®FC¯A Review of: ®MDUL¯Take Back Your Neighborhood®MDNM¯,

 by Richard Neely, 

Chief Justice of the West Virgina Supreme Court 


Mark H. Moore

February 14, 1992




®FL¯Introduction

	In ®MDUL¯Take Back Your Neighborhood®MDNM¯, Chief Justice Richard Neely of the West Virginia Supreme Court has written a passionate, provocative and stimulating call to arms to the citizens of America.®FNActually, to be entirely accurate, Justice Neely does not issue a call to ®MDUL¯arms®MDNM¯. Indeed, he is quite explicit that citizens who patrol their neighborhoods should not be armed with guns, but with other sorts of non-lethal weapons. He does, however, seek to mobilize otherwise passive citizens, and it is in this metaphoric sense that he issues a call to arms.¯ Observing that the formal institutions of the criminal justice system have been so hamstrung by conflicting purposes and special interests that "for every $100 worth of police man hours we purchase with our tax dollars, only about $2 or $3 will be spent on active patrolling to prevent crime",®FNRichard Neely, ®MDUL¯Take Back Your Neighborhood: Organizing a Citizen's Patrol Force to Fight Crime in Your Community®MDNM¯, p.85¯ he insists that the only plausible way society can now produce security in its neighborhoods is for citizens to "take the law into their own hands".®FN Ibid. p.18¯ 

	Moreover, while he understands that the very idea of "vigilanteism" stirs anxieties and worries among "limousine liberals", he argues that private and community self defense has long had the sanction of law and tradition, and that the only reason we private citizens have given over our "ancient power" to enforce the law is our "cupidity, pusillanimity, and sloth."®FN Ibid. p.30¯

	Finally, he argues that such efforts can be effective in controlling crime, reducing drug abuse, stilling fears, and preventing a further decay in racial hostilities without necessarily interfering with anyone's civil liberties. 

	Indeed, he believes that greater reliance on "community policing" (by which he means citizens patrolling their own neighborhoods), can increase the overall fairness of the criminal justice system by allowing the "working poor" living "close to areas dominated by an underclass predisposed to crime"®FN Ibid. p. 21.¯ to have the same response to crime that is available to wealthier people who can protect themselves from crime by physically separating themselves from the urban underclass, and by hiring private security guards who, unlike public police, can actually patrol actively, and preventively, and therefore really reduce crime.

	His goal in writing this book, then, is to provide a "historical, sociological, political, and economic justification for a community's taking the law into its own hands",®FNIbid. p. 22.¯ and to "explain...how citizen law enforcement can be organized legally and effectively, with no unacceptable intrusions into our civil liberties".®FN Ibid. p.18.¯ He wants to give America, and particularly the "predominantly blue-collar communities.. threatened by violent crime...and by the specter of their own children slipping into the underclass, criminal world...[who] can't pay to send their children to private schools;..can't pay to move to the suburbs; and can't expect the already overwhelmed public law-enforcement apparatus to protect them",®FNIbid. pp.21-22.¯ some new place to stand, and some new methods to apply in dealing with crime, fear, and disorder.

	This is an important and timely purpose. It is true that society has, quite reasonably, become less confident in the ability of the criminal justice system to protect it. Indeed, even those who lead criminal justice system have begun to preach about their limited capacities to make a difference, and to make an appeal for increased support from citizens. 

	It is also true that the overall level of private or community self defense seems to be increasing. Stories in newspapers of neighborhood drug fighters are but the most visible tip of the iceberg; the rest consists of dramatic increases in expenditures for private security, and increases in the number of private security guards.®FN Hallcrest Report on private Security.¯ 

	And, while it is true that academics have been looking at whether and how community crime prevention efforts can be successful for more than a decade, it is also true that we have not really worked out the philosophical and legal arguments for the forms of aggressive citizen patrolling that Justice Neely recommends, and that seem to be increasing in the United States.®FNRosenbaum Review Piece¯ So, Justice Neely has directed our attention to an important phenomenon, and to a potentially important instrument to grasp in seeking to control crime and enhance security.

