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ACLU pushes Brattleboro on panhandling ordinance

Interviews with the town manager and an ACLU of Vermont attorney about the town’s interaction with people on public property asking for money

This interview is adapted from the recent broadcasts of Green Mountain Mornings on WINQ-AM (formerly WKVT) and is published with the station’s permission. Host Olga Peters was for many years the senior reporter at The Commons and now writes for the paper part-time. The show airs daily from 6 a.m. to 9 a.m. To hear audio of the show on demand, visit the show’s Soundcloud page at soundcloud.com/wkvtradio.

BRATTLEBORO—Panhandling. Begging. Asking for donations. Regardless of the terminology, asking people for money has remained a hot-button issue for the community. From conversations at Selectboard meetings to special community discussions about the topic to printed booklets, everyone has an opinion.

Recently, the American Civil Liberties Union weighed in. As part of a national campaign, the Vermont chapter sent letters to six Vermont towns with anti-begging ordinances on the books. At stake for the ACLU: towns potentially infringing of people’s First Amendment rights with these rules and regulations, which are designed to legally prohibit people from communicating on public property.

Brattleboro has such an ordinance. Town officials have been vocal about not enforcing the ordinance and plan to remove it during a larger update of the town’s regulations. Officials have often cited the First Amendment as one reason the police no longer enforce the ordinance.

What follows are two interviews sharing two different points of view. Jay Diaz, the staff attorney for the ACLU of Vermont, spoke with me on Sept. 12. Brattleboro Town Manager Peter Elwell first addressed the issue in an interview on Sept. 5, following a Selectboard meeting where the topic was discussed at length.

Peter Elwell

Olga Peters: So, Peter, could you tell us: Is the town still enforcing its anti-begging ordinance? If it’s not, why is it still on the books?

Peter Elwell: The town hasn’t enforced that ordinance as long as anyone can remember. It is a completely outdated inappropriate ordinance for current law and current understanding of how we build community and live together in community in situations that involve some level of distress and conflict in the world.

There was a time when it was common for communities to have something on the books that said if somebody is asking for money — referred to quite bluntly in the ordinance as “begging” — the police were empowered to remove that person from the town.

That sort of action hasn’t happened certainly here in a long time. For as long as I’ve been the town manager for the last 3{1/2} years, we’ve had a lot of communication and community conversation about some of the ways in which poverty is more visible these days and the appropriate town role in addressing that.

We have been making sure that we are adequately investing ourselves in solutions for people who are struggling as well as in addressing concerns from some people in the community about safety and other concerns about quality of life in Brattleboro.

We’ve been deep into this work with what I believe is a full commitment to respecting everyone’s dignity and addressing these issues in a cautious and thoughtful manner that isn’t about calling anybody “those people” or that kind of of a knee-jerk response. Our response has been completely different from what’s reflected in an ordinance that was adopted maybe 100 years ago, I frankly think.

O.P.: Yeah, it’s really arcane language in that ordinance.

P.E.: So the town has been ignoring its ordinance. We’ve had not only explicit commitment to working with folks who are asking for money and with folks who are addicted and with other folks who are visible in our community and struggling in their lives. We have been working with them and have provided support services to them. But we also explicitly have said, “That ordinance is unenforceable, it’s unconstitutional; it sits there on a piece of paper, but we’re doing nothing with it.” We’ve had that conversation explicitly at Selectboard meetings and in other settings.

You ask why it still is on the books. Well, frankly, we’re a New England community that’s going on 300 years old, and all over the country there are places where you do a review of the code of ordinances and say, “Oh, my gosh, how is that still in there?”

This is one of those. It needs to come out. We would have eventually taken it out at some point when we do an overall cleanup of our ordinances. It’s going to come out sooner now because of the ACLU’s communication.

It was distressing to us in town government that the town of Brattleboro and our outdated and unconstitutional ordinance got thrown in the same pot with five other Vermont communities and 250 communities across the country in what was clearly an effort by the ACLU to draw visibility to this issue. We respect them for that. We think it’s unfortunate that they did it as you described it — in such a finger-pointing or finger-wagging way.

