instances, the callers claimed that the targets of their calls were not a part of the collective.⁴² Their own words, where available, articulate a shared perception of property harms associated with Black proximity.⁴³

1. “BBQ Becky”

With the exception of the Starbucks incident, perhaps the most notorious #LivingWhileBlack incident of 2018 was the #BBQingWhileBlack occurrence in Oakland, California.⁴⁴ In late April, in a public park abutting Oakland’s Lake Merritt,⁴⁵ Jennifer Schulte called 911 to report that two Black male park visitors were “illegally using a charcoal grill in a non-designated area.”⁴⁶ Schulte, who became known in the Twitterverse and elsewhere as “BBQ Becky,” initially told the 911 dispatcher that she was calling to report the alleged illegal charcoal grill usage and requested that it be “dealt with immediately so that coals don’t burn more children and we have to pay more taxes.”⁴⁷

Schulte’s casting of her call for assistance as one on behalf of the greater public may have been an attempt to controvert eyewitness reports that Schulte was actually the instigator in the incident, and that she had harassed the group of barbecuers, even using a racial slur.⁴⁸ Witnesses reported to media outlets that, during her hours-long confrontation with the group of barbecuers, Schulte had threatened the group, saying “ya’ll [sic] are going to jail.”⁴⁹ With her allusions to child burn victims and overburdened taxpayers, Schulte held herself out to law enforcement as simultaneously both hero and victim.

Schulte’s initial attempt to position herself as the guardian of the public’s interest in park safety was unsuccessful: the 911 dispatcher, sensing the oddity of the call, rated Schulte’s complaint as low-priority.⁵⁰ With the failure of her initial strategy, Schulte changed her approach: after her initial 911 call resulted in no police being dispatched to the scene, Schulte then attempted to intimidate the group of barbecuers with claims that the park was her private property and that she, therefore, had the right to make them leave.⁵¹ Having laid claim to the immense public parcel as “hers,” Schulte was articulating a recognizable and enforceable entitlement vesting her with the power to exclude others from the space. The barbecuers, by now, were no longer merely causing a nuisance and posing a danger with their hot barbecue coals; now, the barbecuers were trespassers and therefore criminals.⁵²

2. “Permit Patty”

Alison Ettel, a.k.a. “Permit Patty,” adopted many of the same rhetorical strategies of intimidation, exclusion, and feigned victimhood as Schulte. Ettel, too, sought to exclude Black presence in a decidedly public space when she called the police on an eight-year-old girl selling water on a public sidewalk directly across from San Francisco’s AT&T Stadium.⁵³ In video captured by the child’s mother, Erin Austin, Ettel calls 911, telling the dispatcher that the child was “illegally selling water without a permit.”⁵⁴ The video captures a moment during Ettel’s 911 call during which Austin can be heard stating that she and her daughter are “on my [Austin’s] property.”⁵⁵ The video then shows Ettel making an obscene gesture before retorting, “It’s not your property.”⁵⁶ Curiously, the area in question was not Ettel’s property either: at the time of the incident, Ettel and the Austin family all resided in the same apartment building, adjacent to the sidewalk on which the incident occurred.⁵⁷

Ettel’s rebuff of Austin’s claim of use rights vis-a-vis the sidewalk in front of their shared apartment building suggests an attempt to disclaim Black rights to public space. When Austin stated, “[I am] on my property,”⁵⁸ rather than correcting Austin by claiming a shared and equal interest in the sidewalk (an interest shared with all other members of the public), Ettel rejected the notion that Austin and her daughter had any interest in the sidewalk (“It’s not your property.”).⁵⁹ Moreover, Ettel emphasized her rejection of Austin’s claim with what a court in an unrelated nuisance case referred to as “the universal sign of disrespect”⁶⁰—her middle finger.

Later, in a television news interview, Ettel claimed that she had been working from home and that the child’s voice—calling out to stadium passersby about the bottled waters for sale—was loud and disturbed her.⁶¹ She apologized for calling the police, but also claimed that her response was “taken out of context,”⁶² an apparent attempt to deflect blame for invoking police authority to claim dominion over public space. When confronted with the suggestion that her actions were motivated by race, Ettel responded, “All I heard was the yelling. How could it possibly be racism?”⁶³ This casting of the dispute as a “pure” noise complaint obscures the fact that Ettel did not call the police from inside the apartment to report the noise disturbance; it was only after she had gone outside and personally confronted the mother and eight-year-old child that she determined that police intervention was warranted.⁶⁴

Ettel and Schulte both used the mechanism of the 911 emergency services line to craft narratives of victimhood and heroism in the face of threats to the public (in Schulte’s case, wayward coals, and in Ettel’s case, irksome noise). This imagined public, though, is one that is exclusive. This exclusive claim to space is particularly fraught in the San Francisco Bay Area, which has the highest housing costs in the nation.⁶⁵ Schulte confronted Black parkgoers in Oakland, which has long been a majority-minority enclave in the Bay Area, but is rapidly gentrifying.⁶⁶ Ettel’s dispute with Erin Austin and Austin’s young daughter occurred in San Francisco, which has seen its Black population dwindling in recent decades. In 2015, Black residents comprised only six percent of the city’s population, placing San Francisco “near the bottom in the share of black residents” among the nation’s largest cities.⁶⁷ Rapidly shifting demographics, coupled with economic pressures, have left Black and Latino residents marginalized and vulnerable in the greater Bay Area.⁶⁸ In the context of large-scale Black displacement in the region, coupled with multiple high-profile instances of local police misconduct,⁶⁹ whites’ efforts to leverage public resources in order to oust Black people from public space takes on new valence. In such cases, 911 callers can arguably be said to be asserting property rights common to a white general public—rights that are exclusive of Black people and Black presence. The manner in which they do so works to weaponize the language of nuisance—here, public nuisance—while reinforcing white racial entitlements.⁷⁰

B. Blackness as Trespass

The use of criminal law regimes to enforce racial boundaries and property entitlements has a long history in the United States. During the Civil Rights Movement, police were summoned throughout the Jim Crow South for the express purpose of forcibly removing Black sit-in demonstrators and their white allies from lunch counters and other public accommodations segregated by law or practice.⁷¹ In tandem with the racialized crime of “vagrancy,”⁷² criminal trespass was the predicate for the arrest and imprisonment of thousands⁷³ of young people across the South during Freedom Summer. Local leaders throughout the region resolved to quell the sit-in movement using purportedly ‘color-blind’ policing strategies.⁷⁴ Since criminal trespass typically requires only that a rights holder has refused entry to a nonrights holder, the crime could be used by local law enforcement to intimidate, stigmatize, and terrorize activists into giving up the fight against Jim Crow.⁷⁵ State legislatures responded to successive sit-in demonstrations with increasingly severe criminal sanctions for trespass, vagrancy, and disorderly conduct.⁷⁶ In her extensive account of how local law enforcement officers terrorized Freedom Riders with false arrests and imprisonment, Mary Hamilton recalled that police in New Orleans arrested her and two other women at the city’s bus terminal and charged them (falsely) with vagrancy:

Although I had $15, and am a housewife; and the other Rider had $20, and is a student, and the third one of us lives, and is employed, in New Orleans, we were nonetheless picked up on charges of (1) vagrancy, and no visible means of support; and (2) loitering. Where else can you catch a bus except at a bus stop? I don’t know. But in New Orleans that was called “loitering.”⁷⁷

When perceived racial differences underpin a dispute over property, the complaining litigant is arguably asking the court to both set and enforce an entitlement to racial/racist stratification and hierarchy. In the #LivingWhileBlack incidents catalogued here, 911 callers requesting the assistance of law enforcement are, arguably, demanding that police set and enforce an entitlement to racial stratification in the form of a white right to exclude. It is largely irrelevant whether #LivingWhileBlack antagonists explicitly articulate any racist beliefs; the right to exclude, which each of them has self-assumed, is necessarily racialized to the extent that callers are, literally and figuratively, policing Black physical proximity.