	A harder question is whether Justice Neely has framed this issue well for the society to consider, or whether he has rushed too soon to a conclusion that cannot be whole-heartedly supported, at least with the explicit and implicit values he espouses as justifications, and on the evidence now available about effects. I hardly consider myself a "limousine liberal." Indeed, I am quite sympathetic to many of the views that Neely holds. 

	For example, like Neely, I am convinced: 1) that it is important that citizens assume more responsibility for self-defense; 2) that it is both legitimate and valuable to attack disorder and the "signs of crime" as well as crime itself; 3) that aggressive patrolling and sustained vigilance by citizens can control crime, reduce disorder and calm fears; 4) that the value of such efforts in controlling street level drug markets is particularly high; and 5) that there is a special need for all this in those communities that are struggling to keep themselves viable, or trying valiantly to emerge from an embattled state. So, there is much in his argument that would cause others' hackles to rise that leaves mine smoothe and unruffled.  

	Even so, I find Justice Neely's unbridled enthusiasm for "vigilantes" somewhat disconcerting, and his bland assurances about the overall efficacy and propriety of the efforts he recommends dissatisfying. Justice Neely is onto an important subject that needs to be discussed, and without the peremptory dismissals of the past. That much I grant him. But in setting up the issue for public discussion, in helping the society see what forms of community self-defense are worthy and make sense and which are dangerous, and in thinking how the community self-defense efforts might be linked to the public justice system, he misses the mark by a wide and potentially dangerous margin.

The Proposal: "Modern-Day Vigilantes"

	The first problem is to get clear about what Justice Neely is proposing. The broadest answer is that he is proposing an increased reliance on citizens' self-defense as an effective and just response to the nation's crime problem. But citizens' self-defense could take many different forms. 

	It could, for example, include moving from dangerous locations or combining together in associations to finance privately purchased security patrols. As Neely points out, these are the responses that wealthier private citizens have made to the weaknesses of public crime control. As such, they suggest the efficacy of citizen self-defense as a crime controlling and fear reducing enterprise. They also suggest the ultimate limitations and unfairness of these approaches if their use is limited to wealthier people in the community. Thus, the current existence of "vigilantes for the rich" (p.51) is used to give urgency to Neely's case for citizen mobilization not only by giving prima facie evidence of the value of such efforts, but also by suggesting that it would be unfair if these methods were only available to the rich.

	Citizens' self-defense could also take on more individualistic forms: arrangements that would make individual households safer, but might make neighborhoods more vulnerable. For example, citizens could stay off the streets to avoid being victimized (leaving the streets more dangerous than they now are because less widely used). Or, they could buy locks, burglar alarms, dogs, and guns to defend personal property (increasing the possibility that crime would be displaced onto others, and that accidents involving suspected crimes would occur). 

	Citizens' self-defense could even include special efforts taken by citizens to make themselves more useful to the public police. For example, citizens could organize themselves into passive "block watch" groups committed to remaining vigilant and calling the police when suspected crimes occur. Or, they could mark their property with special identifying marks that would help the police establish strong cases against burglars and fences, deter these activities, and facilitate the return of reclaimed poperty to their rightful owners. 

	These are all forms of private self-defense, and each could arguably add something to society's overall crime control capacity. Their utilization would also have some impact on the overall fairness with which the web of intermeshing private and public, individual and collective, security arrangements protected the society at large.

	But none of these forms of self-defense is Justice Neely's main concern. What interests him is a "modern-day vigilanteism" (p.13): community patrols organized, staffed, and implemented by ordinary citizens. He is at pains to distinguish these "active" citizen patrols from such "passive" forms of citizen self-defense as neighborhood crime watch groups in which the citizens act only as the eyes and ears of the public police. He also seeks to distinguish his community patrols from the "reactive" response of traditional police patrols which, in his view, are too remote from the ordinary lives of citizens, and too focused on unimportant problems such as traffic offenses and paper-work. Unlike the passive citizen roles of the recent past, and the fecklessness of modern police patrols, Neely's modern-day vigilantes are to be engaged in "active" and "preventive" patrols.

