VT Digger | September 27, 2017

Legal advocates warn against Burlington crackdown

BURLINGTON — The American Civil Liberties Union of Vermont and Vermont Legal Aid are warning city officials that an ordinance criminalizing “quality of life” violations could result in legal challenges.

The City Council approved a resolution on Aug. 28 that calls on its Ordinance Committee to draft a new ordinance that “creates a criminal penalty for repeat offenders” for civil infractions including public intoxication, public urination or littering.

The letter from the two legal groups says that instead of criminalizing minor violations, the city should expend more resources to address the “root causes” of such behavior, which they say are poverty, homelessness, substance abuse and mental illness.

“Our goal was really to tell the city, the choice should be clear, we can either take the easy route to criminalizing petty code violations, or we can actually make the city a safer better place,” said ACLU Staff Attorney Jay Diaz, who has been a vocal critic of the proposed ordinance.

The City Council passed a second ordinance calling on its Public Safety Committee to review existing safety net services in Burlington and work with social service providers to improve their delivery, but supporters of the new criminal penalty maintain it has a role as well.

Burlington Police Chief Brandon del Pozo has argued the ordinance will create accountability for people who currently ignore the civil tickets they are issued, accruing thousands of dollars in unpaid fines in some cases.

It will also give officers a way to remove people who are intoxicated and causing a disturbance from downtown before their behavior turns violent, the chief has said. Police say the new ordinance is needed because of several recent incidents of violence in or near City Hall Park.

Councilor Kurt Wright, R-Ward 4, who sponsored the resolution calling for the new ordinance, said he was spurred by the frustrations of downtown business owners, some of whom have said aggressive panhandling and catcalling are upsetting employees and customers.

Both Wright and del Pozo have suggested that police and judges, when making decision about whether to arrest someone or what penalties to impose, will be able to delineate scoff-laws from people with substance abuse or mental health problems.

The problem, according to the ACLU and Legal Aid, is the act of being arrested and brought before a judge can have negative consequences for people living in poverty.

“Regardless of whether they are released on conditions, on bail, on a plea, after probation revocation, or after dismissal, low-income people commonly lose their jobs, miss rent payments, miss car payments, lose their property which may be left in the open, and lose contact with medical and other service providers—all from even a night or two behind bars,” the letter states.

Should the city move forward with an ordinance criminalizing low-level civil offenses, the ACLU and Legal Aid write that they will “work with impacted individuals to oppose and challenge it.”

The letter highlights a number of different grounds for potential legal challenges to such an ordinance including state laws prohibiting the criminalization of alcohol consumption, provisions against debtors prisons in the Vermont Constitution, and possible violations of the U.S. Constitution.

The ordinance could also run afoul of federal anti-discrimination laws, the letter states, because it’s likely to have a disproportionate impact on people of color and people with disabilities.

So far, the Ordinance Committee has not taken any steps to draft the ordinance called for in the August 28 resolution, said City Councilor Chip Mason, D-Ward 5, the committee’s chair.

An Ordinance Committee meeting scheduled for Wednesday was canceled, and the committee members are still working to find a time for their next meeting.

To read the full letter from the ACLU and Legal Aid, click here.