In these incidents, even the common law of trespass is racially coded, typically in terms of “belonging.” Whether in private, public, or “third places,” antagonists in these incidents have sought to leverage local law enforcement to police Black belonging in ways strikingly similar to earlier efforts to criminalize civil rights activists as “vagrants.”⁷⁸ As Risa Goluboff has argued, “Vagrancy laws are gone, but treating African Americans like vagrants continues.”⁷⁹

1. #LivingWhileBlack and private property

#LivingWhileBlack incidents on private property best illustrate how principles of trespass have been, and continue to be, used to restrict or circumscribe Black access to property and space. Not surprisingly, several of these incidents have occurred at sites with long histories of racial exclusion and contestation—namely, universities and swimming pools.

a. Universities

American universities, and elite universities specifically, have a shameful history of excluding Black persons from their hallowed halls.⁸⁰ Racial subjugation built the nation’s earliest institutions of higher learning.⁸¹ In the North and the South, colleges bought and sold enslaved people’s labor.⁸² While the labor of enslaved men, women, and children helped secure the financial footing of these colleges,⁸³ these same institutions excluded Black students from admission.⁸⁴ In rare instances where Black students were granted admission, they were often barred from living on-campus among their white peers.⁸⁵ The first Black student to attend Yale, James Pennington, “was not allowed to speak, ask questions, use the library or even earn an official degree from Yale despite attending classes at the Divinity School.”⁸⁶ This painful history of exclusion surfaced when, in May 2018, a white graduate student at Yale called campus police to have a Black graduate student forcibly removed from a dormitory common room.⁸⁷ During final exams, Lolade Siyonbola fell asleep in the Hall of Graduate Studies common room.⁸⁸ She was subsequently awakened by Sarah Braasch, who told her, “You’re not supposed to be sleeping here. I’m going to call the police.”⁸⁹ In cellphone video captured by Siyonbola as the incident unfolded, Braasch can be heard claiming “I have every right to call the police. You cannot sleep in that room.”⁹⁰

When the university’s police arrived, their assessment of the situation centered around whether Siyonbola “belonged” in the space in question: one of the responding officers told Siyonbola, “She [Braasch] called us [and] said there’s somebody who appeared they weren’t . . . where they were supposed to be.”⁹¹ Even after Siyonbola produced her room key and used it to open the door to her room, another officer demanded that Siyonbola present her identification declaring, “You’re in a Yale building and we need to make sure that you belong here.”⁹²

This common refrain of “belonging” suggests that something more than public safety is being enforced here. When sites are racialized via racially exclusionary policies or practices, those sites communicate a cultural norm of racial hierarchy.⁹³ Elite universities like Yale are not immune to this phenomenon; in fact, educational institutions have perpetrated egregious harm against Black applicants and students, as described above.

As coresidents of the same graduate students’ dormitory, Siyonbola and Braasch had equal rights to use, enjoy, and even nap in the common room, as did other building residents. Consequently, neither woman had the right to exclude the other from the common room space; neither woman had the right to proscribe the activities for which the space could be used. Yet, through her actions, Braasch, like Ettel (“Permit Patty”) eschewed the possibility that a Black person might have equal standing with a white person in a dispute over the use and enjoyment of space.⁹⁴

b. Pools

Like colleges and universities, swimming pools have a long history as racially contested spaces in the United States.⁹⁵ Though pools were initially public, communal, and rather egalitarian spaces, over time, these sites became more likely to be private and racially segregated.⁹⁶ Pools are intimate spaces: patrons are side-by-side in various stages of undress, sharing bathing waters.⁹⁷ Unsurprisingly, swimming pools have a fraught history as the sites of violent efforts to uphold and reinforce racist cultural norms.

At least in the North, swimming was not initially a racially segregated activity.⁹⁸ Rather, gender and class segregation were the norm.⁹⁹ Over time, as gender integration became more permissible, racial integration became impermissible: “Whites in many cases quite literally beat blacks out of the water at gender-integrated pools because they would not permit black men to interact with white women at such intimate public spaces.”¹⁰⁰ As one writer noted:

This white fear, created around a mythology of dangerous, hypersexual black men and vulnerable, precious white women in need of protection, is one that held particularly dangerous meaning for black people in the south, where the mere interaction of black men or boys with white women was sometimes the cause for terror lynchings.¹⁰¹

In the South, the Civil Rights Movement included aquatic “dive-ins” alongside the better-remembered student sit-ins.¹⁰² One such dive-in took place in 1964 at a motel pool in St. Augustine, Florida.¹⁰³ Images of Black and white protestors jumping into the pool together appeared in newspapers nationwide.¹⁰⁴ There were also widely circulated photographs of police jumping into the pool to arrest the protestors and of the motel manager dumping muriatic acid into the pool while Black teens were still in the water.¹⁰⁵ These shocking images were the subject of an urgent telephone call made by President Lyndon B. Johnson to congressional leaders.¹⁰⁶ On the recorded line, Johnson warned the lawmakers, “Our whole foreign policy and everything else could go to hell over this.”¹⁰⁷ At his urging, on the same day of his telephone call, the United States Senate passed a compromise bill prohibiting discrimination in the workplace, at public facilities, polling places, and elsewhere.¹⁰⁸ That bill was signed into law by Johnson as the Civil Rights Act of 1964.¹⁰⁹

When northern Blacks successfully won integration of municipal pools, whites responded by opening racially restricted private pools.¹¹⁰ As a result, “By the 1970s and 1980s, tens of millions of mostly white middle-class Americans swam in their backyards or at suburban club pools, while mostly African and Latino Americans swam at inner-city municipal pools.”¹¹¹ As social historian Jeff Wiltse notes, “America’s history of socially [and racially] segregated swimming pools thus became its legacy.”¹¹² So while the enactment of the Civil Rights Act of 1964 ended de jure segregation at pools (both public and those privately-owned, but located at places of public accommodation, like hotels), the Act did not end de facto public pool segregation. Many southern municipalities closed their public pools, filling them with dirt or cement and even bulldozing them rather than allowing integrated swimming.¹¹³

