#LivingWhileBlack: Blackness As Nuisance

Abstract

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.

Keywords: property, race, right to exclude, nuisance, trespass