Aysha Pamukcu
Most laws are adopted to keep our communities healthy and safe. But even the most well-intentioned laws can backfire and lead to absurd or unjust outcomes. Unintended consequences can arise even when laws seem reasonable and commonplace. Such unintended outcomes don?t just happen at the federal or state level; local laws can sometimes miss the mark as well. The good news is that local governments are closer and more responsive to communities, so equitable change can often be more easily achieved at the local level.
Check out these 10 types of common local laws that may seem like good ideas but can be surprisingly harmful. If these laws exist in your community and are creating unintended negative consequences, you can use the resources in each section to learn more about solutions.
1. Nuisance Laws
Nuisance ordinances are local laws meant to curb undesirable activities that pose a risk to public health or safety, such as excessive noise, hazardous waste, or criminal activity. Nuisance laws are intended to keep communities safe and livable ? but at times they have the opposite effect. Usually, individuals or property owners who receive nuisance citations must stop the nuisance activity (eg, stop hosting loud parties) or else face a penalty, often in the form of a fine. But penalties can range in severity and sometimes cause undesirable and unjust outcomes. For renters, being the subject of a nuisance complaint can mean losing housing that might not be easily replaced. Nuisance laws can also disproportionately impact community members with fewer resources, such as people of color, persons with mental disabilities, or those experiencing domestic violence. One driver of this disparity is inequitable enforcement of nuisance laws for different types of people and different locations.
Nuisance laws can backfire, resulting in less safety in communities when residents fear reporting violence to the police and perpetrators gain impunity.
In Missouri, Rosetta Watson called police several times seeking protection from her abusive boyfriend and, as a result, was deemed a nuisance. This designation led to eviction from her home under a local law that bars people from living anywhere in the city for 6 months if they are determined to be a ?nuisance.? This particular type of nuisance was defined as more than 2 calls to the police about domestic violence within 180 days. There are similar ordinances across the country. Experiences like Rosetta?s can cause nuisance laws to backfire, resulting in less safety in communities when residents fear reporting violence to the police and perpetrators gain impunity. To promote community safety for all residents, localities can re-examine both their existing nuisance laws and their enforcement practices.
To learn more about promoting safe homes for everyone, check out the American Civil Liberties Union?s guide Safe Homes, Safe Communities.
2. Jaywalking Laws
Jaywalking is one of the most noticeable symptoms of streets and cities that were created for people who drive rather than people who walk, bike, or take public transit. Jaywalking laws have the worthy goal of deterring people from crossing streets in ways that could lead to collisions. But in practice, these laws also can lead to the criminalization of normal human responses to poorly designed streets. While it?s a common response to blame pedestrians for breaking the rules, often the dangerous ways they cross streets are the result of local government decisions as to where to place homes, businesses, streets, and crosswalks. And although jaywalking laws are well intended, research shows that they don?t actually make streets safer. At minimum, jaywalking laws can place large fines on people who walk ? fines that are often much higher than those for parking tickets. At their most extreme, jaywalking laws can lead to unfair consequences for people who don?t drive cars.
In Atlanta, Georgia, Raquel Nelson was prosecuted for vehicular homicide after her son A.J. was killed by a drunk driver as the pair crossed the street outside of a crosswalk. Raquel and her family were trying to walk from a bus stop to their apartment, and the nearest crosswalk was one-third of a mile away. And Raquel is not alone in being penalized for living without a car. Many cities, especially suburban developments, were built to support car transportation. But as more car-less residents ? such as low-income families ? move to neighborhoods designed for cars, they find that their needs are not taken into account.
So what can cities do? A good place to start is factoring in non-car modes of transportation when making decisions. In doing so, cities can create ? or retrofit ? streets that are safe for everyone, no matter how they get around.
To learn more about making streets safer for people walking, biking, and taking transit, check out A Guide to Building Healthy Streets from ChangeLab Solutions.