O.P.: Well, to be fair to the ACLU, they did base their decision in part on their public-records request of police reports. And there was, what — 450 reports?

P.E.: About 450 pages worth of reports.

O.P.: These reports dated back to 2015 or maybe even earlier. So it wasn’t like they just looked at the ordinance and made this decision. They felt they were making an informed decision based on data.

P..E.: Right. They did. And at last night’s Selectboard meeting, at the opening of the meeting under chair’s remarks, Kate O’Connor made some comments much as I’m speaking about it with you. And she invited the ACLU officials to come to Brattleboro, take a look, walk around with us.

So, honestly, I think that the justification, if you will, that was cited by the ACLU exists in black and white on paper, but anybody who has spent some time in our community in recent years can see that it’s not what’s going on on our streets.

In a police report where a police officer has responded to a complaint, where there might be a couple of people having an argument in the Harmony Parking Lot about something, it may likely be that as part of de-escalating that situation that the officer would ask both parties to separate and that would show up in the police report as something that might be interpreted as the police “moving along” a person who was asking for money.

As a matter of fact, those sorts of conflicts happen on our streets every single day and on everybody else’s streets every single day.

One of the main things that police officers do we often hear them called “peace officers” is maintain a more peaceful situation so that something doesn’t get out of hand. And so, yeah — there are times when somebody is asked to move, but nobody’s ever asked to stop asking for money, and nobody is ever hassled or threatened with arrest or anything like that unless what’s going on at the scene of that particular interaction involves some sort of threatening or harmful behavior. It’s never about the mere act of asking for money, which we explicitly respect as a constitutional right.

O.P.: I know you sent one communication to the ACLU expressing your concerns, and they did respond. Have you had any further conversations with them?

P.E.: The ACLU could have been a lot less confrontational, but arguing about that we don’t think is really the main point. Repealing the ordinance and doing the best we can to manage challenging situations on our streets in a way that respects everybody’s rights and everybody’s dignity — that’s the challenge, and we’re refocused and fully committed to that.

O.P.: Both you and I heard a very interesting part of the conversation at the Sept. 4 Selectboard meeting: the conversation that discussed the distinction between feeling safe and being safe. To me, I think that’s the core of why we keep coming back to this issue around panhandling and drug addiction and these other issues. What can the town do about that?

P.E.: First of all, I want to acknowledge that some people have expressed feeling less safe in Brattleboro. We hear that, and we know that that is a substantial-enough concern that it requires attention.

But I want to make the point that quite a few people even in those very same public conversations come up to the microphone and say, “I don’t feel unsafe.”

And so, we’ve got not just an issue about perception versus reality, but actually a scenario where different people have different perceptions of what’s actually happening on our streets. That’s one background point.

The second background point I think is really important for us to just accept as adults in 2018 in America is that poverty is more visible, as are other life struggles. The impact of addiction and drug trafficking that fosters addiction is impacting our community, and it’s impacting every community across the country. Certainly any community of our size or greater.

What’s fueling this perception debate, what’s fueling the perception of those who are feeling less safe, is the visibility of folks who are in great need compared to how many such people we would see even maybe 10 years ago, and certainly 30 or 40 years ago.

O.P.: And traditionally in rural communities poverty has been less visible — not that it hasn’t been there, but it’s been hidden a little bit better.

P.E.: That’s true. That’s a good point. A whole lot better.

So with those two points as background, let’s get to the nub of the matter of what the town should be doing about it. Well, frankly, there isn’t a thing for the town to do about it.

I think we all fully realize now that there is a lot of different things that need to be done. The town can’t do it all, but the town has a role to play together with others. What we tried to do at the last Selectboard meeting really for the first time as explicitly as we did — it’s come up a little bit in previous conversations — is to make sure that folks understand that the conversation we’re having and the decisions we are making relate to the perception of safety rather than the actual level of safety.

All of our statistics through the police department and other measures indicate people are not harming other people, people are not stealing from other people, people are not threatening other people to any greater degree than ever went on before. There’s always been those kinds of behaviors. But we don’t see them very often. When we respond to that kind of a situation, we take police action to address it.

