City Officials try to clean up Burlington
By Kevin Joseph Ryan
The Church Street Marketplace, as most are aware, is a thoroughfare nearly unique to Northern Vermont. In fact, it is one of the few successful pedestrian malls in the United States, attracting hundreds of thousands of visits each year with an attractive brick streetscape, benches, trees and cafes. Locals and tourists are attracted to this city-owned community space in the center of downtown Burlington. However, some are better behaved that others, say city officials.
For the past several years, an influx of the homeless, mentally ill and general ne’er-do-wells have descended on Church Street in what many say are growing numbers. The folks in question spend the day screaming, jumping up and down, fighting and asking for cigarettes and money, say others. While some simply move past this boorish behavior, many are intimidated by it. “That’s a scary thought when you’ve got a fifty-year old lady who’s coming in as a visitor, and saying she’s fine when [her husband] is with her, but she wouldn’t come down by herself.” said Ken Wood of Fremau Jewelers at a recent City Meeting. The Marketplace Commission and its Executive Director Ron Redmond, have been trying to do something about the fears of such people like Wood.
Redmond, acting as the Marketplace representative, has been presenting proposals to the Burlington City Council to tighten up existing rules for behavior on Church Street and the surrounding areas. In 2010, a ban was proposed for sitting on the sidewalk, which was defeated when dozens of city residents objected. An outdoor smoking ban for all of downtown’s public space last year was vetoed by Mayor Bob Kiss and most recently, a re-write of Burlington’s panhandling law was defeated by the Council’s Public Safety Committee on March 20, on constitutional concerns. A new law authorizing police and merchants to issue trespass from the Marketplace itself, remains pending before the Council. These efforts have some concerned that Ron Redmond is at war with Burlington’s poor.
Redmond denies this, saying in an interview that he simply wants to make the Downtown safer for everyone. “We’ve had meetings with all stakeholders where we review these policies to make sure we have good standards,” Redmond said. “We’re seeing a lot more situations where people who normally would act out, and would normally find themselves having to deal with Burlington PD, suddenly, there are fewer and fewer consequences… We’ve had several instances where…their behavior has escalated to the point where BPD has been called, the person’s been arrested, and that individual got released fairly quickly within the day. They’ve been back out on the street…that sends a signal.” What signal does Redmond think that sends? “The Corrections Department seems to be getting out of the business of doing corrections…that’s our experience.”
The recent proposal to increase standards on what Redmond calls “Aggressive Panhandling” are nothing radical, he claims. He pointed out that the City already has a panhandling law, yet he said, “What were doing this round is were trying to tweak ours to it to bring it up to date. We find that panhandlers are really good…we hand them the rules and regulations and they’ve found ways to really work around them.” According to a pamphlet distributed by the Marketplace, “The U.S. Supreme Court has defined panhandling and begging as forms of free speech.” Efforts to find such a case by TNR were unsuccessful, but dozens of cases by Federal Appeals Courts do in fact, protect panhandling as protected speech. One wonders what part of free speech the panhandlers are working around?
Free Speech isn’t really what concerns Redmond; it’s behavior. “The situations are escalating, the consequences are going down.” Said Redmond. He claims the expectations of those exhibiting poor behavior have been on the increase, that they tell him things such as, “I should be able to scream out profanities…you cant stop me, its my right.” When asked about if all the new proposals to curb behaviors, such as smoking bans, trespassing, sitting laws and panhandling regulations were all about the same thing, Redmond was clear, “Yes, I think it is.”
The recent effort to expand regulations on panhandling in Burlington was brought to a close by the Burlington City Council’s Public Safety Commission, led by attorney and prosecutor, Councilman Bram Kranchfield. The general consensus was that the proposal had too many unconstitutional provisions. One such provision would have barred anyone from asking for money in the company of any other person, while another would have prohibited asking for money after 6 PM or before 9 AM. “You can regulate in terms of time place and manner.” Said Redmond When asked why the prohibition after or before certain hours, Redmond said he’d spoken to people who wanted to walk to their jobs and who said, “I want to be able to get to work without crossing paths with somebody.”
Redmond added that while putting together the new ordinance, “I sat in a room with the city attorney and worked on this thing for six months and never once heard that it was unconstitutional. I never got that memo.” The main objection raised by the city committee was that begging would be banned for people who were simply accused of a crime. While admittedly not a lawyer, Redmond did not seem to appreciate this distinction. “No, not under incitement, people with unresolved legal criminal and civil charges (would be stopped).” Redmond said, failing to note that the two were the same thing.
Redmond explained the process for developing such a law. “If you look at ordinances across the United States, the panhandling ordinance we have is pretty much like every panhandling ordinance that I’ve seen in any city which is urban. They’re all pretty standard. They’re all kind of boilerplate in fact,” he said. While there many be some similarity in the wording of such laws across the country, the Department of Justice’s community oriented policing program says, “About half of the states and over a third of major cities in America have laws that prohibit all or some forms of panhandling…they are unlikely to survive a legal challenge.” In fact, many have not.
The Federal Appeals Court has overturned a California law, which placed a blanket ban on soliciting work. The Utah Supreme Court threw out that state’s aggressive panhandling law last week. Such laws have been overturned in several states as being overbroad or not being content-neutral, as they are aimed at people asking for money or work.
Some in Burlington feel that asking for money is not free speech. “Either [the panhandlers are using the street] to exercise their first amendment rights or they’re using it for some kind of gain.” Said Kelly Devine, the Director of the Burlington Business Association. Burlington would have required a permit to panhandle under the defeated ordinance, as they do now for street performers, which may face a legal challenge someday for similar reasons as panhandling, due to The Marketplace requiring auditions for such performers.
As to the poor behavior, some want that regulated even if that behavior isn’t illegal. Burlington Police Chief Michael Shirling pointed out, “The threshold for disorderly conduct or simple assault or something that is already on the books is generally a little bit higher…than the aggressiveness related to panhandling…. We’re trying to get at behaviors which make people very uncomfortable, but are a step below criminal conduct.” He added, “This ordinance in my mind, and the trespass ordinance is just that, it’s about marketing. It’s about setting a standard, a clear and discernable standard. There are certain things that will not be tolerated on the street.”
Free speech can be annoying, and boorish behavior can be intimidating for those who feel it interferes with their right to walk the streets safely. Strange personalities are part and parcel of living in an urban environment. No one likes to be approached repeatedly by unwashed characters asking for handouts, which happened to this author in downtown Burlington, literally ten minutes before writing this sentence you are reading now. The caution here, with a combination of potentially unconstitutional standards for speaking or acting in public, together with trespass orders for public streets given to those who by all accounts, are not criminals, should give us all pause.
What is done to the annoying, and how we treat fools today, is how we could be treated tomorrow. We have disorderly conduct laws, and perhaps we should demand that criminals not be treated with kid gloves. However, throwing the First Amendment under the bus to get at a few bad apples could backfire. Do we want public servants to enforce the law, or do we want them to subjectively judge us and our neighbors? I hope Burlington’s Marketplace finds the right answer.