De facto segregation in private pools also persisted, even after passage of the Civil Rights Act. Famed civil rights attorney and MacArthur “Genius Grant” recipient Bryan Stevenson recalls how, on a family summer vacation in the early 1970s, he and his sister were called the n-word by white pool-goers at a South Carolina hotel pool.¹¹⁴ When Stevenson and his sister jumped into the pool, the white bathers began screaming and scrambling to get out of the waters that had now been made unacceptable by the entry of the two children.¹¹⁵ Notwithstanding that the Stevenson family and the white families were guests of the same hotel, the white guests refused to share the pool with the Stevenson children.¹¹⁶

The pool-related #LivingWhileBlack incidents of the summer of 2018 echo this earlier history of pools as “contested waters.” In one such incident, Stephanie Sebby-Strempel, a white woman, physically assaulted and used racial slurs against a Black teenager who was an invitee at a pool in a residential community in South Carolina.¹¹⁷ During the assault, Sebby-Strempel insisted that the boy leave the pool because he “didn’t belong.”¹¹⁸ On video, she can be heard yelling at him, “Get out! Get out! Get out now! There’s three numbers I can dial: 9-1-1. Ok? Get out. Little punks.”¹¹⁹ Although she threatened to do so, Sebby-Strempel did not actually call the police.¹²⁰ Instead, the police were called on Sebby-Strempel by the boy’s mother, and officers arrived at her home with an arrest warrant two days later.¹²¹ Sebby-Strempel’s concerns about the teen centered entirely on his presence—not his conduct—thereby echoing the violent tactics of early twentieth-century white pool-goers to police Black proximity.¹²² A second #LivingWhileBlack pool incident occurred in Winston-Salem, North Carolina.¹²³ After Jazmine Abhulimen, a Black woman, entered her community’s private pool with her young son, she was accosted by Adam Bloom, who demanded that she present identification.¹²⁴ At the time, Abhulimen and her son were the only Black people at the pool, and the only people approached by Bloom.¹²⁵ Bloom—who social media users subsequently dubbed “ID Adam”—was, at the time, a member of the homeowners association’s board of directors where he also served as “pool chairman.”¹²⁶ Bloom continued to demand identification from Abhulimen, even after she presented her pool access card that had been distributed by the association to residents.¹²⁷ Abhulimen refused to accede to the demand for identification, and Bloom called 911, telling the dispatcher that Abhuliemen was not a resident and was refusing to show ID.¹²⁸ When police arrived, they confirmed that Bloom was trying to enforce a nonexistent rule and that Abhulimen had a right to access the pool area.¹²⁹

Like other white antagonists in #LivingWhileBlack scenarios, both Sebby-Strempel and Bloom used 911 (or the threat of a 911 call) to enforce their notions of racial belonging within a shared space. Sebby-Strempel and Bloom also leveraged their perceptions of “belonging” (or more precisely, not belonging) to insinuate that a criminal trespass had occurred, warranting the intervention of law enforcement and perpetuating social norms of swimming pools as racially exclusive venues.

2. #LivingWhileBlack and public accommodations

Over the course of 2018 and early 2019, #LivingWhileBlack incidents transpired at three types of public accommodations: retail establishments, hotels, and gyms/health clubs.¹³⁰ The Civil Rights Act of 1964 bars such establishments—those that serve the public and whose operations arguably affect interstate commerce¹³¹—from discriminating against patrons on the basis of race.¹³² Notwithstanding the protections of the Act, places of public accommodation are privately owned and operated, allowing owners and their agents to wield the weapon of trespass law against unwanted patrons, causing their forcible removal and arrest by law enforcement.¹³³ In 2018, white employees of public accommodations uniformly used trespass law, sometimes along with allegations of theft, to justify excluding Blacks from their establishments.

a. Retail establishments

Two of the notable 2018 #LivingWhileBlack incidents took place in retail stores, quintessential places of public accommodation. In these incidents, white store employees used accusations of theft or fraud to justify invoking trespass law and police force against Black patrons.

One retail establishment #LivingWhileBlack incident that garnered national media attention took place at a CVS drugstore in Chicago.¹³⁴ A store manager, Morry Matson, called 911 after Camilla Hudson, a Black woman, attempted to use a manufacturer’s coupon to pay for her purchases.¹³⁵ Matson, who has since been dubbed “Coupon Carl,” claimed to be unfamiliar with the coupon and accused Hudson of forging it.¹³⁶ Rather than simply refusing to honor the coupon, Matson asked her to leave the store; Hudson repeatedly asked for an explanation for why the manager asked her to leave the store over use of a coupon.¹³⁷ After Hudson refused to leave without first receiving the desired explanation, Matson called 911.¹³⁸ In a cellphone video of the incident, Matson can be seen visibly shaking as he calls 911.¹³⁹ Reflecting on the causes of the incident, Hudson mused, “Race, possibly gender, I don’t know, but issues that were not related to anything I said or did or any way I functioned in that space as a customer, there were other issues at play.”¹⁴⁰

Like other white antagonists in #LivingWhileBlack incidents, Matson used devices from the toolbox of racist tropes to exclude and police Hudson. In claiming to be intimidated, and in revoking the customer’s right of access, Matson wrapped his customer service failure in the cloak of trespass law—a legally cognizable property harm that can be and, historically, has been, used in illegitimate, discriminatory ways. Under Illinois law, “A person commits criminal trespass to real property when he or she . . . knowingly and without lawful authority . . . remains within . . . a building; . . . [or] remains upon the land of another, after receiving notice from the owner or occupant to depart.”¹⁴¹ Once Matson, an agent of the owner/occupant CVS, requested that Hudson leave the CVS, she no longer had the legal right to be present.

Although broad, trespass laws do not allow the operators of public accommodations to discriminate against members of protected classes on the basis of their protected status, as this would be antithetical to civil rights law.¹⁴² Rather, in places of public accommodation, trespass laws should be used for legitimate, nondiscriminatory purposes, such as excluding persons who are shoplifting (or who have a history of shoplifting). Researchers have documented the prevalence of consumer racial profiling,¹⁴³ noting that unscrupulous retail establishments and their employees use allegations of shoplifting and threats of police force to exclude unwanted Black patrons from their establishments.¹⁴⁴

This type of “retail racism”¹⁴⁵ was on full display at a suburban St. Louis clothing store in May of 2018. Three Black teenage boys who were shopping for school prom outfits noticed that multiple employees of the Nordstrom Rack in Brentwood, Missouri were following them around the store.¹⁴⁶ As one of the boys later explained, “Every time we moved, they moved.”¹⁴⁷ When the boys left the store, they were immediately surrounded in the parking lot by police.¹⁴⁸ Officers responding to the store employees’ 911 call determined that the boys had committed no crime; the teens had, in fact, even made a purchase while in the store.¹⁴⁹

Both the CVS and Nordstrom Rack incidents highlight the use of pretext as a tool for racial exclusion from spaces that are ostensibly open to the public. In both instances, the Black patrons were unjustly accused of theft and dishonesty—attempting to pass a fraudulent coupon and shoplifting—as pretext for ejection or removal. While the language of “belonging” did not feature prominently in either of these examples, the conduct of these retail employees communicated an ethos of exclusion. In both instances, “retail racism” was used to signal to Hudson at CVS and the teens at Nordstrom Rack that they were unwanted in those places of public accommodation.