	The rhetoric is persuasive, but one still wants to know more concretely what he has in mind, and what would make this particular form of community self-defense plausibly effective. The answer is not too hard to find. On page 20, we learn that: ®LM18¯

"Community crime control groups...attempt to monitor the comings and goings of undesireable intruders and residents. Patrols closely follow pimps, prostitutes, drug dealers and panhandlers, so that their market is destroyed, and any implied threat to passers-by is eliminated. Inevitably, the undesireables leave for more hospitable climes, and the crime is eliminated." ®LM10¯

Somewhat later, on page 146, we learn that "the essence" of community law enforcement (a phrase he seems to use interchangeably with "community policing", "community patrolling", and "modern-day vigilanteism") is "enforcing the standards of the community within that community and keeping out strangers who are up to no good." In short, what he has in mind is a program of active harassment and "rousts" of undesireables carried out by citizen patrols rather than the public police.

	Two questions about this particular form of community self-defense inevitably arise. First, is there any reason to believe that such methods could be effective in controlling crime and enhancing security? Second, are such methods legally permissable or philosophically desireable?

The Efficacy of "Modern-Day Vigilanteism"

	In assessing the potential efficacy of Neely's "modern-day vigilanteism" one must first consider the aim. The most obvious objective, of course, is to reduce crime and victimization. But there are other objectives towards which these methods could be directed: namely, reducing disorder that is thought to lead to crime, or reducing the fear that is one of the most important adverse consequences of crime.®FN Neely discusses these other objectives in Chapter 6 of his book. It would have been more valuable to give these other objectives earlier prominence in the book since I think he is on much firmer grounds arguing for the effectiveness of modern day vigilanteism in dealing with these issues than in dealing with serious crime.¯ Indeed, Neely observes that an important, immediate consequence of modern day vigilantes is to reduce fears simply through the process of organizing them.®FN Neely, p.22. For a more complex view of the relationship between fear and the organization of community patrols, including the possibility that the organization of patrols ®MDUL¯increases®MDNM¯ fear, see Dennis Rosenbaum,____________.¯

	Now, one might reasonably think of crime, disorder, and fear as three separate problems -- each with its own claims on the commonweal, and each with its own solution. Indeed, that is what society, guided by experts and the courts, did throughout the 1960's and 1970's. They reasoned that law and the institutions of the criminal justice system were most properly and effectively used in dealing with the most concrete and serious part of the problem: namely, serious crime and actual criminal victimization. They were much less properly used in dealing with the less serious and more subjective aspects of the problem such as disorder and the fear that both crime and disorder engendered. Indeed, it was precisely in these areas that abuses of official discretion were most common. Therefore, to economize on scarce criminal justice resources, to minimize the intrusiveness of the law, and to eliminate the potential for corruption and abuses of authority, it made sense to focus virtually all of criminal justice system's attention on the most serious and most unambiguous offenses.

	More recently, however, arguments have been made that these problems are more closely intertwined causally, and nearer to one another in social importance than was once thought. In a very influential article, James Q. Wilson and George Kelling argued that the minor offenses associated with disorder -- vandalized property, drunks on street corners, noisy and threatening teenagers, aggressive panhandlers, etc. -- created two important problems that increased their importance as targets of crime control efforts.®FN James Q. Wilson and George L. Kelling, "Broken Windows" ®MDUL¯Atlantic®MDNM¯, ___________.¯ 

	First, the minor offenses might actually cause more serious crimes to be committed in the areas where they occured. This effect could occur because the disorder undermined neighborhood morale, and with that its capacities for self-defense and informal social control; or because offenders were attracted to areas that looked disorganized, and committed more serious crimes there; or because the disorder bred conflicts that escalated into serious crimes. Second, the instances of disorder frightened citizens as much or more than the actual rates of criminal victimization in the community. Fear was important both because it was an important social cost of crime, and because, in some circumstances, fear could undermine the community's capacity for self-defense.

