Mutually Assured Regulatory Destruction

This story in The New York Times strikes me as involving a journalistic blind spot of a characteristically left-liberal sort. It’s presented as a landlord-tenant dispute with an immigration enforcement twist, but there’s more to it than that. The “more to it” is right there in the story, but treated as an afterthought, not quite a case of “burying the lede,” but definitely a failure to explain what happened.

Here are the basics: the tenant (Ondaan), an undocumented immigrant, rents an apartment in Queens, then falls behind on her rent. The landlord (Lysius), facing pressure to pay her mortgage, initiates proceedings against the tenant, getting a judgment in her (the landlord’s) favor, apparently without  being able to collect on the back rent. Meanwhile, the tenant applies for a green card. Learning of this, the landlord threatens to report the tenant to ICE for fabricating information on her (the tenant’s) green card application. The tenant eventually gets the green card and moves out, still owing the landlord $14,400. The landlord never collects (or hasn’t yet collected) on the back rent, and is eventually forced to foreclose on the building. Soon after the landlord makes her threats, the tenant complains to the New York City Commission on Human Rights about the threats, eventually winning a judgment against the landlord.

Upshot: the landlord loses big time. Besides not collecting the back rent and losing her building, she faces a $17,000 fine for the human rights violation. The tenant’s situation is less clear. Having gotten the green card, her presence in the United States is presumably assured; she’s still obliged (you’d think) to pay the back rent, but it’s been two years since she last paid rent, at least to Lysius, and it’s not clear how much of it, if any has been paid. Since it hasn’t been, it’s unclear whether it ever will be. The legal status of the tenant’s non-payment is much less clear than the legal status of the landlord’s threats.    

Given the preceding summary, the most puzzling aspect of the story is the basis of the landlord’s threat to report the tenant to ICE. The basis was not simply that the tenant was an undocumented immigrant. Nor was it simply that the tenant was an undocumented immigrant who happened to be in arrears on her rent. Those were all relevant factors, but not the only ones involved. The last paragraph of the passage below hints at another relevant factor, muted in the reporting:

Ms. Ondaan, 47, had been living as one of two tenants in a two-family building owned by Ms. Lysius in Jamaica, Queens, when she stopped paying rent in the fall of 2017, according to court papers. Ms. Lysius successfully challenged Ms. Ondaan in housing court for the back rent.

She also began sending hostile messages to Ms. Ondaan in January 2018, according to court documents.

“It was fun and games when you calling DOB,” Ms. Lysius wrote in one message, referring to the city’s Department of Buildings. “Now it’s fun and games calling immigration 12 times a day. They can deport you.”

The article focuses on Lysius’s threatening to call ICE on Ondaan, but passes over in relative silence Ondaan’s actually calling New York City’s Department of Buildings (DOB) on Lysius. The impression we get is that Lysius’s motivation for threatening to call ICE was purely pecuniary: Lysius threatened to call ICE to coerce Ondaan to pay the back rent, full stop. It’s almost certain that Lysius did threaten to call ICE for that reason. But the DOB reference suggests that Lysius had a separate reason (whether justifiable or not) to threaten to call ICE–as retaliation for Ondaan’s calling DOB on Lysius.

The article mentions this issue in passing, but dismisses it without consideration.

At the time, Ms. Lysius had fallen behind on her mortgage and was facing foreclosure on the rental property. Her financial situation likely played a large role in her decision to send the hostile messages, Judge John. B. Spooner wrote in his recommendation.

Ms. Lysius also contacted immigration authorities four times seeking information on how to make a complaint if she suspected someone was falsifying information in order to receive a green card. Ms. Ondaan had applied for a green card in February 2018.

The landlord later alleged that Ms. Ondaan was fabricating the allegations against her to receive a green card, a claim that the administrative judge dismissed.

The first paragraph suggests, plausibly enough, that Lysius’s financial situation “likely played a large role in her decision to send the hostile messages.” The second and third paragraphs allude to the other factor that likely played a role to the same end. But the reporting on this other factor raises more questions than it answers.

Take for granted that Lysius contacted immigration authorities four times seeking information on how to make a complaint in a case where someone is thought to be falsifying information in order to receive a green card. I assume that Lysius’s contact with the immigration authorities was roughly contemporaneous with Ondaan’s applying for the green card. Passing question: If so, how did Lysius know that Ondaan was applying for a green card? It seems odd to think, under the circumstances, that Ondaan would have told her. But how else would she have known?

More significant question: Lysius alleged (presumably to ICE) that Ondaan “was fabricating allegations against her to receive a green card.” I assume that these “allegations” refer to Ondaan’s calls to DOB, but the article doesn’t explicitly say that. It’s also not immediately apparent what bearing a tenant’s complaint to DOB about a landlord would have on receipt of a green card. Maybe there is a connection, maybe not. But if there is a connection, the reader needs to know what it is, and if there isn’t, the overall mystery needs clarification. On the face of it, the relevant issues are left somewhat unintelligible.