This practice is not the exclusive province of retail workers. Employees at other places of public accommodation—namely hotels and gyms/health clubs—have similarly deployed the law of trespass to illegitimately exclude Black customers.

b. Hotels

An example of the use of trespass to exclude a legitimate Black hotel patron took place in Oregon. Jermaine Massey, an African-American man who was a guest at the Doubletree by Hilton Portland in Portland, Oregon decided to make a cellphone call while in the lobby.¹⁵⁰ He was approached by a white security guard who asked him his room number.¹⁵¹ At the time, Massey could not remember his room number but produced his hotel room key, which was in a keyholder bearing the room number and the dates of his stay.¹⁵² Undeterred, the security guard instructed hotel staff to call the police to have Massey ejected from the premises.¹⁵³ When police arrived, Massey was given the option of leaving or being arrested for trespassing.¹⁵⁴ He had to be escorted by police to his room in order to retrieve his belongings.¹⁵⁵ Massey noted that no other patrons were approached in the lobby by security guards.¹⁵⁶

Hotel lobbies are not only open to hotel guests, but they are usually open to other members of the public who may congregate in the lobby itself or in an adjacent bar or restaurant.¹⁵⁷ The guard’s singling out of Massey for questioning suggests that racial profiling was at work. Even once it was apparent that Massey was a guest (he had a room key and had already placed his belongings into his assigned room), his guest status did not protect him from being summarily ejected from the hotel as a trespasser.

c. Health clubs and gyms

Pools are not the only recreational facilities at which white patrons or employees have tried to police the presence of Black patrons. In New Jersey, the white employees of an LA Fitness health club called the police on a club member and his guest, both of whom are Black men.¹⁵⁸ LA Fitness clubs are public accommodations and are open to anyone who can pay the membership fee; the club provides members with key cards used to access the facility upon entry.¹⁵⁹ On the day in question, Rachid Maiga, who had been a member of the gym for eight years, swiped his card and then waited for his guest Tshyrad Oates to check in using a club-issued four-day guest pass.¹⁶⁰ Upon entering, the two men began a game of basketball.¹⁶¹ Several minutes later, the white female front desk clerk (who had checked Oates in) approached the pair and accused Maiga of not being a member of the gym.¹⁶² She directed the men to leave or she would call the police.¹⁶³ Maiga and Oates refused to leave, insisting that they had a right to be there, and the club employee called 911.¹⁶⁴

Upon arrival of the police, Maiga presented his valid membership card so that it could be rescanned.¹⁶⁵ He also began video-recording the altercation.¹⁶⁶ The rescanning confirmed that Maiga was a member and that Oates was his guest.¹⁶⁷ The pair returned to the basketball court, and the two responding officers left.¹⁶⁸ Shortly after Maiga and Oates resumed playing basketball, a white male manager came to the court and, according to Maiga, said, “You guys need to go. You guys need to go, or else you’re out of here in handcuffs.”¹⁶⁹ Maiga protested that he was a member and did not have to leave. At this point, the manager told him that his membership had been terminated.¹⁷⁰ Maiga and Oates once again refused to leave.¹⁷¹ Police were once again called.¹⁷² This time, five officers responded to the scene.¹⁷³

The police officers attempted to mediate a resolution with the manager, but according to Maiga, when the manager observed that Maiga recording him, he used that as a pretext to terminate Maiga’s membership and eject him from the premises.¹⁷⁴ According to Maiga,

He [the manager] was like, “You can’t record in here,” and he tried to make that the reason why they were terminating me . . . . Like, “Now you definitely have to go because you’re recording and breaking rules.” Even police asked him for an explanation [of the termination and removal], and he had nothing to tell police.¹⁷⁵

Alicia Demedici, a white female LA Fitness employee who was one of three employees fired as a result of the incident, tellingly referred to her firing as “humiliating,” “disgusting,” and “appalling.”¹⁷⁶ She claimed to have been a victim of the incident, casting Maiga and Oates as villains: “I hope they look at how this has ruined our lives.”¹⁷⁷ Moreover, Demedici claimed that she called police because her front desk employee felt threatened by the men.¹⁷⁸

The incident illuminates how #LivingWhileBlack antagonists wield the law of trespass as both sword and shield in the service of maintaining racially exclusive spaces. It also, troublingly, evokes the specter of white female vulnerability and Black male violence, a trope we discuss further in Section III.C., infra. When presumed (or falsely accused) Black criminality underpins an emergency call to 911, a disproportionate police response may follow, as happened with the five officers dispatched to LA Fitness, or the swarm of officers dispatched to Nordstrom Rack for the shopping teenagers.

3. #LivingWhileBlack and third places

Some of the spaces in which #LivingWhileBlack incidents took place, though they may legally be private property, are also what are known as “third places.” Sociologist Ray Oldenburg coined the term “third place” to describe “distinctive informal public gathering places.”¹⁷⁹ Such places—the iconic cafes of Paris, Florence’s piazzas, the fabled Valois restaurant in Chicago’s Hyde Park neighborhood,¹⁸⁰ Boston’s Faneuil Hall—are so commonplace, so widely used, so typical, that they come to define “the city.”¹⁸¹ One commenter called such places “a community’s living room.”¹⁸² Third places invigorate and instantiate civic life, providing opportunities for members of a community to express preferences and air and resolve conflict. Such spaces provided a corrective for Americans’ overreliance on automobiles in the postwar era,¹⁸³ bringing residents together for daily activities without associated costs. While third places have traditionally included cafes, bars, hair salons, and barbershops, modern third places may also include fitness centers, bookstores, and community centers—wherever people congregate: “A cohort of regulars is what makes a third place.”¹⁸⁴

Third places are crucibles for participatory citizenship, whereby individuals and groups have an opportunity to mobilize around beliefs and experiences, whether shared or disparate.¹⁸⁵ As one commenter noted, “[g]ood third spaces are abuzz with conversation and yield spontaneous relationships between people from different social and economic backgrounds.”¹⁸⁶ Such “spontaneous relationships” have, in the United States at least, been mitigated by decades of de jure and de facto racial segregation.¹⁸⁷ The laws and customs that seared a racial dividing line in the nation’s culture also precluded Blacks from entering into the same third places as whites on the same terms. As one urban planner noted, “There is a reason there was such a strong fight over lunch counters in the civil rights movement.”¹⁸⁸ Those who sought to integrate those lunch counters and those who sought to maintain them as segregated third places were fighting over position, access, and, ultimately, power in the physical public sphere.