It’s not to suggest that there aren’t appropriate actions to take even to address perception concerns — we’ve made a decision to add some lighting in the parking garage. But it’s important for us to recognize these measures as being more about perception and less about actual threats to public safety.

Part of this is to manage how we’re talking with one another and try to make sure that we’re making thoughtful decisions and taking thoughtful actions together rather than acting out of fear.

O.P.: This is a conversation that involves everyone in the community, and if we’re responding out of fear, then we will exclude some folks in the community by kind of a knee-jerk reaction. That’s just not going to take us forward.

P.E. Exclude and demonize. We don’t solve anything by classifying people and saying it’s about those people.

Jay Diaz

Olga Peters: The ACLU is looking at the issue of anti-begging or anti-panhandling ordinances across the country. How is that working right now? Have you heard anything from the rest of the country?

Jay Diaz: This national strategy that the National Law Project on Homelessness and Poverty put together has already had a huge impact. There’s been 250 letters sent to so about 250 towns about these ordinances in 12 states ranging all the way from Vermont to Hawaii. There were numerous articles around the country, and numerous cities and towns across the country are planning to repeal their ordinances or are reviewing them. I think that we’re getting the desired impact.

O.P.: How about in Vermont?

J.D.: Yes. We sent six letters, to Winooski, Montpelier, Brattleboro, Bennington, Rutland Town, and Barre. And we heard back from almost all of those locations, I think all save Bennington. They also are going to take a look at their respective ordinances, thanked us for the letter, and said that they would be reviewing it internally and possibly act on it.

I think Montpelier is going to be looking at repeal in the coming weeks, and Barre has already discussed the repeal at its council. And I believe Brattleboro is also going to be discussing it in October.

So we’re hopeful that the towns will get these ordinances off the books, given that they are plainly unconstitutional, and that they move forward with some of the good work that they’re already doing and additional work that they could be doing.

O.P.: Asking for donations or asking for money is considered protected free speech. Is that the main reason the ACLU is concerned about these ordinances, or are there other reasons?

J.D.: It’s definitely first and foremost. The ACLU has a nearly-100-year history of seeking to protect and expand freedom of speech. We always try to do that and it’s most important to do that for the most marginalized populations and the most marginal speech — the speech that is most disfavored.

After the Great Recession and the unfortunate increase in homelessness and poverty in the country as well as Vermont, we have seen an increase in these ordinances across the country because people are noticing more panhandling on the streets and in their towns. So it’s necessary to keep upholding those First Amendment protections.

We do so for a number of reasons. We want to make sure that those protections are not whittled away so political speakers and speech that we don’t like are not curtailed in any way in the future. And that’s how 25 of 25 courts that have looked at these ordinances around the country have also seen it.

O.P.: As someone else who works closely with the First Amendment, I think you raised a really interesting good point: that sometimes you have to protect the speech that people don’t want to hear to protect the speech that later we want to hear.

J.D.: That’s correct. We’ve seen that over that over the decades. It’s typically the most-marginalized groups that are having their speech clamped down upon.

You saw that happen against the NAACP in the ’60s and ’70s, and you saw it happen against the Black Lives Matter movement, and you saw it happen against LGBTQ groups. Our goal with the First Amendment is that we don’t pick and choose, because that’s when things start to get dicey for the speech we really want to support.

O.P.: Behind the scenes, there has been a lot of work and conversation around this ordinance and conversation about eventually getting it off the books. I know the ACLU did a public-document request in addition to putting together this letter, and you received a number of police reports from the town. Were there things in those public records that piqued your interest, or does your concern come despite the fact that the town has done some work on its own?

S.D. Yes, absolutely. We recognize that the town has done good work and a number of times we saw attempts by the town to connect people to services, to have a little more outreach, to say, “OK, maybe we’ll ticket people or maybe we’ll try to push people along, but we won’t arrest them for this stuff if we don’t have to.”

However, we saw in about 400 pages of police reports from Brattleboro and another 50 or so pages of emails from within the police department, that over the last several years there were certain kinds of confusing directives to officers for when they encountered panhandlers or received complaints about panhandling. There were some pretty hard-charging language in those emails which we thought did not comply with First Amendment restrictions.

