Policing public space

A Concordia University student in Montreal learned the hard way that sitting down in a public park can cost you, bigtime. $628, to be exact.

Brendan Jones was sitting, along with others, on some low granite ledges in Émilie Gamelin Park, taking in some sunshine. He was also interested in something else--police treatment of people drinking alcohol in the park. He whipped out his camera and started to take pictures.

A police officer approached him and indicated that she would like to have his camera. Jones refused. She was soon joined by two other officers. A ticket was issued for "using urban equipment for uses other than those intended."

Police bad faith here is glaringly obvious. Jones was told repeatedly, according to a police spokesperson, that people who wished to sit were obliged to use park benches. Despite the fact that many other people that day were sitting on the granite surfaces in the park, Jones was the only one charged with anything.

An urban space architect, Gavin Affleck, later noted that the whole point of these granite surfaces is for people to sit on them.

"A successful public space develops conviviality, use, social interaction, and obviously sitting around is basic," he said. "Trying to eliminate that from a public space is completely opposite to its whole intention."

So, then, whose "intent" will prevail? That of cops who love surveillance unless they're the subjects of it, or that of the designers of public parks, who want them to be places of relaxed social interaction? If Jones sets up a defence fund, I'll post particulars.

More generally, however, this incident raises a number of interesting questions. What precisely is public space? How do we defend it, and what form should that defence take?

I am a member of the Ottawa Witness Group, which, after a series of police assaults on demonstrators in Ottawa shortly after 9/11, came into being the following summer to monitor police behaviour at major political demonstrations in the Ottawa area. Our view is that the notion of public space embraces freedom of assembly and expression: public space is an agora, in other words, not merely physical space.

We take this idea of a peopled "public space" as a given. But two different authors add rigour to the concept, while displacing easy assumptions about it, and they force us to think about what it is that we are defending.

Canadian philosopher Mark Kingwell, in a provocative essay in the Literary Review of Canada this month ("The Prison of 'Public Space'"), begins his reflections with a quotation from the "Toronto Public Space Committee," which opposes surveillance cameras in public areas:

The proposed police cameras will be surveying public spaces throughout the city. We feel that it is reasonable to assume that law-abiding citizens should be free to walk the streets and enjoy the public spaces without being monitored by the police. The very act of continuous monitoring reduces the freedoms we all value within our public spaces. It puts into jeopardy our rights to privacy, and anonymity, on the streets of our city.

Kingwell is troubled by this. Philosphers rather too easily see public space as including "the right to gather and discuss, to interact with and debate one's fellow citizens." Public space is not merely what you find between private spaces. It goes well beyond: "Public space enables a political conversation that favours the unforced force of the better argument, the basis of just social order."

But, as he explains at length, this idealized notion of public space is contradicted by its very underpinnings: so-called "public spaces" are merely the sites of myriad extensions of private space. A shopping arcade, for example, is an "unpublic public space," a place where

private individuals enter into the so-called public space as floating bubbles of private space, suspicious of intrusion by strangers and jealous of their interests. On this model, "public" space is not public at all; it is merely an open marketplace of potential transactions, monetary or otherwise, between isolated individuals.

So long as that space is occupied by people engaged in individualistic pursuits, he argues, it isn't truly "public" at all. If he is right, then I fell into the trap myself, by using the word "agora" (marketplace) earlier. Kingwell calls for a "more radical reorientation," away from the property model of a space "available for everyone's selfish use." Our present conception of public space, he suggests, is of "leftover space," which forms the margins of private holdings and commercial enterprises. And omnipresent surveillance simply goes to remind us that these interstitial spaces are not ours, but the state's:

Contemporary western societies remain an uneasy hybrid of associational and authoritarian social forms: democracy is a confusion of claims for individual liberty made among state-controlled structures of order and security that may, at any moment, revert to violence.

"There can be no useful recourse to public space," he says, "unless and until we reverse the polarity of our conception of publicness itself." Indeed, he concludes, all space is public space:

We cannot enter the public because we have never left the public; it pervades everything, and our identities are never fixed or prefigured because they are themselves achievements of the public dimension in human life.

Where I part company with Kingwell is on the notion of surveillance. And I do so uneasily. Certainly the idea of police surveillance of "public space" has Orwellian overtones. Surveillance ("the gaze") is an essential aspect of Michel Foucault's notion of discipline. It is an exercise of institutional power--in clinics, prisons and mental hospitals, for example. We begin to "watch ourselves," in both senses of the phrase. We fall into line.

But one thing the Ottawa Witness Group noted early on is that this cuts both ways. The police didn't like being under surveillance themselves. Indeed, a senior officer at a meeting I attended claimed that our mere presence, taking notes on the scene and recording events with our cameras, "interfered" with the conduct of officers' duties. We can also remember the many amateur videos, from the Rodney King beating to the recent killing of Robert Dziekanski, in which police accounts have been instantly falsified or put seriously into question by quick-thinking citizens.

It is precisely this point that David Brin (The Transparent Society) is advancing when he argues against the very notion of privacy, from quite a different standpoint than Kingwell, but not necessarily a contradictory one. Here is an interesting interview with him on a talk show, on the very question of video surveillance. We worry about Big Brother, he says, but the most chilling thing about the dystopia of 1984, in which the state is always peering at us, is that we can't look back. He argues that trying to stop surveillance is akin to King Canute trying to stop the tides (yet another misstatement of Canute's real mission, but let it pass), so that citizens with cameras in our increasingly transparent society can enforce accountability. And here's Glenn Reynolds, making the same argument.

So even though one of my fellow Witnesses pursued individual complaints against police for videotaping demonstrators, I am less offended by this--so long as we can videotape them right back. Cops who sadistically use Tasers are popping up on YouTube all the time. Here at home surveillance cameras in a Tim Hortons caught two cops whaling away on a harmless drunk. If surveillance in a public park is a disciplinary gaze, so too is the increasingly common surveillance of police--a democratic response to police abuse of power, and probably more effective than citizen complaint mechanisms.

Back, then, to Émilie Gamelin Park, where all of these issues came together in an odd conjuncture. Here is a "public space," that isn't really public at all. It is heavily policed. Members of the public aren't even allowed to sit anywhere other than in designated spots (benches) set aside for the purpose. The park is actually a confined space of regimentation and control. The police, who were there to enforce the rules in this "public" place where Brendan Jones sat down, tried to obtain his camera, and then issued a punitively high-priced ticket for daring to sit in the wrong spot (but really for daring to put them under surveillance).

Brendan Jones is being punished for trying to make police accountable in our not-yet-transparent society. And the officers' retaliation exposes, in a single act of indisputable malice, the flimsy, indeed illusory, nature of "public space."