3. Fines for Minor Infractions
An important way to assess a law?s fairness is to see whether the penalty for violating the law is proportionate to the violation?s severity. In general, fines ? like any other penalty ? are in place for an important reason: to encourage people to follow laws. However, when fines are combined with court costs, numerous add-on fees, and potential late fees, the costs of a citation offense such as a speeding ticket can add up quickly. Failure to pay can then lead to disproportionate consequences ranging from a suspended driver?s license all the way to jail time for minor traffic violations. In effect, these cascading fees create a system in which the poor are penalized for being poor, even to the point of serving time in modern-day debtors prisons.
For Latrice Harry of Vallejo, California, an unpaid traffic ticket snowballed into a $1,400 penalty and a suspended driver?s license. Without the ability to drive, Latrice lost her job and her ability to easily visit her children. Stories like Latrice?s are even more common when local governments treat fines not just as enforcement tools but also as revenue generators. For example, the US Department of Justice issued a report on Ferguson, Missouri?s police and court practices that detailed many injustices. Among these was the city?s widespread practice of using fines to extract additional funds from its poorest residents, many of whom are black. Local governments and courts can make changes ? eg, reducing fines, creating payment plan options, or offering alternatives to fines such as community service ? to ensure that fines for minor infractions don?t unfairly penalize low-income residents.
To learn more about the issue and consequences of excessive fines for minor infractions in traffic courts in California and across the country, check out Paying More for Being Poor: Bias and Disparity in California?s Traffic System, a report by the Lawyers? Committee for Civil Rights of the San Francisco Bay Area.
4. Privatizing Water
Rightly recognizing that our aging water infrastructure needs attention, some cities have turned to for-profit water companies to own or operate public water utilities. While nearly 90% of people get their water from public utilities, water privatization continues to be a hot topic, particularly in small rural communities. Putting a vital public utility like water in the hands of the private sector has serious drawbacks. Risks of privatization include increased costs, limited transparency and public accountability, and poorer service, especially in low-income and rural communities.
In Dillon Beach, California, when a private water provider raised its rates, retiree Marjon Row was forced to choose between making her car payments and paying her water bill. She was paying 4?6 times more for her water than her neighbors in nearby towns. As more cities face tough decisions about their water infrastructure, stories like Marjon?s will be important for decisionmakers to keep in mind so that water works for all residents.
To learn more about water policy in your jurisdiction, check out Food and Water Watch?s report The State of Public Water in the United States. To learn about how to use policy to get clean water into rural communities, check out Closing the Water Gap: Using Policy to Improve Drinking Water in Federally-Unregulated Drinking Water Systems from ChangeLab Solutions.
5. Occupancy Standards for Rental Housing
Occupancy standards are laws that specify how many people can live in a housing unit. These laws are intended to promote health and safety by controlling dangerous overcrowding in residences. In general, these standards set limits on how many family members can live together in a single housing unit and then set a lower cap for unrelated people living together. The amount of these caps vary widely from city to city. Occupancy standards are not only impractical ? because they do not take into account the size of different housing units ? but also unfair, because they generally rely on a complaint-based system. Relying on community-generated complaints can cause unfair outcomes because complaints may be motivated by bias such as prejudice against renters or residents of low-income neighborhoods. Occupancy standards also treat unrelated people differently than family members. Unrelated people who live together are often more in more precarious housing situations ? for example, when low-income people or students live together to reduce costs.
In Manassas, Virginia, the city council voted to repeal a housing ordinance that restricted the definition of family to immediate family members. In theory, the ordinance was intended to control overcrowding, but in practice, it targeted the many Latino families in Manassas who lived with relatives. Eliminating occupancy limits ? like Bend, Oregon, and Sandpoint, Idaho, have done ? would increase the amount of inexpensive housing available in a region as well as prevent groups like Manassas? Latino community from being unfairly targeted.
Community-generated complaints can cause unfair outcomes when motivated by bias such as prejudice against renters or residents of low-income neighborhoods.
To learn more about how to use policy to make housing more affordable to more people in your community, check out the National Low Income Housing Coalition?s Advocates? Guide to Housing and Community Development Policy. For more about the relationship between health and housing, check out The BLOCK Project from ChangeLab Solutions.