Third places began to disappear after World War II, as suburbs expanded and urban residential areas with communal gathering places diminished.¹⁸⁹ Establishments like Starbucks, the very place where 2018’s spate of #LivingWhileBlack incidents began, endeavored to reestablish the “third place” in American society. Starbucks has taken on this identity whole cloth, branding itself as “America’s ‘third place,’”¹⁹⁰ “the most important social space after home and work.”¹⁹¹ By doing so, the corporation has made clear that it intends for its stores to function as de facto public spaces.¹⁹²

Notwithstanding this corporate branding initiative, critics, including Oldenburg, have noted that Starbucks is a mere “facsimile of a third place.”¹⁹³ Critics point out that as a multinational, publicly held corporation, Starbucks is more a harbinger of gentrification and displacement than of an organic, grounded democratic ideal. It is, at best, a third-place imposter providing only “safer social spaces for certain demographic groups.”¹⁹⁴ Sociologist Tressie McMillan Cottom has further articulated the racial exclusivity of the corporatized third place:

[T]his space is supposed to be made by the culture. Starbucks said, “Oh no, we will make it about consumption.” And black people are always going to lose in that version of a third space, because the right to transact is lost when all the ideas of property and police become a tool for a basic-ass cup of coffee. The Starbucks third space is a place where white people can consume an idea that they’re being in a diverse public, while their $5 coffee buys them the safety of a barista who can call the police on someone to keep the space safe for them.¹⁹⁵

In this context, the Starbucks #LivingWhileBlack incident takes on new meaning as the catalyzing #LivingWhileBlack incident of 2018. It illustrates that, even when a space is intentionally designed to be inclusive, perceived entitlements to racial exclusivity may diminish the potential of the space as a crucible for democracy and equity and may even impart actual violence in the lives of those seen as not belonging.

II. Historical Roots of Blackness as Nuisance: Living and Dying While Black

Although the moniker is new, as is the dissemination of #LivingWhileBlack incidents via cellphone footage and social media, #LivingWhileBlack and Blackness-as-Nuisance clashes themselves are not new. In fact, such encounters between and among Black and non-Black neighbors have long been the subject of civil litigation. Commencing in the years following Reconstruction, white litigants began pursuing property law claims sounding in nuisance in an attempt to police and arrest Black proximity.¹⁹⁶ This is evidenced by nuisance claims over African-Americans’ proximity to whites stretching as far back as 1882.¹⁹⁷ An examination of #LivingWhileBlack civil disputes in the late nineteenth and early twentieth century confirms that, while courts frequently accepted as valid the social undesirability of Black proximity, that presumptive undesirability did not always result in the granting of nuisance relief.¹⁹⁸ While jurists in some cases explicitly admitted racial bias and struggled to reconcile their personal social preferences with the ostensibly race-neutral common law of nuisance, others evinced no such struggle, stridently ruling against litigants alleging that racial proximity warranted judicial relief.¹⁹⁹ The point here is not to suggest that the courts, as then comprised, did not harbor anti-Black views;²⁰⁰ to the contrary, in each of the cases recounted below, ideas about racial inferiority feature prominently. Notwithstanding those anti-Black beliefs, courts across the South and West frequently held nuisance law above those racist ideals.

A. Living While Black and Historical Blackness as Nuisance

Throughout the late 19th century, state courts rejected nuisance claims sounding in race, even as attempts to curtail Blacks’ physical proximity were pressed in courts throughout the country.²⁰¹ These cases are emblematic of efforts by whites in the Jim Crow era to alternately establish or preserve “racial exclusivity” in the face of perceived Black property incursions.²⁰²

For example, in 1882, James Falloon, an attorney in Hiawatha, Kansas brought suit against his neighbor Adam Schilling claiming that Schilling’s construction of tenement houses along the lot line shared with Falloon’s property was a nuisance solely because the tenants were Black.²⁰³ In a clear nod to the social construction of whiteness, Falloon included in his pleadings that he and his family “did in no manner associate themselves with colored people . . . [he] and his family being white people.”²⁰⁴

According to the court, the allegation that Schilling leased the tenements to persons the plaintiff termed “worthless negroes” was unavailing in this nuisance action for two reasons: first, because, as the court uncritically noted, the tenants included a minister and his family who were not “worthless negroes.”²⁰⁵ Second, the court noted, “[a] negro family is not, per se, a nuisance; . . . As long as that neighbor’s family is well behaved, it matters not what the color, race, or habits may be, or how offensive personally or socially it may be to plaintiff; plaintiff has no cause of complaint in the courts.”²⁰⁶

In Snyder v. Cabell,²⁰⁷ another late-nineteenth-century case, the West Virginia Supreme Court of Appeals took pains to include in its decision a detailed explanation of the reasons it reinstated a lower court’s injunction of a skating rink in close proximity to residential tenements.²⁰⁸ Responding to the defendants’ arguments and witness testimony that the plaintiffs sought an injunction on the putatively illegitimate reason that defendants and their customers were Black, the court in Snyder noted that the injunction was appropriate, not because of race, but because of the clamorous nature of skating and the acoustic disturbances likely to be visited upon the neighboring tenement homes:

There is nothing in this record to show that a skating-rink would be more obnoxious if operated by colored people than if run by white people. The colored people have the same right, and no more, to erect and operate a skating-rink that white people have. But every person, whether white or colored, has the right not to be disturbed in his home. He has the right to rest and quiet, and not to be materially disturbed in his rest and enjoyment of home by loud noises.²⁰⁹

On similar reasoning, an attempt to enjoin dancing at a Pennsylvania social club located in a neighborhood described by the court as “not strictly residential” was likewise rejected, even as plaintiffs alleged in their complaint that the club’s patrons “are colored people” and that the club’s neighborhood, “but not this street,” had in recent years become populated by “a large number” of Black residents.²¹⁰

Decades later, courts continued to reject claims of Blackness as nuisance, even as some judges openly expressed their own distaste for Black proximity. For example, in Lancaster v. Harwood,²¹¹ the Texas Court of Civil Appeals reversed a lower court’s refusal to vacate a temporary restraining order against a construction plan that would have resulted in situating a servant’s house for Black domestic workers adjacent to the property line of a neighboring parcel occupied by white residents.²¹² Plaintiffs in Lancaster had explicitly used Black proximity to articulate their harm, claiming that “the close proximity of the negroes sleeping 10 feet away would be intolerable”²¹³ and that “the effect of building this negro servant’s house within 10 feet of the sleeping quarters of white people would put the negro sleeping quarters in such close proximity to the Harwood residence as would be objectionable and would constitute a nuisance.”²¹⁴ In their petition for an injunction, Plaintiffs-Appellees had alleged, inter alia, that “negroes were ordinarily loud, boisterous, coarse, noisome, and immodest,” that “negroes are ordinarily musical,” and that “the odor from negroes’ living quarters is . . . offensive at a distance of 10 or 15 feet to white persons of ordinary sensibilities.”²¹⁵ Reliance on racist tropes in the pleadings, in Lancaster and elsewhere, however, yielded no nuisance victories.