	In any case, their observations established a new justification for being concerned about "disorder offenses" as well as "serious crime". This justification gained additional weight with the publication of Wesley Skogan's book, ®MDUL¯Disorder and Decline®MDNM¯, which presented a more sustained empirical argument for the mechanisms that Wilson and Kelling had suggested. But the greatest impetus for adopting their views came from the emergence of the epidemic of cocaine use, and particularly by the piece of that epidemic that involved the sale and use of "crack" in many of America's cities. There, right before America's eyes, it seemed obvious that the the introduction of illicit drug dealing to urban neighborhoods ®MDUL¯did®MDNM¯ result in increased disorder, serious crime and fear, and that this cycle could only be combatted by getting the drug dealers out of a neighborhood. To many, crack markets proved the accuracy and wisdom of the broken windows argument.

	The new concern with disorder (including street level drug dealing and open drug markets), and the widespread enthusiasm for enforcing against it, could not entirely escape from the previous criticisms of such efforts, however. Such efforts were bound to make heavy claims on public police departments burdened not just by traffic enforcement and paperwork as Neely would have it, but also by the need to respond to high levels of serious offending. Moreover, the legitimacy of such efforts remained suspect due to the fact that there was no bloody victim to give the clear, urgent, and precise justification for state intervention, and no guarentee that what laws existed to regulate such ambiguous conduct would be enforced equally across a city.

	What is interesting, however, is how the proposal to mobilize aggressive citizen patrols to focus on precisely these offenses responds to these past criticisms. If citizens were involved, the argument about scarce public resources and the importance of concentrating on important effects was weakened. There were now more resources available, and since they were voluntarily contributed, there was no need to offer a public justification for this particular use as against others.

	Similarly, the involvement of citizens in policing disorder offered a different kind of legitimacy to the effort. ®MDUL¯Political®MDNM¯ legitimacy was created for the actions by the community involvement, and that either strengthened the legal justifications for such efforts, or overwhelmed legal quibbles about whether such actions were appropriate or not. All this became particularly powerful when the neighborhood efforts could be cast as self-help by struggling communities that had few private resources and few effective claims on public resources either. 

	Thus, community patrols against disorder and disorderly persons can be made to appear much more appropriate and legitimate than public enforcement directed against similar offenses. Still, the question remains whether patrols like these are effective in controlling crime, reducing disorder, and stilling fears, and whether they can be justified even when (or perhaps especially when) they are mounted by citizens rather than the public police.

	As to the question of efficacy, Neely offers the following. First, he describes the effectiveness of citizen patrols in exclusive residential areas, and attributes the low crime rates in those areas (without further observation and analysis) to the effectiveness of the patrols in keeping unknowns and undesireables out of the community. Second, he repeats (uncritically and without additional evidence) the arguments made by Wilson and Kelling that explain why disorder leads to crime. Third, he notes some studies that have shown that higher levels and more aggressive patrolling have, in fact, reduced levels of crime (but ignores studies that have found such efforts to be ineffective). Fourth, he asserts (without evidence) that organizing community patrols reduces fear among those who are involved. 

	I don't want to be too much of a purist and say that there is no case here for claiming that there is some potential crime control value to be claimed by relying more on "modern-day vigilantes." Indeed, as I have said, I tend to agree with Neely's assessment of the potential value. But the evidence now available hardly establishes an unassailable case. If there were no other reasons to be concerned about "modern-day vigilanteism", it would certainly be worth some experimentation, even if not full scale efforts to assist nation-wide implementation. 

	But the problem is that there are some additional reasons to be concerned. These have to do with the legal and philosophical justification for such efforts. And it is here, even more than in the arguments about efficacy that Neely's reassurances feel much too superficial. Before turning to these, however, it is worth pausing for a moment and examining Neely's own theory about how community patrols can be expected to control crime and enhance security.

Neely's Theory of Crime and Crime Control

	Neely's theory of how community patrols work to control crime seems to have two somewhat different strands. By far the dominant strand seems to be that the patrols succeed because they exclude from the community outsiders who are up to no good, and recognized as such. As long as outside troublemakers can't get in, the neighborhood can be safe. That theme is emphasized by his stories of walled towns in the middle ages, and exclusive communities in modern America. 

	A lesser strand, more like the theory offered by Wilson, Kelling and Skogan, is that the community patrols will succeed in controlling disorderly conduct within the community. Of course, to the extent that that control succeeds by driving the disorderly conduct and disorderly persons from the community, and makes the people who were previously insiders outsiders, it acts exactly like the first model. And, again, that seems to be the dominant idea in Neely's mind.

