[B]URLINGTON — A federal court judge is allowing a lawsuit to go forward that alleges city police and code enforcement officers pressured a landlord to evict a local man for calling police too frequently.
The suit is being brought by the American Civil Liberties Union of Vermont on behalf of Joseph Montagno, who was evicted from his 184 Church Street apartment last year.
“Burlington’s policy of retaliating against renters who call for help is unsafe and unconstitutional. We welcome the court’s decision and Mr. Montagno looks forward to pressing his case against the city so that no other renter is punished for seeking help from police,” said ACLU staff attorney Jay Diaz in a news release touting the judge’s ruling.
Burlington had sought to have the case dismissed, but U.S. District Court Judge Christina Reiss issued a split ruling dismissing some counts in the ACLU’s complaint but allowing the others to proceed.
City Attorney Eileen Blackwood also said she was pleased with the ruling as it “narrowed the issues in contention at this early stage of the proceeding.”
“As the case proceeds to discovery, the court’s legal reasoning will allow us to better address the central issues,” Blackwood added.
The suit is being brought on behalf of Montagno, who became homeless for a period of time following his eviction.
Montagno’s former landlord, Joe Handy, owner of Sisters and Brothers LLP, a major Burlington rental company, terminated Montagno’s lease for “no cause” and later initiated an eviction proceeding against him, according to the lawsuit. Handy’s company refused to end its eviction proceeding against Montagno unless he agreed to leave by Aug. 31, 2016, six months before his lease was up.
Police had identified 184 Church St. as the source of the greatest volume of 911 calls in the city, according to a Burlington Free Press report from last year.
Police responded to the apartment complex 178 times from January 2015 to April of this year, the report says. At least 46 of those calls came from Montagno, according to the lawsuit. In one incident that occurred in May, a neighbor threatened Montagno with a metal pipe.
Officers arrested the neighbor, who was charged with simple assault and disorderly conduct. The neighbor was subsequently ordered by a court not to go within 10 feet of Montagno, according to the lawsuit.
Data on the city’s website show call volumes from 184 Church Street are down dramatically in the first quarter of 2017. The building did not make a list of properties with at least six calls in the first quarter of the year.
After the eviction proceeding against Montagno began, there were several occasions where he was concerned about neighbors’ activity, but he was too fearful to call police, according to the lawsuit.
The ACLU lawsuit states that police were keeping detailed spreadsheets recording police activity at 184 Church St., including whether any one of the 26 tenants there was “involved in a call, whether or not they were the caller.”
Without commenting on specific allegations in the lawsuit, Burlington Police Chief Brandon del Pozo defended his department’s practice of collecting call data, including who made the call and where it originated. Police continue to periodically monitor that data for trends, he said.
“It is why, for example, we can identify certain households for domestic violence intervention as trouble in them mounts, or see a person’s criminal and medical incidents increase as their opioid abuse reaches crisis levels. We can see crime spike at certain addresses or on certain streets,” the chief said by email.
“Identifying these trends and patterns allows for better resource allocation in policing for both people involved in incidents and their neighbors,” he added.
However, the central allegation in the ACLU lawsuit is that Burlington police and Code Enforcement officers use that data to label tenants at certain properties as a “public nuisance,” and then threaten their landlords with the loss of their certificate of compliance, which is needed to rent a property in the city.
The lawsuit says that’s what happened to Montagno, and that the city’s actions violated his First Amendment right to petition the government, as well as violating constitutional due process rights and state laws. Judge Reiss dismissed some of the due process claims in the lawsuit, but allowed the First Amendment and state law claims to proceed.
In an email from September 2015, obtained by the ACLU through a public records request, Burlington Police Lt. Matthew Sullivan emailed Code Enforcement Director Bill Ward providing him with a spreadsheet of police activity for 184 Church St., and asked if there was a “code angle” that could be used to “reduce calls,” according to the suit.
Ward sent a letter to Handy on Feb. 4, 2016, identifying 184 Church St. as a “nuisance property” and “problem property based on police calls for service and Code Enforcement complaints.” In that letter, Ward threatened to suspend Handy’s certificate of compliance for the property if call volumes to police from his tenants were not stopped or significantly reduced, according to the lawsuit.
Handy then met with Ward and Burlington police on Feb. 12, 2016, and was again told to reduce call volumes from his tenants, according to the suit. Del Pozo said in a previous interview that at that meeting Handy told officers he had already begun eviction proceedings against some of his 184 Church St. tenants.
It was not until after that meeting, however, that Handy initiated an eviction proceeding in Chittenden County Superior Court against Montagno, according to the lawsuit. Diaz has said the filing is dated Feb. 17, 2016.
The next day, Handy sent a letter to tenants at 184 Church St. stating that “nuisance calls need to stop … If people continue to call for nuisance calls we will be forced to start evicting people,” according to the suit.
A day later, Lacey-Ann Smith, a community affairs liaison for Burlington police, emailed Handy a spreadsheet that included the name of eight 184 Church St. tenants and how many times they called police in 2015 and 2016.
Ward continued to pressure Handy to “take more direct action” against tenants that were frequently calling police over the next several months, which resulted in Handy pushing a settlement on Montagno in the eviction proceeding that required him to leave his apartment six months before his lease ended.
Montagno agreed to leave early only because he feared losing his Section 8 housing voucher and getting a negative reference from Handy’s company when he sought new housing, according to the lawsuit.
Now that Judge Reiss has ruled on the city’s motion to dismiss the case, its lawyers — they’ve hired private attorney Pietro Lynn to assist with the case — will file a response to the ACLU’s complaint. At that point, discovery will begin, and it could be months before the case goes to trial if the case isn’t resolved by settlement or in some other way.