In Lancaster, the judges of the Texas Court of Civil Appeals noted that while their own “personal sentiments” were “wholly with the appellee,” in the absence of a violation of law, no nuisance could be found simply on the basis of Black proximity.²¹⁶ Despite making clear its own bias in the case, the court insisted upon the need for law to be racially neutral:

But we, as a court, must follow, as our only guide, the rules of law applicable alike to all, bearing in mind that the law is no respecter of persons and was not made to apply to one caste to the exclusion of another. We feel constrained to say that the record in this case discloses the inefficacy of the law to prevent all acts of injustice from being inflicted, and that, where the law is powerless in its application to prevent such injuries, the observance of the ‘Golden Rule’ can only be looked to as a panacea in that portion of our country where there exists a just and a well-defined impassable gulf between the white element of its population and the negro race.²¹⁷

The court thus offered a salve dipped in white supremacist beliefs, clearly communicating to plaintiffs the inadequacy of the nuisance canon to provide relief in disputes over Black proximity.²¹⁸

In addition to affirming white landowners’ rights to use their land for the benefit of Black tenants or customers, courts in these “race nuisance” cases also affirmed the rights of Black landowners to freely use their own land. In 1924, white petitioners sought to enjoin the Spencer Chapel Methodist Episcopal Church—a Black church—from rebuilding after a devastating fire, on the grounds that church leaders “were attempting to build a negro church in a white community, which would constitute a nuisance.”²¹⁹ Reviewing the allegations regarding Black proximity and its alleged harms, the Oklahoma Supreme Court reversed petitioners’ previously successful bid to obtain a permanent injunction.²²⁰ The court reasoned that the core of plaintiffs’ argument was a concern over Black proximity, a concern, the court noted, that was in part plaintiffs’ own creation.²²¹ Here, the court noted that plaintiffs had “bought property and established their residences in what was a negro community.”²²² This long-standing Black community had the church at its core: relying on stereotypes reminiscent of those undergirding the opinion in Lancaster, the court continued, “The negro is of a social and religious nature . . . . The church is their social or community center.”²²³ Notwithstanding the anxiety of (newcomer) white neighbors over the proximity of this historic Black community, rebuilding a Black church on its original site was not unreasonable, and thus could not sustain a nuisance claim.²²⁴

In Maryland, the state supreme court tackled similar questions regarding proximity and racial exclusivity in Diggs v. Morgan College.²²⁵ In Diggs, plaintiffs challenged the plans of Morgan College²²⁶—a historically Black post-secondary institution—to develop lands recently purchased by the College into a residential subdivision marketed to Black residents.²²⁷ Neighboring white landowners challenged the plan, arguing that the acquisition of the seventy-acre tract was “vastly in excess” of the College’s needs.²²⁸ The Morgan plaintiffs argued that the plan to establish “a residential negro colony” in proximity to their own homes exceeded the authority of the College under its own charter, resulting in a public nuisance.²²⁹ According to plaintiffs, the surrounding neighborhood “was an entirely white residential one”²³⁰ and the plan to subdivide the tract for purchase by Black landowners would cause “irreparable” harm to their property.²³¹ The court rejected the notion that the plan, on its face, created a nuisance: “[I]t is clear that the improvement of land as a colored residential neighborhood is not of itself a public nuisance.”²³² In Maryland, as in Kansas, Oklahoma, and Texas, Black residential proximity alone, in the absence of other relevant facts about unreasonable land uses, was insufficient to support white plaintiffs’ nuisance claims.

In addition to claims that Blacks going about the tasks of daily living were a nuisance, Jim Crow-era white complainants also claimed that proximity to deceased Black people was a nuisance. As in the race nuisance cases, courts in this period similarly found “dying while Black” nuisance claims to be without merit.

B. Dying While Black and Historical Blackness as Nuisance

As many as ninety percent of private cemeteries across the nation may have operated under racially restrictive statutes, rules, and regulations in the first six decades of the twentieth century.²³³ Public cemeteries were similarly restricted. In Atlanta, an 1882 ordinance barred the city from burying or allowing to be buried Black residents in cemeteries “set apart for or used for the burial of white persons.”²³⁴ Thus, in life and in death, racial segregation was the law of the land. Despite this de jure segregation of the dead, courts were reluctant to declare the mere presence of Black burial places to be a nuisance.

In Georgia, in 1925, the state supreme court reversed a lower court decision granting injunctive relief to a neighboring white landowner over a proposed “colored” cemetery.²³⁵ In that case—Hallman v. Atlanta Child’s Home²³⁶—the Atlanta Child’s Home and several of its neighbors sought an injunction against the Fulton County Board of Commissioners of Roads and Revenues, on the grounds that a planned public cemetery for Blacks would create a nuisance.²³⁷ Plaintiffs’ petition in Hallman centered on the asymmetry between the racial composition of the surrounding homes and that of the cemetery’s interrees: “[T]he community is distinctly a white section, and the environment and surroundings do not naturally permit the location of a colored cemetery in their midst; [and] that colored cemeteries should be located in communities that are distinctly colored.”²³⁸

The Hallman plaintiffs couched their claims in the explicit language of racial inferiority and the undesirability of Black proximity. Black proximity was the defined, nonspeculative harm. Plaintiffs claimed that a Black cemetery in such close proximity to the orphanage would have a decidedly negative impact on the white children residing therein, arguing, “[Black funeral services] will arouse in their little minds a morbid curiosity . . . and they will grow up, having their fears and superstitions unduly accentuated, all of which will work to hurt of their welfare.”²³⁹

This construction of nuisance claims in the terms of Black proximity was unavailing in court. The Georgia Supreme Court relied upon the Thirteenth Amendment to the United States Constitution to find that the race of the cemetery’s planned interrees was an insufficient basis upon which to grant an injunction.²⁴⁰ Extolling the principle of the general applicability of the laws—even in Jim Crow Georgia—the court noted that Black burial practices and interments were a necessary inconvenience: “There is as much necessity for the burial of negroes as for the burial of whites.”²⁴¹ Two years later, in 1927, Georgia’s Supreme Court reaffirmed its characterization of this same Black cemetery, Lincoln Memorial Park, as “not a nuisance.”²⁴²

Less than a decade later, white Georgians again attempted to regulate the proximity of deceased Blacks to living whites via the law of nuisance. In Hall v. Moffett,²⁴³ petitioners sought to enjoin the use of land as a Black private cemetery, alleging: (1) “that if defendants are permitted to open up a private cemetery on the tract of land at the place where they are seeking to do, that it will be detrimental and injurious to the health, happiness, peace and contentment of your petitioners as well as a great many others”; (2) “that it will greatly depreciate the value of the property adjacent to said private cemetery”; and (3) that “the injury and damage to petitioners’ property and their sense of pride in their community will be irreparable, and cannot be compensated in any kind of an action in a court of law.”²⁴⁴ In addition to their claims about harms, both pecuniary and emotional, the plaintiffs in Hall claimed that the private cemetery was unnecessary because the city already had a public “negro cemetery across Hungry and Hardship Creek” and, in their opinion, had no need for another one.²⁴⁵

The court in Hall rejected plaintiffs’ claims, opining that private litigants may challenge municipal authorities’ decision to allow the building of additional cemeteries designated for Black interrees only if complainants could establish that such land development gave rise to a nuisance causing irreparable harm.²⁴⁶ Rejecting plaintiffs’ claim that the area’s Black population already had a segregated public cemetery available for its use, the court noted that the fact of a pre-existing public cemetery for Black interrees did not permanently preempt the development of successive parcels for the same purpose. In a clumsy attempt at humor, the court noted in dicta, “We can see no reason why even a negro should not prefer to rest after death from both hunger and hardship . . . .”²⁴⁷On its own, the mere presence of Black people, living or dead, even if undesirable or inconvenient for whites, did not give rise to a nuisance claim.