	But every now and then, Neely seems to see a somewhat different set of possibilities. He observes, for example, that:

®LM18¯Much of the crime that annoys us is not committed by professionals, nor by armed and savage members of the underclass. Rather, it is committed by young men -- often, but not even usually, minority young men -- who have few prospects for making honest livings...Community intervention with failing adolescents..is an integral part of community patrolling, and it can prevent things from going too far along in the development of potential criminals.®FN Neely, pp. 103-104. Incidentally, there is a sentence, apparently garbled by the omission of some phrase, at this passage, and so I may not have understood Neely correctly.¯ ®LM10¯

He also observes that:

®LM18¯[A] person living in a housing project probably has a slightly different mix of friends from a person living on Kiawah Island, and that presents problems. It is difficult for peace-loving, law-abiding poor people not to have friends and relatives who are criminals.®FN Neely, p.119.¯ ®LM10¯

	I may be making too much of these observations and asides in his basic argument, but I do so because it helps to make two points that seems to be important. First, Neely seems to believe that community patrols may succeed by controlling the conduct and development of people inside the wall as well as by keeping those who are suspect out. Second, he seems to understand that it is both infeasible and undesireable to have the walls between the community and all others completely impervious. There may be some communities that have to include some "undesireables", and many others that could include such people without undue harm. And that this, too, need not expose the community to irreparable damage.

	If these are, in fact, possibilities, then the emphasis that Neely places on exclusion from the community is not necessary, and many of the problems that he creates for himself in emphasizing the exclusion of undesireables can be avoided. For example, if we read Neely to be suggesting that there is a fixed number of criminal offenders, and that the only way we can be protected from them is to banish them from our streets, then the best that can be done with community patrols is to displace crime from one place to another until the only victims are other offenders -- a spectre that Neely in fact holds out for us. On the other hand, if unruly teenagers can be deflected from  lives of crime, and if otherwise unruly people can be made to behave well while in the midst of the community through the use of community patrols, then there is the potential for reducing the overall level of crime as well as simply affecting its location.

	Similarly, if we read Neely to be saying that only those communities that can successfully exclude troublesome people can be crime free and secure, and we recognize, along with Neely, that some communities will not be able to achieve this result because they are economically and socially tied to those who would in other contexts be viewed as undesireables, then Neely's advice can be taken only by a limited number of communities in the society. On the other hand, if communities can somehow hold undesireables in their midst without becoming vulnerable to them, then all communities can benefit from Neely's advice.

	Finally (and most importantly), if we read Neely to be saying that the walls around communities must be very high, with limited entry, then we must be concerned about the extent to which public spaces have disappeared, and with it, the freedom to move about the society. If, on the other hand, communities can admit undesireables into their midst and control their conduct reasonably effectively, then the walls need not be so high, or so rarely breached. Public spaces can remain large.

	I suspect that these efforts to read into Neely's theory an image of community patrols that can help to shape the development of unruly teenagers, and can keep a community feeling secure even when it has undesireables in its midst (and therefore increase the overall tolerance of the community, and the freedom available to the undesireables), is ultimately unsuccessful. His dominant image remains predominantly one of sharp dichotomies: of people who have become unredeemably undesireable and dangerous, and can be reliably distinguished from those who are safe; of spaces that can be walled off from the rest of the society and given over to local communities that can establish and enforce their own norms of civility with little concern for the interests of others who have different views of proper conduct; and of a self-defense capacity that consists of nothing more than excluding those deemed undesireable rather than one that builds the capacity of the community to deal with its internal problems, and to hold within it some problems without falling apart.

	It is that view of community crime control that I think is dangerous. I am far more inclined to see fine gradations of people and of spaces, and to imagine a self-defense capacity that includes the ability to prevent the descent to lawlessness, to control misconduct even among those who have in the past committed crimes, and to enlarge rather than shrink the tolerance of local communities by equipping them with the capacity for self-defense and effective control through devices other than exclusion. And it is in this view of crime and the role of community patrols that the greatest hazards to civil liberties, and the greatest philsophical objections to Neely's theories lie.