Anyway, we’re told that Ondaan made allegations against Lysius, and eventually told that an administrative judge dismissed those allegations. But we’re not told what the allegations were,  what relation they had to the green card application, why the administrative judge dismissed the allegations, and with what justification he did so.* One gets the impression that the reporter, aiming to present Ondaan in the most favorable or sympathetic light, was content to take the administrative judge’s dismissal of Lysius’s complaint on faith–or content to expect readers to do so. But I see no reason to do so. Judges aren’t infallible. This one could be wrong. If so, we’d want to know that: whether or not he was wrong is relevant to an overall (moral) verdict on the case.  Even if he was mostly right, he might have been narrowly right about the law rather than about the substantive issues involved. It’s at least within the realm of possibility that there was something to Lysius’s complaint about Ondaan on the issue of fabrication. The reporting doesn’t clarify, but should.

My point here is not that Lysius was morally justified in threatening to call ICE out of retaliation for  Ondaan’s having called DOB. My point is that Lysius’s threatening to call ICE is partly explained by Ondaan’s having called DOB, and we miss a significant part of the story if we omit this fact. It’s tempting to think that Lysius was motivated by greed, and nothing more than greed. Greed is the stereotypical motivation of the stereotypical landlord. It’s easy to invoke as an explanation in this context because the stereotype does so much of the explanatory work: if landlords are greedy, and this one acted out of greed, it looks as though we have an explanation of what happened that conveys all the understanding we’d want.

But that appearance is deceiving. Lysius seems to have been motivated by a combination of greed and a certain nameless but easily recognizable emotion. We could call it “anger” or “rage,” but that’s too generic. We could call it “vindictiveness,” but that misses the righteous indignation involved. I’m speculating here, but I suspect that Lysius threatened to called ICE as much for monetary as for retributive reasons in the philosophical sense of “retributive”: she wanted to punish Ondaan for wrongdoing by producing (or threatening to produce) the kind of harm she thought that Ondaan deserved to suffer. The issue here is as much about Lysius’s wanting to collect a debt as about her wanting to send Ondaan a moral message about hypocrisy, double standards, and standing to blame. The message was not simply, “You owe me money, and I want it now,” but “How dare you come here unlawfully, have a child, skip out on the rent, and call the DOB on me for my failure to live up to the law? You want law? I’ll show you law!”

Instead of passing moral judgment on either of these women,** it seems more constructive to identify the dynamic at the heart of their dispute. I call it mutually assured regulatory destruction. It works like this. Assume that you and I are playing this game. I have dirt on you. You have dirt on me. Since we both know this, and both realize that our knowledge is a weapon, we mostly keep quiet about what we know. But now some exogenous factor enters the equation to upset the usual equilibrium. You fail to pay the rent, you sleep with my wife, you insult me–whatever. To coerce you to do something I want you to do, I report your dirt to a regulatory agency; in retaliation, you respond in kind. And then we let the machinery of the state take over. Alternatively, we merely hold out the threat of reporting in order to terrify one another into action or inaction on the grievances we have against one another. Once again, the machinery takes over. There are as many variations here as there are types of grievance, types of regulation, and types of regulatory agency. Do the math, and you get dozens of permutations. Work out the permutations, and you get game theoretical matrices describing the psychopathology of everyday life: it’s like Von Neumann meets Freud–in Queens.***

It’s essential that the dirt involved is administrative or regulatory rather than criminal: mutually assured regulatory destruction is an activity engaged in by “regular” people, not by criminals. When people play it, one often gets the impression, especially through journalistic accounts, that the game is driven by individual greed, when in fact what it’s driven by is the retributive outlook so many people regard as civilized, hitched to a regulatory structure so arcane, nit-picky, and arbitrary in its demands that it incentivizes mutual destruction as a matter of course. The great thing about it is its egalitarianism. Anyone can play.  Alas, not everyone can win.

Too much mainstream journalism, especially left-leaning journalism, misses this. It treats regulation as justified by default, and regulators as justified by default, often missing the errors and ill-will of those who rely on, deploy, or live in terror of, the regulatory state on a daily basis. Precisely because reporters don’t, as a professional matter, have to deal with the regulatory state, they don’t seem to grasp what it does, what it’s like when it becomes dysfunctional, and how people relate to it at its worst.

What we get instead are morality plays about greedy landlords and the comeuppances that finally come their way when the good guys finally step in. I’ve dealt with my share of greedy landlords, and don’t dispute either their existence or their venality. But there was more to this story than greed or venality, and more to it than a landlord using ICE to collect the rent. The Times missed the story, and it’s not clear anyone else will do any better.

You can’t report on regulatory matters without reporting on the nature of regulation and the dynamics of the regulatory state. But you can’t really report on any of that if you take regulators on faith, as this reporter seems to have done. Mainstream journalism likes to pride itself on its devotion to facts. That pride would have greater justification if mainstream journalists were as skeptical of the regulatory state as they are of the people it regulates.


