In early November, video of police officers arresting a churro vendor in a New York City subway station quickly went viral. Public outrage was swift, leading to local and national news coverage, eliciting responses from politicians, and triggering several protests in support of food vendors.The arrest came amid heated debate on overpolicing and overincarceration in New York, debates that came to a head this autumn with the city council vote to spend $8 billion building four new jails, supposedly as a way to close Rikers Island, and the recent announcement by the governor, Andrew Cuomo, that the Metropolitan Transportation Authority would hire 500 new police officers to enforce quality-of-life issues in the city’s subway system.The video of Elsa, a single mother selling churros, followed on the heels of several other viral videos showing the aggressive policing of the city’s transit system. With train delays, inaccessible stations, overcrowding and rising prices, many question the need to invest $50 million a year in new police officers instead of improving service and installing elevators. But Elsa’s story, along with that of other vendors arrested a few days later, fits into a longer history of cities regulating street vending to surveil and marginalise people of colour.The regulation of vendors in New York has been a haphazard affair since the Revolutionary era, but the present framework began during the Depression in the 1930s under mayor Fiorello La Guardia’s administration. Since the early 20th century, peddling fruit and household items from small carts had served as an easier way to start a business. Progressive reformers focused on the supposed health issues stemming from traditional pushcart vendors on the Lower East Side, many of whom were Jewish and Italian immigrants carrying on traditions from Europe.Reformers proposed, and La Guardia instituted, the creation of vendor markets, select locations where peddlers could sell their wares and begin the transition to brick-and-mortar stores, a more respectable site for commerce and one that would give vendor owners a stake in maintaining property values.To push vendors into defined markets and clean up city streets, officials enacted restrictions on where and when vendors could sell. These time-and-place restrictions frequently fell during peak business hours and along major commercial arteries. However, enforcement was somewhat lax and fines low enough that many vendors considered them the cost of doing business in the city. Immigration restrictions coupled with post-war affluence led to a relative decline in the number of street vendors, so much so that opposition was limited and many, including future mayor Ed Koch, considered them a vital part of the city’s “street scene”.By the late 1960s, street vending was on the rise again as African-Americans from the South, Puerto Ricans and people facing slowdowns at work turned to vending to make a living. The city’s Consumer Affairs Department proposed lifting time-and-place restrictions to entice more of these vendors to become licensed and raise city revenue. But powerful business interests disagreed, and they joined forces to protect what they called the “business climate” of the city. Business organisations lobbied city officials to clear vendors out of midtown and downtown Manhattan in an effort to stem the outflow of companies to the suburbs and beyond, fearing that the mere presence of vendors scared away Fortune 500 companies that would otherwise rent office space.One of the more vocal groups, the Downtown Lower Manhattan Association, formed through the efforts of then-governor Nelson Rockefeller’s brother, David, who was the head of Chase Manhattan Bank. The DLMA and other organisations, such as the Fifth Avenue Association, lobbied hard to shut down remaining street vending and curtail plans for expanding vending licences, which they argued would lead to more trash and dangerous overcrowding that would force pedestrians into the streets. That type of environment would not lure business back to the city, they argued. Instead, it would decrease property values, undermine small bricks-and-mortar business owners and produce crime, grime and decline in business districts.Ultimately, the anti-vending forces won. City officials added more restricted streets, increased fines and fees for violations, capped the number of vendor licences and permits, and allowed police officers to seize carts and merchandise. Many of the groups that pushed for harsher restrictions and more punitive fines went on to form business improvement districts with massive funding — the DLMA was the precursor to the present-day Downtown Alliance.In the 1990s, regulating vendors fit neatly with expanding quality-of-life measures, and new limits and bans were placed on vendors in midtown Manhattan. That many of these vendors were newly arrived immigrants such as Amadou Diallo helped only to cement the overlap between racially discriminatory “broken windows” policing and spatial control of vendors on the streets. As more people sought to vend, regulations forced them into precariousness, leading many to take the risk and work unlicensed and others to rent permits for outrageous sums.New York state senator Jessica Ramos recently sponsored a Bill that would lift the cap on vendor licences citywide. At present, general merchandise permits are capped at 853, a ceiling put in place in 1979. The waiting list for these permits has been closed since 1992. Food-vendor permits are capped at 2,900, a limit last revised in 1983. The waiting list for these is incredibly long, and many vendors end up leasing permits on the black market. A food-vendor permit that usually costs $200 can instead be leased for $25,000. Permits are required in addition to a vendor licence, which costs $50.After the outrage over Elsa’s treatment in the subway, Ramos’s Bill is gaining traction and a #LiftTheCap campaign is trending. The problem with this proposal is that it ignores the half-century of policies that got us here. Lifting the cap on the number of available vending licences will do little if time-and-place restrictions remain — restrictions that block vendors from the most lucrative areas in New York City. The recent legalisation of street vending in California demonstrates the need for comprehensive reform. In Los Angeles, where vending had been banned, the city council has approved new fees — after July 1, 2020, permits will cost $541, a price that will put a strain on many small vendors. In Santa Monica, vendors have noticed an increase in police surveillance along with stiffer restrictions on where and how they can vend.In New York, vendors already need permits to sell in city parks, to operate in the subway and to work on streets. Even with a permit, there is no guarantee that someone like Elsa could work in her chosen spot or even a well-trafficked one. More likely, it would expose her and others to hefty fines and fees, and greater police intervention, as has been the case in California. The outrage over police harassment of Elsa and other subway vendors is an opportunity for New York to serve as a model for other cities by finally reconsidering the time-and-place restrictions that have piled up since the 1930s, and the city needs to do so while taking into account all voices, not just the opinions of the most powerful.Today, as in the 1930s and 1960s, the debate about street vending is a matter not only of creating an orderly process, but of targeting people trying to make a living outside of what is considered acceptable. The question is, what kinds of cities do we want to live in? One where “health”, “order” and a “business-friendly climate” mask anti-immigrant sentiment and dictate the look and feel of our public spaces — or one in which a city’s improvised culture and can-do spirit thrive? The answer may begin to address the extreme inequalities that mark American life in 2019. •Jess Bird, an urban historian, is a Mellon/ACLS Public Fellow