And in addition, we saw a number of police reports —more than from any of the other cities — that referenced panhandling and strictly panhandling, not just someone who has a sign on a bridge or someone you know had a sign on a sidewalk and was being told that they had to leave and being kind of pushed along, which is the chilling of their First Amendment protected speech. So when we saw that, we said, “OK, we see a town doing good work, but we also see the rhetoric not matching the action.”

We want to really push the town in the right direction and make it clear that we’re noticing that and we want to prevent the need to prevent liability for the town, to prevent the need for us to go file litigation.

O.P.: So help me understand. Say a police department receives a call saying, “There’s someone panhandling, I feel uncomfortable. Will you please look at this?” How do they deal with the situation so the community member feels heard but at the same time they protect the free speech of the person with the sign or who’s asking for money?

J.D.: That’s a good question. I think that the best way would probably be to get a little more information to determine whether it’s possible a crime has occurred. Just because someone calls saying there’s someone with a sign or someone asking for money on the sidewalk, that is not a crime or a ticket-able offense, that’s simply someone exercising their free speech rights.

If someone feels uncomfortable, it’s understandable — no one wants to see people have to be out there on the street asking for money. It’s not something anyone is really comfortable with because it makes us feel bad and makes us feel like we’re not living up to our standards as a community.

There’s a lot of generalized fear around people who are homeless — and we should recognize that a lot of panhandlers may not be actually homeless but are still just people in poverty.

O.P.: I want to circle back to something you said earlier in our conversation, that since the 2008 credit crunch the ACLU has noticed a rise in some of these anti-panhandling, anti-begging ordinances. Are there other trends around poverty that you’ve been seeing?

J.D.: Absolutely. A number of different types of ordinances and just general community policies have come up around the country. I think the underlying cause is a failure of leadership at the state and federal levels. Many communities, especially small communities in Vermont, don’t have the resources to provide housing for all, and all the support services are probably more efficiently provided at the state level.

Those resources are just not coming to our communities as they were. So I encourage communities to go to their state legislators and to the governor and say, “We need these resources because this is the impact it’s having on local communities.”

A host of other ordinances have come up around the country: no camping, no sleeping, no sitting on a sidewalk or in parks, upped enforcement of pedestrian rights of way. We’ve had people being charged with trespassing in parks, we’ve had community groups banned from feeding the homeless, and all kinds of stuff. And it’s really shined a light on the problem.

And thankfully, in a lot of these cases, the First Amendment or other constitutional rights have been vindicated by the courts, and these ordinances have been modified or shut down. An Idaho ordinance around camping was struck down by the Ninth Circuit Federal Circuit Court, which said that just because there’s no shelter available and people are homeless you can’t criminalize them for doing a universally required act such as sleeping outside on public property because they have nowhere else to be and there’s no way to avoid it. It was struck down by the Eighth Amendment, which prohibits cruel and unusual punishment.

So we’re trying to push back and take the stand that the Constitution prevents these things in a lot of circumstances, and that you must look for other solutions besides criminalizing those protected acts or trying to chill those protected speech.

O.P.: Some of the people who spoke to me from the town of Brattleboro felt a little frustrated that a national organization was pinning them to the wall, perhaps for their own purposes rather than because of what the town’s actually doing. Can you respond to that?

J.D.: In regards to Brattleboro, I have trouble with that. We’ve seen what’s going on in the police reports. It’s all very clear: they were written by officers who went to or who saw somebody or went to a certain location upon a complaint and wrote in their own words, “I saw a person with a sign, I told them they have to move and that they’re not allowed to have signs asking for money (or they’re not allowed to ask for money). And I got them to leave.”

That’s the quintessential chilling of free speech that governments are not permitted to do.

As an organization that puts a high value on the First Amendment, we have to respond. And while national forces are coming into play here, that certainly doesn’t excuse the chilling of First Amendment or violation of other constitutional rights.

The Constitution is the floor. Any kind of government whether local state or federal, cannot go below that floor. And that’s that’s what we’re trying to ensure in this case.

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Originally published in The Commons issue #477 (Wednesday, September 19, 2018). This story appeared on page A1.

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