6. Criminalizing Food Sharing
Cities have many good reasons for enforcing robust food safety standards. However, a subset of food safety laws restrict people from sharing food with community members who are homeless. These laws range from requiring a permit to share food in public spaces to making food safety regulations so stringent that food-sharing groups no longer have the capacity to comply. For example, certain food safety laws may require food handler permits or restrict food service to only hot meals in designated locations. Such laws have the effect of making it harder to be homeless rather than helping to solve the problem. Limiting food sharing ? especially when coupled with anti-vagrancy measures ? often ends up penalizing the homeless and those who seek to help them.
In Fort Lauderdale, Florida, 90-year-old nonprofit leader Arnold Abbott was repeatedly cited and arrested for providing meals to the homeless, in violation of a local ?food sharing? ordinance. The ordinance required ? among other things ? that charitable groups only share food outdoors if they do so: 500 feet away from residences, 500 feet away from other places sharing food, with written consent from the property owner, and with someone present who has Food Service Manager Certification from the state. Cities can revisit their food safety laws to make sure that they advance safety rather than penalize those who are homeless.
To learn more about policy solutions to help feed the homeless, check out the National Coalition for the Homeless? report Share No More: The Criminalization of Efforts to Feed People in Need.
7. Tobacco ?PUP? Laws
Tobacco possession/use/purchase (PUP) laws for youths are a set of laws that penalize youth for having tobacco products. PUP laws have the right idea of preventing young people from using tobacco products. But the laws target the youths themselves rather than the adults who sell to them or the industry that aggressively markets to young people and then profits from their addiction. The effectiveness of PUP laws is also questionable; research shows that PUP laws don?t actually do much to discourage youths from smoking. PUP laws can also be unfair to less-resourced community members. They risk stigmatizing and penalizing young people, in addition to frequently being disproportionately enforced among youths of color.
Youth PUP laws are one of the most common types of tobacco control laws and continue to be introduced across the country. Cities that want to support their young people in being healthy and drug-free can reconsider any existing PUP laws and think creatively about alternatives to curb youth tobacco use, including enforcement of other tobacco control laws. Possible solutions include strong prevention and education programs, enacting laws to raise the cost of tobacco products, and restricting the sale of common ?starter? products like menthol and other flavored tobacco.
To learn more about strategies to keep your community tobacco-free, check out the Campaign for Tobacco Free Kids? Tobacco Control Policies and Tobacco Retailer Licensing resources from ChangeLab Solutions.
8. School Discipline Policies
School policies are not technically laws but are included here to acknowledge the powerful impact they can have on local communities. All communities want their children to have a safe and supportive learning environment. But certain punitive school discipline policies can actually harm the students they should be protecting. Common examples are zero tolerance policies that give school officials no flexibility in discipline as well as exclusionary policies ? like suspension and expulsion ? to punish minor or vague infractions. The problem with many of these policies is that they can be inconsistently applied or poorly defined (for example, policies penalizing ?insubordination? or ?willful defiance?).
Children who are experiencing disciplinary or behavioral issues need support and corrective guidance rather than removal from the school environment.
As these policies have proliferated, national rates of suspensions, expulsions, and schools referring incidents to law enforcement have also risen. And these experiences have long-term effects both on children and communities. Excluding students from school is a predictor of whether kids will later come into contact with the criminal justice system, a process known as the school-to-prison pipeline and a phenomenon that affects students of color disproportionately.
In many cases, zero tolerance or exclusionary policies have created harmful outcomes for students, especially very young children. For example, in Columbus, Ohio, a third-grade student was suspended for saying ?yeah? instead of ?yes, ma?am.? In St. Petersburg, Florida, a 5-year-old student was arrested by local police for having a tantrum in her kindergarten classroom. In Newark, Delaware, a 6-year-old student was suspended and given 45 days of reform school for having a Cub Scout camping utensil that included a spoon, fork, and knife. While these examples are some of the more extreme incidents, they illustrate an important point: Generally, children who are experiencing disciplinary or behavioral issues need support and corrective guidance rather than removal from the school environment.