III. Racial Entitlements in #LivingWhileBlack Incidents

That both historical and modern spaces have contested racial histories—and therefore contested racial meanings—should come as no surprise. As Elise Boddie has argued, antidiscrimination law should accommodate claims arising from efforts to maintain white spatial exclusivity. “Racial territoriality”—the idea that race is spatial, and that physical space can have a racial identity—supports claimsmaking of this type.²⁴⁸ Boddie further argues that when the racial identity of that physical space is challenged, stakeholders’ efforts to reinscribe that racial identity ought to be actionable under either the Constitution’s Equal Protection Clause or federal civil rights laws.²⁴⁹

Boddie’s theory of racial territoriality might have supported a cause of action, for instance, in the aftermath of Hurricane Katrina when residents of Algiers Point—a white neighborhood in New Orleans²⁵⁰—began “stockpiling” military-grade firearms and patrolling the area’s streets for “anyone who simply ‘didn’t belong.’”²⁵¹ In such circumstances, there may be little or no available direct evidence that race motivated the exclusionary practice. It is not enough to claim, “well, they responded this way to a group of Black people; therefore, the derogatory treatment was because of race.” Racial territoriality expands our analysis of intent, however, to go beyond speculation about the motivations of individual actors and to consider how the racial identity of a space may motivate human behavior.

In the #LivingWhileBlack incidents discussed in this Article, three phenomena common to several of the incidents considered here implicate Boddie’s theory of racial territoriality and white racial entitlement: (1) whites’ claims of the right to exclude Blacks; (2) white antagonists’ denial of racial animus; and (3) tropes of Black male predation and white female vulnerability.

A. Right to Exclude

These phenomena are not merely historical: even in recent years, racial territoriality has manifested in instances involving whites presuming a law-enforced right to exclude Black people from shared spaces. One illustrative example is the case of Kevin Yates. On July 4, 2018, as Yates (accompanied by his girlfriend and two unrelated children) lounged in the pool area at his girlfriend’s apartment complex,²⁵² a woman approached the group claiming to be the development’s property manager. The woman, Erica Walker, warned Yates that he needed to remove his socks (he had been sitting along the edge of the pool with his socked feet in the water) or leave the pool.²⁵³ Surprised by the mandate—in news interviews, the couple noted that other pool-goers also wore nonswim attire into the water, including t-shirts and hats, without any interference by Walker²⁵⁴—Yates’ girlfriend Camry Porter requested proof that the woman was, in fact, a building employee.²⁵⁵ Walker refused the request, and when Yates did not comply with the woman’s demand that he remove his socks or leave the pool, she called 911.²⁵⁶

According to Yates and Porter, they were the only Black pool-goers in the area on the day in question; the couple also claimed they were the only people targeted for removal for failing to wear “proper pool attire” inside the pool (video of the pool area taken by Porter appears to corroborate the couple’s claim that other pool-goers entered the pool wearing non-swim attire).²⁵⁷ Moreover, when the responding officer arrived and began inquiring into the events leading up to the 911 call, Walker offered to allow Yates and Porter to go to a different pool in the complex.²⁵⁸ It was then that Yates had a revelation: “That’s when I finally understand: It’s not the socks, it’s me.”²⁵⁹

Walker’s suggestion that the couple visit one of the development’s other pools betrays her motivation. Her primary concern was not whether Yates followed pool decorum or rules; had it been, then she likely would have sought to exclude the socked-feet guest from all of the development’s pools. In the act of seeking an alternative pool for the family to use, Walker laid bare the core element of all of the #LivingWhileBlack incidents recounted in this Article: the offending act was not Yates’ conduct; it was his very presence in the same space as the white complainant and other white pool-goers. These acts of “Living While Black” in integrated spaces—while uncomfortable for those seeking to maintain racially exclusive land uses—give rise to no cognizable civil claims, are not criminal, and ought not serve as a predicate for the intervention of law enforcement.

B. Denials of Racial Animus

Perhaps the most pernicious element of #LivingWhileBlack incidents has been the insistence of 911 callers that race “had nothing to do with” or was inconsequential in their decision to summon law enforcement. For instance, when Jennifer Schulte made her follow-up call to 911 about the barbecuers in the park—two hours after her initial call—the dispatcher explained that she needed to know Schulte’s race and other descriptors so that the police could identify her when they arrived.²⁶⁰ Schulte repeatedly refused to reveal her race to the dispatcher.²⁶¹ Twice when the dispatcher asked her race, Schulte declined to answer, insisting, “My race doesn’t matter.”²⁶² After repeated requests from the dispatcher, Schulte finally identified herself as a white person.²⁶³

Schulte also denied the relevance of race when asked about her motivations by Michelle Snider, the woman who captured the incident on a cellphone video. In response to Snider’s claim that her 911 call was racially motivated, Schulte responded that she had not called the police because of the race of the barbecuers.²⁶⁴ In her interactions with both the 911 dispatcher and the group targeted by her 911 call, Schulte sought to deny that racial animus may have played a role in her actions that afternoon or that she was exercising racialized privilege by confronting other parkgoers and claiming that the public park was “hers.” Similarly, across the bay in San Francisco, Ettel had likewise attempted to dismiss any suggestion that her asserting dominance over public space or her calling 911 to forcibly remove her eight-year-old neighbor from the sidewalk was motivated by race.²⁶⁵

The denial of race or racial prejudice as a factor in such incidents functions to further instantiate white supremacy as an organizing logic in society. So long as race is successfully denied, then structural racism need not be challenged or eradicated. The denial of racism is, as historian Ibram X. Kendi has argued, “fundamental” to its persistence.²⁶⁶ When white #LivingWhileBlack antagonists deny the operation of race in their decision making, they cast the targets of their 911 calls as wrongdoers. This discursive sleight-of-hand functions to criminalize and further stigmatize Blacks and has the added benefit (for the antagonists) of discouraging future Black incursions into spaces marked as “white” out of fear of harassment (or worse).