*In the original version of this post, I had written that we are not told “to whom” the allegations were made. What I meant is that Lysius threatened to call ICE, but it’s not clear what agency she actually called. The article refers vaguely to “immigration authorities.” That could be a reference to ICE, but may not be. And Lysius is described as seeking information from “immigration authorities” about how to handle a case of fabrication, not alleging anything to them. She is then described as “later” alleging that Ondaan had fabricated information on her green card application. The context suggests that this allegation was made to the judge presiding over the human rights violation case, presumably within the context of the trial. I take it that this is Judge John B. Spooner, the judge mentioned in the article. But given that Lysius appeared pro se in the trial, it’s not clear to me how much weight to give Spooner’s dismissal of her allegation.

**I don’t mean to imply that one couldn’t or shouldn’t. One could; I’m just not.

***Did von Neumann ever meet Freud? I don’t know, but intuitively, you’d think the two of them did meet. I  can’t really see them meeting in Queens, though.

One thought on “Mutually Assured Regulatory Destruction

  1. After reading a bunch of articles on this case, it occurred to me that I misunderstood one of the passages I commented on from the New York Times article I was discussing:

    The landlord later alleged that Ms. Ondaan was fabricating the allegations against her to receive a green card, a claim that the administrative judge dismissed.

    I read that as saying that the landlord alleged that Ondaan was fabricating the allegations made against the landlord to the Department of Buildings. On reading a few other articles in other news sources besides the Times, it became clear that the landlord was alleging that Ondaan was fabricating the allegations involving the text messages to ICE. In other words, the landlord is saying that the text messages themselves are fabrications. That hadn’t occurred to me when I wrote the post (and isn’t mentioned anywhere in the Times article); I was taking for granted that the text messages were an established part of the record, but the landlord is contesting their accuracy or veracity in some way (I don’t understand how, and haven’t seen it explained anywhere).

    My mistake reinforces the point I was making, however. I assumed that the Times’s reporter would have made some effort to follow up on the issue of Ondaan’s complaints to the DOB. After all, if true, the complaints would be yet another strike against Lysius. So I assumed that the reporter was herself dismissing their significance by citing the administrative judge’s dismissal of the claim that they were fabricated. In fact, the reporter quotes a text message (or a supposed text message?) that makes reference to the DOB complaint, but then drops the DOB matter altogether, leaving it even more of a mystery than I’d surmised when I wrote the post.

    That said, no other news item I read makes any effort to pursue the DOB angle. They simply clarify (as the Times item does not) that Lysius claims that the text messages to ICE are themselves fabrications of some kind. A few of these reports offer the cursory observation that Lysius is a pro se defendant, but none addresses the disadvantages a pro se defendant faces in encountering a city agency in court; hence none says anything about the defense Lysius might have mounted had she had had competent legal representation. For whatever reason, Ondaan is sympathetically quoted in the Times piece, but Lysius is not. The result is a fairly tendentious, one-sided account of the case. The only direct quotation from Lysius I’ve seen in the press is her flat assertion that everything in the Human Rights Commission Report is false. (To be fair, it’s not clear she was interested in saying much more.)

    It’s worth noting that Ondaan has been ordered to pay back a portion of the back rent (I’ve seen different figures for how much of it is to be paid back, ranging from $6,000 to $8,000). No report indicates whether she’s paid the ordered amount, or even paid any part of it, and no report makes an attempt to explain why she is only liable for $6,000 or $8,000 of the back rent, given a court ruling that she owed $14,400.

    Liberals often wonder why conservatives regard mainstream news outlets as “fake news.” It’s not so much the fakeness of mainstream news as its tendentious selectivity that’s the problem. The liberal press wants to use this case to highlight the (very real) dangers of coercion: coercing someone to do X by threatening to report them to ICE. Meanwhile, the one right-wing item I saw, from Law Enforcement Today, just engages in a mirror-image version of the liberal press: the writers at Law Enforcement Today are annoyed that the very idea of regulatory coercion is coming into question! I mean, if being undocumented is illegal, and an undocumented renter fails to pay her rent, what could be wrong with initiating a deportation proceeding against her? If being undocumented is illegal, well, obviously being illegal means you have no rights, so hell, anything goes.

    In other words, one side thinks that it’s not a big deal to be harassed by the Department of Buildings, and the other side thinks it’s not a big deal to be deported for non-payment of rent. Of the eight or nine items I read, not one follows up on the DOB issue. Unsurprisingly, not one mentions the regulatory free for all I discuss in my post.

    https://www.wsj.com/articles/new-york-judge-fines-landlord-17-000-for-threatening-to-call-ice-on-tenant-11568931010

    https://www.cnn.com/2019/09/21/us/ice-judge-new-york-city/index.html

    http://www.abajournal.com/news/article/judge-says-landlord-should-pay-17k-for-threatening-to-call-ice-on-tenant-decision-could-be-a-first

    https://gothamist.com/news/queens-landlord-fined-17000-threatening-call-ice-tenant

    https://thehill.com/regulation/court-battles/462468-nyc-landlord-ordered-to-pay-17k-for-threatening-to-call-ice-on

    https://www.lawenforcementtoday.com/tenant-stops-paying-rent-landlord-fined-17000-for-threatening-to-call-ice/

    Like

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