The Propriety of "Modern-Day Vigilanteism"

	The crucial weakness in Neely's position lies in his bland assurances that the benefits of modern-day vigilianteism can be had without any risk to civil liberties. He develops this argument by establishing the legal rights of citizens to make arrests, by trying to draw a bright line between his "modern-day vigilantes" and the bad kind of vigilantes that have given the honorable tradition of community self-defense a bad name, and finally by offering some concrete suggestions about how the "modern-day vigilantes" should be recruited, trained, equipped and deployed.

	While there is much to be discussed here, I would like to concentrate on his efforts to draw the bright line between proper "modern-day vigilantes" and the other bad kinds of vigilantes. Neely draws the line in two places. First, the powers of citizens to arrest or question others never rise higher than those of the police. Second, the powers of citizens never extend to punishment of the offender. As long as citizens remain within these basic rules, they are behaving properly. As Neely explains:

®LM18¯[T]he real problem with vigilantes is usually inartfully expressed: It is not that they will `take the law into their own hands'; rather, it is that they will act ®MDUL¯outside®MDNM¯ the law.®FN Neely, p. 46¯ ®LM10¯

	So far, so good. But immediately a whole host of questions arise. It is obvious, for example, that in detaining someone or making an arrest, it may sometimes be necessary to use force, and that use of force may be seen as something that crosses the line from the force necessary to effect an arrest to something that looks like adjudication and punishment. 

	Neely is aware of this difficulty. Indeed, this forms the basis of many of his practical recommendations about staffing, training, and equipping community patrol forces. But it is by no means clear that one could live up to all his recommendations in establishing a community patrol force. Or, put somewhat differently, if one had live up to all the standards he proposes, there would be many fewer community patrol forces than at first seemed possible. Moreover, given that even his stringent standards fall well short of the sort of training that is given to public police officers, and that that level of training has not always been adequate to protect the rights of citizens, it is not at all clear that individual rights would not be put at jeopardy by citizens' patrols. Indeed, it is perhaps a measure of his own uncertainty about the efficacy of his proposals that he also recommends that community patrols acquire insurance against civil liability suits before going into the field!

	(It is also worth mentioning that Neely's discussion of the legal rights that a citizen has to use force in self-defense is given nowhere near as elegant or as detailed a treatment as one can get from reading George P. Fletcher's book entitled ®MDUL¯A Crime of Self Defense: Bernhard Goetz and the Law on Trial®MDNM¯. But this is not essential to Neely's argument.)

	Much more central to Neely's argument is the question of what kinds of legal powers citizens have to engage in the kinds of active, preventive patrols that he seems to have in mind. In discussing the historical development of crime control methods from a system that relied almost exclusively on private crime control efforts to one that gave over some of the functions to public agencies, Neely makes the following observations:

®LM18¯Protection from criminal violence, however, has three aspects: prevention (when possible), apprehension and punishment. Of the three, punishment has the lowest social utility, while protection (sic) has the highest. And with regard to both protection (sic) and apprehension, early English law relied on the community at large.®FN Neely, p.32.¯ ®LM10¯

	I assume that Neely means to say "prevention" where he has in fact written "protection"; otherwise the construct that establishes "protection" as the larger set composed of three sub-elements makes no sense. And I also assume that by "prevention" Neely means the kind of aggressive patrol directed at disorder and the signs of crime that is described as the essence of modern day vigilanteism.

	If I am right in both assumptions, then the important question that Neely must address is what particular kinds of legal rights citizens and police officers have not simply with respect to making arrests, but also with respect to the kinds of activities that are associated with Neely's style of "prevention"; i.e. following pimps and prostitutes and drug dealers and harassing them in ways that destroy their markets; or finding some basis for keeping undesireables out of a community. 

	I think it is fair to say that Neely offers relatively little guidance as to the law on these matters. And, if I understand the laws regulating the conduct of public police officers in these areas, the laws are much more confining than Neely implies. For example, it is quite possible that a "pimp" could bring a suit against a citizen vigiliante who followed him around the neighborhood asking questions. This question is not answered by referring to the laws governing citizens' arrests.