To learn more about equitable ways to improve safety in schools, check out Fix School Discipline (a project of Public Counsel) and the American Civil Liberties Union of Pennsylvania?s End Zero Tolerance.
9. Minimum Parking Requirements
Many communities require developers to build minimum amounts of parking for new buildings ? both residential and commercial. This practice is increasingly criticized because it subsidizes drivers at the expense of healthy, sustainable communities. By increasing local reliance on cars, parking minimums increase traffic and pollution, encourage sprawl, and hurt walkability. Parking minimums also drive up housing costs: If new housing units must be accompanied by parking spots, this increases the cost of building and decreases the supply of housing. And in communities with high housing needs, every dollar spent on parking is a dollar not spent on housing. For example, in developing affordable housing, building 1 parking space per unit increases costs approximately 12.5%, and 2 parking spaces per unit can increase costs by as much as 25%.
In Los Angeles County, California, the majority of buildings were constructed after parking minimums went into effect. The county now has a whopping 200+ square miles of parking, and the city continues to struggle with traffic congestion as well as affordability. To combat these types of problems, cities can do away with their parking minimums; they can also consider going a step further and converting existing parking spaces to other uses, particularly uses that are friendly to non-car transportation.
To learn more about parking management strategies, check out Richard Willson?s article ?Parking Management for Smart Growth? in ACCESS Magazine.
10. Preemption
While not a local law, preemption earns a spot on this list because of its increasing influence on whether and how local governments can pass laws necessary to protect public health and advance health equity. Preemption is a legal doctrine that allows a higher level of government to limit or even eliminate the power of a lower level of government to regulate a certain issue. As with any other tool, the impact of preemption depends on when and how it?s wielded.
Preemption has rapidly become the tool of choice for many state legislatures to hinder local government?s power to create laws that improve people?s lives.
For example, floor preemption, which sets a baseline standard, ensures that everyone enjoys the benefits of a law while preserving local authority to provide additional protections. Laws such as the federal Fair Housing Act and Fair Labor Standards Act help establish baseline protections that apply nationwide while leaving options open for stronger regulation. Even ceiling preemption, which sets maximum standards that no lower level of government can go beyond, can be beneficial in the right context. Consider, for example, the need for state laws that prevent local governments from hindering efforts to increase access to affordable housing. States may limit local governments? authority to further regulate and ultimately deny certain multi-unit housing developments.
However, it is clear that preemption has rapidly become the tool of choice for many state legislatures to hinder local government?s power to create laws that improve people?s lives. States have preempted many important local laws promoting health and health equity. For example, Alabama preempted Birmingham?s minimum wage increase; Wisconsin preempted Milwaukee?s paid sick leave law; and Texas preempted both Travis County?s immigrant sanctuary status and the City of Austin?s law prohibiting landlords from discriminating based on a tenant?s source of income (eg, federal housing assistance). In the face of preemption issues, cities can organize to preserve and protect local democracy and their ability to tailor policy solutions to their communities. Such efforts are critical to ensure that cities remain places of innovation where local governments and the people they represent have the power to pass their own laws to effect positive change.
To learn more about issues that your state may preempt, check out Grassroots Change?s Preemption Watch and the National League of Cities? City Rights in an Era of Preemption: A State-by-State Analysis. To learn more about public health and preemption, check out ChangeLab Solutions? preemption resources.
This piece is part of the Building Healthy, Equitable Communities Series and is the first of our policy posts exploring the often unexpected ways that laws and policies can help ? or hinder ? community health. Take a deeper dive into the topic of health equity through archived recordings of the companion webinar and conversation with an expert panel.
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Aysha Pamukcu is a senior staff attorney at ChangeLab Solutions, where she uses law and policy to make communities more equitable and inclusive. She leads ChangeLab Solutions? health equity practice. Through research, training, and technical assistance, she helps communities improve their policies on maternal and child health, healthy retail environments, and just food systems.