C. Tears for Fears: The Trope of Black Male Predation and White Female Vulnerability

The strategic use of a “Black violence narrative” is a trope that repeats in #LivingWhileBlack stories. Schulte and Ettel both employed this trope to shore up their claims to decidedly public space. Others have employed it to exclude and police Blacks in public accommodations.

When initially confronted about her choice to call Oakland police to report the Merritt Park barbecuers, Jennifer Schulte displayed steadfastness in the face of her critics, refusing to yield or end her call.²⁶⁷ Seconds later—once connected with the 911 dispatcher—Schulte began to cry and claimed to have been harassed.²⁶⁸ Once the dispatched police officers arrived on the scene, Schulte again began to cry, so much so that she was initially unable to communicate with the officers at the scene.²⁶⁹

Having aggressively (and unilaterally) initiated a confrontation with the barbecuers, and after threatening “ya’ll [sic] are going to jail,” it was only when she had the attention of the police and emergency personnel that Schulte utilized “white fear”²⁷⁰ and “damsel in distress”²⁷¹ strategies, claiming to be a victim of others’ aggression. In so doing, she cleverly tapped into the long history in this country of white fears of Black male predators. This myth of Black male predation has its origins in the post-Reconstruction era, as white political leaders began to traffic false claims about Black men raping white women to justify mob violence against Black communities in the South and West.²⁷²

Variations on this trio of discursive strategies recur in several of the #LivingWhileBlack incidents catalogued here. These tropes are antithetical to integration and, together, support the establishment or maintenance of exclusively white spaces under the protection of public law enforcement.

Conclusion

In the past year, there have been multiple calls for redress for the targets of #LivingWhileBlack incidents. These calls for redress have occurred on the federal, state and local levels. For example, after former White House staffer Darren Martin had the police called on him while moving into his Manhattan apartment,²⁷³ Martin and other targets of #LivingWhileBlack 911 calls petitioned the House and Senate Judiciary committees for hearings on racial bias and racial profiling.²⁷⁴

In April 2019, the city of Grand Rapids, Michigan held public hearings on a possible amendment to the city’s municipal human rights code that would prohibit “biased crime reporting.”²⁷⁵ The proposed ordinance would make violations of this section of the code a criminal misdemeanor, punishable under state law. Supporters of the ordinance pointed to a summer 2017 gathering in a local Grand Rapids park “in which police were called to break up a large gathering of African American community members.”²⁷⁶ The park in question, Mulick Park, is designated by the city as a “community and specialty park”—a category of public land uses whose stated purpose is to be the “recreational and social focus of the neighborhood and broader community.”²⁷⁷ Community and Specialty Parks have a broad purpose that is intended to serve all of the city’s residents (even those who reside beyond the borders of the parks’ immediate vicinity).²⁷⁸ Thus, per the city’s own regulations, the Black parkgoers were rightfully in place, and the 911 caller would have faced punishment under the proposed ordinance.

In July 2019, Oregon enacted legislation to create an individual cause of action for targets of #LivingWhileBlack calls.²⁷⁹ Under the bill, proposed by the legislature’s African-American lawmakers, targets of such calls will be able to sue for civil damages up to $250.²⁸⁰ Sponsoring Representative Janelle Bynum, the only African-American member of Oregon’s House of Representatives, personally experienced the stigma of #LivingWhileBlack. Over the July 4th weekend in 2018, when Bynum was canvassing door-to-door for reelection in Clackamas County, a woman called 911 to report that Bynum was exhibiting strange behavior.²⁸¹ The caller said Bynum was going “house to house,” knocking on doors, and that “the weird thing is she just stops at the end of the driveway whether or not she talks to somebody.”²⁸² While the lawmaker’s behavior might have looked like electoral canvassing to some, for the 911 caller in this overwhelmingly white county,²⁸³ Bynum’s presence looked suspicious.

The efficacy of these reform efforts remains to be seen. With amplified media coverage and local and national legislative attention, these initiatives may increase policymakers’ awareness of the issues explored here. The perniciousness of implicit bias means that we will never know for sure what motivated a #LivingWhileBlack antagonist to summon police for assistance. This inability to confirm, except in the rarest of circumstances, will leave triers of fact to rely on their own beliefs and assumptions—their own implicit biases—to resolve such disputes. Thus, civil liability schemes like Oregon’s are not likely to curb abuse of law enforcement calls.

While the initiatives are highly likely to raise awareness about the costs and risks of unwarranted calls to 911, they are, regrettably, highly unlikely to change human behavior. Each year in the United States, more than 240 million calls are made to 911.²⁸⁴ Calls requesting emergency assistance already exceed emergency responders’ capacity to respond in person.²⁸⁵ An effective intervention might be to target emergency dispatchers for enhanced training around these and similar incidents, implicit bias, and the negative impacts on communities of false police calls. As the American Civil Liberties Union has argued,

Department policies should instruct dispatchers not to unthinkingly send officers to respond to questionable calls with minimal information. When, for example, a caller reports a “suspicious person,” the dispatcher should collect enough information to identify whether the caller has seen possible criminal activity that is worth an officer’s time to investigate. If it becomes clear that the caller is simply being racist rather than vague or inarticulate, the dispatcher should have the discretion to tell the caller that they will not dispatch an officer without a legitimate basis.²⁸⁶

Even if dispatchers are better equipped to screen emergency calls and provide relevant information to dispatched officers without compromising public safety, police officers themselves may need enhanced training to respond to such incidents.²⁸⁷ The failure of local law enforcement agencies to devise departmental policies regarding responding to such calls may itself raise constitutional issues of equal protection.²⁸⁸ For this reason, in the wake of the Starbucks incident, the Philadelphia Police Department developed new policy around the handling of criminal trespass 911 calls.²⁸⁹

Finally, callers themselves may need to be questioned²⁹⁰ and advised against harassing their Black neighbors and others with whom they are legitimately sharing space.²⁹¹ Such an intervention was warranted when a white man in suburban Virginia called 911 after a Black man fouled him in a pickup basketball game at an LA Fitness gym.²⁹² The complainant, who earned the monikers “Flagrant Freddy” and “Checked Charlie” from social media users,²⁹³ became upset after a hard foul caused him to fall to the floor.²⁹⁴ He stormed off the court, alerting the group that he was going to call the police.²⁹⁵ This response—summoning police to resolve benign interpersonal conflicts—comes with risks. In this case, the responding police officer admitted that he thought he was responding to a fight.²⁹⁶ Law enforcement personnel responding to such calls may over or underestimate the resources (the force) required to maintain peace and order.

Rooting out Blackness-as-nuisance emergency services calls will require a comprehensive strategy—one that is aimed at raising awareness and enhancing public safety. Thus, potential 911 callers, 911 dispatchers, and first responders must be educated on the roles that they play in instigating and escalating #LivingWhileBlack incidents. Moreover, where possible, this educative strategy must be coupled with a consideration of how to give those who are actually “living while Black” the means with which to combat racialized territoriality and entitlements to space and place.

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