	I worry that the reason that these issues are not addressed is that Neely knows that citizens acting as vigilantes may be able to claim some extra-legal powers in such domains for precisely the same reasons that the public police were able to do so; namely, that the person whose civil rights are being violated is in a weak moral, economic, and political position to press that claim. Neely observes at one point that no law can be enforced without community support. That is certainly true. But the more interesting question in this context is whether local vigilante groups will be able to resist enforcing "laws" that have only community support and no real legal basis. In short, the worry is that in the crucial area of preventive patrol, community patrols may reach for the kind of extra-legal powers that will make them effective, but will also cause them to cross the line that transforms them into the bad kinds of vigilantes.

	While these problems are bad enough, I think Neely's analysis comes acropper most fatally in his analysis of "private spaces". It is clear that he believes that community patrols will work only in aowrld of private spaces. It is only the sense of ownership that motivates the volunteer citizens to take responsibility. It is only the consensus about community norms that authorizes, sustains and directs the collective action. As he says: "The proper model for law enforcement is widespread privatization of space combined with active community patrolling."®FN Neely, p.116¯

	The difficulty, however, is that something that is a public space cannot be made a private space simply by the decision of some collectivity to begin patrolling it as though it were a private space. One of the glories of a liberal society is that many spaces that were previously private, and within which, grave injustices could be perpetrated without recourse, have become public in the sense that individuals being oppressed within what is largely a private space can call on their state to have their rights vindicated. In effect, liberal society has evolved not only to ensure that citizens could have their rights defended agains despised criminal offenders, but also against the powerful lords who otherwise held them in thrall.

	It may well be that in the pursuit of ®MDUL¯gesellschaft®MDNM¯ we have cut too deeply into the private spheres and relationships that constituted a valuable ®MDUL¯gemeinschaft®MDNM¯. And it may also be that we have way under-regulated the expanded public spaces we have created -- leaving them arid and dangerous. And these may be the reasons that Justice Neely is not too concerned about reversing this tide, and reclaiming for private community uses some spaces that were once wholly public.

	But it seems to me that the challenge of restoring civility to the society is not simply to encourage citizens to form communities around their own deeply held values, and then patrol aggressively within their communities to make sure that all comply with the standards. The far harder challenge is to remember and invigorate the codes of conduct to which liberal communities commit themselves -- as communities not as atomistic individuals. Those values are not quite the same as the ones we would choose unconstrained for ourselves. 

	Individual members of liberal communities commit themselves to abiding by the criminal law, on pain of punishment if they transgress. They also commit themselves, as Justice Neely usefully reminds us, to rallying to the defense of their neighbors when they have been truly offended against. But as members of a liberal community they also commit themselves to ®MDUL¯not taking offense easily®MDNM¯, and through their tolerance and forebearance to hold open the spaces within which others can act, move, express themselves, and enjoy privacy. 

	In short, the challenge is not just to create communities, but to create ®MDUL¯liberal®MDNM¯ communities that can be policed by citizens in accord with those principles. That means not only not offending, and rallying to the defense of others, but also to not taking offense easily. It also means have a very broad definition of who is in one's community, and of not surrendering an assumed relationship of equality and brotherhood easily. These are the claims that citizenship in a liberal society makes on our efforts to form smaller communities.

Conclusion

	In conclusion, Justice Neely is quite right to be examining the opportunities and challenges of citizens' self-defense. Like him, I do not believe that the public agencies of the criminal justice system can do the job without the active assistance of individuals joined together in communities. 

	Unlike Justice Neely, however, I think the challenge is to rally local communities around traditional liberal values that include a deep concern for individual rights and liberty, a sense of equality, and a hope for redemption as well as the right and the obligation to develop and express one's own values within a congenial community, and to condemn those who violate the public's laws. In this sense, I hope to civilize public spaces rather than to give what was once public over to those who feel entitled to use it for private purposes.

	In this effort, I think the public criminal justice system has an important role to play. It can help create the conditions under which powerful community groups can arise by giving them proper support and assistance. Joined to community enforcement efforts, the public system can increase the legitimacy and power of the actions that citizens initiate. And it can also help remind citizens that they are not free to violate the rights of other citizens.